L.M.S. v. State

90 S.W.3d 232, 2002 Mo. App. LEXIS 2322
CourtMissouri Court of Appeals
DecidedNovember 27, 2002
DocketNo. 24946
StatusPublished
Cited by4 cases

This text of 90 S.W.3d 232 (L.M.S. v. State) 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
L.M.S. v. State, 90 S.W.3d 232, 2002 Mo. App. LEXIS 2322 (Mo. Ct. App. 2002).

Opinion

NANCY STEFFEN RAHMEYER, Chief Judge.

L.M.S. (“Father”), the alleged biological father of A.P.S., appeals from the termination of his parental rights. Father contends there was insufficient evidence for the juvenile court’s judgment terminating his parental rights to A.P.S. in that he claims his incarceration was the sole ground for termination. We affirm the juvenile court’s judgment.

A.P.S. was born November 2, 1990. Father had been incarcerated in 1983 for robbery; he was incarcerated again in 1991 for 26 months for receiving stolen property. After his release in 1994, he committed a burglary and was sentenced to six years imprisonment as a prior and persistent offender. He also pled guilty to [234]*234failure to appear and was sentenced to one-year imprisonment. He was then released on both offenses in 1998, but subsequently committed the offenses of tampering in the first degree, possession of a controlled substance, and two counts of forgery and has been incarcerated on these offenses since 1999. In summary, Father has been available to parent A.P.S. for only eight months of the child’s life.

A.P.S. was placed in the temporary legal custody of the Missouri Division of Family Services (“DFS”) on November 17, 1999 pursuant to an order of the Circuit Court of Greene County, Missouri Juvenile Division in Case No. 199JU0567 after his mother was arrested for child endangerment and inhaling solvents. Father was provided with a Notice to Incarcerated Parent in October 2000. On April 3, 2001, Greene County Deputy Juvenile Officer Julie Chapman filed a petition to terminate the parental rights of AP.S.’s mother, Father and AP.S.’s unknown biological father. A hearing was held on September 25, 2001 and the juvenile court terminated the parental rights of all the parents in a judgment entered April 15, 2002. Father now appeals.1

The juvenile court’s judgment will be affirmed “unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” In the Matter of M.M., 973 S.W.2d 165, 168 (Mo.App. S.D.1998). “Substantial evidence” means “clear, cogent, and convincing evidence.” In re Marriage of AS. A., 931 S.W.2d 218, 222 (Mo.App. S.D.1996). In order to terminate parental rights, clear and convincing evidence indicating that one or more grounds for termination exist under § 211.4472 must be found. In re Interest of J.L.M., 64 S.W.3d 923, 924 (Mo.App. S.D.2002). The juvenile court is in a superior position to determine the credibility of witnesses and can believe all, part, or none of a witness’s testimony. In re the Interest of S.L.J., 3 S.W.3d 902, 907 (Mo.App. S.D.1999). Where conflicting or contradictory evidence was present at the hearing, we view the facts in the light most favorable to the juvenile court’s judgment. Id. In terminating parental rights the primary concern is the best interests of the child, and thus, the existence of even one statutory ground for termination is sufficient if it is in the best interests of the child. Id. Incarceration, in and of itself, may not be grounds for termination of parental rights. § 211.447.6(6); In the Interest of R_L_K_ 957 S.W.2d 778, 782 (Mo.App. S.D.1997).

Father argues that his incarceration was the sole ground for termination of his parental rights, which is prohibited by § 211.447.6(6). An examination of the record indicates otherwise. According to the judgment, the juvenile court terminated Father’s parental rights based on findings that Father abused and/or neglected A.P.S. and that Father failed to rectify conditions that led to A.P.S. coming into the care of DFS. In finding that Father failed to rectify the conditions that led to A.P.S. coming into the care of DFS, the court specifically found that through Father’s extensive criminal behavior, he placed himself in a position where he could not take advantage of treatment recommendations that would aid him in parenting the minor child. The court also noted [235]*235that Father was not due to be released from prison until approximately 2005.

While § 211.447.6(6) prohibits termination of parental lights based solely upon a parent’s incarceration, it also requires that the juvenile court consider that incarceration in making its decision. Section 211.447.6(6) states that when considering whether to terminate parental rights, the court shall consider

The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights[.]

The juvenile court considered Father’s incarceration and found that Father’s conviction of a felony offense is of such a nature that A.P.S. would be deprived of a stable home for a period of years. The juvenile court also found that the continuation of a parent-child relationship between Father and A.P.S. greatly diminished AP.S.’s prospects for early integration into a stable and permanent home. As noted by the court, a single felony conviction was not the basis of the termination. It was Father’s volitional, extensive criminal behavior that prevented A.P.S. from receiving appropriate parenting from Father.

When A.P.S. first came into the care of DFS, he was placed in a Greene County foster home, but had to be removed due to his aggressive behavior such as hitting a foster brother, pulling out chunks of hair, threatening his foster mother and destroying property. He was then admitted to Cox North Child/Adolescent Psychiatric Unit and diagnosed with conduct disorder and adjustment disorder with depressed mood. It was recommended that A.P.S. be placed in a residential facility that could provide a structured environment and he was placed at Challenge-N-Change. A.P.S. remained at Challenge-N-Change until he was placed with his uncle in May 2000. The uncle subsequently requested that A.P.S. be removed from his home and reported that A.P.S. had been defiant and manipulative, had broken out the window of a boat and a neighbor’s vehicle, was having difficulty with his behavior at school, and took money from his uncle’s home and set the money on fire when he was confronted. A.P.S. was removed from his uncle’s home and returned to Challenge-N-Change on August 25, 2000.

Lisa Alford, AP.S.’s social worker, testified that Father was not considered a placement resource for A.P.S. because his incarceration was expected to continue until April 2005. She also stated that A.P.S. had “some significant behavioral problems” and would be a difficult child to parent even in the best situation, but did well in a “structured, supervised setting” and that permanency outside the parental home was in the best interests of A.P.S. In Aford’s opinion, for A.P.S. to successfully transition to a permanent home, the parent-child relationship would have to be terminated.

Father admitted that he had spent more time in prison than at home with A.P.S. and that AP.S.’s mother provided the majority of the child’s care. He stated that the longest period of time he has spent providing care for A.P.S.

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Bluebook (online)
90 S.W.3d 232, 2002 Mo. App. LEXIS 2322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lms-v-state-moctapp-2002.