In the Interest of: Q.A.H. Juvenile Officer, C.W.M. and C.D.M. v. M.H. (Mother) , 2014 Mo. LEXIS 19 ( 2014 )

SUPREME COURT OF MISSOURI
en banc
In the Interest of: Q.A.H., )
)
)
JUVENILE OFFICER, )
)
Respondent, )
and C.W.M. and C.D.M., )
)
Respondents, )
) No. SC93677
v. )
)
M.H. (MOTHER), )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable Justine Del Muro, Judge
Opinion issued March 25, 2014
The issue in this case is whether there was substantial evidence to support the trial
court’s decision to terminate M.H.’s (“Mother”) parental rights over Q.A.H. (“Child”).
The trial court determined that Mother had abused or neglected Child in that she had a
mental condition that rendered her unable to provide Child the necessary care, custody
and control and that she failed to provide adequate food, clothing, shelter or education to
Child although she had the financial resources to do so. See section 211.447.5(2). 1 It
further found that she failed to rectify the conditions that led the court to assume
jurisdiction. See section 211.447.5(3).
Mother argues that the trial court’s determination was not supported by substantial
evidence because it failed to consider evidence from her psychiatrist and therapist
regarding her mental condition at the time of the termination hearing, did not connect her
mental condition to the potential for future harm, and disregarded evidence that she was
parenting another child and had attempted to make support payments. This Court granted
transfer pursuant to Mo. Const. art. V, sec. 10. Because a trial court is free to disregard
testimony in making credibility determinations and weighing evidence, it was not error
for the trial court to discredit the testimony from Mother’s psychiatrist and therapist or
find Mother’s custody of another child did not show Mother could provide the necessary
care, control or custody to Child. Additionally, the trial court did not err in finding that
Mother’s de minimus financial contributions did not show that she provided adequate
support to Child before the termination hearing. The judgment is affirmed.
I. Factual Background
In August 2009, Mother suffered from a delusional episode and brought five-
month-old Child to a hospital. Hospital records reflect that Mother stated that both she
and Child had been sexually molested in their sleep by unknown perpetrators and that this
was possible because sedatives were being pumped into their home through the heating
1
All references are to RSMo Supp. 2012.
vents. She further stated that someone placed a listening device inside Child’s vagina
and requested that Child be circumcised and that her vagina be sewn closed. At the
termination hearing, Mother denied making many of these statements but stated that she
still believed it was possible that she and Child were drugged through the heating vents in
their home.
After the hospital visit, Child was placed in foster care and Mother began
psychiatric support and weekly supervised visits with Child. These weekly visits
continued until March 2010, when Mother regained custody of Child for four months.
Mother again lost custody of Child in July 2010, when she refused to allow Child’s father
to have court-ordered supervised visits with Child due to her continued belief that he had
raped Mother. 2 The trial court found that there was no evidence to support this allegation
but that Mother’s delusion was consistent with her mental health diagnosis. It further
found that this continuing belief would likely be communicated to Child at some point
and that this was “a serious risk of emotional harm to the child.” Child was
approximately one year old when this happened. Child is now five years old and has
resided with the same foster parents since Mother lost custody in 2010. 3
After Mother lost custody of Child the second time, she gave birth to a son in
Kansas. Mother was in a relationship with the father of this child for five months, despite
2
Mother and Father were never married, and Father had supervised custody visits. He
voluntarily terminated his parental rights prior to the instant proceedings.
3
Child’s foster parents initiated this action to terminate Mother’s parental rights and adopt Child.
The parties agreed to proceed in a bifurcated fashion so the trial court would not address any
adoption issues until the termination issue was fully resolved.
3
knowing he had a violent history. On one occasion, she called the police while visiting
with her son and his father because she feared for her safety. Mother acknowledged to
her therapist that she had feared for her safety on at least two prior occasions. Records
from the mental health facility where Mother received psychiatric and therapy support
indicated that, as of three months prior to the hearing, Mother was still interested in
pursuing a relationship with her son’s father. Mother also testified that she had
previously been in a relationship with Child’s father, despite her belief that he was
sexually violent towards her because she needed a place to live and did not want to stay
in a shelter.
Although a Kansas court assumed jurisdiction over her son when he was born, it
subsequently granted Mother full custody. The Missouri trial court noted that Kansas
service providers who testified at the termination hearing did not communicate with or
receive information from service providers in Missouri. It concluded that the Kansas
court may not have been aware of the circumstances in the instant case.
In early 2012, Mother moved from Kansas to Missouri. She testified that she
reconnected through the Internet with a man whom she had known since her childhood.
He began supporting her financially by giving her as much as $1,000 per month. After
several months, Mother moved in with the man against her psychiatrist’s advice. From
this time through the termination hearing in September 2012, Mother was unemployed
but did obtain her associate’s degree online. She lived on welfare benefits and the
support of the man with whom she lived.
4
The trial court found that Mother only provided de minimus financial support to
Child for the time that Child was not in Mother’s custody. Mother stated she could have
provided up to $100 per month in child support, and she could have used some of the
money she received from the man with whom she lived for child support as well.
However, she did not provide any financial support while Child was not in her custody
aside from a few small gifts of clothes and small toys. Although she testified that a
children’s division caseworker told her she did not need to provide support for the child,
the caseworker disputed this testimony and the trial court found that Mother’s testimony
was not credible.
Mother had been under psychiatric care for approximately three years before the
termination hearing. Shortly after the 2009 hospital incident, a licensed psychologist
conducted a court-ordered evaluation and diagnosed Mother with psychotic disorder and
possible post-partum psychosis. He noted that she presented a narrative that seemed
delusional but that she was intelligent enough to adjust her statements. While various
different diagnoses have been posited since then, the trial court determined that Mother
has delusions that become her reality and that this presents a clear danger to Child.
Mother’s psychiatrist stated that Mother’s present diagnosis is posttraumatic stress
disorder, but with a possible generalized anxiety disorder, mild depression and mild
delusional disorder. He saw Mother 10-12 times in the three-year period between the
episode at the hospital and the termination proceeding, for usually 15-20 minutes each
time. He did not read assessments from other therapists working with Mother but rather
5
relied on self-reports from Mother. While he testified that Mother was capable of caring
for Child, the trial court did not find him “particularly credible.”
Similarly, Mother’s therapist began meeting with Mother in June 2011 and
continued to see her through the termination hearing. She testified that Mother had a
positive long-term prognosis and was capable of caring for Child. The trial court did not
find the therapist credible because she did not consider information from parent aides
who had been meeting with and supervising Mother. Instead, she relied on self-reports
from Mother, which “undercut” the therapist’s testimony.
In contrast to Mother’s professionals, a parent aide report from two months prior
to the hearing indicated that it “is often not clear if what [Mother] is saying is always the
truth.” Parent aide reports indicated that Mother continued to have “adult” conversations
with Child and continued to have inappropriate developmental expectations for Child,
such as giving too-detailed instructions to manage Child’s behavior, causing Child to
become confused and cry. Two months prior to the hearing, Mother was still working on
her treatment goals of obtaining employment and a stable living environment and
engaging with Child in a developmentally appropriate manner. Her treatment plans from
four months prior to the hearing indicate that she continued to experience unstable moods
and reactivity to life stressors. They also indicate that she was still working toward
establishing and maintaining safe personal boundaries, given her history of engaging in
unhealthy relationships. Further, Mother’s caseworker from the children’s division
testified he did not believe that Mother and Child could be reunited in the foreseeable
future. Child’s guardian ad litem also supported terminating Mother’s rights.
6
Based on the above evidence, the trial court determined there were three statutory
grounds to terminate Mother’s parental rights under section 211.447. It found that
Mother abused or neglected Child in that her mental condition was such that it rendered
her unable to knowingly provide Child with the necessary care, custody and control under
section 211.447.5(2)(a). Additionally, it found that Mother abused or neglected Child by
failing to provide adequate food, clothing, shelter or education despite having the
financial resources to do so, pursuant to section 211.447.5(2)(d). The trial court further
found, under section 211.447.5(3), that Child had been under jurisdiction of the court for
over one year and that the conditions which led to the assumption of jurisdiction
persisted, or conditions of a potentially harmful nature continued to exist, such that there
was little likelihood that those conditions would be remedied at an early date so that
Child could be returned to Mother in the near future, or that a continued relationship
between Mother and Child greatly diminished Child’s prospects for early integration into
a stable home. Mother appeals.
II. Standard of Review
A reviewing court will affirm the trial court’s judgment unless there is no
substantial evidence to support it, it is against the weight of the evidence or erroneously
declares or applies the law. In re Adoption of C.M.B.R., 332 S.W.3d 793, 815 (Mo. banc
2011). The trial court’s judgment will only be reversed if this Court is left with a firm
conviction that the judgment is wrong. Id.
An appellate court reviews conflicting evidence in the light most favorable to the
trial court’s judgment. Id. The reviewing court defers to the factual findings and
7
credibility determinations made by the trial court. Id. If the evidence presents two
reasonable but different inferences, the reviewing court considers the inference in the
light most favorable to the judgment. Id. To terminate parental rights, the trial court
must find clear, cogent and convincing evidence of at least one of the grounds of
termination outlined in section 211.447. Section 211.447.6; In re Adoption of C.M.B.R.,
332 S.W.3d at 815-16.
III. Analysis
The only issue before this Court is whether there was substantial evidence to
support the trial court’s judgment that there was at least one statutory ground to terminate
parental rights. Here, the trial court found three statutory grounds to support the
termination of Mother’s parental rights. To terminate parental rights, courts also must
determine whether termination is in the best interests of the child. In re Adoption of
C.M.B.R., 332 S.W.3d at 815-16. Mother does not challenge the trial court’s
determination that terminating her rights is in Child’s best interests.
Mother contends that the trial court’s determination was not based on substantial
evidence because: (1) it failed to consider evidence of her functioning at the time of the
termination hearing; (2) it failed to find a connection between her mental condition and
the potential for future harm to Child; and (3) it disregarded evidence that she was
parenting another child and had attempted to make some child support payments.
A. Evidence of Mother’s Current Inability to Provide the Necessary Care,
Custody and Control of Child
8
Using the same language as section 211.447.5(2)-(3), the trial court determined
that Mother abused or neglected Child as a result of her mental condition, which was not
likely to be reversed and rendered Mother unable to knowingly provide Child the
necessary care, custody and control. Further, the trial court found that she failed to
rectify the conditions that led the court to assume jurisdiction.
When a parent’s rights are terminated as a result of a mental condition, the
decision must be based on evidence of conduct at the time of the termination, not merely
when jurisdiction was taken. In re K.A.W., 133 S.W.3d 1, 10 (Mo. banc 2004). Factors
that supported the assumption of jurisdiction are relevant, but they must be updated to
reflect functioning at the time of the termination hearing. Id.
Mother contends that the trial court did not consider her current mental health
because it disregarded testimony from her psychiatrist and her therapist that Mother was
capable of parenting Child. The trial court found that they were not credible witnesses
because neither consulted with other service providers and relied primarily on self-reports
from Mother. Mother argues that it was improper for the trial court to reject their “expert
medical opinions” and replace it with the court’s own medical opinion, citing Angus v.
Second Injury Fund, 328 S.W.3d 294 (Mo. App. 2010).
Angus is not instructive in this case. Angus was a workers’ compensation case
involving a dispute over which type of arthritis caused the claimant’s injury. The court of
appeals found that the Labor and Industrial Relations Commission erred in rejecting the
only and uncontroverted expert testimony regarding the medical causation of the injury
9
because the issue of dueling types of arthritis was a “complex medical issue not within
the expertise of an administrative law judge.” Id. at 302.
Unlike Angus, the issue here – whether Mother was able to care for Child – is not
a “complex medical issue.” Further, there was substantial evidence regarding Mother’s
inability to provide the necessary care, custody and control for Child at the time of the
termination hearing from both Mother and trained social services providers. At the
termination hearing, Mother testified that she still believed it was possible that she and
Child were administered sedatives through the heating vents in their previous home,
enabling them to be sexually assaulted without her knowledge. She continued to
maintain the belief that Child’s father raped her, although the father denied this, and the
trial court found the father’s testimony credible.
Additionally, parent aide reports completed shortly before the termination hearing
stated that it is “often not clear if what [Mother] is saying is always the full truth,” which
is consistent with the psychologist’s observations in 2009 that Mother suffered from
delusions but could adjust her statements. A parent aide report from just two months
prior to the hearing indicated that Mother continued to have inappropriate expectations
regarding Child’s behavior and cognitive functioning. Further, at the termination
hearing, children’s division representatives and Child’s guardian ad litem both supported
terminating Mother’s parental rights. A representative from the children’s division
testified that, despite the services offered to and used by Mother, Mother continued to
struggle emotionally during the proceedings and that Mother could not be unified with
Child in the near future.
10
In examining this evidence, the trial court found that Mother’s professionals were
not credible in their assessment of Mother’s parenting abilities. As fact finders, trial
courts are free to believe all, part or none of a witness’s testimony. In re Adoption of
W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984). Because the trial court considered other
evidence of Mother’s mental condition at the time of the termination hearing, it was free
to disbelieve Mother’s professionals. In doing so, there was still substantial evidence that
Mother continued to suffer from the delusions she experienced in 2009.
Mother next argues that the trial court’s judgment should be reversed because it
failed to consider the fact that she was awarded custody of her son from a Kansas court.
A Kansas Court Appointed Special Advocate (CASA) volunteer testified that there were
no concerns regarding Mother’s ability to raise her son. Mother suggests that this shows
her mental condition does not prevent her from being able to raise a child. The trial
court, however, addressed the Kansas proceedings but found that the Kansas service
providers had not communicated with, or received information from, the service
providers in Missouri. As noted before, the trial court is free to disregard and weigh
evidence as it sees fit. See In re Adoption of W.B.L., 681 S.W.2d at 455. As such, the
trial court was free to find this evidence unpersuasive. Additionally, evidence in the
record that would support a different conclusion does not necessarily mean the judgment
was not supported by substantial evidence. 4 See id. at 454.
4
Mother’s argument is also misplaced, as one successful parent/child relationship does not
necessarily mean that the circumstances that led the court to assume jurisdiction have been
11
B. Evidence of Potential Future Harm
When a court relies on a parent’s past behavior to find abuse or neglect, it must
make “some explicit consideration” of whether the past acts indicate a likelihood of
future harm. In re K.A.W., 133 S.W.3d at 9-10. In this manner, the parent’s past conduct
may be good evidence of future behavior, but it must be “convincingly linked” to future
behavior. 5 Id.
It is true, as Mother points out, that Child was not physically harmed when Mother
brought her to the hospital. Threats, however, are a sufficient basis for finding harm to
the child. See, e.g., In re T.L.B., 376 S.W.3d 1, 12-13 (Mo. App. 2011) (court terminated
parental rights when Mother threatened to harm her children). Additionally, the standard
is a prospective analysis and considers whether there is a likelihood of future harm. See
In re K.A.W., 133 S.W.3d at 10. In this manner, the trial court specifically noted that
Mother continued to suffer from delusions that become her reality and that this presents a
danger to Child. For example, Mother continues to believe Child’s father raped Mother.
The trial court noted that this belief would likely be communicated to Child at some point
because the parent aides reported that Mother continues to have “adult” conversations
with Child about topics that are inappropriate for Child’s age. The trial court concluded
remedied with respect to other children. See In re E.D.M., 126 S.W.3d 488, 495-96 (Mo. App.
2004).
5
After the court assumed jurisdiction in this case, section 211.447.10 was enacted. While it is
not applicable to this case, that section cautions that a parent’s disability shall not provide a basis
for terminating parental rights “without a specific showing that there is a causal relation between
the disability or disease and harm to the child.”
12
that it would be a burden for a child to bear such false information about a biological
parent.
Further, after three years of psychiatric support and therapy, Mother continues to
work on her goal of setting healthy boundaries for her personal relationships. See id. (a
parent’s effort to comply with a treatment plan is highly relevant to predicting future
behavior). This was necessary as Mother stayed in a relationship with Child’s father
despite her perception that it was a sexually violent relationship. She also stayed in a
relationship with her son’s father for five months despite feeling he jeopardized her
safety on at least three occasions. Most recently, she moved in with a man against the
advice of her psychiatrist, although both parties deny there is any romantic involvement.
Drawing all reasonable inferences in the light most favorable to the trial court’s
judgment, there was substantial evidence to support the trial court’s finding that Mother’s
personal relationships presented a potential harm for Child despite Mother’s therapy.
C. Evidence of Mother’s Failure to Provide Adequate Support Despite Being
Able to Do So
Finally, Mother argues the trial court erred in finding that she failed to provide
financial support to Child despite having the financial resources to do so. She argues that
the trial court’s decision is not supported by substantial evidence because Mother testified
that she was told not to make child support payments and the one check she did write was
later returned. However, the evidence shows that Mother was told that she did not have
to pay child support during the four months when she had custody of Child in 2010.
There was no other evidence, other than her own statements, that she was told never to
13
pay support. Even had the trial court found Mother credible on this point, a parent’s
obligation to pay support does not stem from the state informing her of this obligation.
See, e.g., In re N.L.B., 145 S.W.3d 902, 908 (Mo. App. 2004).
Despite being able to afford up to $100 per month in child support payments,
Mother never paid any support during the nearly two years Child has resided with the
foster parents before the termination hearing. The few clothes she provided were too
small, and she only purchased a few toys for Child. Other items she purchased were
clearly inappropriate for Child’s age, such as a watch. The trial court found these
contributions to be de minimus. There was substantial evidence to support the trial
court’s determination that Mother failed to support Child.
Further, to support a termination of parental rights based on a failure to adequately
support a child, the parent’s lack of financial support while the child is in foster care must
indicate that the parent will be unable to provide adequate food, clothing, or shelter for
the child in the future. See, e.g., In re C.A.L., 228 S.W.3d 66, 71 (Mo. App. 2007).
While it is true that Mother has obtained an associate’s degree, she had a sporadic work
history before then and has remained unemployed since then. Though she claimed she
could secure employment, at the time of the termination hearing, Mother was living on a
combination of government aid and the generosity of the man with whom she lived.
Without a residence or income of her own, it is unlikely that she will be able to provide
adequate food, clothing and shelter for Child in the future.
14
IV. Conclusion
Under this Court’s standard of review, there was substantial evidence to support
the trial court’s decision to terminate Mother’s parental rights. While the trial court
considered the conditions that led it to assume jurisdiction over Child, it considered
evidence of her current functioning and explicitly found that there was a potential for
future harm. Although the court disregarded the testimony from Mother’s psychiatrist
and therapist, it was free to do so because there was other evidence of Mother’s inability
to provide the necessary care, custody and control. It was similarly free to disregard
evidence that she was raising another child and to find that she did not provide financial
support to Child despite giving Child a few small gifts. In Child’s five years, Mother has
had custody of her for fewer than eight months, and Child has resided with her foster
parents for over three and a half years. Because there was substantial evidence of
statutory grounds for termination and Mother did not contest the trial court’s finding that
termination was in Child’s best interests, the trial court’s judgment is affirmed.
_________________________
Mary R. Russell, Chief Justice
Breckenridge, Fischer, Stith, Draper
and Wilson, JJ., concur; Teitelman, J.,
dissents in separate opinion filed.
15
SUPREME COURT OF MISSOURI
en banc
In the Interest of: Q.A.H., )
)
JUVENILE OFFICER )
and C.W.M. and C.D.M., )
)
Respondents, )
)
vs. ) No. SC93677
)
M.H. (MOTHER), )
)
Appellant. )
Dissenting Opinion
The principal opinion affirms the termination of Mother’s parental rights based in
large part on medical testimony that pre-dated the judgment by nearly three years. While
the evidence in this case provides a snapshot of a troubled past, it fails to demonstrate
clearly that Mother is currently unable to adequately care for the child and that she will
be unlikely to do so in the future. Therefore, I respectfully dissent.
Missouri law is clear that the termination of parental rights must be based on
parental deficiencies at the time of termination. While evidence of past issues is relevant,
the parent-child relationship can be severed only on proof that the parent is currently
unable to adequately care for the child and will be unlikely to so in the future. See In re
K.A.W., 133 S.W.3d 1, 10 (Mo. banc 2004); In the Interest of C.W., 211 S.W.3d 93, 100
(Mo. banc 2007)(the evidence must establish the parent’s “current mental health status
and how that status impacts her present and future ability to adequately parent” the child).
In this case, the evidence establishes that in 2009, Mother suffered mental health
issues. Mother concedes this fact. The dispositive issue, however, is Mother’s parental
unfitness at the time of the termination hearing in 2012. Mother’s psychologist and
therapist both testified that, as of 2012, Mother was capable of parenting. The trial court,
however, chose to discredit this expert testimony in favor of its own diagnosis. The trial
court tied the 2009 evidence to Mother’s present parenting abilities by stating that:
“[D]uring approximately 75% of the trial the mother smiled, grinned
or made exaggerated expressions, which affect is quite unusual in a
termination of parental rights proceeding, but is consistent with the
mental health diagnosis given by Dr. McDonnell [in 2009].”
By expressly tying her observations of Mother’s behavior to Dr. McDonnell’s
diagnosis from three years prior, the trial court’s decision is simply speculative lay
medical opinion and, as such, is well beyond the court’s fact-finding purview. This
opinion, masquerading as “fact,” cannot support the termination of the legal relationship
between Mother and her child. I would reverse the judgment terminating Mother’s
parental rights and remand the cause to the circuit court.
______________________________________
Richard B. Teitelman, Judge
2