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In re BH

Court of Appeals of Missouri, Western District, Second Division

August 29, 2017

IN THE INTEREST OF: BH, III, Plaintiff,
v.
L.H. (MOTHER) Appellant. JUVENILE OFFICER, Respondent,

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE DAVID M. BYRN, JUDGE

          Before: Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell, Judge and Anthony Rex Gabbert, Judge

          EDWARD R. ARDINI, JR., JUDGE

         L. H. (Mother) appeals the judgment of the Circuit Court of Jackson County terminating her parental rights. Finding no error, we affirm.

         Factual and Procedural Background [1]

         Two-year-old B. H. III (the Child) and his older brother lived with Mother and their father.[2] On September 5, 2015, the Child's brother was shot in the head and killed during an altercation between Mother and the father. The shooting was ruled a homicide by the Jackson County Medical Examiner. Mother was taken into custody the same day and charged with murder in the second degree, domestic assault in the first degree, two counts of endangering the welfare of a child, and unlawful use of a weapon. She is currently incarcerated awaiting trial. The Child was placed in foster care.

         On September 9, 2015, the Juvenile Officer of the Jackson County Circuit Court filed a petition requesting the court take jurisdiction over the Child pursuant to section 211.031.[3] This led to a bifurcated jurisdictional proceeding beginning with an adjudication hearing on February 1, 2016, at which the trial court sustained the allegations in the petition and continued the matter over for a disposition hearing.[4] On February 16, the Juvenile Officer and the Children's Division filed a motion asking the trial court to make a dispositional finding that Mother had committed a "severe act of physical abuse" and requested that they be relieved of making reasonable efforts to promote reunification. The trial court held its disposition hearing on February 18 and issued its Findings and Recommendations on February 24.

         Based on the evidence presented, the trial court determined that the Child was in need of care and assumed jurisdiction over him. The trial court found that Mother's testimony that she was not responsible for the shooting and that the Child's brother had been shot by another individual was not credible. Instead, the trial court relied on the testimony of the Child's maternal grandmother that she had observed Mother and the children's father arguing just moments prior to hearing the shot fired and that the individual Mother alleged to be the shooter was not present in the home, let alone in the room where the argument and shooting occurred. The trial court also noted the extensive forensic evidence that had been presented relating to where ammunition was found, where the bullet struck, the nature of the wound inflicted, and the location of bloodstains and gunshot residue. The trial court found that this evidence supported the conclusion that Mother was the shooter.

         In addition to finding that the evidence supported the conclusion that Mother was responsible for the death of the Child's brother, the trial court found that the family home was unsafe and unsanitary. Photographic evidence showed the house to be filthy and, in some places, lacking in basic structural needs such as adequate flooring. The trial court noted evidence of drug use and drug sales occurring in the home with illegal drugs and drug paraphernalia scattered throughout the residence including where the children slept. The extent of drug use occurring in the home and in the presence of the children was corroborated by testing performed on the deceased brother's liver indicating chronic exposure to amphetamine and methamphetamine. The trial court concluded that the Child, given that he had also lived in the home, had been exposed to similar levels of amphetamine and methamphetamine.

         The Findings and Recommendations issued on February 24 stated that the permanency goal regarding the Child at that time was reunification. However, the trial court noted the pending motion requesting a finding that a severe act of physical abuse had occurred and seeking relief from the requirement to make reasonable efforts toward reunification. The trial court further noted that the Juvenile Officer made a similar oral request at the disposition hearing. The trial court granted Mother the opportunity to file a response to the motion, which she did on February 26. On March 17, the trial court issued new Findings and Recommendations wherein it concluded that the evidence adduced supported a finding that Mother had murdered the Child's brother, thus relieving the Juvenile Officer of his duty to make reasonable efforts toward reunification under section 211.183.7(2)(a), and declared that the permanency goal for the Child would be termination of parental rights followed by adoption.

         On June 28, 2016, the Juvenile Officer filed a petition to terminate Mother's parental rights, which proceeded to hearing on November 8, 2016. During the hearing, at the request of the Juvenile Officer, the trial court took judicial notice of its file from the jurisdictional proceeding. The Juvenile Officer also presented testimony from the case manager assigned to the case pertaining to Mother's actions following the jurisdictional proceeding. Specifically, the case manager testified that Mother had failed to provide support for the Child despite being informed of her obligation to do so. The case manager further testified that the Child had undergone testing for drug exposure, which confirmed that he had been exposed to methamphetamine as well as marijuana. In addition, numerous additional exhibits, including correspondence between Mother and the case manager, medical records pertaining to the Child's brother, and records from Mother's criminal case relating to the shooting, were admitted into evidence. After considering the evidence presented, the trial court entered its judgment terminating Mother's parental rights. Mother now appeals.

         Standard of Review

         Section 211.477.6 establishes the two factors that must be found in order to terminate parental rights. First, the trial court must find "clear, cogent and convincing evidence that [statutory] grounds exist for termination." § 211.447.6; In re E.B.R., 503 S.W.3d 277, 280 (Mo. App. W.D. 2016). Evidence is considered 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." In re E.B.R., 503 S.W.3d at 281 (quoting In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004)). However, "a trial court cannot support a termination by merely incorporating earlier findings supporting its assumption of jurisdiction or some other earlier disposition." In re K.A.W., 133 S.W.3d at 10 (emphasis added). Therefore, in determining whether the evidence presented demonstrates grounds for termination, the trial court must look forward in time and seek to determine "whether the past acts [of a parent] provide an indication of the likelihood of future harm." Id. Should the trial court conclude that grounds for termination do exist, the court must next address whether termination is in the best interest of the child. In re E.B.R., 503 S.W.3d 277 at 281.

         When reviewing a judgment terminating parental rights, we will affirm "unless the 'record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law.'" In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "As a practical matter, this means the judgment will be reversed 'only if we are left with the firm belief that the order was wrong.'" Id. (quoting In re T.G., 965 S.W.2d 326, 332 (Mo. App. W.D. 1998)). Further, because one ground for terminating parental rights alone is sufficient, we will uphold a judgment to terminate based on multiple grounds provided any of the grounds relied upon by the trial court are proven. In re A.C.G., 499 S.W.3d 340, 347 (Mo. App. W.D. 2016); In re J.S., 477 ...


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