Interest of B.J.D.B. v. J.B.G.

698 S.W.2d 328, 1985 Mo. App. LEXIS 3569
CourtMissouri Court of Appeals
DecidedSeptember 24, 1985
DocketNo. WD 36208
StatusPublished
Cited by8 cases

This text of 698 S.W.2d 328 (Interest of B.J.D.B. v. J.B.G.) 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
Interest of B.J.D.B. v. J.B.G., 698 S.W.2d 328, 1985 Mo. App. LEXIS 3569 (Mo. Ct. App. 1985).

Opinions

KENNEDY, Judge.

The natural mother appeals the trial court’s order terminating her parental rights. Section 211.447.2, RSMo Supp. 1984. The issue is the sufficiency of the evidence.

Judgment affirmed.

The child, B.J.D.B., born June 3, 1977, came under the custody of the Missouri Division of Family Services as a result of orders of the Juvenile Division entered March 7, 1978. The agency has retained legal custody since that date.

The natural father, F.A.B., has abandoned the child since birth and has not attempted communication with her since she was placed in the custody of the agency. He did not appear to contest the termination of his parental rights.

The natural mother, J.B.G., entrusted her daughter to the care of an aunt when the child was approximately four months old, and entered a state hospital, for psychiatric care. The aunt voluntarily relinquished custody of the child to the Division of Family Services in January of 1978, indicating that she was unable to care for the child. The mother, J.B.G., did not contact the Division until May of 1980, when she appeared briefly, without prior notice, and refused services. She contacted the Division again in October of 1980, and indicated that she wished to establish contact with her daughter, who by that time was over three years old.

In March of 1981, J.B.G. entered the first of three treatment plans with the Division. The length of the plan was 180 days. By the terms of the plan, J.B.G. was required to attend parenting classes at Western Missouri Mental Health Center, have a complete psychological evaluation, maintain an independent living arrangement, and arrange regular monthly visits with her daughter. J.B.G. visited B.J. seven times over the course of the following eleven months, and substantially complied with the other requirements of the treatment plan, but she received an unfavorable report from the social worker assigned to her case. The visits, which took place in the State Office Building, lasted approximately one hour and were observed by the social worker. The social worker testified at the termination hearing that J.B.G. did not appear to be forming a bond with her daughter during the visits, and that the child was “quiet and aloof” during the visits. She did not recommend that the agency return B.J. to her mother.

A second treatment plan was initiated in December, 1982. The trial court modified the plan to deny J.B.G. visitation with the child until she complied with the requirements of the plan. J.B.G. had no contact with her daughter from January, 1982, until the court terminated the visitation in December, 1982. The plan instituted in December, 1982, required J.B.G., among other things, to continue treatment with her doctor at the state hospital, take her prescribed medication, and schedule and keep regular monthly appointments with the social worker. The social worker testified that J.B.G. complied with some of the provisions of the second plan, but only made scheduled office visits for the first few months. J.B.G. did not continue with her recommended psychiatric treatment or medication.

J.B.G. entered a third treatment plan with the Division in May of 1983. At this time she had been denied visitation with her daughter for a year and a half. By the terms of the third treatment plan, J.B.G. agreed to maintain her independent living arrangement, supply child support, call the social worker once a month to schedule an office visit, and appear at the appointed time. She did not schedule any visits, and did not supply child support in kind by bringing the child toys and clothing. The juvenile officer filed a motion to terminate her parental rights August 31, 1983, three months after the third plan was initiated. The motion alleges five statutory grounds for termination, as follows: abandonment, neglect, failure to support, mental condition, and failure to rectify. Section 211.-447.2(2), RSMo Supp.1984.

[330]*330At the termination hearing, the juvenile officer introduced the records of the Western Missouri Mental Health Center regarding treatment of J.B.G. for mental disorders. The records show that she was admitted to Western Missouri for inpatient psychiatric care on seventeen separate occasions between 1972 and the -filing of the petition for termination, and had also been a patient in various other mental hospitals. The trial court found that J.B.G. has been diagnosed as having “an affective disorder, either of a manic depressive or schizoaffec-tive nature, schizophrenia of a chronic undifferentiated type, depressive neurosis, schizoid personality, atypical manic-depressive compounded by habitual excessive drinking and other substance abuse and emotional immaturity and chronic free-floating anxiety.” The court concluded from the medical reports that J.B.G.’s mental condition could be controlled by a regimen of appropriate medication and counseling, which she refuses to follow, and that as a result of her mental condition, she is unable consistently to form an intent or act knowingly.

We must sustain the decision of the trial court unless there is no substantial evidence to support its judgment, the judgment is against the weight of the evidence, or erroneously declares or applies the law. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Missouri law requires the high “clear, cogent and convincing” standard of proof to be met by the authority seeking termination. In re Adoption of W.B.L., 681 S.W.2d at 454. The “clear, cogent and convincing” standard of proof is met when the evidence “instantly tilt[s] 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.” Id. (quoting In re O’Brien, 600 S.W.2d 695, 697 (Mo.App.1980)). But it may be met, even if the court has contrary evidence before it. Id. This test has recently been interpreted as meaning that the court, weighing all the evidence for and against the termination, “should be clearly convinced of the affirmative of the proposition to be proved.” In re J.D.K., 685 S.W.2d 876 (Mo.App.1984) (quoting Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974)).

The authority seeking termination must prove one or more of the statutory grounds for termination. In the Interest of M.N.M., 681 S.W.2d 457, 458 (Mo.App.1984). Only after it has made a determination that one or more of the statutory grounds exists may the trial court reach the issue of the best interests of the child. In re Adoption of M.D.L., 682 S.W.2d 886, 889 (Mo.App.1984). The statute permits termination when the child has come under the jurisdiction of the juvenile court pursuant to the provisions of Section 211.031, RSMo Supp.1984, the custody of the child has not been with the parents for six months or longer, the parents have failed to rectify the conditions that formed the basis for the juvenile court’s jurisdiction, and no reasonable cause exists to believe that the parents will rectify the conditions if given more time.

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Bluebook (online)
698 S.W.2d 328, 1985 Mo. App. LEXIS 3569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interest-of-bjdb-v-jbg-moctapp-1985.