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In re B.D.M.

Court of Appeals of Missouri, Southern District, First Division

November 14, 2019

IN THE INTEREST OF: B.D.M. and J.D.M., Minors,
v.
MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent. J.D.M., Natural Father, Appellant,

          Appeal from the Circuit Court of Lawrence County Honorable Scott S. Sifferman, Judge.

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         J.D.M. appeals the judgments of the Juvenile Division of the Circuit Court of Lawrence County (the "trial court"), terminating his parental rights to his children, B.D.M. and J.D.M. ("the Children").[1] Finding no merit to Father's two points on appeal, we affirm the judgments of the trial court.[2]

         Factual and Procedural Background

         "This Court views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment." In Interest of T.T.G. v. K.S.G., 530 S.W.3d 489, 491 (Mo. banc 2017) (citing Rule 73.01(c)).[3] Viewed in this context, the following facts are pertinent to the current appeal.

         J.D.M. ("Father") is the biological father of B.D.M. (born in 2012) and J.D.M. (born in 2015). On March 7, 2016, the Children came under the jurisdiction of the Juvenile Division of the Circuit Court of Lawrence County in light of: (1) a domestic altercation between Mother and Father, and (2) Mother's positive test for methamphetamine and other drugs. On April 27, 2016, legal and physical custody of the Children was transferred to the Missouri Department of Social Services, Children's Division ("Children's Division").

         Written service agreements were prepared for Father in August 2016, and in January 2017. The service agreements required Father to complete a drug and alcohol assessment, follow recommendations deriving from the assessment, attend AA and NA meetings, and submit to random drug testing. Father failed to comply with the requirements of the service agreements.

         On January 11, 2018, the Children's Division filed petitions to terminate parental rights asserting Father had abused and/or neglected the Children by leaving the Children without any provision for parental support and without making arrangements to visit or communicate with the Children, pursuant to section 211.447.2(2)(b);[4] Father suffered from a chemical dependency which prevented him from providing the necessary care, custody and control; and Father failed to provide the Children with adequate food, clothing, shelter, education, or other care and control necessary for the Children's physical, mental, or emotional health and development.

         In addition, pursuant to section 211.447.7, the petitions asserted the Children had little or no emotional ties with Father and any continuation of a relationship would be detrimental to the Children; Father had not provided financially for the Children;[5] that additional services were unlikely to bring about a lasting parental adjustment enabling a return of the Children to Father; and Father had shown a disinterest in and/or lack of commitment to the Children.

         A hearing was held on December 14, 2018.[6] Father did not testify. Ashlee Schubert ("Schubert") was the case manager for the Children from July 2016 to July 2017, when she left employment with the Children's Division. Schubert testified that the majority of the time, rather than submit to drug testing, Father would simply admit to using methamphetamine; when Father did submit to drug testing, he would test positive for methamphetamine; Father admitted that he needed treatment for methamphetamine addiction, but when treatment assessments were offered, he would not attend. Schubert also testified that Father failed to take medication for his seizure disorder, as required by to his service agreements.

         Schubert testified that another concern was Father's living arrangements. Father would report that he was living with either his boss or a friend, but would never allow Schubert to do home visits. Schubert would schedule times to meet Father at her office, but he would either cancel or not show up.

         Father had supervised visits with the Children. Schubert testified that Father was never given unsupervised visits because he never completed the requirements of his service agreements.

         Schubert further testified that the case goal was reunification of Father and the Children. Schubert stated she did not believe there were any additional services her agency could offer Father that would aid in the reunification process. Schubert testified that Father did not provide any direct financial support to the Children.

         Allison Scharbach ("Scharbach") became the case manager for the Children in July 2017. She testified that when she assumed case management duties, Father was attending supervised visits with the Children at the placement home, but Father demonstrated no cooperation with Children's Division, and still reported using drugs. Due to Father's continued drug use, Father's visitation with the Children remained supervised. Father tested positive for amphetamines and methamphetamine in drug tests on April 2018 and October 2018. Scharbach stated that methamphetamine use by a parent is of concern because when a parent is on methamphetamine, "they generally can't care for the child as they should be cared for. Their driving would be impaired, so they wouldn't be able to . . . take the kids to the ER if they needed to go, or even back and forth to school. It's also very dangerous if the child were to get into that. It, basically, just affects their entire life, but especially their parenting." She testified that there would be a likelihood of future physical harm to the Children if they were in the custody of a person who used methamphetamine.

         Scharbach testified that since July 2017, when she assumed case management, Father's service agreements required that he attend drug treatment. She indicated that Father eventually attended Families in Recovery in August 2018, but was no longer participating at the time of trial. Families in Recovery offered meetings, groups, therapy, and church, but Father did not participate in several of these programs, though required by his service agreements.[7] Scharbach indicated that Father's continued methamphetamine use remained an obstacle to Father's reunification with the Children.

         Scharbach did not believe there were any services that she could provide the family that would enable the Children to reunify with Father within a reasonable, ascertainable period of time; that the Children's Division had been consistent in providing services that would have enabled reunification; and she did not believe Father had rectified the situation as to why the Children came into care-that being his drug use.

         The guardian ad litem testified that the Children's Division had "proven grounds to terminate the parental rights of [Father]." While there was evidence that both children had emotional ties to Father, that Father maintained regular visitation, and that Father made in-kind contributions, the amount of time the Children had been in care demonstrated that additional services would not result in reunification. He believed that while Father was interested in the Children, that commitment was secondary to his methamphetamine use. The continued chemical use by Father "lobbies in favor of granting the petition[, ]" and "the best-interest analysis favors that finding."

         On February 7, 2019, the trial court entered its "Findings of Fact, Conclusions of Law and Judgment" terminating the rights of Father to the Children. The trial court found, pursuant to section 211.447.5(2), that: (a) Father did not suffer from a mental condition; (b) Father did suffer from a chemical dependency in that he continuously tested positive for methamphetamine throughout the pendency of the case and failed to successfully complete drug treatment; (c) no evidence was presented of a severe or recurrent act of physical, emotional or sexual abuse toward the Children; and (d) Father repeatedly and continuously failed, although physically or financially able, to provide the Children with adequate food, clothing, shelter or education, or other care and control necessary for the Children's physical, mental or emotional health and development.

         The trial court found, pursuant to section 211.447.5(3), that the Children had been under the jurisdiction of the juvenile court for a period of one year; the conditions that led to the assumption of jurisdiction still persisted, or conditions of a potentially harmful nature continued to exist; there was little likelihood that those conditions would be remedied at an early date so that the Children could be returned to Father in the near future; and the continuation of the parent-child relationship greatly diminished the Children's prospects for early integration into a stable and permanent home. Additionally, the Court made specific findings pursuant to section 211.447.5(3):

a. Father refused to participate in substance abuse treatment and individual psychotherapy as recommended and agreed to in numerous Written Service Agreements.
b. Due to Father's lack of commitment and interest in the Children, the Children's Division had been unsuccessful in aiding Father on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the Children.
c. No evidence was presented that Father suffered from a mental condition.
d. Father suffered from a chemical dependency which prevented him from consistently providing the necessary care custody and control of the Children and which could not be treated so as to enable him to consistently provide such care, custody and control. Evidence was presented that Father continuously tested positive for methamphetamine throughout the pendency of the case. Father failed to successfully complete drug treatment.

         The trial court also made the following findings, pursuant to section 211.447.7:

(1) The trial court found that while there were emotional ties that existed between Father and the Children, said ties were unhealthy and detrimental to the Children and that termination of Father's parental rights served the Children's needs for permanency after nearly three years in foster care.
(2) Father maintained regular visitation or contact with the Children, however, due to lingering concerns of substance abuse, his visitation never progressed beyond a supervised environment.
(3) Father had not provided for the cost of care and maintenance when financially able to do so, including the time the Children had been in the custody ...

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