Court of Appeals of Missouri, Southern District, En Banc
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Becky J.W.
E. SCOTT, J.
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.
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.
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.
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.
appeal, Mother 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]).
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.
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
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).
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, 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.
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.
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
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.
high court's latest TPR decisions do not change these
views, at least as to Mother's no-substantial-evidence
charges here. 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. ...