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In re M.J.M

Court of Appeals of Missouri, Western District, Third Division

April 10, 2018

In the Interest of: M.J.M; MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent,
v.
K.M.U. a/k/a K.M.M., Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable David M. Byrn, Judge

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges.

          LISA WHITE HARDWICK, JUDGE.

         K.M.U. ("Mother") appeals the judgment terminating her parental rights to her son, M.J.M. ("Son"). She contends the circuit court erred in applying the termination of parental rights statute in a manner that violates federal law and is unconstitutional. Mother also argues that the evidence was insufficient to support terminating her parental rights on the bases of neglect, failure to rectify, and unfitness to be a party to the parent and child relationship. She further asserts that the evidence was insufficient to support the court's findings that termination of her parental rights was in Son's best interest. Lastly, Mother argues that the court erred in admitting and relying upon evidence of a sexual assault that was perpetrated against her. For reasons explained herein, we affirm.

         Factual and Procedural History

         On appeal, we view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment. In re Adoption of H.D.J.K., 336 S.W.3d 516, 517 n.2 (Mo. App. 2011). The evidence at trial was that Son was born on August 3, 2013, and resided with Mother and his maternal grandmother ("Grandmother"). During the first two months of his life, Son was admitted twice to Children's Mercy Hospital after being diagnosed with failure to thrive.

         On October 4, 2013, the Juvenile Officer filed a petition alleging that Son's failure to thrive diagnoses were the result of Mother's neglect. Son was placed in protective custody. Following a hearing in January 2014, the court entered a judgment finding that Mother had neglected Son by failing to provide the proper and necessary nutritional, medical, and other support necessary for his well-being. Specifically, the court found that Mother was repeatedly unable to demonstrate proper feeding of Son, refused assistance from the Division, and failed to cooperate with Children's Mercy Hospital Home Health Services. The court found that on two separate occasions, doctors attributed Son's failure to thrive to Mother's refusing to feed the child sufficient food by continuously refusing to adhere to a strict feeding schedule that doctors had directed her to follow. The court noted that, when Mother properly fed Son in the hospital as directed by the doctors, the child gained more than adequate weight. The court found that, after Son was hospitalized for the second time for failure to thrive, Mother immediately refused to follow the strict feeding schedule prescribed by the doctors upon discharge and, in doing so, placed his health in danger. Therefore, the court determined that Son was in need of care, assumed jurisdiction over him, and placed him in foster care.

         Mother entered into a written service agreement with the Children's Division ("the Division") containing three goals. The first goal was for Mother to learn how to appropriately care for Son by working with and maintaining a parent aide. The second goal was for Mother to learn how to manage her emotions and not put her family in danger. To do so, she was to have a neuropsychological evaluation, participate in individual therapy, and manage her anger. The third goal was for Mother to be able to care for herself and her family by doing laundry, submitting an application for Social Security and Medicaid, and pursuing employment assistance.

         Mother's Mental Health Conditions

         Mother was initially evaluated by three medical professionals, all of whom found that she suffers from several mental health conditions. Dr. Mary Richardson, a licensed psychologist, performed a psychological evaluation and parenting assessment on Mother in February 2014. Richardson concluded that Mother suffers from Post-Traumatic Stress Disorder ("PTSD"), stuttering, and mild intellectual disability. Richardson expressed concerns about Mother's mood swings, her inability to manage her emotions effectively, her anger management problems, and the fact that she functions at a sixth-grade level academically. Richardson recommended that Mother receive psychiatric care, therapy, anger management, vocational rehabilitation, resources from Parents as Teachers, mental health assistance, and financial assistance. Richardson also recommended that Mother receive a parenting aide or parenting classes to help her learn how to assure Son's safety, learn about early childhood socialization, follow doctor's orders, and learn coping skills.

         A second psychologist, William McDonnell, gave Mother a neuropsychological evaluation in July 2014. McDonnell concluded that Mother displays cognitive and social delays that indicate serious impairment in a number of areas. McDonnell found that Mother's ability to learn new information was measured as impaired, she does not utilize any refined learning strategies, she does not internally organize her approach to problem solving, she misses relevant details of verbal and visual information and makes mistakes based on those errors, she does not take in and hold information in her mind as well as other adults, and she cannot mentally review the information she has heard to assure she understands expectations. McDonnell indicated that Mother would require external support, guidance, and direction in many areas of her daily life and that she may not make financial, social, or vocational choices effectively or safely. McDonnell stressed the importance of Mother's working with a parent aide and receiving individual counseling.

         A psychiatrist, Dr. Mairaj Khan, performed a psychological evaluation on Mother in August 2014. Khan diagnosed Mother with PTSD, major depressive disorder, mood disorder, learning disorder, impulse-control disorder, and mild mental retardation. He placed Mother's intellectual functioning at a fifth or sixth grade level and noted that Mother's decisional capacity is very poor, and she gets easily frustrated. Khan expressed concern for the choices that an individual with these diagnoses would make for themselves and opined that there is a greater likelihood that a child dependent upon that individual would not be in a safe environment. Khan attempted to provide psychiatric care for Mother as part of the Partial Hospital Program, in which individuals receive medication and mental health care and education for six hours a day, five days a week. Mother did not agree with Khan's diagnoses, however, so she resisted taking the medication. She objected to any redirection. Mother was discharged from the program for non-compliance and non-attendance.

         Mother's Anger Management and Domestic Violence Issues

         Mother has a history of exhibiting a lack of anger management and impulse control. Prior to Son's birth, Mother was on probation for assaulting Grandmother by slapping her in the face. Grandmother had to be transported to the emergency room due to the assault. After the court took Son into protective custody, Grandmother called the police in October 2014 because Mother was verbally abusive, pushed a table toward her, and blocked her from leaving the house. Following that incident, Grandmother stated that she was scared to do anything in her own home because Mother's behavior dictated what she could and could not do.

         Mother continued physically abusing Grandmother. According to Grandmother, she has, at times, been scared of Mother because she is afraid that Mother will hit her. Grandmother has had to barricade herself in her room on multiple occasions, as recently as November 2016, due to her fear of Mother. Mother has also physically prevented Grandmother several times from leaving either a room or the house.

         On August 27, 2015, the police were called when Mother pushed Grandmother in the chest after Grandmother refused to pay Mother's child support. Mother refused to comply with the police officer's instructions, resisted arrest, and assaulted the officer by kneeing the officer in the leg and attempting to kick him. Mother had to be subdued by restraints and was arrested. She was incarcerated from August 28, 2015, through September 3, 2015, and was charged with assault and domestic violence. Mother had the option of proceeding in criminal court or participating in the mental health court program. She chose to participate in the mental health court program.

         Mother's Progress in Mental Health Services

         Mother had several mental health therapists after the court took jurisdiction over Son. Brandy Haddock was Mother's first weekly therapist, from January 2014 to May 2015. Mother frequently cancelled appointments with Haddock. Haddock noted that Mother did not want to take her medication or take direction from a parenting aide. Haddock stated that Mother made "little progress" on her anger management and impulse control issues. Haddock rated Mother's progress on coping skills over the course of her therapy at twenty percent. Haddock said that she would be concerned for a child in Mother's home because of Mother's anger management issues and the domestic violence incidents that occurred in Mother's home. After Mother let her Medicaid lapse, Mother was discharged from Haddock's care. Mother's therapist from July 2015 to November 2015, Tajsheena Leggs, also expressed concerns about Mother's anger management and impulse control.

         Mother's third therapist, Mackenzie Sainz, began working with Mother in January 2016. Mother frequently cancelled her appointments with Sainz. Mother exhibited paranoid behavior to Sainz. On one occasion, Mother told Sainz that "DFS commits medical kidnapping of babies for monetary gain and DFS has killed people." After working with Mother for a year, Sainz rated Mother's progress on her treatment goals at a three or four out of ten.

         When Mother chose the mental health court program in lieu of proceeding in criminal court for her assault and domestic violence charges in December 2015, she actually engaged and participated in mental health services that she had previously refused when those services were offered by the Division. She began regularly seeing a mental health nurse practitioner for medication management, and she attended individual therapy and family therapy with Grandmother. After Mother graduated from the mental health court program in May 2016, however, Grandmother contacted Mother's therapist out of concern that Mother was not retaining the coping skills necessary to manage her anger.

         Mother's Relationship with Parent Aides and Case Manager

         In the three and one-half years that the court had jurisdiction over Son before Mother's parental rights were terminated, Mother had five different parent aides. Mother frequently complained about her parent aides, was argumentative with them, and refused to listen to their directions regarding how to properly feed and care for Son. Two of Mother's parent aides left due to a poor working relationship with Mother, while two other parent aides left for reasons unrelated to Mother.

         Only one of Mother's parent aides, Wendy Bevan, recommended that Mother receive unsupervised visitation. Bevan was Mother's parent aide from August 11, 2014 to October 27, 2014. Bevan recommended that Mother receive short periods of unsupervised time "sandwiched" in the middle of supervised visits. After Bevan recommended this, however, she expressed concern that Mother and Grandmother had not been transparent with her about all of the domestic violence issues in the home.

         None of Mother's other parent aides recommended that Mother receive unsupervised visitation. Indeed, several of Mother's supervised visits resulted in phone calls to the police due to concerns for the parent aide's or Son's safety. During a supervised visit on November 29, 2014, Mother refused to listen to her parent aide, Wynona Martin, regarding how to feed Son. Mother began yelling and screaming at Martin and told her that she would not be leaving with Son, so Martin called the police. During another supervised visit on December 21, 2014, Mother refused Martin's direction to put Son in his crib to sleep. Again, Mother yelled and screamed at Martin, and Martin called the police because she felt like she could not take Son and leave safely. During a supervised visit on December 30, 2014, attended by Martin and Mother's Division caseworker, Alisa Connelly, Mother began making physical and verbal threats. Mother yelled that Son should never have come into care and that the Division was trying to steal her child. The situation escalated, and Connelly called the police. Per the police dispatcher's directions, Connelly locked herself and Son in the bathroom. Mother was banging on the door with such force that Connelly had to put her back to the bathroom door to protect Son in case the door broke. Visits were suspended after this incident until the court ordered therapeutically supervised visits, but the start of those visits was delayed because Mother kept cancelling her personal therapy sessions.

         After Mother's therapeutically supervised visits ended, Martin insisted that the visits occur in the community instead of in Mother's home. During a June 4, 2015 visit at Independence Center, Martin decided to end the visit early due to Mother's inappropriate behavior and non-compliance with Martin's directions. Mother began yelling at Martin and then, when Martin attempted to leave with Son, Mother screamed multiple times in the crowded mall that Martin was "stealing [her] baby." Mall security and the police intervened, and Martin was eventually allowed to leave with Son. Martin declined to work with Mother after this incident. Mother's anger and outbursts were constant safety concerns for Martin, and Martin stated that she would be concerned for the safety of Son and any adult who supervised visits between Son and Mother.

         Mother continued to be verbally abusive to her next parent aide, Erin Waterhouse. In addition to cursing at her in person, Mother sent Waterhouse several angry, expletive-filled text messages in the summer of 2016 after Mother disagreed with the manner in which Waterhouse intended to reschedule Mother's missed visitation. This caused Waterhouse to have concerns about Mother's ability to control her emotions and manage her anger. Based upon Mother's inability to care for herself and her anger issues, Waterhouse believed that Mother had not developed the parenting skills or the mental capacity to safely and adequately care for Son's mental, physical, and medical needs now or in the reasonably foreseeable future.

         Connelly served as Mother's Division case manager. Throughout the case, Mother frequently did not allow Connelly to make home visits, did not return Connelly's phone calls, and at times, refused to release information to the Division. Connelly characterized her communication with Mother over the course of the three and one-half years as "very strange and very difficult." Mother told Connelly that she believes Son was taken from her because the State gets money for adopting kids out. When Connelly told Mother that was not true, Mother reacted with anger, rage, and disbelief. Moreover, Connelly noted that, when Mother flies into a rage, she "doesn't really have control." Connelly related one incident where, during a supervised visit, Son did something that Mother did not like. According to Connelly, Mother yelled at Son and "took it out on him in an inappropriate way for a child his age." Connelly believed Mother's lack of impulse control, lack of anger management, and lack of understanding about Son's developmental abilities would put Son's safety at risk if Son were left unsupervised with Mother.

         Other Services Provided to Mother

         The Division made extensive efforts to help Mother receive Medicaid, Social Security, food stamps, parent education, employment assistance, vocational rehabilitation, and housing assistance. Mother either refused the services, delayed applying for them, failed to follow through with her applications, or let the services lapse. At the time of trial, Mother had reapplied for Medicaid but was not yet receiving it. Connelly struggled to get Mother to participate in services and believed that Mother's actions did not demonstrate progress toward parenting Son.

         Mother's ...


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