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In re C.H.

Court of Appeals of Missouri, Eastern District, First Division

August 15, 2017

IN THE INTERESTS OF: C.H., B.H., & T.C.

         Appeal from the Circuit Court of Franklin County Honorable David Tobben Judge

          KURT S. ODENWALD, Judge

         Introduction

         Mother appeals from the trial court's judgment, which appointed Petitioners as guardians over the minor children C.H., B.H., and T.C. (collectively, the "children"). The trial court's judgment found the children's parents (Mother and three separate fathers) unwilling, unable, or unfit to fulfill their duties as guardians under Section 475.030.4(2).[1] On appeal, Mother contends that no substantial evidence supported a conclusion that she was unfit. Finding ample evidence in the record to support that conclusion, we affirm.

         Factual and Procedural History

         I. Underlying Removal of the Children

         On April 30, 2012, the three minor children-at the time, T.C. was twelve-years old, B.H. six, and C.H. two-were taken into custody by the Children's Division following an investigation. The Children's Division investigation discovered drugs and paraphernalia at Mother's home, including components for manufacturing methamphetamine. The children were placed with Petitioners, the children's aunt and uncle, on a temporary basis.

         This was the third time that the Children's Division had removed the children from Mother's custody. Specifically, in 2005, before C.H. was born, B.H. and T.C. were taken into custody after Mother crashed a car during "a period of time when [she was] under the influence of drugs." C.H., B.H., and T.C. were again taken into custody in 2010 after Mother was pulled over in possession of a mobile meth lab. After the two previous incidents, the children were eventually returned to Mother. The third removal happened on April 30, 2012, and the minor children have been residing with Petitioners ever since.

         II. Petitions for Letters of Co-Guardianship

         In early 2013, Petitioners filed three separate petitions for letters of co-guardianship over the three children, respectively. The petitions alleged that the children's parents-Mother and the three separate fathers---were unable, unwilling, or unfit to assume their roles as guardians, and that Petitioners should be awarded co-guardianship. The trial court heard all three cases during a consolidated hearing. At the hearing, Mother, her boyfriend ("Boyfriend"), her oldest child (T.C), Petitioners, employees of the Children's Division, and the children's counselor all testified.

         III. Trial Court's Judgment

         Subsequently, the trial court rendered three separate judgments issuing letters of co-guardianship to Petitioners for the three children, respectively. The trial court found the three fathers unwilling, unable, or unfit, and none of the fathers appeal that finding.[2] In all three judgments, the trial court also found that Mother was unable or unfit to assume the duties of guardianship and parenthood. When discussing the findings as they relate to Mother, we will treat the three judgments as one-the Mother-related findings were identical. The trial court found as follows:

         The trial court first noted that Mother admitted to a previous drug addiction but claimed to be clean now. The trial court commended Mother, recognizing her "progress" on overcoming her addiction. Nevertheless, the trial court expressed concern that Mother had not fully addressed issues that could lead to farther relapses.

         Most notably, at the time of trial, Mother was engaged in a long-term, romantic relationship with Boyfriend. The trial court acknowledged Boyfriend's criminal history, including numerous convictions for driving while intoxicated, which sent him to prison four separate times. While Boyfriend had maintained his sobriety for some time, it was uncontroverted that he was again consuming alcohol. The trial court opined that associating with other substance abusers was a reason for Mother's previous, failed efforts at sobriety. The trial court noted that Mother had attempted to shift significant blame for her previous drug problems on a friend, who was a fellow drug user. In the trial court's view, Mother's choice of a partner suggested that she was presently unfit to assume the duties of parenthood.

         The trial court continued that the evidence suggested that Boyfriend was not only drinking alcohol again, but that the frequency of his drinking had been increasing. Mother and boyfriend were cohabitating.[3] Moreover, Mother admitted that, during her visitation weekends with the children, she brought the children to Boyfriend's home. The trial court inferred that

          Boyfriend, a relapsing alcoholic, had consumed alcohol during those visits. The trial court recognized Mother's own acknowledgement that it would be detrimental for a person recovering from an addiction to associate with a relapsing addict. As such, the trial court was concerned with the state of Mother's addiction-which had previously caused the Children's Division to intervene three times--and the prospect that the children, if returned to Mother, would be exposed daily to a relapsing alcoholic. These factors were "a further indictment of [Mother's] ability and fitness to assume the duties of guardianship/parenthood."

         The trial court found another factor that contributed to Mother's unfitness: the stress of being a single mother. According to the trial court, the evidence suggested that the stress of raising three children alone was partly a cause of Mother's previous, failed efforts at sobriety. This finding was premised on Mother's admission that stress was a "big part of her drug use and T.C.'s credible testimony that, in the past, Mother had resumed drug use shortly after the children were returned.[4] When asked at trial what had changed, Mother replied that she had learned to forgive herself and did not want to "live that way" anymore. This response, together with Mother shifting blame to others, [5] gave the trial court "additional pause" before taking Mother at her word when she asserted her sobriety.

         Mother's behavior during her visitation with the children also influenced the trial court's decision. Mother had been afforded periodic, unsupervised visitation after the children were removed for the third time. The trial court found Mother noncompliant with Children's Division restrictions placed on her visitations; specifically, Mother did not obtain permission before taking the children to her parents' home. The trial court found Mother's actions especially troubling because she admitted to using drugs with her mother in the past. Mother claimed that she was unaware of this restriction, but the trial court explicitly found this claim not credible. "Mother's gamesmanship [with the truth], " wrote the trial court, "is evidence that she is not yet willing to recognize and deal with her shortcomings."

         The trial court noted three additional examples of Mother's poor behavior. First, despite being aware of C.H.'s peanut allergy, Mother allowed C.H, to consume foods containing peanuts. Second, despite being allowed to attend the children's extracurricular activities, Mother only attended a few. And third, the trial court found credible an anecdote about a "duck down" game. In October 2014, Mother drove the children without age-appropriate safety seats. During the trip, Mother had the children "duck down" when police were around to avoid detection. T.C. credibly testified that Mother had taught the children to play this game whenever they were being transported without age-appropriate safety seats. Again, the trial court expressly rejected Mother's version of events-that the children created the game due to their previous negative reactions to police. The trial court further found that Mother had ...


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