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In re A.C.G.

Court of Appeals of Missouri, Western District, Fourth Division

September 13, 2016

IN THE INTEREST OF: A.C.G.
v.
A.G. (Natural Mother), Appellant. JUVENILE OFFICER and DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondents,

         Appeal from the Circuit Court of Benton County, Missouri The Honorable Michael O. Hendrickson, Judge

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, and James Edward Welsh and Edward R. Ardini, Jr., Judges

          Mark D. Pfeiffer, Chief Judge

         A.G. ("Mother") appeals from the Judgment of the Circuit Court of Benton County, Missouri, Juvenile Division ("trial court"), terminating her parental rights to her daughter, A.C.G. We affirm.

         Factual and Procedural Background[1]

         Mother has three children, one of whom is A.C.G., born July 17, 2010. In early March 2012, the Department of Social Services, Children's Division ("Children's Division"), was notified that Mother and A.C.G.'s father ("Father") had appeared in court as a result of a custody dispute and both had tested positive for drugs. The court ordered that Mother and Father were not to have contact with A.C.G. until they had clean urine analyses. Ultimately, A.C.G. was brought into the protective custody of the Children's Division and was placed in a foster home, where she has remained ever since.

         On May 1, 2012, the Benton County circuit court held an adjudication hearing regarding the alleged abuse and neglect of A.C.G. With Mother's consent, the court assumed jurisdiction over A.C.G. A.C.G. was ordered a ward of the court, with a goal of reunification.

         The last contact Mother had with A.C.G. was in February 2013. The last contact Mother had with A.C.G.'s foster mother regarding visits or communication with A.C.G. was in July 2013. Finally, in December 2013, the Children's Division recommended changing the goal from reunification to termination. Mother did not maintain contact with the Children's Division in order to facilitate visits with A.C.G., and Mother's whereabouts were unknown until April 2014.

         On June 20, 2014, the Children's Division filed a petition to terminate Mother's parental rights to A.C.G. pursuant to section 211.447, [2] alleging abuse and/or neglect and failure to rectify. On August 21, 2015, and September 1, 2015, the trial court held a termination of parental rights hearing ("TPR hearing"). Thereafter, the trial court entered judgment terminating Mother's parental rights to A.C.G.[3] The trial court based termination on three grounds: (1) abandonment, § 211.447.5(1)(b); (2) neglect, § 211.447.5(2); and (3) failure to rectify, § 211.447.5(3). The trial court also found that termination would be in A.C.G.'s best interests, § 211.447.7.

         Mother appeals and argues that the trial court's judgment as to abandonment was against the weight of the evidence. Mother also argues that the trial court erred in failing to take judicial notice of two Jackson County, Missouri, circuit court cases concerning her other two children.

         Standard of Review

         Under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we 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 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." Greene Cty. Juvenile Office v. D.G.R. (In the Interest of J.A.R.), 426 S.W.3d 624, 626 (Mo. banc 2014). Furthermore:

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, [we are] obligated to defer to the trial court's assessment of the evidence.
. . . .
After [we] determine[ ] that one or more statutory ground has been proven by clear, convincing, and cogent evidence, [we] must ask whether termination of parental rights was in the best interest of the child. At the trial level, the standard of proof for this best interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion.

Id. (internal quotation omitted). "Evidence is clear, cogent and convincing, if it instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." Juvenile Officer v. C.E.F. (In the Interest of S.M.F.), 393 S.W.3d 635, 643 (Mo. App. W.D. 2013) (internal quotation omitted). "This standard may be satisfied even when evidence contrary to the trial court's finding is presented or the evidence might support a different conclusion." In the Interest of S.Y.B.G., 443 S.W.3d 56, 59 (Mo. App. E.D. 2014). The "best interest" determination, which is reviewed for an abuse of discretion, is a subjective assessment based on the totality of the circumstances. Id. "An abuse of discretion occurs only when the trial court's ruling is clearly against the logic of the circumstances and [is] so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id. (internal quotation omitted).

         "Appellate courts act with caution in exercising the power to set aside a . . . judgment on the ground that it is against the weight of the evidence." Ivie v. Smith, 439 S.W.3d 189, 205 (Mo. banc 2014). "[A] claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment." Id. (internal quotation omitted). "In other words, 'weight of the evidence' denotes an appellate test of how much persuasive value evidence has, not just whether sufficient evidence exists that tends to prove a necessary fact." Id. at 206. "The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. When reviewing the record in an against-the-weight-of-the-evidence challenge, we defer to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations. Id. Under this standard of review, "the circuit court is free to believe all, some, or none of the evidence offered to prove a contested fact." Id. "A circuit court's judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment." Id. When two reasonable but different conclusions may be drawn from the evidence, appellate courts must defer to the circuit court's assessment of that evidence. Id.

         "We review a decision to admit or exclude evidence for an abuse of discretion." Juvenile Officer v. F.D. (In the Interest of S.F.M.D.), 447 S.W.3d 758, 767 (Mo. App. W.D. 2014) (internal quotation omitted). "An abuse of discretion occurs when the court's decision is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. (internal quotation omitted).

         Judicial Notice

         Initially, we address Mother's first point in which she asserts that the trial court erred in not taking judicial notice of two cases in the Circuit Court of Jackson County, Missouri, involving Mother's other two children.

         At the TPR hearing, Mother's counsel asked the trial court to take judicial notice of the two Jackson County cases. Counsel asked the trial court to electronically access the files on Case.net and take judicial notice of whatever could be viewed. The attorney for the Children's Division objected based on lack of relevancy and on section 211.321.1, which governs the disclosure of juvenile records. The trial court refused to take judicial notice of the Jackson County case files.

         "Section 211.321 governs Missouri's juvenile court records, the confidentiality of those records, and exceptions to Missouri's general policy of confidentiality." Mason v. State, 368 S.W.3d 182, 186 (Mo. App. W.D. 2012). Section 211.321.1 provides, in pertinent part, that "[r]ecords of juvenile court proceedings as well as all information obtained and social records prepared in the discharge of official duty for the court shall not be open to inspection or their contents disclosed, except by order of the court to persons having a legitimate interest therein." Documents in juvenile court records "are confidential absent an order of the judge of the juvenile court." State ex rel. S.M.H. v. Goldman, 140 S.W.3d 280, 282 (Mo. App. E.D. 2004). "[W]hether or not a party has a legitimate interest in the contents of the records of the juvenile court varies from case to case[, ] and the question is one to be decided by the juvenile court in its discretion, being guided by the policy considerations underlying Section 211.321 and other provisions of the juvenile code." Id. at 283. "The general policy of the juvenile code is to hold the records of juvenile proceedings inviolate." Id. Clearly, section 211.321.1 is a specific statute protecting the confidentiality of the records of juvenile court proceedings and providing the procedure for disclosure.

         On the other hand, section 490.130 is a general statute relating to the admissibility of court records into evidence. Section 490.130 provides in pertinent part:

Records of proceedings of any court of this state contained within any statewide court automated record-keeping system established by the supreme court shall be received as evidence of the acts or proceedings in any court of this state without further certification of the clerk, provided that the ...

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