Juvenile Officer v. S.W.J.

11 S.W.3d 699, 1999 Mo. App. LEXIS 2325
CourtMissouri Court of Appeals
DecidedNovember 30, 1999
DocketNo. WD 56575
StatusPublished
Cited by32 cases

This text of 11 S.W.3d 699 (Juvenile Officer v. S.W.J.) 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
Juvenile Officer v. S.W.J., 11 S.W.3d 699, 1999 Mo. App. LEXIS 2325 (Mo. Ct. App. 1999).

Opinion

JAMES M. SMART, Judge.

S.W.J. (“Mother”), appeals an order terminating her parental rights with regard to her two children, J.W. and D.T.M., who were ages five and six at the time. The court terminated Mother’s parental rights on September 11, 1998, on the ground of [702]*702abandonment, pursuant to § 211.447.2(1), RSMo Supp.1997.1 Mother contends that the decision to terminate her parental rights was against the weight of the evidence because the Department of Family Services (“DFS”) failed to provide clear, cogent and convincing evidence that Mother had abandoned the children. Further, Mother alleges that DFS failed to show that termination was in the best interests of the children. Mother complains that the trial court did not make specific factual findings as required under § 211.447.3. She also argues that she has repented and ended the abandonment so the grounds to terminate no longer exist.

Affirmed.

Factual Background

On September 12,1995, Mother left J.W. and D.T.M. in the care of a friend because Mother was being incarcerated in the Boone County Jail. On September 15, 1995, Mother’s friend called DFS and informed it that she could no longer care for the children, because, among other reasons, her electricity had been shut off. DFS placed the two children in protective custody on September 16, 1995, and they have been in the custody of DFS since that time.

On August 20, 1997, a petition for termination of parental rights was filed by the juvenile officer, alleging that Mother had abandoned the children. A hearing was held on September 10, 1998. At the hearing, various witnesses testified as to Mother’s numerous attempts at treatment to overcome her crack cocaine addiction. There was also testimony of Mother’s being incarcerated twice during the period that her children were in the custody of DFS.

A witness for the juvenile officer, a drug treatment therapist, testified that she believed Mother could successfully overcome her drug habit and that Mother’s attempts to do so are evidence that Mother wishes to do what it takes to regain custody of her children. The counselor also stated that overcoming an addiction to crack cocaine often requires numerous attempts at treatment.

Additional testimony at the hearing revealed that from the time the children were taken into protective custody in September 1995, until the petition for termination was filed in August 1997, Mother had visited her children on just ten occasions, with only three visits after August 1996.

Although there was testimony that Mother occasionally checked in with the Morgans (the children’s caretakers) to ask about the children, the DFS worker testified that Mother did not ask to speak with the children when she called. The DFS worker also testified that Mother neglected to contact the children on birthdays or holidays. Mother testified that she had given money to the Morgans for the children’s care. The DFS worker stated that Mother had never contributed financially towards the care of her children while they were under the supervision of DFS.

Following is a chronology of Mother’s visits with the children and her numerous attempts at drug treatment.

Time Line:
Sept. 12,1995 Mother incarcerated
Sept. 16,1995 DFS takes children into its custody
Sept.1995 - Aug. 1996 7 visits with children during this year
Jan.1996 - Sept. 1996 3 incomplete attempts at drug treatment
September 20,1996 Visit with children
Oct.1996 & Jan. 1997 2 incomplete attempts at treatment
Feb. 3 & 11,1997 2 visits with children - Valentine’s Day gift to children
March 1997 Visit with children .
March 1997 Inpatient treatment Hannibal Ctr-eompleted successfully
May 1997 Incomplete attempt at drug treatment
June 29 1997 Mother incarcerated
Aug. 7,1997 - Nov. 1997 Mother incarcerated - 4 months
August 22, 1997 Petitions for termination of parental rights filed
September 8,1997 Incomplete attempt at drug treatment
[703]*703Sept. 11,1998 Court terminates Mother’s parental rights

On September 11, 1998, the Boone County Family Court terminated Mother’s parental rights on the ground of abandonment pursuant to § 211.447.2(1), stating, as to both children, that the termination was in their best interests and that the statutory requirements for abandonment had been shown to exist.

Mother appeals.

Standard of Review

On an appeal of a termination of parental rights order, the appellate court views the facts and all reasonable inferences arising therefrom in the light most favorable to the trial court’s order. In Interest of T.T., 954 S.W.2d 429, 481-82 (Mo.App.1997). We will affirm the trial court’s order unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Abandonment

Mother’s first and primary point on appeal is that the decision to terminate her parental rights was against the weight of the evidence in that DFS failed to show by “clear, cogent and convincing evidence” that Mother had actually abandoned her children. She further argues that DFS had failed to show that termination was in the best interests of the children.

A parent’s rights may be terminated on the ground of abandonment only if the party seeking to terminate can prove: (1) that there is “clear, cogent and convincing” evidence that the child has been abandoned by the parent; and (2) that it would be in the child’s best interest to terminate the parental rights, as required by § 211.447. See In Interest of S.H., 915 S.W.2d 399, 403 (Mo.App.1996). “Clear, cogent and convincing evidence” is that evidence which “instantly tilts the scales in the affirmative” and leaves the fact finder’s mind “with an abiding conviction that the evidence is trae.” Id. (quoting In Interest of C.K.G., 827 S.W.2d 760, 765 (Mo.App.1992)). This test may be met despite the presence of contrary evidence before the court. Id.

Mother argues that the juvenile officer has not met the burden of proving that Mother has abandoned her children as required by the statute. Section 211.447.2(l)(b),2 under which the petition was brought, provides that a child has been abandoned if, at the time of the petition, the parent has left a child over one year of age for a period of greater than six months with no provision for parental support and without making arrangements to visit or communicate with the child, without good cause, even though the parent has been able to do so. § 211.447.2(l)(b), RSMo Supp.1997.

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Bluebook (online)
11 S.W.3d 699, 1999 Mo. App. LEXIS 2325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juvenile-officer-v-swj-moctapp-1999.