In the Interest of D.J.G v. A.B.

426 S.W.3d 700, 2014 WL 1284844, 2014 Mo. App. LEXIS 343
CourtMissouri Court of Appeals
DecidedMarch 31, 2014
DocketNo. SD 32887
StatusPublished
Cited by4 cases

This text of 426 S.W.3d 700 (In the Interest of D.J.G v. A.B.) 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 the Interest of D.J.G v. A.B., 426 S.W.3d 700, 2014 WL 1284844, 2014 Mo. App. LEXIS 343 (Mo. Ct. App. 2014).

Opinion

DON E. BURRELL, J.

A.B. (“Father”) appeals the July 2013 judgment that terminated his parental rights in, to, and over his child, D.J.G., who was born in 2008 (“Child”). See section 211.447.1 Father contends the trial court erred in terminating his parental rights because: 1) “[tjhere was no clear, cogent and convincing evidence that [Father] failed to rectify the situation” as he “substantially complied with the terms of [the] service agreement, there was ... not a mental condition that prevented [Father] from being a parentf,]” and he was not offered appropriate services; 2) “the preponderance of [the] evidence did not support a finding that it was in the best interest of [C]hild” to terminate Father’s parental rights; and 3) “under [section] 211.447.5 ... there was not substantial evidence to support the judgment.”

Finding no merit in Father’s claims, we affirm.

Facts and Procedural Background

We view “evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment.” In re the Adoption of C.M.B.R., 332 S.W.3d 793, 801 (Mo. banc 2011). Our summary of the relevant evidence adduced at trial is in accordance with that standard.

An investigator for the Department of Social Services (“DSS”), Henry Younger, testified that in December 2008, he was assigned to investigate a “hotline [report] regarding physical abuse” of Child. Mr. Younger began his investigation by visiting Child and Child’s family at the hospital. Child was about nine months old at the time, and Mr. Younger’s understanding was that Child had been taken to the hospital because he was “limp” and “lethargic” after being given “adult cough medicine[.]” Mr. Younger observed that “[C]hild had bruises on his back, had a bruise on his ear, [and had] one on [his] leg and cheek.” The bruise on Child’s back “covered a big portion of his back[.]” When Mr. Younger “tried to talk to [Child’s parents] about it, they both just sat there. There was hardly no [sic] emotion.” “Neither parent knew how ... [C]hild received the bruises.”

In addition to his parents, two other adults and a child resided in the same home as Child, and Child also had a babysitter. Because so many people had access to Child, and no one admitted responsibility, Mr. Younger could not determine who had given Child the bruises. Child was not removed from his parents’ custody, but Mr. Younger opened a “family-centered” case, believing that Child’s family was in need of services based on their failure to notice Child’s injuries. And because the identity of the person(s) who had abused Child was still unknown, Child was [704]*704placed in a “kinship diversion” that resulted in his living with a relative after his release from the hospital.

Child’s pediatrician, Dr. Carolyn Ells-worth, testified that Child “has had difficulty with allergies and has always been on medication since [she had] been treating him[.]” Child also had “mild asthma[,]” and he was being seen and treated by a pulmonary and allergy specialist in St. Louis at the time of trial. Dr. Ellsworth testified that Child’s condition would be exacerbated by exposure to secondhand smoke. Child had also suffered seizures, but it was thought that he would grow out of them.

In March 2009, Father submitted to a psychological evaluation by Dr. Loretta Fuge, who evaluated him again in July 2010. Dr. Fuge’s testimony was submitted via deposition, and certain documents she had prepared were offered as exhibits.2 When Dr. Fuge first evaluated Father, he “really didn’t understand why he was being [sic] there to be evaluated.” During that first interview, Father reported having “non-bizarre auditory hallucinations, meaning that that could be anywhere from hearing his name called to things like that.” Father told Dr. Fuge that “he took anger management classes for depression but did not complete the course because he no longer needed them.” Dr. Fuge thought that Father needed to complete an anger management class.

As a result of that first evaluation, Dr. Fuge diagnosed Father as having “Major Depressive Disorder, Recurrent, Severe with Psychotic Features[.]” Based on those diagnoses, she recommended that Father “consider co-parenting with a family member or other trusted, capable person.” Dr. Fuge elaborated that this meant someone “being there [with Father] 24/7” and that “[i]t would be that the other person would be responsible for [Child,] and [Father] would assist in co-parenting.”

In a letter dated April 20, 2009, Dr. Fuge stated that her recommendation regarding co-parenting meant that Father “would not be able to be the primary care giver of [Child] however he could assist with the parenting as long as the primary care giver is physically there.” She stated that “it would not be advisable for [Father] to care for [Child] alone.”3

A DSS Children’s Division (“Division”) caseworker, Olivia Walters, testified that Child was placed into “State custody” in May 2009 when the relative Child had been living with under the kinship diver[705]*705sion was no longer able to care for him. Ms. Walters “served as the case manager” for Child from that time until the end of 2011. When Ms. Walters was assigned the case, Mother and Father were no longer “a couple[,]” and Mother “was married to another individual[.]”

At Ms. Walter’s first meeting with Father (which also involved other representatives from Division and the Juvenile Office), Father “became very angry” and seemed to lose his temper as evidenced by his yelling, cursing, and lack of cooperation. Father “left the meeting early” after refusing to sign any paperwork. Over the course of the case, Ms. Walters “prepared ten written service agreements” for Father. Father refused to sign three of those agreements.

The first goal of the various service agreements was “[t]o address the mental health concerns” of Father. In support of that goal, Father was asked to “participate in individual therapy and follow the recommendations of the therapist.” During a period of “two and a half years[,]” Father “participated in three individual therapy sessions.” Ms. Walters was not aware of Father being “successfully discharged from individual therapy[.]” Father was also asked to participate in anger management services. Ms. Walters received notifications on three separate occasions that Father “was dismissed from anger management classes for failure to attend.” Ms. Walters reviewed records from a behavior health service and calculated that Father had attended anger management classes “[a]bout 25 percent of the time the classes were offered.”

Father was expected to maintain contact with Child. All of Father’s visits with Child were supervised during the time that Ms. Walters had the case. She personally observed about five or six of those visits “at the public library[,]” and she noted that “there was not a whole lot of interaction between” Father and Child. She also did not observe a display of affection between Father and Child. When Ms. Walters visited Father’s home, “the smell of cigarette smoke was obvious.” Ms. Walters was also able to observe Child interact with his foster parents, and she believed that “[o]ver time” a bond had developed between Child and the foster parents. Financial support from Father to Child was in the form of fifty dollars per month withheld from Father’s “Social Security check[.]”

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Bluebook (online)
426 S.W.3d 700, 2014 WL 1284844, 2014 Mo. App. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-djg-v-ab-moctapp-2014.