IN THE INTEREST OF N.D.B., MINOR BUTLER COUNTY JUVENILE OFFICE v. J.M.M

IN THE INTEREST OF N.D.B., )
MINOR, )
)
BUTLER COUNTY JUVENILE OFFICE, )
)
Respondent, )
)
vs. ) No. SD36838
)
J.M.M., )
) Filed: May 5, 2021
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY
Honorable Judge C. Wade Pierce
AFFIRMED
J.M.M. ("Mother") appeals a judgment terminating her parental rights to N.D.B.
("Child"), who was born in July 2018.1 Mother argues the trial court's findings of
neglect, failure to rectify, and parental unfitness are not supported by substantial
evidence. See §§ 211.447.5(2), (3), and (5).2 Mother does not claim error in the finding
and conclusion that termination of her parental rights was in Child's best interest. We
affirm.
1 Child's father is unknown and is not a party to this appeal. Unknown father's parental rights have also
been terminated.
2 All statutory citations are to RSMo. as updated through 2019.
Background
Child came into the custody of the Children's Division ("CD") following Mother's
arrest on October 7, 2018.3 At the time of her arrest, Mother was driving a vehicle
reported as stolen, and three-month old Child was not properly restrained in the vehicle,
which had been previously traveling at a high rate of speed.4 Mother's blood alcohol
content at the time of her arrest was .067% and she was driving while revoked. Child
suffered extensive bruising and was diagnosed with head trauma and multiple
hematomas. Mother was incarcerated.
After a juvenile adjudication hearing, Mother was found to have neglected Child,
and Child was placed in the custody of CD with placement in the care of his maternal
aunt ("Foster Mother").
Mother was already on probation on other criminal charges. Her probation for
the crime of tampering with a judicial officer was revoked and she was ordered to serve
a four-year sentence in the Department of Corrections. Mother was then incarcerated
from October 2018 until March 2020 when she was released and moved into a
transitional living facility. Mother was still facing three felony charges for tampering
with a motor vehicle, property damage in the 1st degree, and stealing, with a jury trial
scheduled for August 21, 2020.
A petition to terminate Mother's parental rights was filed in December 2019 and
an amended petition was filed on April 16, 2020. Hearing on the amended petition was
3 We view the evidence and inferences drawn from that evidence in the light most favorable to the
judgment. In Int. of T.T.G. v. K.S.G., 530 S.W.3d 489, 491 (Mo. banc 2017).
4 According to the probable cause statement, Butler County Dispatch reported the vehicle had been
travelling at 90-115 miles per hour, the vehicle showed signs of damage, and Child was not in a proper
restraint. The vehicle's passenger stated they had driven into the woods and were lost for approximately
three hours.
2
held on May 29, 2020 and June 26, 2020. At the hearing, the trial court heard
testimony from two CD caseworkers, Foster Mother, Mother, and a family specialist
from the transitional living facility where Mother lived. The trial court also received
various exhibits, including judgments terminating Mother's parental rights to three
other children.5
Casey Seabaugh ("Seabaugh") was Child's first caseworker with Butler County's
CD office. Seabaugh visited with Mother on October 9, 2018 at the Butler County Jail to
explain to Mother that Child was in state custody and to inform Mother of her rights.
Mother was allowed visitation, but since she was incarcerated, she was not able to
attend visitation. Mother was given information about services she could complete
while incarcerated which included substance abuse treatment and parenting classes. CD
sent Mother quarterly updates regarding Child and pictures of Child. Seabaugh
reported Mother sent letters to CD and to Foster Mother regarding Child. Seabaugh
testified the only child support Mother paid to CD was $2 per month. Seabaugh stated
Child did not have any emotional ties to Mother and did not have any relationship with
her. Regarding Mother's history with CD before Child came into care, Seabaugh
testified a previous family-centered services case had been opened in July 2018 shortly
after Child's birth following a hotline call, but it was closed after the caseworker was
unable to contact Mother or locate her.
Patricia Gray ("Gray") was Child's second caseworker beginning on February 1,
2020. Gray testified Mother was in a nine-month program at the transitional living
5 Two of these terminations were by Mother's consent and one was involuntary.
3
facility, and Mother would not complete the program until December 2020. Gray
testified Mother's ability to leave the transitional living facility was extremely restricted.
Gray testified Mother was currently employed with weekly wages of $455.04.
Since Mother had become employed, she had not increased her payment of child
support, but had bought Child a "couple of pairs of shoes[.]" Gray testified Mother had
not made any arrangements as to where she would live after completing her aftercare
program.
Mother told Gray she was going to trial on her pending charges and thought she
would win at trial and the charges would be dismissed. According to Gray, Mother's
current criminal charges were concerning because "we don't know where [Mother will]
be after the criminal charges are disposed."
Gray described Child and Foster Mother as "very close, very bonded." She also
said Child was in a "stranger-danger phase right now" and that it would have a
"significant negative impact" on Child to be removed from Foster Mother.
Foster Mother testified she was interested in adopting Child. She stated Mother
had only sent Child a gift card at Christmas and a pair of shoes. Foster Mother testified
that on the evening of October 6, 2018, the day before Mother's arrest, Mother came to
Foster Mother's house looking for Child's grandfather. Foster Mother, who had not seen
Mother in ten years, stated Mother left around midnight, saying she was going to locate
Child's grandfather in North Carolina, where he was working at the time. Foster Mother
described Mother's behavior on that evening as "really erratic[.]" Foster Mother was not
optimistic of a future relationship with Mother because of Mother's twenty-year cycle
with drugs.
4
Mother testified regarding her current living situation and employment. She
testified she was residing at a "nine-month aftercare program" facility utilized when a
person is released from prison. Mother stated she was "not required to be there" and
she could leave whenever she wanted, but she chose to be there. Mother planned to
complete the program then leave "if [she was] ready[.]" Mother had become employed
while at the facility and currently made $11.25 per hour. Mother stated she paid $2 per
month in support, but acknowledged she "could send extra[.]" She also sent Child two
gift cards during her incarceration. Regarding her pending criminal cases, Mother
testified she had been offered a guilty plea for four years to run concurrent with her
previous four-year sentence but she did not take that offer because she wanted to go to
trial.
As for Mother's lifestyle in the period of time after Child was born and prior to
her arrest, Mother described living with and working for two different families. Mother
admitted she had been addicted to alcohol for most of her life and had previously used
methamphetamine and marijuana. Mother acknowledged it would not be good for
Child to be removed from his current home and relocated at the present time.
At the conclusion of the evidence, Child's Guardian Ad Litem recommended
Mother's rights be terminated based on Mother's "chaotic" past and Child's need for
stability.
After the hearing, the trial court entered findings of fact and conclusions of law
on July 28, 2020 terminating Mother's parental rights to Child on three grounds: abuse
or neglect, see § 211.447.5(2) ("abuse or neglect ground"); failure to rectify, see
§ 211.447.5(3) ("failure to rectify ground"); and parental unfitness, see § 211.447.5(5)(a)
("parental unfitness ground"). The trial court made the statutorily-required findings
5
related to the abuse or neglect ground and the failure to rectify ground. See
§§ 211.447.5(2)(a)-(d); 211.447.5(3)(a)-(d). The trial court also found termination of
Mother's parental rights was in Child's best interest and made the related statutorily-
required findings.
Mother filed a motion to reconsider on August 27, 2020, which the trial court
denied on September 16, 2020. Mother timely appeals.
Standard of Review
"In reviewing termination of parental rights cases, like all types of bench-tried
cases, this Court is mindful 'that circuit courts are better positioned to determine
witness credibility and weigh evidence in the context of the whole record than an
appellate court.'" Interest of R.R.S., 573 S.W.3d 717, 724 (Mo. App. S.D. 2019)
(quoting In Int. of J.P.B., 509 S.W.3d 84, 89-90 (Mo. banc 2017)).
This Court reviews whether clear, cogent, and convincing evidence was
presented to support a statutory ground for terminating parental rights
under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the
trial court's judgment will be affirmed unless there is no substantial
evidence to support it, it is against the weight of the evidence, or it
erroneously declares or applies the law. The judgment will be reversed
only if we are left with a firm belief that the order is wrong.
Conflicting evidence will be reviewed in the light most favorable to the trial
court's judgment. Appellate courts will defer to the trial court's credibility
assessments. When the evidence poses two reasonable but different
inferences, this Court is obligated to defer to the trial court's assessment of
the evidence.
....
This Court has laid to rest any argument that the clear, cogent, and
convincing burden of proof requires this Court to consider any contrary
evidence when reviewing whether the judgment is supported by
substantial evidence.
In reviewing questions of fact, the reviewing court is to recognize that the
circuit court is free to disbelieve any, all, or none of the evidence, and it is
not the reviewing appellate court's role to re-evaluate the evidence through
6
its own perspective. The trial court receives deference on factual issues
because it is in a better position not only to judge the credibility of the
witnesses and the persons directly, but also their sincerity and character
and other trial intangibles which may not be completely revealed by the
record.
J.P.B., 509 S.W.3d at 90 (internal citations and quotation marks omitted). According
to our standard of review, the trial court's judgment is presumed valid, and it is the
appellant's burden to demonstrate it is incorrect. R.R.S., 573 S.W.3d at 730. "The
circuit court's judgment will be affirmed if the record supports at least one ground and
supports that termination is in the best interest of the [child]." J.A.R. v. D.G.R., 426
S.W.3d 624, 630 (Mo. banc 2014).
Analysis
Mother raises three points on appeal, arguing the trial court erred in terminating
her parental rights because each of the statutory grounds for termination was not
supported by substantial evidence. Point 1 challenges the abuse or neglect ground for
termination, point 2 challenges the failure to rectify ground for termination, and point 3
challenges the parental unfitness ground for termination. However, "[o]nly one
statutory termination ground is needed to sustain the judgment." In Int. of Z.L.G.,
531 S.W.3d 653, 655-56 (Mo. App. S.D. 2017). Our resolution of point 3 is dispositive of
Mother's appeal, so we need not address points 1 and 2. See In Int. of A.F.W., 543
S.W.3d 66, 71 & n.6 (Mo. App. S.D. 2018).
In point 3, Mother argues the trial court's termination of her parental rights on
the basis of parental unfitness was not supported by substantial evidence because:
1. The majority of the [t]rial [c]ourt’s findings were not related to acts or
conditions that existed at the time of termination, where [Mother] was no
longer incarcerated, earning a substantial wage, had no lingering
substance abuse issues and was living in a home suitable to [Child], and
7
2. There was no evidence to support a finding that conditions that existed
at the time of trial could not be remedied in the reasonably foreseeable
future, where the record did not contain any evidence regarding how long
it would take to integrate [Child] back into [Mother's] home and
insufficient evidence to support a finding that [Mother] may go back to
prison.
3. The [t]rail [sic] [c]ourt failed to explicitly tie past acts with a predicated
future harm.
Section 211.447.5(5)(a) provides for termination of parental rights if "[t]he parent
is unfit to be a party to the parent and child relationship" on the basis of:
a consistent pattern of committing a specific abuse including, but not
limited to, specific conditions directly relating to the parent and child
relationship which are determined by the court to be of a duration or
nature that renders the parent unable for the reasonably foreseeable
future to care appropriately for the ongoing physical, mental, or
emotional needs of the child.
§ 211.447.5(5)(a).6
The language of this provision:
expresses a clear and unambiguous legislative intent to treat "specific
conditions directly relating to the parent and child relationship which are
determined by the court to be of a duration or nature that renders the
parent unable for the reasonably foreseeable future to care appropriately
for the ongoing physical, mental, or emotional needs of the child" as a
non-exclusive example of "a consistent pattern of committing a specific
abuse."
In Int. of E.B.R. v. E.R., 503 S.W.3d 277, 282-83 (Mo. App. W.D. 2016) (quoting
§ 211.447.5(6)). This provision requires the trial court to determine the parent is
"currently unfit to be a party to the parent and child relationship, supported by findings
as to acts or conditions that persist at the time of termination." In re D.D.C., 351
S.W.3d 722, 732 (Mo. App. W.D. 2011) (quoting In re W.C., 288 S.W.3d 787, 801 (Mo.
6Section 211.447.5(6) was renumbered as 211.447.5(5) following statutory changes effective August 28,
2018. See S.B. 819, 99th Gen. Assem. (Mo. 2018).
8
App. E.D. 2009) (interpreting prior version of statute)). "Specific conditions," as used
in the parental unfitness ground for termination "may include conditions that result
from incarceration." J.P.B., 509 S.W.3d at 95 (internal quotation marks omitted). The
abuse described in this statutory provision "is much broader than what has traditionally
been thought of as 'abuse[.]"' Interest of K.L.M., 615 S.W.3d 128, 131 n.5 (Mo. App.
S.D. 2021).
The trial court's findings on parental unfitness were as follows:
[Mother] is unfit to be a party to the parent and child relationship because
of a consistent pattern of committing a specific abuse including, but not
limited to, specific conditions directly relating to the parent and child
relationship which are determined by the [c]ourt to be of a duration or
nature that renders the parent unable for the reasonably foreseeable future
to care appropriately for the ongoing physical, mental, or emotional needs
of [Child]. The specific conditions relating to the parent and child
relationship are that at the time [Child] came into care on October 7, 2018,
[M]other had criminal charges pending, she was homeless and searching
for assistance from her father, whom she hadn't seen in years, to care for
[Child], and she exhibited a blatant disregard for the welfare of [Child] by
operating a motor vehicle at high rate of speed while [Child] was
unsecured therein, resulting in injuries to [Child]. Since that time, she has
not seen [Child] and has not developed a relationship with [Child]. It is
anticipated that even if [M]other is not convicted at trial in August, 2020,
of at least one of the felonies pending against her, that she will remain at
the transitional living facility in Cuba, Missouri, as a temporary residence
through at least mid to late December, 2020. She admitted at trial that it
would be contrary to the welfare of [Child] to remove him from his present
home, where he has lived on a full-time basis, without giving him
reasonable time to become acquainted and comfortable with her. It is
undisputed that [Child's] relationship with his aunt, who serves as foster
parent, is like a mother and child relationship. While the [c]ourt is
hopeful that [M]other will be successful in resolving her pending issues,
and in maintaining full-time employment and a home out of the control of
the Missouri Department of Corrections, the [c]ourt finds that because of
the duration of time [Child] has been in care, and [M]other's historical
inability to properly care for a child, it would be inappropriate to return
[Child] to [M]other as she will be unable to provide care for [Child] in the
reasonably foreseeable future.
9
Substantial evidence supported the trial court's finding of a statutory ground for
termination under section 211.447.5(5)(a) on grounds of parental unfitness. The
"specific conditions" here included, but were not limited to, conditions that resulted
from Mother's incarceration. Just as in J.P.B., Mother's "volitional criminal activity" of
violating her probation, resulted in her arrest and her incarceration in October 2018,
when Child was only three months old. 509 S.W.3d at 95. During her seventeen
months of incarceration, Mother did not have any visitation with Child which resulted in
Child's inability to bond with Mother during that time. Courts have previously upheld
the termination of an incarcerated parent's parental rights on grounds of parental
unfitness despite efforts of the parent to attempt to form a bond with a child when the
parents were incarcerated from the time of their child's infancy. See, e.g., In re Z.L.R.,
347 S.W.3d 601, 608-09 (Mo. App. S.D. 2011); In re C.S., 351 S.W.3d 264, 268-69 (Mo.
App. W.D. 2011).
In addition, although Mother was no longer incarcerated at the time of her
termination hearing, she was facing pending criminal charges on three separate felonies,
the disposition of which could result in additional terms of incarceration. In In re
J.D.P., the court affirmed the termination of a father's parental rights on the statutory
ground of parental unfitness based, in part, on the inability of the child to be returned to
father within an ascertainable amount of time since father was currently incarcerated,
was facing additional criminal charges, and he still had not completed numerous court-
ordered services required for reunification. 406 S.W.3d 81, 84-85 (Mo. App. E.D. 2013).
Similarly here, Mother's prior criminal history and pending felony charges lead to a
reasonable inference that Child would not be able to return to Mother within the
reasonably foreseeable future.
10
Furthermore, the trial court heard evidence of Mother's unstable lifestyle prior to
her incarceration. She and Child lived with two different families in the first three
months of Child's life, and then Mother was incarcerated. Once in the transitional living
facility, Mother had no established plan for her housing and was awaiting trial for her
felony charges.
In addition, the day before Mother was arrested, Mother admitted she had been
looking for her father—who she had not seen in approximately 10 years—to see if Child
could stay with him while she resolved her "legal situation." When asked when she
would leave the transitional living facility, Mother stated she would leave in December
"if" she "was ready." Mother failed to demonstrate her future stability. The trial court
could reasonably infer that Mother's future housing and lifestyle would continue to lack
stability.
"Every child is entitled to a permanent and stable home." Z.L.R., 347 S.W.3d at
608. The trial court had before it evidence of Mother's pending felony charges, her
history of homelessness and instability, her admitted prior alcohol addiction, her lack of
any plan for housing for herself and Child after she completed the transitional living
program, and her lack of any bond with Child. The trial court did not err in finding
specific conditions directly relating to the parent and child relationship were of a
duration or nature that rendered Mother unable for the reasonably foreseeable future to
care appropriately for Child's ongoing needs. Accordingly, the trial court did not err in
finding ground for termination under section 211.447.5(5)(a).7 Point 3 is denied.
7 Moreover, as this Court has recently clarified, "K.A.W.'s future harm analysis requirement . . . applies to
and must be reviewed within the context of the evidentiary support for a trial court's determination as to
the existence of a termination ground or the best interest of the child." A.R.F. v. V.H.F., 593 S.W.3d
686, 689 (Mo. App. S.D. 2020) (referring to In re K.A.W., 133 S.W.3d 1 (Mo. banc 2004)). There is no
legal requirement for the trial court "to make an explicit future harm analysis separate and apart from its
11
Conclusion
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, J. – OPINION AUTHOR
JEFFREY W. BATES, C.J. – CONCURS
GARY W. LYNCH, J. – CONCURS
grounds and best interest determinations[.]" A.R.F., 593 S.W.3d at 689. As long as the "relevant
termination ground[] [was] supported by substantial evidence supporting the potential for future
harm[,]" as occurred in this case, K.A.W.'s requirements have been met. See id.
12