L.R.K v. Greene County Juvenile Office , 2003 Mo. App. LEXIS 388 ( 2003 )

KENNETH W. SHRUM, Judge,

dissenting.

I respectfully dissent. This record persuades me that Mother’s neglect of these children was proven by clear, cogent, and convincing evidence, and that the juvenile court did not abuse its discretion in finding that termination of Mother’s rights was in the children’s best interests.

It is of paramount importance that courts look to the totality of a parent’s conduct, both prior to and after the termination petition has been filed. In re A.S., 38 S.W.3d 478, 485 (Mo.App.2001). A parent’s conduct after the filing of the termination petition cannot be the sole consideration of the court’s decision. In re 24 S.W.3d 771, 780[10] (Mo.App.2000). Stated otherwise, evidence that a parent neglected his or her children before the termination petition was filed is not erased by evidence of improvement and stabilization of the parent’s life after he or she received a termination petition. In the Interest of J.L.F., 99 S.W.3d 15, 20 (Mo.App. S.D. 2003). “Otherwise a parent can always argue that she [or he] has reformed since the filing of the petition, reformation usually occurring while the child is away.” In the Interest of 917 S.W.2d 193, 196[6] (Mo.App.1996). For these reasons, a parent’s conduct after the termination petition has been filed may not be compelling. N.M.J., 24 S.W.3d at 780[13].

Here, Mother has an extensive history of contacts with the Division of Family Services extending back to 1995. This history and other evidence establishes she has a mental illness and a long-term inability to stabilize her medications, both before and after her illness was diagnosed. The record supports a finding that for many years Mother had only a minimal interest in dealing with this problem, choosing instead to abuse drugs, alcohol, follow a chaotic lifestyle, and subject her children to an unsafe, unstable, and inappropriate environment. This included living with men who abused Mother, exposing the children to the violent behavior of others, living with felons, and repeated temporary living arrangements and residence changes. By early 1999, the children’s behavioral problems were such that they had to be placed in a behavioral foster care home. It was reasonably infera-ble that the children’s problems resulted from Mother’s repeated and continuous failure to perform the duties with which she was charged by law and conscience. That is neglect. See In re. S.L.N., 8 S.W.3d 916, 922 n. 5 (Mo.App.2000).

As I understand it, the majority’s reversal is based primarily on evidence of Mother’s reformation and its “finding” that “the change in Mother’s medical condition precipitated the changes in Mother’s stability and not a lack of commitment on the part of Mother.” See n. 13. I acknowledge there is substantial evidence of Mother’s improvement, especially in the six- to eight-month period before trial, after she faced a termination suit. This evidence, however, does not establish that the juvenile judge’s determination was unsupported by clear, cogent, and convincing evidence. In re C.M.B., 55 S.W.3d 889, 893[5] (Mo.App.2001). The juvenile judge could reasonably have inferred Mother’s long-standing poor medical condition was, in large measure, self induced; that it only improved when she finally curtailed her drug and alcohol habits (habits of obvious higher priority than her children’s welfare until she faced losing them) and began taking necessary medication on a regular and ongoing basis. Based on her history, the juvenile judge could have concluded that reunification or other stress on Mother would likely result in Mother’s return to her self-destructive habits.¹

More than that, even with her change in “medical condition,” Mother was not ready for reunification. Dr. Jenkins, her psychiatrist, suggested a six-month continued observation period, followed by an analysis to see if Mother was able to provide a safe, supportive home environment for the children. He also opined that intensive family therapy and supervision would be necessary for reunification. In contrast, the DFS workers, who had worked with Mother since 1995 and thus had more long-term experience with her, recommended termination now.

No doubt the juvenile judge was aware that “[t]he past provides vital clues to the present and future[;]” that “[p]ast events shape the future[;]” and “ ‘[t]o allow only review of very recent events is both short sighted and dangerous.’ ” J.M.L., 917 S.W.2d at 196 (citations omitted). He obviously concluded that evidence of Mother’s reformation in the post-termination suit period was not compelling and did not erase evidence of her prior neglectful conduct. On this record, that was his prerogative. N.M.J., 24 S.W.3d at 780[13]. Based on what I view as clear, cogent, and convincing evidence in the record of Mother’s neglect of her children, I would affirm.

1 . Although Dr. Jenkins testified it was “quite clear that [Mother] genuinely loves and is concerned for her [children],” it was reasonably inferable that throughout much of her children’s formative years her attempts at self-satisfaction via drugs, alcohol, and revolving relations with various men (many of whom were abusive), overrode her "love” and "concern” for her children.