In Re PC

62 S.W.3d 600
CourtMissouri Court of Appeals
DecidedDecember 4, 2001
DocketWD 60031, WD 60032, WD 60033
StatusPublished

This text of 62 S.W.3d 600 (In Re PC) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re PC, 62 S.W.3d 600 (Mo. Ct. App. 2001).

Opinion

62 S.W.3d 600 (2001)

In the Interest of P.C., B.M., and C.M.

Nos. WD 60031, WD 60032, WD 60033.

Missouri Court of Appeals, Western District.

December 4, 2001.

*601 Mitzi J. Alspaugh, Kansas City, for appellant.

David Andrew Baird, Maryville, for respondent.

PAUL M. SPINDEN, Chief Judge.

D.M. challenges the circuit court's judgment terminating her rights to parent her three children. She asserts that the state did not establish grounds for terminating her parental rights by clear, cogent and convincing evidence. We agree and reverse the circuit court's judgment.

Authorities at the Division of Family Services took protective custody of D.M.'s children on February 22, 2000, when her 10-month-old infant, C.M., suffered first and second degree burns on the lower half of her body. D.M. had left the infant in the bathtub to go to her kitchen. Apparently, in D.M.'s absence, one of her other children—ages two and five—turned on hot water in the bathtub. On April 5, 2000, the circuit court assumed jurisdiction of the children, finding that D.M. had not properly supervised her children and had neglected them. The circuit court placed them in DFS' custody.

*602 DFS asked D.M. to participate in various programs designed to teach parenting skills and to submit to counseling to help her manage her anger. D.M. completed a parenting skills class, but she did not cooperate with a parent aide who sought to help her interact with her children during visitations with them. D.M. declined counseling during the first eight months that she was in the program but began receiving counseling in January 2001. During the 14 months that her children were in DFS' custody, D.M. moved six times, at times living with men who had been convicted of crimes, including drug usage. D.M. submitted to an evaluation of her drug and alcohol use at the Family Guidance Center in St. Joseph, but she did not participate in the outpatient program recommended by the center. She inquired about an inpatient program but did not follow through.

DFS arranged for D.M. to visit her children three times a week. Two of the visits were at D.M.'s residence and supervised by DFS. The third visit each week was at a site other than her residence and was to be at a time to be scheduled by D.M. After about four or five months, except for one time, D.M. did not show up for any visitations when she was required to go to where the children were, rather than having DFS take the children to her residence. D.M. told DFS that she had no means of transportation to get to the children, but DFS indicated that it could not accommodate her requests to move the "nonhome" visitations to weekends or to the hours that she requested. DFS asked D.M. to participate in a vocational rehabilitation program in St. Joseph, but she did not, claiming transportation problems. At the time of the hearing in this case, she had not been employed for six months.

In August 2000, six months after taking custody of the children, DFS petitioned the circuit court to terminate D.M.'s parental rights under § 211.447.4.[1] Eight months later, after a two-day evidentiary hearing in April 2001, the circuit court ordered termination of D.M.'s parental rights stating that clear, cogent and convincing evidence existed according to §§ 211.447.4(2)(c), 211.447.4(2)(d), and 211.447.4(6) for abuse or neglect and unfitness to be a party to the parent-child relationship.

In reviewing the circuit court's judgment, we consider whether it was supported by clear, cogent, and convincing evidence that established grounds for termination under § 211.447 with consideration of the children's best interests. Section 211.447.5. In making its decision, the circuit court was obligated to maintain a preference for retaining D.M.'s parental rights. In the Interest of D.G.N., Jr., 691 S.W.2d 909, 912 (Mo. banc 1985). Clear, cogent, and convincing evidence "`instantly tilts the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true."' In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984) (citation omitted).

We review the facts in the light most favorable to the circuit court's order. In the Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987). We defer to the circuit court's judgment in matters of credibility. D.G.N., Jr., 691 S.W.2d at 912. The state's burden was to establish only one ground under § 211.447 to support termination of parental rights. M.E.W., 729 S.W.2d at 197.

"[T]erminating parental rights is an exercise of an awesome power and *603 should not be done lightly." In the Interest of T.H., 980 S.W.2d 608, 613 (Mo.App. 1998). It is "a drastic intrusion into the sacred parent-child relationship." Jonathan H. v. Margaret H., 771 S.W.2d 111, 114 (Mo.App.1989). Because termination of parental rights interferes with a fundamental, basic liberty, freedom from governmental interference with family relationships and child rearing—see M.L.B. v. S.L.J., 519 U.S. 102, 116-117, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Herndon v. Tuhey, 857 S.W.2d 203, 207 (Mo. banc 1993)—we review the circuit court's findings of fact and conclusions of law closely.

The first ground for termination asserted by the circuit court was emotional abuse under § 211.447.4(2)(c) for "[a] severe act or recurrent acts of ... emotional... abuse toward ... any child in the family by the parent[.]" The circuit court said in its finding of facts:

It is found ... that [D.M.'s children] have been subjected to recurrent acts of emotional abuse during periods of visitation, including, but not limited to, that the mother repeatedly threatened to spank the children, asked the children if they "wanted their butts whipped," threw the children's toys in the trash, ignored the children during visitation and instead watched television and talked to others either in person or by phone, yelled at her children using profanity, failed to exercise all visitations that were available to her, chased her children in anger, failed to visit the children for portions of December during the Christmas holiday and in general has acted inappropriately with the children since the mid-part of November, 2000.

Threatening to spank a child does not constitute an act of emotional abuse. The General Assembly, in defining child abuse in § 210.110, excluded, from what constitutes emotional abuse, spankings that are "administered in a reasonable manner." The circuit court, therefore, wrongfully factored threats of spanking into its consideration.

As to the other acts, the circuit court heard no evidence of what impact the mother's acts had on the children. We have previously said:

[T]here is no statutory definition of emotional abuse, but emotional abuse has ties to mental abuse. Missouri has long realized that mental deficiencies, problems or abuse may be established by the fact testimony of even lay witnesses describing the actions of the affected party. Barnes v. Marshall,

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Related

In Re Adoption of W.B.L.
681 S.W.2d 452 (Supreme Court of Missouri, 1984)
Herndon v. Tuhey
857 S.W.2d 203 (Supreme Court of Missouri, 1993)
In Interest of SC
914 S.W.2d 408 (Missouri Court of Appeals, 1996)
In Interest of JML
917 S.W.2d 193 (Missouri Court of Appeals, 1996)
Barnes v. Marshall
467 S.W.2d 70 (Supreme Court of Missouri, 1971)
In Interest of JNC
913 S.W.2d 376 (Missouri Court of Appeals, 1996)
In Interest of MEW
729 S.W.2d 194 (Supreme Court of Missouri, 1987)
Reller v. Hamline
895 S.W.2d 659 (Missouri Court of Appeals, 1995)
Juvenile Officer v. L.B.
788 S.W.2d 759 (Missouri Court of Appeals, 1990)
In the Interest of D.G.N. v. S.M.
691 S.W.2d 909 (Supreme Court of Missouri, 1985)
In the Interest of Jonathan H. v. Margaret H.
771 S.W.2d 111 (Missouri Court of Appeals, 1989)
Department of Social Services v. J.F.
35 S.W.3d 497 (Missouri Court of Appeals, 2001)
In the Interest of P.C.
62 S.W.3d 600 (Missouri Court of Appeals, 2001)

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Bluebook (online)
62 S.W.3d 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pc-moctapp-2001.