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In re A.G.B.

Court of Appeals of Missouri, Western District, Second Division

October 10, 2017

IN RE: A.G.B., JUVENILE OFFICER; MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondents.
v.
E.B. (MOTHER), Appellant.

         Appeal from the Circuit Court of Macon County, Missouri The Honorable Frederick P. Tucker, Judge

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

          OPINION

          Anthony Rex Gabbert, Judge

         Introduction

         E.B. (Mother) appeals the circuit court's judgment terminating her parental rights to her biological child, A.G.B. Mother asserts three points on appeal. First, Mother contends that the circuit court erred in terminating her parental rights pursuant to Section 211.447.5(3)[1] because the State failed to present clear, cogent, and convincing evidence that the conditions at the time of removal of the child persisted. Second, Mother contends that termination of her parental rights pursuant to Section 211.447.5(2) was against the weight of the evidence because the evidence presented did not indicate that Mother's mental condition prevented her from adequately parenting her child. Third, Mother contends that the court abused its discretion in finding termination of her parental rights to be in the best interest of the child because the evidence regarding the statutory factors set forth in Section 211.447.7 indicate Mother is a fit and able parent. We reverse all portions of the circuit court's Judgment relating to termination of Mother's parental rights.[2]

         Background Information

         Procedural History

         A.G.B. was born July 24, 2014. On January 13, 2015, the circuit court ordered A.G.B. placed into protective custody for the reason that, "The mother reports she has mental health issues and cannot care for the child at this time." The court found removal of the child to have been based on an emergency thereby relieving the Children's Division from making reasonable efforts to prevent removal of the child from the home. However, the court also found that the Children's Division had attempted to provide Intensive In-Home Service to prevent removal. On February 24, 2015, A.G.B. was adjudicated to have been abused or neglected and without proper care, custody, and support pursuant to Section 211.031 based on the following findings:

a) Mother reported mental health issues including diagnosis of PTSD and bipolar.
b) Mother repeatedly reported to the Children's Division worker that she is tired and is struggling with caring for the child.
c) Mother reported that she is resentful of the child, struggles to provide care for the child, and gets so upset with the child that she has to leave the room.
d) After a safety plan[3] was implemented on January 10, 2015, as a result of Mother displaying emotional turmoil wherein she was crying and screaming, went to bed with the music loud and ignored everyone in the house, it was determined that the plan was not working.

         The court ordered Mother to comply with the terms of the Written Service Agreement entered into with the Children's Division and that the Children's Division pay for any services required by the agreement.

         Mother entered into her first Written Service Agreement with the Children's Division on February 11, 2015. The agreement required Mother to "address her mental health needs, " "provide safe housing, " and "demonstrate family bonding." To fulfill these requirements, Mother was to schedule counseling appointments with a "Burrell[4] therapist, " meet with a psychiatrist at Burrell, and sign releases for the Children's Division to speak with Burrell. The Children's division was to contact Burrell for updates. Mother was to locate safe, stable housing, provide a copy of her lease agreement, and meet monthly with the Children's Division. At the time A.G.B. was removed from Mother's care, Mother resided with her boyfriend, Bryan, and Bryan's mother in Macon. Mother and Bryan were to attend parenting class, sign releases, attend visits with A.G.B., and "demonstrate skills from parenting class." Shortly after Mother entered into the Written Service Agreement, Mother and Bryan moved from Macon to Columbia to be closer to the required psychological and psychiatric services.

          A review hearing was held May 11, 2015. The court's docket entry for May 11, 2015, indicates that Mother had moved to Columbia and was continuing to have supervised visits with A.G.B. All parties were to continue to follow the "case plan."

         A review hearing was held on August 10, 2015. On that date the court entered an order finding that Mother was "still working on the requirements of the Written Service Agreement." The court ordered that the Written Service Agreement continued to be followed. The court granted Mother "unsupervised visits for up to four hours per visit out in the community as long as Guardian Ad Litem approves of the visits."

         The court held a permanency hearing three months later on November 9, 2015. At that time A.G.B. had been in foster care for ten months. At that hearing the court found that Mother was having weekly unsupervised visits with A.G.B. The court found that "services" were available to Mother in the form of "Family Support Team meetings" and "individual therapy."[5]The court found that Mother was continuing to work toward the goals of the Written Service Agreement. A docket entry on this date indicates that the previous goal of reunification changed from reunification to reunification with a concurrent plan for termination of parental rights and adoption. Mother was ordered to submit to a psychological evaluation. Mother's visitation was to "be arranged during the Family Support Team meetings."

         The court held a permanency hearing on February 8, 2016. Pursuant to that hearing the court found that Mother was having weekly unsupervised visitation with the child and that Mother was continuing to work toward the goals of the Written Service Agreement. The permanency plan for the child was noted to be both reunification with Mother and adoption. Bryan was ordered to submit to a psychological evaluation. A review hearing was scheduled for April 25, 2016.

         Following the April 25, 2016, hearing, the court made a docket entry noting that psychological evaluations had been received for Mother and Bryan, [6] and that the Children's Division was "to provide good info on status of TPR petition @ review on 5/23/16."

         Following the May 23, 2016, review hearing, the court entered a docket entry stating that the "status of TPR petition" would be reviewed at a June 13, 2016 hearing. A.G.B. had been in foster care for sixteen months. The court ordered that the Children's Division "provide parent aide for 6 hours per wk." Prior to the parent aide order, Mother was having unsupervised visitation with A.G.B. in Macon. The parent aide services replaced Mother's previous visitation schedule and Mother's visitation with A.G.B. was moved to Mother's home in Columbia to be supervised by the parent aide. The parent aide began supervising Mother's visitation in mid-June of 2016. Following a June case review the court made a docket entry stating, "TPR petition to be filed after DNA results known."

         On August 29, 2016, the Children's Division petitioned the court to terminate Mother's parental rights. The Juvenile Officer was later joined as a party. On September 12, 2016, the court modified its May 23, 2016, docket entry that had previously stated that the Children's Division "provide parent aide for 6 hours per wk" to "[Children's Division] to 'make available' parent aide for 6 hours per week."

          A permanency hearing was held on October 24, 2016. The court ordered that the Children's Division was "to continue to make available parent aide for 6 hours per week" granting Mother "6 hours of visitation per week with the parent aide in the home."

         On January 4, 2017, the court held a hearing on the Children's Division's petition to terminate Mother's parental rights. At the termination of parental rights hearing, Children's Division Worker, Elizabeth Barr, testified that the Children's Division entered into a total of six Written Service Agreements with Mother, the first dated February 11, 2015. Barr testified that the Written Service Agreements represent goals that the Children's Division asks a parent to complete for a ninety-day period. She testified that Mother's Written Service Agreements set forth three goals. The first was to address Mother's mental health needs, the second was to provide safe housing, and the third was to demonstrate family bonding. When asked at trial if Mother addressed her mental health needs, Barr testified, "She did to a certain degree, yes." Barr agreed that Mother had obtained safe housing in Columbia and testified that Mother had met all four conditions set forth under the family bonding requirement. Barr testified that Mother attended parenting classes, attended the majority of visits with A.G.B., and demonstrated appropriate parenting skills "for the most part." Barr stated that Mother had attended medication management appointments regularly and that her lithium levels were in therapeutic range. She testified that she had not witnessed Mother to have any manic episodes in the year leading up to trial.

          Barr testified that Mother was provided visitation with A.G.B. beginning almost immediately after A.G.B.'s removal in January of 2015. Barr testified that, when the visits started in January of 2015, they were supervised for approximately two hours per visit, and this occurred for approximately three months. After three months, the visits "went to loosely supervised where they were at the Children's Division Office and Children's Division was in the room most of the time, but then also could step out for a few minutes if we thought that that situation was safe at the moment." Each of these "loosely supervised" visits lasted for approximately four hours. This visitation occurred for approximately three to four months. Barr testified that the progression from supervised visitation to "loosely supervised" visitation was due to Mother's progress and "improvement."

         Mother's visitation with the child then progressed to "unsupervised in the community." Barr testified that Mother was to take the child to the local library for her visits. She stated that the Macon Library has a child room and a meeting room in the basement that could be used for visits. These visits were four hours in duration. Barr testified that the Children's Division was concerned that Mother relied too heavily upon A.G.B.'s maternal grandmother (Grandmother) or Bryan for assistance during visitation. Therefore, Mother was instructed that relatives were only allowed to participate in visitation with A.G.B. the first and last thirty minutes of the four-hour visits. Barr testified that Mother sometimes allowed Grandmother and Bryan in the visitation room more often than instructed. Mother had no driver's license and relied on Grandmother and Bryan for transportation from her home in Columbia to Macon for visitation. The unsupervised "community" visits occurred for approximately two months, and then the visits returned to being unsupervised at the Children's Division in Macon. Barr testified that the visits returned to the Children's Division because:

We were unaware where [A.G.B.] was during those visits. There were times when we didn't know visits were occurring because she was not scheduling them with Children's Division. She would pick her up at the scheduled pick-up time, and for one visit, in particular, she arrived at the Children's Division Office at 3:00 p.m. when she had picked [A.G.B.] up at 1:00, and so for two hours we didn't know that she had had her and she showed up at the Children's Division Office, and at that point my supervisor and Circuit Manager spoke with her and reviewed the visitation agreement that had been developed at the Family Support Team meeting.

         The record does not indicate what the "visitation agreement" entailed or whether Mother had previously been advised that the court's order of "unsupervised visits in the community" meant that Mother was only allowed to take the child directly to the local library after picking the child up for a visit. Mother's unsupervised visits lasted until mid-June of 2016.

         Barr testified that in April of 2016, after A.G.B. had been in foster care for fifteen months, A.G.B.'s Guardian ad Litem suggested that a parent aide be incorporated into the case. In mid-June of 2016, Mother's visitation went from unsupervised visits at the Children's Division in Macon to supervised visits by a parent aide at Mother's residence in Columbia. The parent aide testified that her services were "to supervise visits only." There was no evidence presented at trial that anything other than introduction of the parent aide prompted the change from unsupervised visitation to supervised visitation.

         From June 16, 2016, to December 29, 2016, the parent aide supervised visits between Mother and A.G.B. The petition to terminate Mother's parental rights was filed by the Children's Division on August 29, 2016, approximately two and a half months after the parent aide supervision began.[7]

         A hearing was held on the Children's Division's termination petition on January 4, 2017. On February 23, 2017, the court entered a Judgment terminating Mother's parental rights pursuant to Section 211.447.5(2), with the court finding Mother to have a permanent mental condition rendering her unable to knowingly provide the child with the necessary care, custody, and control. The court also terminated Mother's parental rights pursuant to Section 211.447.5(3), finding that A.G.B. had been under the jurisdiction of the court for one year and the conditions which led to the assumption of jurisdiction still persist, with conditions of a potentially harmful nature continuing to exist, with little likelihood of a timely remedy to allow reunification in the near future. The court found that clear, cogent, and convincing evidence was presented by parent aide, Karen Bennett, and psychologist, Amy Fisch, to support termination of Mother's parental rights. Mother appeals.

         Standard of Review

         Termination of parental rights is permitted when a statutory ground for termination is supported by clear, cogent, and convincing evidence and when termination is determined to be in the best interests of the child by a preponderance of the evidence. In re A.M.S., 272 S.W.3d 305, 308 (Mo. App. 2008). "When the trial court finds multiple statutory grounds for termination of parental rights, in order to affirm the judgment this Court need only find that one of the statutory bases was proven and that the termination was in the best interests of the child." In Re T.R.W., 317 S.W.3d 167, 170 (Mo. App. 2010). In our review, we "defer to the [circuit] court's ability to judge the credibility of witnesses and will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law." In re K.A.W., 133 S.W.3d 1, 11 (Mo. banc 2004).

[C]lear, cogent and convincing evidence 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.
The constitutional implications of a termination of parental rights also inform the standard of appellate review. The bond between parent and child is a fundamental societal relationship. 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. The fundamental liberty interest of natural parents in raising their children does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State. Those faced with forced dissolution of their parental rights have a more critical need for protections than do those resisting state intervention into ongoing family affairs. The termination of parental rights has been characterized as tantamount to a 'civil death penalty.' It is a drastic intrusion into the sacred parent-child relationship.
Consequently, when reviewing a trial court's termination of parental rights, appellate courts must examine the trial court's findings of fact and conclusions of law closely. Statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship.

In re K.A.W. at 12 (internal quotation marks and citations omitted).

         Preliminary Comment as to the Circuit Court's Findings

         Upon reviewing the record, we note that the bulk of the court's findings in its Judgment duplicate, verbatim, the allegations set forth in the Children's Division's petition. While we presume that the court chose to adopt the Children's Division allegations as findings of its own after consideration of the evidence, the court's verbatim recitation of the allegations leads to some indeterminate findings. For example, the court terminated Mother's parental rights in part pursuant to Section 211.447.5(2) which, as applicable to the allegations in this case, required the court to find Mother to suffer from a permanent mental condition rendering Mother "unable to knowingly provide A.G.B. with the necessary care, custody and control[.]" However, the court's findings state that "Petitioner alleges that Mother has a mental condition . . . ." Technically, therefore, the court made no finding of a permanent mental condition. Although we can infer from the court's Judgment terminating Mother's parental rights that the court must have found the statutory requirements for termination pursuant to Section 211.447.5(2) met, it is difficult to have confidence that careful consideration was given to findings that merely duplicate the Children's Division's petition allegations. These findings comprise the majority of the court's order. The court did, however, make additional findings as to what it considered clear, cogent, and convincing trial evidence supporting termination of parental rights. We review those findings below.

         Point I - Failure to Rectify

         Mother contends that the circuit court erred in terminating her parental rights pursuant to Section 211.447.5(3), arguing that the State failed to present clear, cogent, and convincing evidence that the conditions at the time of removal of the child continued to persist.

Section 211.447.5(3) allows the court to terminate parental rights to a parent when:
The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home.

         In determining whether to terminate parental rights under this subdivision, the court is required to consider and make findings on the following factors: 1) compliance with terms of a social service program entered into with the Children's Division, 2) the success or failure of the efforts of the juvenile officer, Children's Division, or other agency to aid the parent on a continuing basis in adjusting his or her circumstances or conduct to provide a proper home for the child, 3) a mental condition rendering the parent unable to knowingly provide the child the necessary care, custody and control, and 4) a chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control. § 211.447.5 (3) (a)(b)(c)(d). These factors "are not separate grounds for termination by themselves, but rather categories of evidence, that the court may consider along with all other relevant evidence in determining whether grounds for termination exist under § 211.447.5(3)." In re S.Y.B.G., 443 S.W.3d 56, 60 (Mo. App. 2014). Although the court should consider and make findings on all factors, proof of just one factor is sufficient to support termination of parental rights. Id.

         We agree that the Children's Division presented no evidence that the conditions leading to the assumption of jurisdiction still persist. The evidence at trial was that Mother's bi-polar disorder was being managed by medication. The Children's Division worker, Elizabeth Barr, testified that she had observed no "manic" episodes displayed by Mother throughout the year preceding trial. There was no evidence that Mother was overwhelmed by caring for A.G.B., such as was present at the time A.G.B. was removed from her care, or that Mother resented A.G.B. or became inappropriately upset with her. Consequently, the court's finding that the conditions leading to the assumption still persist is not supported by substantial evidence.

          Section 211.447.5(3) also allows for termination of parental rights where conditions of a potentially harmful nature continue to exist with little likelihood of an early remedy. The court found this to be true and considered evidence presented by Karen Bennett, the parent aide, to be clear, cogent and convincing and to support termination of Mother's parental rights pursuant to Section 211.447.5(3).

         Karen Bennett, testified that she was the owner of Family Beginnings, a company that contracts with the Children's Division to provide parent aide type services. Bennett was asked what her services with Mother entailed. She testified: "I didn't - my - as discussed with the Children's Division on this case, my goal was to supervise visits only." Bennett testified that she was primarily there to observe, but that she did intervene when the circumstances required it. She testified:

So on other cases there's times that we provide more parent education. Whatever the family needs. There's a lot of topics as a parent/aide that we can cover - that are also a part of our services. Mom did receive some of those services. However, that was only during nap times and it wasn't every visit because she wasn't always engaged.[8]

Bennett testified that she was allotted six hours per week to supervise visits between Mother and A.G.B. She estimated supervising a total of twenty-six visits.[9] She testified that she took "very detailed notes" during the visits. Bennett's notes were entered into evidence at trial.

         Bennett was asked what type of things she observed between Mother and the child during visitation. Bennett testified that the visits primarily consisted of Mother playing with the child. A.G.B. was nearly two years old when Bennett's parent aide supervision commenced. Bennett testified that "there were times that Mom would direct the play instead of the child" explaining that Mother "would play alongside and do her own thing." Mother would then prepare lunch after which A.G.B. would take a nap. Bennett testified that A.G.B. "always took a good nap" while at Mother's home. After A.G.B. woke up from her nap, she would resume playing with Mother.

Bennett was asked if Mother fed A.G.B. appropriately during visits. Bennett testified:
There were concerns of expired food, spoiled foods. I believe there was a time that I was instructed [by Children's Services] to be aware that she had prepared a birthday cake. I believe it was a cake or cupcakes, I'm not really certain, but it had been cooked previously, and so I was alerted to watch to see if she attempted to serve that and she did. And so I remember having to intervene to say, 'that's too old.' And I believe there were times that the food was prepared after like it would be served, I would look at it and there were times that the food was expired and she didn't catch it. And you know, after maybe a couple times of that happening she did go through her cabinets and disposed expired food. I think in all honesty, though, there's feelings that shopping at the food banks sometimes get expired foods.

         On cross-examination, Bennett stated that she had not examined the birthday cake to determine if it was actually safe to eat. Bennett testified: "I based it off what Children's Division told me. I'm directed by their services and I was told to not let her eat them[.]" There was no evidence in the record that Mother actually served spoiled food to A.G.B. Bennett's notes reveal an occasion where Mother served an expired apple sauce pouch to A.G.B. that Mother had obtained from the food bank, and another time when Bennett drew to Mother's attention that she was feeding yogurt to A.G.B. that had expired two days prior. Expired food in Mother's home was not an ongoing issue, however, as Bennett testified that, after these concerns were brought to Mother's attention, Mother emptied her cabinets of expired food.

         Bennett testified that other situations that required her "intervention" included once when Bennett had to tell Mother not to leave the room while A.G.B. was eating, and once when A.G.B. was attempting to eat something that was a potential choking hazard, a pear, and Bennett had to advise Mother to "cut it off and serve it appropriately." Bennett testified, "Mom did not appear to have that knowledge." This incident does not appear in Bennett's notes. An incident wherein Bennett believed Mother cut A.G.B.'s food up too small does appear in her notes.

         Bennett was asked why the "services" Mother was provided during nap times were not successful. She testified:

Various reasons. There were times that I think mom would fall asleep. There were times that mom was uncooperative and unwilling. There were times that when I did provide the service she may be kind of preoccupied where she wasn't retaining the knowledge.

         Bennett further testified:

You know I remember one time I showed a simple thirty-minute video and there were questions that followed and she knew that, but she slept through it. There was on another time we showed a video on bipolar and living with bipolar and she was very attentive and can repeat that. So I ...

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