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In re M.A.M.

Court of Appeals of Missouri, Southern District, First Division

November 3, 2016

IN THE INTEREST OF M.A.M., D.T.M and W. V. M., Minors, BUTLER COUNTY JUVENILE OFFIC and MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Petitioners-Respondents,
v.
M.D.M., Mother, Respondent-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable John H. Bloodworth

         REVERSED.

          OPINION

          DON E. BURRELL, J.

         M.D.M. ("Mother") appeals the judgments that terminated her parental rights in, to, and over her children, M.A.M., D.T.M., and W.V.M. ("the Children").[1] The trial court found that Mother had neglected M.A.M., abused and neglected D.T.M. And W.V.M., [2] and failed to rectify the conditions that caused the trial court to assume jurisdiction over the Children.[3] Mother presents three points, but we need decide only her assertion that the judgments were not supported by substantial evidence of a convincing link between Mother's past behavior, her conduct at the time of the termination hearing, and a likelihood of future harm to the Children. Finding merit in that claim, we reverse the portions of the judgments applicable to Mother.

         Governing Law & Applicable Standard of Review

         "A parent's right to raise her children is a fundamental liberty interest protected by the constitutional guarantee of due process. It is one of the oldest fundamental liberty interests recognized by the United States Supreme Court." In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). As a result, "appellate courts must examine the trial court's findings of fact and conclusions of law closely." Id.

         We will affirm a judgment terminating parental rights "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." In re Adoption of C.M.B.R., 332 S.W.3d 793, 815 (Mo. banc 2011).

         To prevail, Mother must demonstrate that no evidence in the record tends to prove a fact necessary to uphold the trial court's judgment as a matter of law. In re G.C., 443 S.W.3d 738, 746 (Mo. App. S.D. 2014). We view conflicting evidence in the light most favorable to the judgment, and we disregard evidence contrary to the judgment. J.A.R. v. D.G.R., 426 S.W.3d 624, 626, 626 n.4 (Mo. banc 2014). The trial court may believe all, some, or none of the evidence, and our role is not to re-evaluate the evidence through our own perspective. Id. at 627. "We are bound by the trial court's factual findings if supported by substantial evidence." McAllister v. McAllister, 101 S.W.3d 287, 290 (Mo. App. E.D. 2003).

         The Evidence

         On May 15, 2014, the Children's babysitter, Lisa Wills ("Babysitter"), drove Mother, D.T.M., and W.V.M. to the Women, Infants, and Children ("WIC") office in Poplar Bluff. Before departing from Mother's home, Babysitter noticed a bruise on W.V.M.'s hand. Mother told Babysitter that W.V.M. had fallen out of her high chair, and Mother claimed to have taken W.V.M. to the emergency room the night she fell. After the group arrived at the WIC office, W.V.M's pant leg came up, and WIC personnel noticed bruising on W.V.M.'s leg. Mother gave WIC personnel the same explanation for the bruising that she had given to Babysitter.

         After the group left the WIC office, Mother received a telephone call from the Children's Division of the Missouri Department of Social Services ("the Division") asking Mother and W.V.M. to come to the Division's office, and Mother did so. The Division asked Babysitter and Mother to take W.V.M. to Dr. Claudia Preuschoff's ("Dr. Preuschoff") office for an examination.

         At Dr. Preuschoff's office, Mother again claimed that W.V.M. had fallen out of her high chair. Upon Mother's request, Babysitter left Dr. Preuschoff's office to pick up M.A.M. from school. When Babysitter returned with M.A.M, Mother and M.A.M. went to the restroom. While they were gone, Babysitter lifted W.V.M's shirt and observed that the child's back, ribs, and buttocks were also bruised.

         Dr. Preuschoff's examination revealed extensive bruising over multiple areas of W.V.M.'s body, and she opined that the bruises were the result of non-accidental trauma. Dr. Preuschoff's testimony from another hearing was admitted into evidence, and in addition to the bruising, she described some lesions on D.T.M.'s vaginal area as consistent with being "made from some object[.]" Her examination also revealed that W.V.M.'s eyes were sunken, and portions of W.V.M.'s scalp were hairless. W.V.M. was "far behind" on immunizations and suffered from a recent, unexplained weight loss. Dr. Preuschoff planned to take W.V.M. into protective custody unless Mother agreed to transfer her by ambulance to St. Louis Children's Hospital. Mother acquiesced, and W.V.M. was transported that same day. The doctor classified W.V.M.'s abuse as "[s]evere."

         Dr. Preuschoff also contacted Valerie Guffey ("Ms. Guffey"), a supervisor in the Division's abuse and neglect unit, and Ms. Guffey investigated the family home. She saw a gallon of urine in the bedroom, and urine and/or food stains covered the walls. She also found garbage, debris, and old food spread throughout the home.

         At the direction of the Division, M.A.M. and D.T.M. were removed from Mother and Father's home and placed with Babysitter. The next day, the Division directed Babysitter to bring M.A.M. and D.T.M. to the Division's office. Babysitter brought the Children in as directed, and she saw Mother speaking with a sheriff's deputy. Mother later left with the deputy, and Babysitter was allowed to take the Children home with her.

         Mother later admitted to Babysitter that W.V.M.'s injuries were not incurred in an accidental fall. Mother stated that Father had whipped W.V.M. with a belt the night before they had gone to the WIC offices. Mother also told Babysitter about other incidents of abuse that Father had inflicted on both Mother and the Children, including an incident in which Father rubbed dirty diapers in the faces of W.V.M. and D.T.M. and poured cold water on them.

         In July 2014, Mother told her family support team that Father had abused her at least ten times at various points in the past. During an incident in 2012 ("the 2012 incident"), Father hit Mother in the face, "busting [her] eye open." D.T.M., who had been in Mother's arms at the time, suffered a black eye. Father was jailed for the 2012 incident, and he underwent anger management counseling. With the exception of the 2012 incident, Mother did not tell Babysitter, her family, or the authorities about any of Father's violent acts until after the Children were taken into the Division's care.

         The Division offered Mother a written services agreement ("services agreement") on June 9, 2014 that set forth three goals: child well-being (to be accomplished by Mother keeping all visits); family health (to be accomplished by Mother engaging in counseling); and parent capabilities (to be accomplished by Mother engaging in random drug screenings). Because Mother wanted to consult with her attorney before signing, she did not sign the agreement until July 17, 2014. The services agreement did not specify any details regarding Mother's counseling; it simply provided: "Mother wishes to engage in counseling[.]"

         After the Children came into care, Father was arrested and charged with serious physical abuse of W.V.M. Mother moved across the Missouri border into Arkansas at the end of May 2014. Mother also filed a petition to dissolve her marriage to Father on July 8, 2014, and an interlocutory decree of dissolution followed in September 2014.

         After the Division concluded its investigation, it issued a report substantiating the allegations that Mother had neglected the Children and had failed to protect them by failing to report Father's abuse of the Children. After a July 18, 2014 adjudication hearing, the trial court took jurisdiction over the Children and placed them into the legal and physical custody of the Division.

         The month after the trial court took jurisdiction over the Children, the permanency planning goal was changed from reunification with Mother to termination of parental rights. After this change occurred, a new services agreement was not entered into with Mother, and further services to her were not to be provided unless ordered by the trial court or specifically requested by Mother. Mother did not request any ...


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