In the Missouri Court of Appeals Eastern District
DIVISION THREE
) No. ED109493
)
IN THE INTEREST OF: D.L.P., T.H., ) Appeal from the Circuit Court of W.C.H., A.G.H., AND R.S.M.H. ) Washington County )
) Honorable Wendy W. Horn )
)
) Filed: December 7, 2021
Introduction
Biological Mother (“Appellant”) appeals the judgment of the 24th Judicial Circuit Court (“trial court”) terminating her parental rights following a hearing.
Appellant raises four points on appeal. In Point I, Appellant argues the trial court erred and abused its discretion in denying her motion to reopen the evidence following the trial court’s judgment. In Point II, Appellant argues the trial court’s finding grounds existed to terminate her parental rights was against the weight of the evidence. In Point III, Appellant argues the trial court erred in terminating her parental rights because the evidence presented against her only proved she is poor. In Point IV, Appellant argues the trial court misapplied the law by failing to state the clear, cogent, and convincing evidence standard in its judgment terminating her parental rights.
Points II and IV are granted. We remand to the trial court for proceedings consistent with our opinion. Because Points II and IV are dispositive, we decline to address Points I and III.
Factual and Procedural Background Appellant is the mother of five children, four of whom are the subject of this appeal.
Appellant’s children were taken into Washington County Children’s Division custody on November 20, 2018, following an October 12, 2018 report indicating Appellant and her children were living in a shed without central heat, refrigeration, or running water. Some children did not have beds and shared a blanket. Twenty-five dogs lived in the shed. There was very little food.
An investigation conducted by the Children’s Division alleged the children were subjected to an unstable and unsafe living environment in Appellant’s care. The investigation included the allegation Appellant’s children had been periodically held out of school by Appellant and on other occasions attended school filthy and caked in mud, having gone weeks to months without bathing. The children did not own toothbrushes. The children were occasionally forced to find alternate housing with family and friends while the electricity in their home was out for several days at a time. The children were hungry and got in trouble for eating at home. The children occasionally asked neighbors for food.
Appellant consented to a social service plan in December 2018. The plan set forth several requirements, including participation in parent aid and substance abuse services; drug screening; counseling; and acquisition and maintenance of a stable home environment free of safety hazards, with working utilities and adequate space for Appellant and her children. The home was to be obtained within ninety days and maintained during the case. The plan also required Appellant obtain employment within sixty days and maintain the employment during the case. Appellant had to provide verification of the employment within twenty days of obtaining it.
3
Appellant agreed to acknowledge her past abuse and to attend all school meetings and medical appointments about her children and meetings with the Children’s Division. Appellant consistently paid court-ordered child support.
The Children’s Division asserted Appellant has affection for her children and kept in contact with the Division but did not obtain suitable housing or employment following the removal of the children from her care.
At Appellant’s termination of parental rights hearing on November 12, 2020, Julie Yearous (“Yearous”), a caseworker with the Children’s Division, testified Appellant lived in multiple places during her involvement with the case. Yearous testified in 2019 Appellant lived in a group home without room for Appellant’s children. Appellant’s living space was compared to a dormitory bedroom. Caseworker Emily Brown (“Brown”) testified on March 8, 2019, she conducted a home visit while Appellant was residing with her boyfriend, Biological Father, Biological Father’s girlfriend, and other children in a three-bedroom home. The house was cramped and Brown believed the required setup of beds to accommodate the children presented a fire hazard. The Children’s Division’s report indicates Appellant also lived in a one-bedroom home with her boyfriend. Children’s Division case manager Tonya Shearin (“Shearin”) testified at the time of the hearing Appellant lived in a two-bedroom home with her boyfriend’s family without room for “any children.” The investigation indicated Appellant claimed she applied for a three-bedroom apartment but never rented it.
Yearous testified the Children’s Division was denied entry to the most recent home.
Appellant stated in her brief home visits were rebuffed in this residence due to the Covid-19 pandemic. Yearous testified she was “reluctantly” allowed in the home by Appellant’s boyfriend
4
in August 2020, and she observed the home was not appropriate for reunification of Appellant and her children.
Yearous testified Appellant obtained reliable transportation under her social service plan, but the vehicle still could not seat Appellant and all her children at one time.
The Children’s Division’s report indicated Appellant did not maintain and verify employment suitable to support the children throughout the case. She had been employed with a nursing home but was laid off and received only unemployment income. Brown testified she worked with Appellant from January through July 2019, and Appellant never verified she had employment. Shearin testified Appellant’s boyfriend was injured at work and the couple was waiting on a large settlement to help obtain housing.
Both parties agree Appellant did not complete her counseling. Testimony by Children’s Division employees clarified this was due to the failure of the Division to secure funding. Before this failure, Appellant regularly attended required counseling services.
Following the hearing, the 24th Judicial Circuit Court terminated Appellant’s parental rights on November 23, 2020. The court found grounds for termination existed under sections 211.447.5(3) and 211.447.5(5) and termination was in the children’s best interest.1 This appeal follows. We will include additional factual and procedural history below as necessary to address the parties’ arguments.
1 All statutory citations are to RSMo (2018), unless otherwise indicated. The trial court’s judgment refers to section 211.447.5(6) in reference to the parental unfitness ground for termination. Unfitness was codified under section 211.447.5(6) until August 28, 2018, when the ground was relocated to section 211.447.5(5). We apply the version of the statute in effect when the petition for termination of parental rights was filed. In re S.L.J., 3 S.W.3d 902, 905 (Mo. App. S.D. 1999). Because the petition was filed in May 2020, we apply the updated version of the statute. The ground itself is substantially the same. See Int. of E.B.R. v. E.R., 503 S.W.3d 277, 283 (Mo. App. W.D. 2016).
5
Standard of Review
We will affirm the trial court's judgment terminating a party's parental rights unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re S.Y.B.G., 443 S.W.3d 56, 59 (Mo. App. E.D. 2014) (citing In re C.J.G., 75 S.W.3d 794, 797 (Mo. App. W.D. 2002)). The judgment will be reversed only if we are left with a firm belief the judgment is wrong. Id. The evidence is viewed in the light most favorable to the trial court's judgment and we defer to the court's determination regarding credibility of witnesses. S.Y.B.G., 443 S.W.3d 56, 59 (citing In re J.M.S., 83 S.W.3d 76, 82 (Mo. App. W.D. 2002)). The party seeking termination bears the burden of proof in a termination of parental rights proceeding. Id.
Discussion
A court’s decision to terminate parental rights is an exercise of an awesome power we do not review lightly. Int. of T.M.L., 615 S.W.3d 100, 103 (Mo. App. E.D. 2020) (citing In re J.R., 347 S.W.3d 641, 645 (Mo. App. E.D. 2011)). A parent's right to raise her children is a fundamental constitutional right. J.R., 347 S.W.3d at 644 (citing In re C.F., 340 S.W.3d 296, 298 (Mo. App. E.D. 2011)). To terminate a person’s parental rights, a court must conduct a two-step analysis. S.Y.B.G., 443 S.W.3d at 59.
First, the trial court must find by “clear, cogent, and convincing evidence” one or more grounds for termination of parental rights exists. S.Y.B.G., 443 S.W.3d at 59 (citing In re G.G.B., 394 S.W.3d 457, 472 (Mo. App. E.D. 2013)). “Clear, cogent, and convincing evidence” is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the trier of fact is left with an abiding conviction that the evidence is true. S.Y.B.G., 443 S.W.3d at 59 (citing In re E.F.B.D., 245 S.W.3d 316, 319 (Mo. App. S.D. 2008)).
6
This standard may be satisfied even when evidence contrary to the trial court's finding is presented or the evidence might support a different conclusion. Id.
If the trial court finds at least one of the statutory grounds for termination exists, the court must then determine whether, by a preponderance of the evidence, the termination of parental rights is in the child's best interest. S.Y.B.G., 443 S.W.3d at 59 (citing In re K.A.C., 246 S.W.3d 537, 543 (Mo. App. S.D. 2008)). The “best interest” determination is a subjective assessment based on the totality of the circumstances. S.Y.B.G., 443 S.W.3d at 59 (citing G.G.B., 394 S.W.3d at 472). We review the trial court's best interest determination for an abuse of discretion. S.Y.B.G., 443 S.W.3d at 59 (citing In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004)). An abuse of discretion occurs only when the trial court's ruling is “clearly against the logic of the circumstances and so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” S.Y.B.G., 443 S.W.3d at 59 (quoting In re S.R.J., Jr., 250 S.W.3d 402, 406 (Mo. App. E.D. 2008)).
Section 211.447 provides the statutory grounds for judicial termination of parental rights.
The trial court found grounds existed for the termination of Appellant’s parental rights under section 211.447.5(3) and section 211.447.5(5). These are separate grounds for termination and we will affirm the trial court’s ruling if either is appropriate. Missouri Dep’t of Soc. Servs., Children’s Div. v. B.T.W., 422 S.W.3d 381, 394 (Mo. App. W.D. 2013) (citing In re B.J.H., Jr., 356 S.W.3d 816, 825 (Mo. App. W.D. 2012)) (“[O]nly one statutory ground need be proven to support termination[.]”).
Under section 211.447.5(3), a court may terminate parental rights if it finds the children have been under the court’s jurisdiction for at least one year and the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to
7
exist, there is little likelihood those conditions will be remedied at an early date so the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. This ground is colloquially called “failure to rectify.” In re A.L.M., 354 S.W.3d 645, 653 (Mo. App. S.D. 2011).
In reaching a termination decision under failure to rectify, the court must make findings regarding (a) the terms of a social service plan and the extent of its completion; (b) the success or failure of the Division to aid the parent in adjusting their circumstances or conduct to provide a proper home for the children; (c) any relevant mental condition; and (d) any relevant chemical dependency. Section 211.447.5(3). These four factors are not separate grounds for termination by themselves, but categories of evidence the court may consider along with all other relevant evidence in determining whether grounds for termination exist under section 211.447.5(3). S.Y.B.G., 443 S.W.3d at 60 (citing G.G.B., 394 S.W.3d at 468). Although the court must consider and make findings as to all four factors, the proof of just one is sufficient for termination. S.Y.B.G., 443 S.W.3d at 60–61 (citing In re N.M.J., 24 S.W.3d 771, 783 (Mo. App. W.D. 2000)).
The trial court found the children had been under its jurisdiction for more than one year;
conditions of a potentially harmful nature continued to exist with little likelihood those conditions would be remedied at an early date allowing the return of the children to Appellant in the near future; and continuation of the parent-child relationship would diminish the children’s prospects for an early integration into a stable and permanent home. Regarding the additional four factors, the court found Appellant made some progress in complying with her social service plan, but did not complete it by the time of the hearing; did not have an appropriate home for the children; could not supervise all her children at one time; did not have adequate employment to
8
support the children; could not transport all the children at one time; and had not completed counseling services required by the plan. The court found efforts of the juvenile officer, Children’s Division and other agencies to aid Appellant to provide a proper home for the children failed. The court found Appellant continued to have great difficulty parenting and supervising all of her children at one time during supervised visitation. The court found Appellant does not have a relevant mental condition or chemical dependency. The court found Appellant did not commit any deliberate acts or allow deliberate acts of others which she knew or should have known subjected the children to a substantial risk of physical or mental harm.
Under section 211.447.5(5), the court may terminate parental rights if it finds a parent is unfit to be a party to the parent-child relationship because of a consistent pattern of committing a specific abuse including, but not limited to, specific conditions directly relating to the parent and child relationship determined by the court to be of a duration or nature that renders the parent unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, or emotional needs of the child. This ground is called “unfitness.” In re K.A.W., 133 S.W.3d 1, 21-22 (Mo. banc 2004).
Determining grounds to terminate existed under section 211.447.5(5), the court specifically found Appellant did not have an appropriate home for the children, had ongoing “great difficulty parenting/supervising” them all at one time, and did not financially provide for their care in Children’s Division custody before a child support order.
Once the court has identified grounds for terminating parental rights, section 211.477.7 requires the court, before entering its termination judgment, to analyze seven factors, where applicable. In re J.S.W., 341 S.W.3d 881, 886–87 (Mo. App. E.D. 2011). These factors aid the court in determining whether termination is in the children’s best interest. S.Y.B.G., 443 S.W.3d
9
at 66. The best interest determination is a subjective assessment based on the totality of the circumstances and must be found by a preponderance of the evidence. Id.; J.S.W., 341 S.W.3d at 887 (citing P.L.O., 131 S.W.3d at 789). Findings under these factors are discretionary and we review only for an abuse of discretion. S.Y.B.G., 443 S.W.3d at 66 (citing N.M.J., 24 S.W.3d at 783). The court found termination was in the children’s best interest after making findings on each factor.
Point II: Social Service Plan Completion In Point II, Appellant argues the trial court erred in finding sufficient grounds existed to terminate Appellant’s parental rights due to Appellant’s alleged failure to complete her social service plan.2 Appellant argues this finding was erroneous because she received inadequate assistance from the Children’s Division, which failed its duty to provide funding for the counseling. G.G.B., 394 S.W.3d at 471. Appellant also argues the court erred in finding Appellant failed to satisfy the portion of her plan requiring she obtain adequate housing because the Children’s Division and other relevant agencies failed to provide the proper services to help her find a suitable home. Appellant argues the court’s finding she failed to complete the plan was against the weight of the evidence and the court erred in finding harmful conditions still existed as of trial, because, she argues, as of the date of the termination hearing she had satisfied every requirement of her plan except the counseling.
2 Movant’s Point Relied On raises several issues for our review. Distinct claims of error should be raised in separate points. Collapsing disparate contentions of error into a single point relied on violates Rule 84.04(d). Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 167 (Mo. App. S.D. 2002). Points containing multiple issues are multifarious and preserve nothing for appellate review. City of Joplin v. Wallace Bajjali Development Partners, L.P., 522 S.W.3d 327, 330 (Mo. App. S.D. 2017). We have the discretion to review non-compliant briefs ex gratia where the argument is readily understandable. Scott v. King, 510 S.W.3d 887, 892 (Mo. App. E.D. 2017) (citing Null v. New Haven Care Ctr., Inc., 425 S.W.3d 172, 177–78 (Mo. App. E.D. 2014)). We cautiously exercise this discretion because each time we review a noncompliant brief ex gratia, we send an implicit message that substandard briefing is acceptable. It is not. Null at 892.
10
Appellant implicitly argues the court erred in finding she failed to complete her plan because full completion is not essential to escape termination of parental rights. In re S.M.H., 160 S.W.3d 355, 368-69 (Mo. banc 2005) (citing In re C.N.G., 109 S.W.3d 702, 707 (Mo. App. W.D. 2003)).3 Appellant “additionally” argues the court erred in finding Appellant abused or neglected her children and potentially harmful conditions existed at the date of trial. Appellant does not expressly state which ground or grounds she is challenging in her Point Relied On and its language tracks only failure to rectify.4 Appellant argues the original circumstances, Appellant housing herself and her children in a shed, were far removed from Appellant’s situation on the date of termination and following termination, because she claims she obtained new housing, employment, and transportation. Because Appellant claims she has improved her position, she asks “how the trial court could have possibly found that ‘the conditions that brought about the court’s jurisdiction still exist, or other potentially harmful conditions currently exist.’”
Respondent argues Appellant’s failure to provide her children with proper care, custody, and control is a potentially harmful condition which continues to exist under section 211.447.5(3). Respondent argues Appellant has demonstrated both failure to rectify and parental unfitness in her failure to complete her social service plan, which required her to obtain appropriate housing, employment, and transportation. Respondent also argues Appellant’s difficulty in supervising her children during supervised visitation supports the court’s termination decision. Respondent argues Appellant’s failure to complete counseling supported
3 Appellant’s brief is at times difficult to understand. Respondent’s brief is also substandard. Parts of it are presented in an unfinished draft format. We urge both parties to do better in future efforts before this Court. 4 In conducting review ex gratia, we have the discretion to review readily understandable arguments. Scott, 510 S.W.3d at 892. We exercise this discretion cautiously. Id. Because Appellant discusses both failure to rectify and unfitness in her discussion, and Respondent’s brief also addresses both grounds, we understand Appellant’s argument to address both failure to rectify and parental fitness grounds.
11
termination because even though it ended due to the Children’s Division’s failure to provide funding, Appellant did not “follow up to readdress” the counseling required by her social service plan. Respondent argues the counseling was important because Appellant’s children have special needs.
Respondent argues because Appellant did not obtain appropriate housing, employment, or transportation, and she cannot properly supervise the children at one time, agency efforts have failed to aid Appellant on a continuing basis to adjust her circumstances or conduct to provide an appropriate home for the children. Respondent argues Appellant’s case resembles A.L.M., in which a parent’s rights were properly terminated because his late adjustments and assurances of obtaining proper housing in the future was outweighed by his record of inability to comply with his social service plan. 354 S.W.3d at 654. Respondent notes a parent’s inability to comply with a social service plan is strong evidence supporting termination. K.A.W., 133 S.W.3d at 10.
Respondent must prove grounds exist to terminate parental rights. In re A.S.W., 137 S.W.3d 448, 452 (Mo. banc 2004) (citing In re C.W., 211 S.W.3d 93, 98 (Mo. banc 2007) (overruled in part on other grounds by In re B.H., 348 S.W.3d 770 (Mo. banc 2011))). Respondent’s evidence for termination included allegations Appellant failed to complete her social service plan; failed to acquire a higher paying job, failed to obtain a larger home and car than her residence and vehicle at the time of termination; and had difficulty supervising all her children at one time.
We first address Appellant’s alleged failure to satisfy her service plan. A party’s compliance with a social service plan is a required consideration under failure to rectify and also offers predictive evidence for parental unfitness. K.A.W., 133 S.W.3d at 10 (“[I]t is error for a trial court to ignore [compliance with a plan] when considering termination of parental rights”).
12
Although Appellant failed to obtain an appropriate home and did not keep the Children’s Division apprised of her employment as required by her plan, she did complete all counseling made available to her, did not miss a court-ordered child support payment, satisfied drug testing protocols, acknowledged her past failures, and completed parenting classes. A parent need not complete a social service plan in its entirety to avoid termination of her parental rights. In re C.F.C., 156 S.W.3d 422, 431 (Mo. App. E.D. 2005) (citing In the Interest of S.J.H., 124 S.W.3d 63, 68 (Mo. App. W.D. 2004)). Although a trial court must consider the extent to which the parties have made progress in complying with its terms, this progress need not be full or substantial. Id.
Any failure by Appellant to complete her social service plan cannot support termination under failure to rectify because the Children’s Division failed its duty to help her complete it. The Children’s Division and related agencies must provide reasonable, continuing, and diligent efforts to assist the parent. C.F.C., 156 S.W.3d at 430 (citing In re B.S.B., 76 S.W.3d 318, 333 (Mo. App. W.D. 2002)). All reasonable means to help a parent remedy their adverse conditions should be utilized. Id. We will not terminate parental rights under failure to rectify where such efforts have not been made. Id.
Uncontroverted evidence at Appellant’s hearing clarified Appellant’s failure to complete counseling was solely the fault of the Children’s Division. A social worker with Counseling Solutions, LLC, who counseled Appellant from February 2019 to June 2019, testified the counseling sessions were not completed and abruptly stopped because Children’s Treatment Services funds and authorization became “difficult.” The social worker testified their policy is to not conduct counseling services without authorization. Because this failure was no fault of Appellant it does not suggest she failed this aspect of her plan.
13
Employees of the Children’s Division who were assigned to Appellant’s case could not describe at the termination hearing what assistance, if any, they had rendered to Appellant in finding better housing or employment. Children’s Division caseworkers testified they merely checked in with Appellant rather than offering counsel or helpful suggestions. One caseworker, Yearous, testified she and her colleagues did not even know what resources were available to Appellant because they were unfamiliar with the jurisdiction.
Because the Children’s Division failed to adequately assist Appellant, her parental rights cannot be terminated under failure to rectify. Id. To terminate Appellant’s parental rights, grounds must therefore exist under the other ground provided in the trial court’s judgment, parental unfitness. S.Y.B.G., 443 S.W.3d at 59.
Appellant’s alleged failure to complete her plan fails to establish grounds existed under parental unfitness, because plan noncompliance is not an independent ground for termination of parental rights. In Int. of K.M.A.-B., 493 S.W.3d 457, 474-75 (Mo. App. E.D. 2016). We therefore must consider whether the remaining evidence regarding Appellant’s current condition is clear, cogent, and convincing, instantly tilting the scales in favor of termination under parental unfitness. C.F.C., 156 S.W.3d at 431 (citing S.J.H., 124 S.W.3d at 68); S.Y.B.G., 443 S.W.3d at 59 (citing E.F.B.D., 245 S.W.3d at 319). When reviewing a trial court's termination of parental rights, appellate courts must examine the trial court's findings of fact and conclusions of law closely. Id. (citing P.C., 62 S.W.3d at 603).
The evidence offered against Appellant in addition to her compliance with the social service plan was her failure to obtain a vehicle large enough to seat all her children at one time, her failure to obtain a larger house, and her failure to obtain “employment that can support the children.” Section 211.447.5(3) does not limit the trial court’s duty to assess all relevant
14
evidence in determining whether, on the whole, clear, cogent, and convincing evidence supports termination of parental rights. S.Y.B.G., 443 S.W.3d at 60 (citing G.G.B., 394 S.W.3d at 468).
It is uncontroverted Appellant had a vehicle at the time of her termination hearing.
Appellant’s alleged failure to obtain a larger vehicle was not included in Appellant’s social service plan and does not otherwise demonstrate Appellant “is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse[.]” Section 211.447.5(5). Appellant’s transportation is logistically undesirable and may present challenges. However, because termination of parental rights is tantamount to a civil death penalty, we strictly construe section 211.447.5(5). K.A.W., 133 S.W.3d at 12. A small car does not constitute a “specific abuse” or affect Appellant’s ability to “care appropriately for the ongoing physical, mental, or emotional needs” of the children. Id.
Although Appellant’s failure to verify her employment is relevant to completion of her social service plan, low income is not a basis for termination of parental rights. Int. of E.B.M., 609 S.W.3d 919, 926 (Mo. App. W.D. 2020). Appellant’s alleged inability to supervise all her children at one time likewise does not support termination under parental unfitness. The Children’s Division’s investigation and testimony by Children’s Division employees assert supervised visitation with Appellant was “chaotic” and could render Appellant “frazzled.” Respondent contends inadequate supervision presents a danger to these children. However, one of the Children’s Division’s employees acknowledged supervised visitation occurs in unnatural settings and unfamiliar places such as conference rooms where the children came together from their individual custody arrangements.
To terminate parental rights under parental unfitness, there must be clear, cogent, and convincing evidence the parent’s shortcomings endanger a child and cannot be remedied in the
15
reasonably foreseeable future. K.A.W., 133 S.W.3d at 20. Termination under parental unfitness is appropriate where there is a consistent pattern of a specific abuse. Section 211.447.5(5). It is an extraordinary judicial act. K.A.W., 133 S.W.3d at 12. Grounds under this section have been found where a parent is absent from a child’s life due to extended incarceration or ongoing drug use prevents a parent from caring for their child’s ongoing needs. Int. of K.L.M., 615 S.W.3d 128, 131 (Mo. App. S.D. 2021); In re D.D.C., 351 S.W.3d 722, 732 (Mo. App. W.D. 2011). Appellant has attended counseling services and parenting classes, regularly attended supervised visitation, and has passed recurring drug tests. The trial court found Appellant is interested in her children. Appellant’s difficulty supervising her children does not rise to the level of specific abuse warranting termination under parental unfitness. Section 211.447.5(5).
The court’s finding further services would not change Appellant’s circumstances is undercut by uncontroverted testimony offered at the termination hearing which clarified the Children’s Division did not even have a basic understanding what resources were available to Appellant.
Respondent’s reliance on A.L.M. is unjustified. There, a father’s parental rights were not terminated merely because he did not obtain better housing, but because he also had demonstrated a failure to adjust his circumstances to provide for his children’s serious mental and physical impairments. 354 S.W.3d at 654. The court did not hold parental rights may be terminated only because a person lives in a small home. Id. Poverty alone is not a basis for termination of parental rights. E.B.M., 609 S.W.3d at 926 ("Father lacks financial resources, but poverty has nothing to do with loving a child").
Because the Children’s Division failed in its duty to assist Appellant, Appellant’s failure to complete her social service plan is not an independent ground for termination, and the
16
remaining evidence outside of the plan does not provide clear, cogent, and convincing evidence establishing grounds for termination exist, the trial court’s judgment terminating Appellant’s parental rights was against the weight of the evidence as to both parental unfitness and failure to rectify grounds.
This case presents us with difficult considerations. We recognize the trial court is in a better position to judge the people involved than we are. S.Y.B.G., 443 S.W.3d 56, 59 (citing J.M.S., 83 S.W.3d at 82). Appellant’s late efforts to find appropriate housing and verify her employment are not promising. It is possible Appellant and her children will find themselves in another termination hearing later. If that happens, such a delay would not be in the best interests of the children. We do not reverse the trial court lightly.
But the law is clear. We may not assess the best interests of the children until after the State has proven grounds for termination exist. S.Y.B.G., 443 S.W.3d at 59 (citing K.A.C., 246 S.W.3d at 543). The “clear, cogent, and convincing” evidence must “instantly tilt” in favor of termination. S.Y.B.G., 443 S.W.3d at 59 (citing E.F.B.D., 245 S.W.3d at 319). The Children’s Division’s failure to provide counseling, to provide Appellant with assistance with housing or employment, or to even know what resources were available to Appellant is inexcusable. The trial court found Appellant has a job, she has a car, she is not chemically dependent, she is not mentally ill, and she has no significant criminal history. Appellant attended visits and she paid ordered support. The trial court found she did not abuse the children or allow others to abuse them. Appellant needs help with housing and with obtaining a better job. The State must attempt to provide her with that help before it can take her children away from her. G.G.B., 394 S.W.3d at 471. The evidence here does not “instantly tilt” in favor of termination. S.Y.B.G., 443 S.W.3d at 59 (citing E.F.B.D., 245 S.W.3d at 319).
17
Because the Children’s Division’s failure to assist Appellant is dispositive in our failure to rectify analysis, we remand for further services rather than immediate reunification. A court may not terminate parental rights for failure to rectify where required assistance has not been provided by the Children’s Division. C.F.C., 156 S.W.3d at 430 (citing B.S.B., 76 S.W.3d at 333). The trial court will decide if termination is appropriate if Appellant, after receiving the assistance required of the Children’s Division, is unable to rectify the conditions. Appellant deserves the opportunity to rectify her situation with the assistance of the Children’s Division.
Point II is granted.
Point IV: Sufficiency of the Court’s Judgment Language In Point IV, Appellant argues the trial court erred in failing to include the applicable evidentiary standard in its judgment terminating her parental rights. Respondent argues this claim has not been preserved. We agree with Appellant.
To preserve for appellate review the trial court's failure to make statutory findings in a termination judgment, an appellant must move to amend the judgment under Rule 78.07(c) 5; In re Holland, 203 S.W.3d 295, 301 (Mo. App. S.D. 2006). Rule 78.07(c) applies to termination of parental rights cases. J.A.R. v. D.G.R., 426 S.W.3d 624, 626 n.5 (Mo. banc 2014) (citing J.L.G., 399 S.W.3d at 48). The claimed error is not preserved unless a motion to alter or amend the judgment is filed which specifically challenges the language of the judgment, including failure to make findings mandated by statute. Holland, 203 S.W.3d at 302. Courts have held this issue is not preserved where the record is “void of any indication” the issue was raised in the motion to amend the judgment. In re Marriage of Bottorff, 221 S.W.3d 482, 485 (Mo. App. S.D. 2007). The issue is preserved where Appellant files a motion which puts the trial court “on notice” of an
5 All rule citations are to the Missouri Rules of Civil Procedure (2021) unless otherwise indicated.
18
alleged error relating to the form or language of the judgment. Stuart v. Ford, 292 S.W.3d 508, 517 (Mo. App. S.D. 2009).
Appellant’s motion was entitled a “motion to set aside, amend, and reconsider, or, in the alternative, for a new trial.” Because the title of a motion is not dispositive, we examine the contents of the motion to determine the actual nature of the motion brought. In re Marriage of Wood, 262 S.W.3d 267, 273 (Mo. App. S.D. 2008) (citing Gipson v. Fox, 248 S.W.3d 641, 644 (Mo. App. E.D. 2008)). A motion requesting only a new trial without raising a court’s failure to make certain findings suggests its purpose is a motion for a new trial, not an amended judgment. Wood, 262 S.W.3d at 273.
Not only did the title of Appellant’s motion ask for an amended judgment, the language of the motion included a specific challenge to the language of the judgment. Paragraph 31 of Appellant’s motion included the challenge the court “failed to properly include the language required” in finding grounds for termination exist.6 Paragraph 28 points out the burden of proof is clear, cogent, and convincing evidence. This placed the court “on notice” of the defect in its judgment and it should have made the requested change. Stuart, 292 S.W.3d at 517. This issue is preserved for our review.
Appellant argues the court had to explicitly state in its judgment the “clear, cogent, and convincing” burden of proof made applicable by section 211.447 but failed to provide this standard in finding at least one statutory ground for termination existed. Appellant cites B.H., which affirmed the termination of a parent’s parental rights only because the court stated the standard in its judgment as to one ground for termination. 348 S.W.3d at 773. Appellant argues the court has committed reversible error by erroneously declaring or applying the law. Murphy v.
6 The motion alleges “the CD” made this error, but it is clear in context Appellant meant to challenge the action of the trial court.
19
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Appellant also notes a trial court’s findings are closely scrutinized in terminations of parental rights. K.A.W., 133 S.W.3d at 12 (citing In re P.C., 62 S.W.3d 600, 603 (Mo. App. W.D. 2001)).
Respondent does not address Appellant’s contention on its merits.
When reviewing a trial court’s termination of parental rights, we examine the trial court’s findings of facts and conclusions of law closely. K.A.W., 133 S.W.3d at 12 (citing P.C., 62 S.W.3d at 603). We strictly construe termination of parental rights statutes in favor of the parent and preservation of the natural parent-child relationship. K.A.W., 133 S.W.3d at 12 (citing In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984)). Strict and literal compliance with the statutory requirements relating to termination of parental rights is necessary. In re S.L.N., 8 S.W.3d 916, 920 (Mo. App. S.D. 2000) (citing In the Interest of F.M., 979 S.W.2d 944, 946 (Mo. App. S.D. 1998)). Whether the court erroneously declared or applied the law is reviewed de novo. Murphy, 536 S.W.2d at 32.
Section 211.447.6 provides the juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer or the division, or in adoption cases, by a prospective parent, if the court finds termination is in the best interest of the child and it appears by clear, cogent and convincing evidence grounds exist for termination under subsection 2, 4, or 5. The requirement at least one statutory ground for termination explicitly be found by clear, cogent, and convincing evidence operates as a protection of the fundamental liberty interest of natural parents in the care, custody, and management of their children. E.B.R., 503 S.W.3d at 281 (citing B.H., 348 S.W.3d at 776). Those faced with forced dissolution of their parental rights have a critical need for heightened protections. K.A.W., 133 S.W.3d at 12 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). Specific judgment language is critical. See C.F.C., 156
20
S.W.3d at 430-31 (citing In the Interest of C.N.G., 89 S.W.3d 564, 566–67 (Mo. App. W.D. 2002)).
Because the words “clear, cogent, and convincing” appear nowhere in the trial court’s judgment, the judgment is defective and requires reversal.
Point IV is granted.
Conclusion
We grant Points II and IV and remand for proceedings consistent with this opinion.
Because Points II and IV are dispositive, we decline to address Points I and III.
_______________________________
Philip M. Hess, Presiding Judge
Angela T. Quigless, Judge and Colleen Dolan, Judge concur.