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In re Z.L.G.

Court of Appeals of Missouri, Southern District, En Banc

November 16, 2017

In the Interest of Z.L.G., A.L.A.G., Appellant,

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Becky J.W. Borthwick, Judge.


          DANIEL E. SCOTT, J.


         We consider a judgment terminating a mother's parental rights, initially addressing our standard of review because it dictates how we must view the record, and in so doing, expressly reject our older interpretations inconsistent with recent controlling precedent.

         Termination of parental rights (TPR) is a two-step process. First, a trial court must find by clear, cogent, and convincing evidence at least one § 211.447 ground for termination. Adoption of C.M.B.R., 332 S.W.3d 793, 815 (Mo. banc 2011). This "clear, cogent, and convincing" standard is said to be met if the scales instantly tilt toward termination when the factfinder weighs the evidence pro and con. Id. at 815.

         Here, the trial court found by clear, cogent, and convincing evidence three statutory grounds for termination - abandonment, neglect, and failure to rectify. See § 211.447.5(1)-(3) RSMo as amended through 2016.

         An appellate court reviews whether clear, cogent, and convincing evidence supports termination under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). C.M.B.R., 332 S.W.3d at 815. "Therefore, the trial court's judgment will be affirmed 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." Id. (citing Murphy, 536 S.W.2d at 32). Only one statutory termination ground is needed to sustain the judgment. Id. at 816 n.17.

         In this appeal, Mother[1] charges in three points that the abandonment, neglect, and failure to rectify findings are not based on substantial evidence. Yet she repeatedly acknowledges evidence that supports those findings, generally in efforts to minimize such proof or reasonable inferences supporting termination. The true thrust of Mother's arguments is that proof of the termination grounds was not "clear, cogent, or convincing" when weighed against her own evidence. She even repeats to us the same "reminder" three different times:

As a reminder, parental rights can only be terminated if a ground is proven by clear, cogent, and convincing evidence. "Clear, cogent, and convincing evidence is evidence that instantly tilts the scales in favor of termination when weighted [sic] against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). (emphasis added [by Mother]).

         That accurately states the trial court standard of proof, but as a standard-of-review reminder to this court on appeal, it reflects a misunderstanding that we recently sought to correct in Adoption of I.M.W., 522 S.W.3d 301, 306-07 (Mo.App. S.D. 2017). Before we return to that case, we offer some history.

         For decades, appellate courts from time to time believed they should review appeals as Mother suggests. For example, our Western District in 1980 undertook to consider "the application of the test to be applied in a review of a court-tried case as set forth in Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976), when the standard of proof is by clear, cogent and convincing evidence" and concluded that:

Substantial evidence as used in Murphy means clear, cogent and convincing when that standard of proof is applicable. Thus, if it cannot be said that the judgment in this case is supported by clear, cogent and convincing evidence, then it cannot be said the judgment is supported by substantial evidence, and under Murphy v. Carron, must be reversed.

Matter of O'Brien, 600 S.W.2d 695, 697-98 (Mo.App. W.D. 1980).

         This district followed suit. "In a parental rights termination case, 'substantial evidence, ' as the term is used in Murphy v. Carron, means 'clear, cogent, and convincing evidence.'" Interest of M.J.A., 826 S.W.2d 890, 897 (Mo.App. S.D. 1992) (citing O'Brien). "'Substantial evidence' and 'the weight of the evidence, ' as those terms are used in Murphy v. Carron, 536 S.W.2d at 32[1], must satisfy the applicable standard of proof." Estate of Dawes, 891 S.W.2d 510, 522 (Mo.App. S.D. 1994) (citing M.J.A.). All three districts followed this approach into the current decade, at least on occasion.[2] C.M.B.R.'s dissenting judges expressed a similar view (332 S.W.3d at 826-28 (Stith, J., dissenting)) and charged that the principal opinion erred in not considering contrary evidence in the record. Id. at 827, 828.

         Yet three years later, in J.A.R. v. D.G.R., 426 S.W.3d 624 (Mo. banc 2014), our supreme court unanimously agreed and declared that:

• "C.M.B.R. laid to rest any argument that the 'clear, cogent, and convincing' burden of proof requires this Court to consider any contrary evidence when reviewing whether the judgment is supported by substantial evidence." 426 S.W.3d at 626 n.4.
C.M.B.R. also "reinforced the generally accepted principle in all types of bench-tried cases that circuit courts are better positioned to determine witness credibility and weigh evidence in the context of the whole record than an appellate court." Id. at 626.
• Thus, "it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective." Id. at 627.
• Instead, the appellate court is to recognize that the trial court "is free to disbelieve any, all, or none of the evidence, " and properly "receives deference on factual issues because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." Id. (internal quotation marks omitted).

         From these latest controlling declarations, we concluded in I.M.W., 522 S.W.3d at 306-07, that (1) trial judges, not appellate courts, are best-suited to and properly tasked with deciding whether proof is "clear, cogent, and convincing" and "instantly tilts" the termination scales; and (2) an appellate court should not re- evaluate "clear, cogent, and convincing" findings through its own perspective, but should conduct a straight Murphy v. Carron review as in other non-jury cases.

         Our high court's latest TPR decisions do not change these views, at least as to Mother's no-substantial-evidence charges here.[3] Particularly as to those, J.A.R. and C.M.B.R. are not weakened by any later opinion, but are confirmed by Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017), which strengthens our following understandings about appellate review of no-substantial-evidence TPR challenges:

• The "clear, cogent, and convincing" determination is a trial court function. C.M.B.R., 332 S.W.3d at 815.
• A trial court does so as a factfinder by weighing termination evidence "against the evidence in opposition." Id. ...

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