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In re A.F.W.

Court of Appeals of Missouri, Southern District, First Division

February 21, 2018

C.B.W., Respondent. M.D.H., Appellant,

          APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable James Vaughn Nichols


          GARY W. LYNCH, J.

         M.D.H. ("Father") appeals from the judgment in an adoption proceeding terminating his parental rights to his daughter, A.F.W. ("Child"), on the statutory grounds of abandonment, neglect, failure to rectify, and parental unfitness. See section 211.447.5(1)-(3), (6).[1] He raises seven points on appeal challenging the trial court's factual findings in support of each of those statutory grounds for termination. Finding no merit in Father's first two points related to the abandonment ground and that resolution of those points is dispositive of this appeal, we affirm the trial court's judgment.

          Factual and Procedural Background[2]

         Child was born in July of 2012. As part of a September 23, 2013 paternity decree, S.M.W. ("Mother") was awarded legal and physical custody of Child and Father was assigned a child support obligation, which was ultimately garnished from his monthly Social Security disability checks. From her birth until August of 2015, Father was not involved in Child's life.

         On July 2, 2015, Child was discovered walking unsupervised down a street and was taken into protective custody. The Children's Division of the State of Missouri's Department of Social Services contacted Father, who allowed a visit by a case worker in his home on August 19, 2015. Father then participated in a family support team meeting on August 26, 2015. Father refused to enter into a social service plan, although one was made available to him. Thereafter, Father did not return phone calls from the Children's Division and ceased all engagement for over 14 months until November 10, 2016. During this period of time, Child was in foster care with C.W.B. ("Respondent"), and on August 15, 2016, a permanency order was entered changing the case goal from reunification to termination of parental rights and adoption.

         Finally, and almost three months after the case goal had changed to termination of parental rights and adoption, on November 10, 2016, Father responded to a letter from Ms. Katie Groce, a foster care case manager, and, thereafter, maintained some engagement with the Children's Division regarding Child. On December 8, 2016, Respondent filed her petition to terminate Father's and Mother's parental rights and to transfer the custody of and adopt Child.

         On March 26, 2017, before trial on Respondent's petition, Father and Child met for the first time as part of a supervised visitation. During their visitation, Father was unable to meaningfully engage with Child without the assistance of Ms. Karla Bunch, who then served as Child's counselor. Child later expressed to Ms. Bunch that she did not want to see Father because she was afraid of being taken away from Respondent. Child had no bond or emotional attachment to Father.

         Father received a parenting psychological evaluation on May 25, 2017. Dr. Blake Webster, who conducted the evaluation, diagnosed Father with schizo affective disorder. Based upon this diagnosis and a parenting assessment, Dr. Webster opined that Father did not have the ability to act as the sole caretaker for a child.

         A bench trial was held on Respondent's petition on June 30, 3017, during which Respondent and Father presented evidence.[3] The trial court ultimately granted Respondent's petition, concluding the evidence supported the statutory termination grounds of abandonment, neglect, failure to rectify, and parental unfitness and that termination was in Child's best interests.

         Regarding abandonment, the trial court found that Father "demonstrated an intent to abandon [Child]"; "[F]ather made no meaningful effort to visit or communicate with [Child] from the time of [Child]'s birth until [Child] came into foster care in July of 2015"; the only evidence of support was child support payments garnished from Father's Social Security disability checks and that this "was not a voluntary act by the [F]ather, and thus does not demonstrate any intent by the [F]ather to maintain a relationship with [Child]"; "[F]ather met with the caseworker a few times immediately upon [Child] entering foster care, [but] the Court gives no weight to said period of limited interest in [Child]"; "[F]ather has maintained contact with his caseworker since November 2016, and made efforts to comply with a social service plan, [but] said efforts have come largely after the filing of the Petition for Adoption of [Child], and the Court gives said efforts little weight"; and "said efforts and contributions made by [Father] since November of 2016 [were] token."[4] The trial court concluded that "[F]ather, without good cause, left [Child] without any provision for parental support and without making arrangements to visit or communicate with [Child], although able to do so, and has willfully abandoned [Child]." Father appeals.

         Applicable Principles of Review

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).[[5] 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.
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 re Interest of Z.L.G., 531 S.W.3d 653, 655-56 (Mo.App. 2017). "'Conflicting evidence will be reviewed in the light most favorable to the trial court's judgment. Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence.'" In re Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017) (quoting J.A.R. v. D.G.R., 426 S.W.3d 624, 626 (Mo. banc 2014)).

In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective. The trial court 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 ...

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