Missouri Division of Family Services v. A.R.H.

124 S.W.3d 63, 2004 Mo. App. LEXIS 53
CourtMissouri Court of Appeals
DecidedJanuary 20, 2004
DocketNo. WD 62904
StatusPublished
Cited by40 cases

This text of 124 S.W.3d 63 (Missouri Division of Family Services v. A.R.H.) 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
Missouri Division of Family Services v. A.R.H., 124 S.W.3d 63, 2004 Mo. App. LEXIS 53 (Mo. Ct. App. 2004).

Opinion

LISA WHITE HARDWICK, Judge.

A.R.H. (Mother) appeals a judgment terminating parental rights to her daughters, S.J.H. and C.A.H., pursuant to Section 211.447.4(3), R.S.Mo.2000. We reverse the judgment because it is unsupported by clear, cogent, and convincing evidence that conditions of a potentially harmful nature continue to exist with little likelihood of being remedied in the near future.

Factual and PROCEDURAL History

Mother and W.R.H. (Father) were married in 1993. S.J.H. was born of the marriage on December 17, 1995. During an argument between Mother and Father in July 1996, Mother threatened to kill herself and S.J.H. The threat resulted in the juvenile court taking jurisdiction over S.L.H. and placing her in foster care.

[65]*65S.L.H. was returned to her parents’ home five months later under supervision of the Division of Family Services (DFS), with Father designated as sole custodian. A second daughter, C.A.H., was born to Mother and Father on October 27, 1997.

Mother moved away from the family home in early 1999, taking both daughters with her. In April 1999, Mother was jailed after her probation for passing a bad check was revoked when she pled guilty to theft of a cell phone. Mother returned the children to Father’s custody.

Two months later, Father was charged with child endangerment for burning S.L.H. with a cigarette. Both children were placed in foster care, where they have remained since June 1999.

Upon her release from jail in August 1999, Mother initiated contact with DFS and executed written service agreements in an effort to reunite with her children. Mother ultimately failed to comply with the agreements because she pled guilty to misuse of an ATM card and was re-inear-cerated from August 2000 until February 2001.

Mother again contacted DFS upon her release from jail in February 2001 and entered into written service agreements in an effort to regain custody of her daughters. Mother’s compliance was inconsistent with regard to provisions of the agreement requiring her to attend counseling services, pay child support, and report changes in her employment and residence to DFS. However, Mother did comply with provisions requiring her to regularly visit the children, maintain a stable residence, secure employment, attend parenting skills programs, and submit to mental evaluations.

In April 2001, Mother began living with her boyfriend, W.D., and his eleven-year old daughter. W.D. owned a three-bedroom home and was employed with a steady income. The couple became engaged in December 2001 and planned to marry in September 2003.1 S.L.H. and C.A.H. visited Mother in the home with W.D. and his daughter. Mother told DFS she hoped to permanently reunite with the children in that environment.

DFS filed for termination of Mother and Father’s parental rights on October 11, 2002. Father consented to the termination. The petition alleged Mother’s parental rights should be terminated, pursuant to Section 211.447.4(3), because the children had been under the jurisdiction of the court for over a year, conditions existed which were1 potentially harmful to the children, those conditions were unlikely to soon change so the children could be returned to Mother, and the continuation of the relationship with Mother would diminish the prospects of a permanent home for the children.

Following trial on the petition, the court entered a judgment terminating Mother’s parental rights on April 29, 2003. The court found the children faced a risk of potential harm due to Mother’s “ongoing pattern of putting her own needs above those of her children” and Mother’s inability to financially support the children. As examples of her misplaced priorities, the court found Mother did not comply with the DFS service agreements, in that she “failed to refrain from criminal activity while her children were in foster care, failed to successfully complete counseling (once due to her becoming incarcerated and once due to her simply stopping her attendance), failed to obtain psychiatric evaluation in a reasonably timely manner, and she failed to timely notify the Division of Family Services as to changes in her [66]*66work or living circumstances.” The court found a pattern of behavior “in such simple examples as [Mother’s] failure to go to the Valentine’s party at the girl’s school, although she promised to do so.” The court concluded Mother’s testimony was “inconsistent” and “not credible” regarding her efforts to care for and reunite with the children. Based on these factual findings, the court terminated Mother’s parental rights pursuant to Section 211.447.4(3). The court also made findings that the termination was in the best interests of the children.

Mother appeals, contending there was insufficient evidence to terminate her parental rights under Section 211.447.4(3), and that the trial court’s best interest findings were against the weight of the evidence.

Standard of Review

The trial court must follow a two-step analysis in deciding whether to terminate parental rights. In the first step, the court must consider whether the statutory termination grounds have been proven by clear, cogent, and convincing evidence. In the Interest of D.C.S., 99 S.W.3d 534, 538 (Mo.App. W.D.2003). Evidence is clear, cogent, and convincing if it instantly tilts the balance in favor of termination when weighed against the evidence presented by the parent whose rights are at issue. Id.

We review the trial court’s findings under this first step to determine whether clear, cogent, and convincing evidence supports the grounds for termination under the Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) standard of review. In re D.C.S., 99 S.W.3d at 538. We will reverse the judgment only if we conclude that it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. The facts and reasonable inferences are viewed in a light most favorable to the judgment, with due regard given to the trial court’s determination of witness credibility. In the Interest of B.S.B. and B.A.B., 76 S.W.3d 318, 324 (Mo.App. W.D.2002).

If a termination ground has been proven by clear, cogent, and convincing evidence, the trial court progresses to the second step and determines whether the termination of parental rights is in the child’s best interest. In re D.C.S., 99 S.W.3d at 538. Our review of the court’s best interest finding is under an abuse of discretion standard. Id.

The termination of parental rights is “an exercise of awesome power and should not be done lightly.” In the Interest of C.N.G., 109 S.W.3d 702, 705 (Mo.App. W.D.2003). We review these decisions closely because the termination of parental rights interferes with a basic liberty: freedom from governmental interference with family and child rearing. Id.

Sufficiency of the Evidence

The trial court relied on Section 211.447.4(3) as the sole ground for terminating Mother’s parental rights. This provision allows such termination when:

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Bluebook (online)
124 S.W.3d 63, 2004 Mo. App. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/missouri-division-of-family-services-v-arh-moctapp-2004.