IN THE INTEREST OF: J.B.L., a child under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. S.J.C. , 2016 Mo. App. LEXIS 38 ( 2016 )

IN THE INTEREST OF: )
J.B.L., a child under seventeen years of age. )
)
GREENE COUNTY JUVENILE OFFICE, )
)
Petitioner-Respondent, )
)
vs. ) No. SD33979
)
S.J.C., ) Filed: January 25, 2016
)
Respondent-Appellant. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable D. Andrew Hosmer, Associate Circuit Judge
AFFIRMED
S.J.C. (“Mother”), the mother of J.B.L. (“Child”), brings this appeal from a
judgment terminating her parental rights to Child. The trial court found that Mother had
abandoned and neglected Child. Mother brings seven points on appeal, challenging each
of the grounds that the trial court found to support the termination and challenging that it
was in the best interest of Child to have Mother’s parental rights terminated. We find no
error and affirm the judgment.
1
ABANDONMENT
Mother’s first four points claim the trial court erred in terminating her rights on
the grounds of abandonment because the finding (1) was unsupported by the evidence,
(2) was against the weight of the evidence, (3) failed to appropriately apply the law that
Mother had “repented” from any abandonment, and (4) failed to properly weigh the
evidence of Mother’s repentance from the abandonment. Mother admirably sets forth the
challenged proposition, that Child was abandoned, and the favorable evidence to that
proposition.1 She then attempts to explain why the favorable evidence lacks probative
value. Unfortunately for Mother, under these facts, she is not able to rebut the probative
value of the evidence.
Abandonment is:
“a voluntary and intentional relinquishment of the custody of the child to
another, with the intent to never again claim the rights of a parent or
perform the duties of a parent; or . . . an intentional withholding from the
child, without just cause or excuse, by the parent, of [her] presence, [her]
care, [her] love, and [her] protection, maintenance, and the opportunity for
the display of filial affection.”
In re Z.L.R., 306 S.W.3d 632, 635 (Mo.App. S.D.2010) (quoting In re E.F.B.D., 245
S.W.3d 316, 324 (Mo.App. S.D. 2008)). Pursuant to section 211.447.2:2
2. Except as provided for in subsection 4 of this section, a petition to
terminate the parental rights of the child’s parent or parents shall be filed
by the juvenile officer or the division, or if such a petition has been filed
by another party, the juvenile officer or the division shall seek to be joined
as a party to the petition, when:
(1) Information available to the juvenile officer or the division establishes
that the child has been in foster care for at least fifteen of the most recent
twenty-two months; or
(2) A court of competent jurisdiction has determined the child to be an
abandoned infant. For purposes of this subdivision, an “infant” means any
1
See Houston v. Crider, 317 S.W.3d 178, 186-87 (Mo.App. S.D. 2010).
2
All references to statutes are to RSMo Cum.Supp. 2013, unless otherwise indicated.
2
child one year of age or under at the time of filing of the petition. The
court may find that an infant has been abandoned if:
....
(b) The parent has, without good cause, left the child without any
provision for parental support and without making arrangements to visit or
communicate with the child, although able to do so[.]
The favorable evidence supporting the termination on the ground of abandonment
includes the following:
Child came to the attention of the Children’s Division while being treated in the
Neonatal Intensive Care Unit (“NICU”) after Child exhibited symptoms at birth
indicating a withdrawal from controlled substances. Mother had admitted to using
controlled substances during her pregnancy, including methamphetamine and heroin, and
claimed she had checked into a methadone clinic just prior to Child’s birth and was
receiving treatment until the time of birth. Mother was twice requested to take a drug
test; she was a no show for the first test and, although Mother told the Children’s
Division worker that she would “be dirty for marijuana and pain pills,” she tested
negative in the second test. She did participate in “touch times” and feedings in the
NICU while Mother herself was still hospitalized, but not as consistently as she was
requested to and very sporadically after Mother’s discharge. Ultimately, after Child’s
birth, Mother was without stable housing, was unemployed, and had no income while
Child was in the NICU. Further, Mother did not advise the Children’s Division
investigator that she was incarcerated on the day that Child was discharged from the
hospital. Because the investigator did not know where Mother was and because of
Mother’s prior drug history, Child went into the foster care system on her discharge. The
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trial court could have found from this evidence that Mother initially abandoned Child at
the hospital.
After Child entered the foster care system, the Children’s Division attempted a
service plan where Mother would attend in-patient drug treatment upon her release from
jail; however, Mother did not have any contact with the Children’s Division (and, thus,
Child) for six weeks. At that time, she called the Children’s Division to admit to being
arrested again; she also admitted that during the period of time that she had been out of
jail that she had used controlled substances and she had done nothing to be re-unified
with Child. In Mother’s words, she “was a mess” during that period. She was sent to the
Missouri Department of Corrections for parole violations and entered a one-year behavior
medication treatment program to address her drug use issues; however, Mother’s
participation in that program was terminated for two violation reports. Her release date
was pushed back as a result of her failure in the treatment program.
Mother next argues that the following evidence should be considered in the
totality of evidence and makes the favorable evidence finding abandonment lacking in
probative value. Prior to her imprisonment and Child’s release from the hospital, the
caseworker noted that Mother had accumulated suitable supplies for Child, including a
bassinet, clothes, food, and soap. While she was in prison, Mother substantially complied
with her treatment program, including participating in Parents as Teachers, Alcoholics
Anonymous, GED classes, and an anger management program. At the time of trial,
Mother was enrolled in and waiting to begin ICVC, a victims’ impact program. Also, she
had applied for Beauty for Ashes, a Christian-based re-entry program, but had to have
only one year left on her sentence before she could go to the program. She sent letters
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and pictures monthly and offered financial support, although it was turned down by the
caseworker because child support had not been ordered yet.
Unfortunately for Mother, these facts did not convince the trial court that Mother
had not abandoned Child, nor do they compel, under our standard of review, a reversal of
the finding that Mother abandoned Child. First, as noted by the trial court, when Mother
had the opportunity to visit Child while she was out of prison she did not do so; she
admitted that she was a “mess” during the period of time following Child’s birth.
Second, Mother was incarcerated and was not able to continue her previous drug
lifestyle. Mother was given the opportunity to obtain earlier release from prison and,
thus, be able to provide a home for Child by completing a treatment program. Instead,
she received two violation reports, one for a violent offense and one for a very minor
infraction, but both of which caused her to be dismissed from the program and pushed her
release date back. Her one and only job in prison was to prove herself fit as a parent to
Child. She may not have thought of the consequences of her failing the treatment
program but it had a real consequence to her infant child. It delayed the possibility of any
earlier reunification between Child and Mother. Thus, there was substantial evidence of
abandonment and the finding of abandonment is not against the weight of the evidence.
Mother’s first two points have no merit and are denied.
Mother contends that, despite the evidence of abandonment, she subsequently
“repented” of the abandonment.3 “[A]bandonment, once established, continues until
parental care and support are resumed.” In re T.H., 497 S.W.2d 210, 212 (Mo.App.
3
Mother’s third point contends the trial court erroneously declared and applied the law of abandonment
when the real issue of the case was that of “repentance” of the abandonment. We deny Mother’s third point
as it is clear in the judgment that the trial court did explicitly address the issue of “repentance.” Mother’s
substantive arguments on the trial court’s finding are addressed in our analysis of her fourth point.
5
St.L.D. 1973). Further, “[r]epentance of the abandonment may be determined by the
actual or attempted exercise of parental rights and performance of parental duties
following the abandonment.” Id. Mother cites us to the same evidence used to rebut the
proposition that Child was abandoned. The trial court found that because of her actions
prior to and after her admittance into the Department of Corrections, Mother had not
repented of her abandonment. Specifically, the trial court noted the opportunity that
Mother was given for an early release by completing the treatment program made
available to her at the Department of Corrections and her failure to do so. Given our
standard of review, we cannot find the trial court erred in making that finding. Mother
relies upon her lack of “intent” to abandon Child but the trial court could have found that
her actions belie her statement that she did not “intend” to abandon Child. She behaved
in a manner that left an infant without a mother from her birth in February of 2014, until
at least 2016 or early 2017. At no time did Mother actually, or attempt to, exercise her
parental rights and perform her parental duties. The finding that Mother did not repent of
her abandonment is not against the weight of the evidence. Point IV is also denied.
NEGLECT
Because the finding of abandonment is supported by substantial evidence and not
against the weight of the evidence, we do not address Mother’s complaints (Points V and
VI) concerning the finding of neglect.
BEST INTEREST
We will address Mother’s final point regarding a claim of error that it is not in the
best interest of the minor child to terminate Mother’s parental rights. We first note that
Child was separated from Mother at birth, thus, during this entire period of Mother being
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a self-described “mess,” this infant could not provide for herself. Child’s entire life has
been spent without Mother, thus, no bonds have been formed and cannot reasonably be
formed prior to Mother’s discharge from prison. The anticipated release date for Mother
is 2017,4 when Child will be at least three years old. Keeping in mind that it is the best
interest of the child from the facts known to the trial court at the time of trial, we cannot
find an abuse of discretion in the trial court’s finding that it is in the best interest of Child
that Mother’s parental rights be terminated. Point VII is denied.
The judgment is affirmed.
Nancy Steffen Rahmeyer, J. - Opinion Author
Gary W. Lynch, J. - Concurs
William W. Francis, Jr., J. - Concurs
4
Mother testified that she has three potential release dates – earliest release of April 2016, guideline date of
2017, and a maximum outdate of 2021.
7