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In re H.H.

Court of Appeals of Missouri, Western District, Second Division

September 5, 2017

IN THE INTEREST OF: H.H. AND P.R., PLAINTIFFS; JUVENILE OFFICER, Respondent,
v.
A.R., Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable David Michael Byrn, Judge

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

          Anthony Rex Gabbert, Judge

         A.R. (Mother) appeals the circuit court's judgment terminating her parental rights to her biological children, P.R. and H.H. Mother asserts four points on appeal. In her first, second, and third points, Mother contends that there was not clear, cogent, and convincing evidence to support the court's termination of her parental rights pursuant to Sections 211.447.5(2)[1], 211.447.5(3), and 211.447.5(6), respectively. Mother's fourth point contends that the court erred in finding termination of parental rights to be in the best interest of the children pursuant to Section 211.447.6. We affirm.

         Procedural and Factual Background

         The evidence, in the light most favorable to the court's judgment, was that P.R. was born September 6, 2012, and was four years old at the time of trial. P.R. has never lived with Mother. On the day P.R. was born, Mother went to the hospital for symptoms of preterm labor. Medical staff implored Mother to stay for treatment and advised her that, if she left, the baby might be harmed. Mother left the hospital against medical advice. She returned within hours and P.R. was born at only twenty-four weeks gestation. Mother admitted that, during her pregnancy with P.R., she repeatedly smoked marijuana, exposing P.R. to Tetrahydrocannabinol (THC). Because of P.R.'s premature birth, she required hospitalization for the first seven months of her life, during which time Mother was provided training and assistance in learning about P.R.'s special needs. When P.R. was ready for discharge from the hospital in late April, 2013, Mother was not ready to assume custody of P.R. because Mother had not demonstrated an ability to provide for the child's medical needs and did not have stable or appropriate housing. Mother moved residences multiple times in 2013. When P.R. was released from the hospital, Mother planned to reside with a sister who was awaiting trial on felony charges and whose parental rights to her own children had been terminated. Mother had been the victim of domestic violence, including with P.R.'s father whom Mother alleged slapped and choked her and whom was asked to leave Children's Mercy Hospital after becoming aggressive with Mother while P.R. was hospitalized there.

         In May of 2013, the Juvenile Officer filed a petition alleging the aforementioned to support that Mother had exhibited a pattern of neglect regarding the child and that P.R. was without proper custody, support or care necessary for her well-being and subject to the jurisdiction of the court pursuant to Section 211.031.1. The petition alleged that the actions of Mother placed the child at risk of further harm, or the same or similar abuse or neglect, absent the intervention of the court. On July 15, 2013, the circuit court sustained the allegations of the Juvenile Officer's Petition. Approximately one month later, on August 13, 2013, the court held a dispositional hearing to determine placement of the child. The court found that reasonable efforts had been made to return the child to Mother and/or shorten the length of time the child had been removed from the home, but that placement of the child with Mother was contrary to the child's best interests. The court found that, prior to the dispositional hearing, the Missouri Department of Social Services, Children's Division, had provided Mother with a parent aide to supervise visits, individual therapy, DRAGNET (Drug Resistance by Achieving Goals Through Networking Education & Training), substance abuse treatment, and a psychological evaluation with a parenting assessment. The child was ordered to remain in the care and custody of the Children's Division for appropriate placement, with Mother receiving visitation supervised by a parent aide or the Children's Division. Mother was ordered to participate in individual therapy, substance abuse treatment, and random drug testing.

         On October 21, 2013, Mother gave birth to H.H. at twenty-five weeks gestation. Mother left the hospital against medical advice while the child was hospitalized in the Neonatal Intensive Care Unit of Research Hospital. On at least one occasion after the child's birth, and while the child was still hospitalized, Mother exhibited violent and aggressive behaviors toward Research Hospital staff such that staff members physically restrained her. On October 23, 2013, the Juvenile Officer filed a petition alleging that H.H. was without proper care, custody or support necessary for her well-being and subject to the jurisdiction of the court pursuant to Section 211.031.1 due to Mother's neglect toward H.H. and H.H.'s sibling, P.R. The Juvenile Officer alleged that Mother's history and current behavior placed the child at risk of further harm or neglect absent the court's intervention. The court entered an order of temporary protective custody, ordering H.H. to be placed with the Children's Division in an appropriate licensed placement upon discharge from the hospital, with Mother to have supervised visitation by the Children's Division or a Parent Aide. An Order of Protective Custody was entered on October 25, 2013. An Amended Petition was filed on December 9, 2013, and on that same date Mother stipulated to the allegations in that petition. The circuit court sustained the allegations and assumed jurisdiction over the child. A dispositional hearing was held on January 21, 2014. At that time, H.H. still remained in the Neonatal Intensive Care Unit of Research Hospital. The court found that, along with Mother's use of marijuana during her pregnancy with H.H., Mother had also tested positive for cocaine during her pregnancy with the child. The court also found that Mother was involved in an altercation with a male visitor to the hospital shortly before the birth of H.H. The court found that Mother had been unable to achieve safe reunification with H.H.'s sibling, P.R., despite being provided and participating in services.

         A permanency hearing for P.R. and a case review for H.H. was held on April 28, 2014. The court found that, since the date of the prior hearing, Mother had moved into a new apartment, was participating in individual therapy, and had completed a psychiatric evaluation. The court found Mother still in need of services before the children could be safely returned to her care.

         A permanency hearing for P.R. and a case review for H.H. was held on June 16, 2014. At that hearing the court found that, since the date of the prior hearing, Mother had been participating in individual therapy. The court also found that Mother had tested positive for marijuana but had not engaged in substance abuse treatment. Mother was ordered to complete substance abuse treatment and to receive Parent Aide services forty hours per month.

         On August 14, 2014, a permanency hearing was held for both P.R. and H.H. The court concluded that, due to Mother's lack of participation and progress in services, and inability to verify testing clean from substances, the children could not be safely placed in Mother's care.

         A permanency review hearing was held for both children on November 4, 2014. The court found that, since the date of the prior hearing, Mother had been authorized for individual therapy but had not been consistently attending. Mother was enrolled in substance abuse treatment but had not been participating in random drug testing and had not responded to the court to test when that option was given to her. At the time of that hearing, Mother had moved from her previous residence and claimed to be living in the State of Kansas, but refused to provide a specific address to the Children's Division. While the permanency goal for the children following prior hearings had been H.H.'s reunification with mother and concurrent goals of reunification/termination of Mother's parental rights for P.R., following this hearing the permanency goal for both children became termination of Mother's parental rights. P.R. was two years old and H.H. was one year old. The court ordered that Mother continue to be provided services.

         The court held a permanency hearing on March 23, 2015. At the time of that hearing, Mother had housing but was to lose her housing voucher soon thereafter. The court found that, since the date of the prior hearing, Mother had been more consistent with individual therapy but had not been attending substance abuse treatment regularly. The Children's Division had provided Mother with referrals for substance abuse treatment and Mother had started treatment at two different locations. She did not successfully complete either and admitted recent drug usage.

          In April of 2015, Mother gave birth to a male child, D.N.[2] On July 17, 2015, the court assumed jurisdiction over the child. The court found that, at D.N.'s birth, Mother tested positive for marijuana. The court further found that mother had refused to submit to a hair test and that the Children's Division had been unable to visit Mother's home to determine if any safety issues were there. D.N. was placed in the same foster home in which H.H. resided. D.N. died on or about September 1, 2015. The children's caseworker testified that, because Mother had no home and had inconsistent contact with the Children's Division, telephoning Mother was "the only way that I was really able to stay in touch with her." The record reflects that, Children's Services protocol is to inform parents of the death of a child in person and not by telephone. The Children's Division asked Mother's parent aide to take Mother to the hospital where D.N. was located. The parent aide picked Mother up from Wal-Mart on 40 Highway in Kansas City and took Mother to the hospital. Mother held the deceased child for approximately one hour and was visibly upset by D.N.'s death. The caseworker testified that, Mother requested an autopsy be performed on the baby but that it was the decision of the hospital staff and coroner to not perform one.

         A permanency review hearing was held on October 26, 2015. The court found that a barrier to reunification of P.R. and H.H. with Mother was that Mother was not cooperative, was not visiting the children, and that there was an overall "lack of participation." Termination of Mother's parental rights remained the permanency goal for both children. Services continued to be available to Mother.

          On January 28, 2016, the Juvenile Officer filed a petition to terminate Mother's parental rights. A hearing on that petition was held September 2, 2016. At that hearing, the court took judicial notice of the court's prior orders, judgments, and findings from the aforementioned permanency hearings ...


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