In the Interest of J.D.P.

406 S.W.3d 81, 2013 WL 4080832, 2013 Mo. App. LEXIS 922
CourtMissouri Court of Appeals
DecidedAugust 13, 2013
DocketNo. ED 99526
StatusPublished
Cited by5 cases

This text of 406 S.W.3d 81 (In the Interest of J.D.P.) 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 J.D.P., 406 S.W.3d 81, 2013 WL 4080832, 2013 Mo. App. LEXIS 922 (Mo. Ct. App. 2013).

Opinion

OPINION

GLENN A. NORTON, Judge.

J.P. (“Father”) appeals the judgment terminating his parental rights to J.D.P. We affirm.

I. BACKGROUND

J.D.P. was born on March 7, 2011, and Father was subsequently determined to be J.D.P.’s parent through paternity testing. J.D.P. was placed into the custody of the Missouri Department of Social Services, Children’s Division (“Children’s Division”) on March 18, 2011. Father was incarcerated at the time of J.D.P.’s birth and remained incarcerated at the time J.D.P. came into the custody of the Children’s Division.

On May 2, 2011, the trial court entered an order requiring Father to complete a number of court-ordered services to be reunified with J.D.P., including: (1) the obtainment and maintenance of financial stability or regular employment; (2) the obtainment and maintenance of appropriate housing; (3) submission to drug testing; (4) enrollment in and successful completion of an approved substance abuse assessment; (5) attendance at no less than two meetings per week of a twelve-step program; (6) enrollment in and successful completion of parenting skills training; (7) submission to psychological and parenting evaluations; and (8) visitation with J.D.P. at mutually convenient times.

On August 14, 2012, a petition to terminate Father’s parental rights was filed. Father remained incarcerated at the time of the termination of parental rights proceedings. During Father’s incarceration, J.D.P. was unable to visit Father due to medical issues, Father made no telephone contact with J.D.P., and Father sent no money, letters, cards, or gifts to J.D.P. At the time of the termination hearing, Father had pending charges for unlawful use of a weapon and still needed to complete many of the court-ordered services required for reunification.

Subsequently, the trial court terminated Father’s parental rights pursuant to sec[83]*83tion 211.447.5(2) RSMo Supp.20121 (abuse or neglect), section 211.447.5(3) (continuous conditions of a harmful nature), and section 211.447.5(6) (unfitness). The court further found that termination of Father’s parental rights was in the best interest of J.D.P. Father appeals.

II. DISCUSSION

A. Termination of Father’s Parental Rights under Section 211.447.5(6)

Father raises three points on appeal. In his first two points on appeal, Father argues that the trial court erred in terminating his parental rights to J.D.P. under sections 211.447.5(2) and 211.447.5(3). In Father’s third point on appeal, he argues that the trial court erred in terminating his parental rights to J.D.P. pursuant to section 211.447.5(6). Only one articulated statutory ground under section 211.447.5 is sufficient to support termination of parental rights if properly proved. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). As set out below, we find that the evidence supports a finding that grounds existed for termination under section 211.447.5(6). Therefore, we need not reach Father’s first or second points on appeal regarding sections 211.447.5(2) and 211.447.5(3).

1. Standard of Review and Statutory Ground for Termination

We will affirm a trial court’s judgment terminating parental rights unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). “As a practical matter, this means the judgment will be reversed only if we are left with the firm belief that the [decision] was wrong.” Id. (internal quotation omitted). An appellate court defers to the trial court’s ability to judge the credibility of the witnesses and will review conflicting evidence in the light most favorable to the trial court’s judgment. In re K.A.W., 133 S.W.3d 1, 11-12 (Mo. banc 2004).

A trial court’s termination of parental rights is an exercise of an “awesome power” and “[t]he constitutional implications of a termination of parental rights also inform the standard of appellate review.” Id. at 12; In re S.M.H., 160 S.W.3d at 362 (internal quotation omitted). Because a parent’s right to raise his or her child is a fundamental liberty interest protected by the constitutional guarantee of due process, an appellate court must closely examine the trial court’s findings of fact and conclusions of law. In re K.A.W., 133 S.W.3d at 12. Accordingly, statutes providing for the termination of parental rights “are strictly construed in favor of the parent and preservation of the natural parent-child relationship.” Id.

Section 211.447.5(6) permits a trial court to terminate parental rights when clear, cogent, and convincing evidence indicates that, inter alia:

The parent is unfit to be a party to the parent and child relationship because of ... specific conditions directly relating to the parent and child relationship either of which are 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.

See section 211.447.6 (permitting the trial court to terminate parental rights to a child when it appears by clear, cogent, and convincing evidence that grounds for termination under section 211.447.5 exist). [84]*84“Clear, cogent, and convincing evidence” is described as “evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In re S.M.H., 160 S.W.3d at 862.

Here, the trial court terminated Father’s parental rights under section 211.447.5(6), finding that Father was unfit to be a party to the parent-child relationship and would remain unfit for the reasonably foreseeable future. The trial court’s specific findings regarding Father’s unfitness are discussed below.

2. The Trial Court’s Judgment was Supported by Clear, Cogent, and Convincing Evidence

In his third point on appeal, Father argues that the trial court’s finding that he was unfit to be a party to the parent-child relationship under section 211.447.5(6) was not supported by clear, cogent, and convincing evidence. Specifically, Father asserts that the trial court improperly presumed Father was unfit solely due to his incarceration. See section 211.447.7(6) (providing that “incarceration in and of itself shall not be grounds for termination of parental rights”).

However, the record in this case demonstrates that Father’s incarceration was not in and of itself the grounds for termination of Father’s parental rights. Rather, the trial court found that Father was unfit to be a party to the parent-child relationship based on evidence of: (1) Father’s complete lack of contact with J.D.P.; (2) the inability of J.D.P. to be returned to Father within an ascertainable amount of time; and (8) the absence of a bond between Father and J.D.P.

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Bluebook (online)
406 S.W.3d 81, 2013 WL 4080832, 2013 Mo. App. LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jdp-moctapp-2013.