Opinion
WD 82220
11-19-2019
In the INTEREST OF: Z.M.M. Juvenile Officer, D.E.W. and L.S.W., Respondents, v. A.S.M., Appellant.
Order
:
A.S.M. appeals from the judgment of the Circuit Court of Jackson County, Missouri, Family Court Division, terminating her parental rights to her daughter, Z.M.M. Because a published opinion would have no precedential value, we have instead provided the parties a memorandum of law explaining today's ruling. The judgment is affirmed. Rule 84.16(b).
Memorandum of Reasons for Order Affirming Judgment Pursuant to Rule 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
A.S.M. ("Mother") appeals from the judgment of the Circuit Court of Jackson County, Missouri, Family Court Division ("trial court"), terminating her parental rights to her daughter, Z.M.M. ("Child"). On appeal, Mother argues that the trial court's findings relating to neglect, failure to rectify, parental unfitness, and the child's best interests were against the weight of the evidence. We affirm.
Factual and Procedural Background
"On appeal from a judgment of termination of parental rights, the evidence is viewed in the light most favorable to the judgment." In re A.C.G., , 343 n.1 (Mo. App. W.D. 2016). To protect the identity of the minor child, we have used initials and pseudonyms to refer to the persons relevant to this appeal.
Mother has given birth to seven children, one of whom is Child, born May 20, 2009. Three of her older four children were adopted by L.S.W. ("Grandma") and one was placed with the father, due to Mother's illicit drug substance abuse.
On January 13, 2015, Child, along with her two siblings in Mother's custody at the time, came under the jurisdiction of the Jackson County Family Court pursuant to a petition by the Juvenile Officer that alleged the children were
without proper care, custody and support necessary for their well-being and [were] subject to the jurisdiction of this Court pursuant to 211.031.1 RSMo in that the mother neglects the children and the family home is extremely unsafe and unsanitary. Specifically, on or about December 23, 2014, Children's Division and law enforcement observed nearly every surface in the home to be covered with garbage, nearly waist-high in some places; large piles of dirty dishes and food throughout the kitchen; and numerous roaches and flies near the discarded food. The mother blamed the conditions of the home on the children and reported to the Children's Division that it was the children's responsibility to clean the home. Children's Division staff then observed the home on or about January 11, 2015 and, though some improvements to the overall cleanliness of the home had been made, the home continued to be filled with garbage and trash throughout and insects remained in the kitchen. Additionally,
the mother frequently leaves the children unsupervised for long periods of time despite their young ages. The children are at risk of further neglect absent the intervention of this Court.
On February 4, 2015, Mother stipulated that there was clear, cogent, and convincing evidence of the allegations, and the petition was sustained by the court. From January 13, 2015, to November 2015, Child was in the custody of the Children's Division, and in November 2015, Child was placed with Grandma and D.E.W. ("Grandpa") and has been in their care since that time.
In July of 2015, Mother stole drugs from the nursing home that employed her at the time, resulting in the termination of her employment, criminal charges filed against her, and the loss of her apartment. That same month, Mother was hospitalized at Two Rivers Health Center for mental health issues and reported hallucinations at that time. The following month, Mother again was voluntarily hospitalized for mental health at Two Rivers, where it was noted that she exhibited medication-seeking behaviors. Then, in September of 2015, Mother again presented to Two Rivers, but left against medical advice after learning she would be unable to obtain the drugs she was seeking. In October of 2015, Mother reported visual and auditory hallucinations to her therapist, though on appeal she denies this despite its unmistakable appearance in the record. In December of 2015, medical records indicate that Mother again reported experiencing auditory and visual hallucinations at a doctor's office where she also stated, "I need more Xanax."
In February of 2016, Mother was residing at City Union Mission and "had a panic attack" and "freaked out," experiencing an auditory hallucination which she then reported to a doctor with Truman Mental Health, but later denied at trial, characterizing the voice she heard as "my inner self." Due to her actions at and around that time, she was made to leave the program at City Union Mission. In March of 2016, Mother received $8,000 in back child support and used very little of it for Child. She made a payment of $1,244 toward a $2,106 arrearage of child support, which was for three of her children in the custody of the Children's Division. Also in March, the permanency goal for Child changed from reunification to adoption and termination of parental rights due to Mother's lack of stable housing and recent diagnosis of schizophrenia. In May of 2016, Mother obtained public housing, the size of her apartment being based upon her submitting the children's birth certificates, though the children were not and are not in her custody. In May of 2016, Mother's therapist noted her drug-seeking behavior and orientation, and Mother's drug test resulted in a positive result for a narcotic prescription medication she was not prescribed, oxycodone. In June of 2016, the permanency goal for Child remained the same, the barriers to reunification listed added Mother's recent positive test for oxycodone, Mother's impulsivity and history of sporadic drug use, and additional mental health conditions that Mother concealed. Mother was again voluntarily hospitalized at Two Rivers in July of 2016 for mental health issues, the notes indicating she was suicidal with a plan to overdose on Valium; and in the same month, Blue Valley Surgical Associates noted its recommendation that Mother not be prescribed any narcotics due to the large amounts of sedating medications she was already taking (six).
Grandma and Grandpa, Child's maternal grandmother and Mother's stepfather, filed a Petition for Adoption on September 20, 2016, and subsequently filed a First Amended Petition for Termination of Parental Rights and Adoption on April 5, 2017, seeking to terminate the parental rights of Mother.
In December of 2016, Child's sibling was adopted, and Mother did not appear for the proceedings.
In April of 2017, Dr. Kahn, Mother's psychiatrist, noted that Mother was asking for more Valium. In July of 2017, the trial court noted Mother's use of many prescription medications, the continued inappropriate condition of her home, that the case was 924 days old, and that, although family therapy was ordered, Mother did not participate.
The trial of the current proceeding was heard on August 9, 2017, August 16, 2017, October 18, 2017, October 20, 2017, October 25, 2017, January 31, 2018, May 10, 2018, May 29, 2018, and July 16, 2018. Mother appeared with counsel and actively participated in the proceedings. The trial court took the matter under advisement and entered Findings of Fact, Conclusions of Law and Findings, and Recommendations of Termination of Parental Rights of Mother on September 19, 2018.
The trial court noted that Mother was presently taking five sedating medications along with many others and that she was lethargic and drowsy at trial; that Mother's diagnoses for post-traumatic stress disorder, generalized anxiety disorder, bipolar disorder, borderline personality disorder, psychosis, and schizophrenia were credible and posed an ongoing risk to Child, especially in view of Mother's denial of their existence (at trial, Mother admitted only her diagnoses of bipolar and post-traumatic stress disorder); that there were continuing instances in which the condition of Mother's housing was unsanitary; and that Mother continued to show an inability to control her emotions and made inappropriate statements to Child, telling her to lie and withhold information from Grandma.
The trial court first concluded that pursuant to section 453.040(7), Mother's consent to Child's adoption was not necessary because she "willfully, substantially and continuously failed and neglected to provide the child with necessary care and protection" for the six months immediately preceding the filing of the Petition for Adoption.
All statutory references are to the REVISED STATUTES OF MISSOURI 2016.
Second, the trial court concluded that clear, cogent, and convincing evidence showed that neglect under section 211.447.5(2) was another ground supporting the termination of Mother's parental rights to Child, including factors of Mother's mental condition, chemical dependency, and repeated or continuous failure to provide for Child though able.
Third, the trial court determined that termination of Mother's parental rights to Child was also justified under section 211.447.5(3), failure to rectify the conditions that led to the assumption of jurisdiction by the court, including its findings regarding Mother's progress in complying with the terms of the social service plan, the adjustment of Mother's circumstances or conduct to provide a proper home for Child, mental condition, and chemical dependency.
Finally, the trial court concluded Mother to be unfit to be a party to the parent and child relationship under section 211.447.5(6) due to her consistent pattern of abusive conduct that is ongoing.
The trial court then evaluated and made findings on each of the "best interest" factors of section 211.447.7. The trial court found that Child had minimal emotional ties to Mother, the relationship between them was tenuous, and Child did not want to visit or reside with Mother, but rather desired to be adopted by Grandma and Grandpa; that although Mother had on two occasions made partial payment for the cost of care and maintenance of Child, she admitted she was able to pay $50 consistently each month but failed to do so (and received a substantial amount of back child support but used very little of it for Child's needs, although she could have); that there were no additional services likely to bring about a lasting parental adjustment enabling Child to return to Mother within an ascertainable period of time; that although Mother "articulates a commitment to the child," she was "unable to assume the role of caregiver to the child" and "exhibited a pattern of placing her interests above those of the child"; that Mother had committed deliberate acts that subject Child to a substantial risk of physical or mental harm, in that she "continues, despite court orders not to, to discuss issues of reunification and adoption with the minor child."
The trial court found by a preponderance of the evidence that it was in the best interest of Child to terminate Mother's parental rights. The trial court noted awareness of Mother's efforts to improve, "largely after the filing of this adoption case[,]" but considering all the evidence, found that "[M]other still fails to take sincere responsibility for her actions" and was "still unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, and emotional needs of the child."
The trial court made and entered its judgment on September 28, 2018.
Mother timely appeals.
Standard of Review
Our review of whether there was clear, cogent, and convincing evidence to support a statutory ground for terminating parental rights or a finding that the consent of a parent was not necessary for adoption under section 453.040 is governed by the standard set forth by the Missouri Supreme Court in Murphy v. Carron:
[T]he trial court[`s judgment] will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is "against the weight of the evidence" with caution and with a firm belief that the decree or judgment is wrong.
536 S.W.2d 30, 32 (Mo. banc 1976); S.S.S. v. C.V.S., 529 S.W.3d 811, 815 (Mo. banc 2017).
"`Appellate courts act with caution in exercising the power to set aside a decree or judgment on the ground that it is against the weight of the evidence.'" S.S.S., 529 S.W.3d at 815 (quoting Ivie v. Smith, 439 S.W.3d 189, 205 (Mo. banc 2014)).
[A] claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment. The against-theweight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong. When reviewing the record in an against-the-weight-of-the-evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations. A
circuit court's judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment.
Id. at 815-16 (quoting Ivie, 439 S.W.3d at 205-06) (citations omitted) (internal quotation marks omitted). If the evidence on the record supports two distinct reasonable inferences, we must defer to the trial court's assessment of the evidence. Id. at 816.
In the context of a challenge claiming the judgment is against the weight of the evidence:
This Court defers on credibility determinations... because the circuit court is in a better position to weigh the contested and conflicting evidence in the context of the whole case. The circuit court is able to judge directly not only the demeanor of witnesses, but also their sincerity and character and other trial intangibles that the record may not completely reveal. Accordingly, this standard of review takes into consideration which party has the burden of proof and that the circuit court is free to believe all, some, or none of the evidence offered to prove a contested fact, and the appellate court will not re-find facts based on credibility determinations through its own perspective. This includes facts expressly found in the written judgment or necessarily deemed found in accordance with the result reached. Evidence not based on a credibility determination, contrary to the circuit court's judgment, can be considered in an appellate court's review of an against-the-weight-of-the-evidence challenge.
Ivie, 439 S.W.3d at 206 (citations omitted).
"When the trial court finds multiple statutory grounds for termination of parental rights, we will affirm the judgment if any one of those grounds was proven and termination was in the child's best interests." In re A.C.G., 499 S.W.3d 340, 347 (Mo. App. W.D. 2016).
Here, where the trial court concluded that there were four statutory grounds for termination of parental rights and we need only affirm the trial court on one of those grounds (along with affirmation of the trial court's "best interests" factor determination), we have exercised our discretion to provide Mother, ex gratia, with substantive discussion of all four of the grounds cited by the trial court for termination of parental rights. Though unnecessary, we deem it important to demonstrate to Mother that we have seriously considered all of the statutory grounds for termination that were relied upon by the trial court.
Analysis
In her six points on appeal, Mother challenges the trial court's findings and conclusions that termination of her parental rights to Child was justified under sections 453.040(7), 211.447.5(2), 211.447.5(3), 211.447.5(6), and 211.447.7.
I. Neglect § 453.040(7)
Mother makes a multifarious challenge to the trial court's findings and conclusion pursuant to section 453.040(7), claiming at once that the court erroneously applied the law and that the judgment was against the weight of the evidence. We will review each of the claims, ex gratia, "because the termination of parental rights is an exercise of awesome power and should not be done lightly." In re A.C.G., 499 S.W.3d at 347 (internal quotation marks omitted). Our ex gratia review of the trial court's section 453.040(7) neglect finding demonstrates that it is not an erroneous application of law and is not against the weight of the evidence.
Mother claims that the trial court erroneously applied the law when it found "that it was proper to terminate appellant's parental rights solely because appellant's financial contributions for the child's care and protection were minimal[.]" This claim misstates the express rationale of the court and ignores the statutory language controlling its analysis.
Section RSMo § 453.040(7) provides that:
[t]he consent to the adoption of a child is not required of:
....
(7) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection[.]
Here, though the trial court certainly considered the minimal nature of Mother's financial contributions, it also noted that Mother's payments occurred outside the "six-month time period immediately preceding the filing of the adoption petition" as set forth in the language of the statute. The trial court further weighed the fact that the payments were for support that was past due for not only Child, but also two of her siblings, as well as the fact that Mother had just received $8,000 in back child support, but only put $1,244 toward the total of her arrearage for the three children. Perhaps most importantly, the trial court also noted Mother's testimony that she could have paid $50 per month in support for Child but did not and her express statement of justification: "I don't understand why I should have to pay child support, because I feel [Child] should be with me." Thus, the trial court's rationale considered, not "solely" that Mother's financial contribution was minimal, but also the willfulness, substantiality, and continuous nature of Mother's neglect to provide for Child in accordance with the statutory language of section 453.040(7), particularly during the time period given the most relevance by the legislature, the six months immediately prior to the filing of the petition for adoption. In re Adoption of C.M.B.R., 332 S.W.3d 793, 819 (Mo. banc 2011), abrogated on other grounds by S.S.S., 529 S.W.3d at 811 ("The greatest weight is given to conduct within the statutory period, and the least weight is given to conduct after the petition for adoption is filed.").
Furthermore, the trial court's findings in this regard are not against the weight of the evidence, as Mother also argues in her first point. "Parents have a continuing obligation to provide financial support to a minor child." S.S.S., 529 S.W.3d at 817. The Missouri Supreme Court has also made it clear that
[a] parent may have frequent contact with a child yet still neglect to provide the child with necessary care and protection. Providing "care and protection" requires providing for the health, welfare, maintenance, and protection of a child, but it also suggests having a concern, interest, and attachment to the child.
Id. at 818. Mother's argument claims that her "multiple" instances of making partial but incomplete child support payment for Child (though she had the ability to do so) should trump the trial court's findings supporting its conclusion that Mother neglected to care for and protect Child. Considering the same findings discussed above— i.e., Mother willfully refused to contribute as much as she was financially able to Child's support and made no such contribution during the six-month time period most relevant under the statute—there is clear, cogent, and convincing evidence to support the court's "neglect" conclusion.
The trial court reasonably found that Mother "has not only failed to provide financial support to Child despite having the ability to do so but also had only superficial rather than meaningful contact with Child." Id. "Again, while it may also be reasonable to find [Mother]'s contacts were not superficial, this Court must defer to the circuit court's assessment of the evidence and its findings when the evidence poses two reasonable but different inferences." Id. Mother's willfully neglectful conduct of choosing to provide no financial support during the statutory six-month period "speaks louder than [her] words of [her] superficial or tenuous contacts with Child" and thus, the trial court's conclusion that Mother willfully, substantially, and continuously neglected to provide Child with necessary care and protection is not against the weight of the evidence. Id. at 819.
II. Neglect § 211.447.5(2)
Section 211.447.5(2) provides that a petition to terminate parental rights may be filed when it appears that "[t]he child has been abused or neglected."
In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:
(a) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(b) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;
(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, including an act of incest, or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; or
(d) Repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development.
Id.
The trial court found that Mother neglected Child based upon her stipulation of February 4, 2015, to the facts of the petition initiating Child's case with the Family Court. The trial court then extensively considered and explained its findings on the enumerated conditions or acts of section 211.447.5(2)(a) through (d), concluding that Mother had a mental condition that was permanent or such that there was no reasonable likelihood that the condition can be reversed, and which rendered her unable to knowingly provide Child the necessary care, custody, and control; that Mother had a chemical dependency which prevented her from consistently providing Child the necessary care, custody, and control; and that Mother had repeatedly or continuously failed, although physically or financially able, to provide Child with adequate food, clothing, shelter, or education as defined by law, or other care or control necessary for Child's physical, mental, or emotional health and development, which rendered Mother unable to knowingly provide Child the necessary care, custody, and control.
a. Mental Condition § 211.447.5(2)(a)
For a mental condition to justify the termination of parental rights, it must be "shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed" and to "render[ ] the parent unable to knowingly provide the child the necessary care, custody and control." § 211.447.5(2)(a). "This provision must be read in conjunction with § 211.447.10, which declares that `[t]he disability or disease of a parent shall not constitute a basis... for the termination of parental rights without a specific showing that there is a causal relation between the disability or disease and harm to the child.'" In re A.F., 543 S.W.3d 90, 98 (Mo. App. W.D. 2018). "When a parent's rights are terminated as a result of a mental condition, ... [f]actors that supported the assumption of jurisdiction are relevant, but they must be updated to reflect functioning at the time of the termination hearing." In re Q.A.H., 426 S.W.3d 7, 13 (Mo. banc 2014). "Section 211.447 provides for detailed consideration of the parent's past conduct as well as the parent's conduct following the trial court's assumption of jurisdiction as good evidence of future behavior." In re K.A.W., 133 S.W.3d 1, 9 (Mo. banc 2004).
Here, the record shows that in July of 2015, Mother was hospitalized at Two Rivers for mental health concerns, including severe stress, anxiety, and depression, with suicidal ideation, and during her stay she reported hallucinations. She was discharged with diagnoses of posttraumatic stress disorder, generalized anxiety disorder, bipolar disorder, and borderline personality disorder. The following month, Mother again was voluntarily hospitalized for mental health at Two Rivers, she reported an increase in suicidal ideation with a plan to cut her wrist, as well as hallucinations. Her diagnoses included "bipolar disorder type I, most recent episode, depressed with psychotic features." During her stay she frequently requested additional pain medication. Then, in September of 2015, Mother again presented to Two Rivers but left against medical advice after learning she would be unable to obtain the drugs (Xanax and benzodiazepines) she was seeking, her admitting diagnoses included "sedative hypnotic use disorder." The screening notes from her brief time there show that Mother reported hallucinations again, as well. In October of 2015, Mother reported visual and auditory hallucinations to her therapist, though on appeal she denies this despite its appearance in the record before this Court on appeal. In December of 2015, medical records indicate that Mother again reported experiencing auditory and visual hallucinations at a doctor's office where she also stated, "I need more Xanax."
Truman Medical Center records describe bipolar disorder as "a group of disorders that all share varying degrees of emotional highs and lows that can interfere with daily functioning, such as work, school, or relationships [and] can lead to drug abuse, hospitalization, and suicide."
In February of 2016, Mother was residing at City Union Mission and "had a panic attack" and "freaked out," experiencing an auditory hallucination which she then reported to a doctor with Truman Mental Health. In March of 2016, the permanency goal for Child changed from reunification to adoption and termination of parental rights due to Mother's lack of stable housing and recent diagnosis of schizophrenia. In June of 2016, the permanency goal for Child remained the same, the barriers to reunification listed added Mother's impulsivity and additional mental health conditions that Mother concealed. Mother was again voluntarily hospitalized at Two Rivers in July of 2016 for mental health, the notes indicating she was suicidal with a plan to overdose on Valium.
On September 28, 2016, Mother began seeing a new therapist, Jessica Dallas, on the day Mother was served adoption notice papers. The listed goals for therapy at that time were educate Mother on her parenting skills, educate Mother on the developmental status of her children, and educate Mother on everyday home management. The report of October 31, 2016, indicated the same goals and added two more, to "process [Mother]'s emotions surrounding her and her children's involvement in the Division of Family Services system" and "provide supportive therapy." The report noted that Mother "has limited insight into the current status of this case" and "does not understand why she is unable to have un-supervised visitation or sandwich visits at this time." The following months' notes indicate that Mother continued to have the same goals, with no particular progress noted as to those goals, and that Mother continued to have limited insight into the status of the case and lack of understanding of why she was not having unsupervised visits.
As a result of her mental conditions, Mother has, during the pendency of Child's case, been consistently unemployed, unable to consistently keep an acceptably clean home, had ongoing relational and emotional difficulties with both Grandma and Child, and had difficulty interacting appropriately with caseworkers.
Mother has been unable to keep employment and failed to provide for Child, even when she received a significant back child support payment and even though she admitted she would have been able to provide more than she did. Mother was relying on the financial assistance of the grandfather of one of her children to pay her bills and transportation and testified that without his help Mother would be homeless. Mother had applied for disability income for a third time, having been denied twice, at the time of trial.
After periods of housing instability, ultimately Mother used the birth certificates for three of her children to obtain public housing, despite the fact that the children were not in her care and custody. In spite of having stable housing and no employment, Mother has not managed to keep her home consistently suitably clean. Debra Doyle, parent aide to the family since May 2015, testified that the house, as of the hearing date in August of 2017, still had dirty floors, dirty dishes in the sink, bathroom not clean, clutter around and trash full not emptied, ashtrays full. Ms. Doyle testified that Mother had the same issues regarding cleanliness at both her former apartment in Blue Springs at the beginning of the case, and at the apartment she lived in at the time of trial in 2017.
Child's therapist reported that Child and Grandma reported that Mother continued to have emotional outbursts in front of Child, up to the time of the final hearing in this case. She testified that Child continued to report that she cannot talk to her mom; she does not feel like her mom listens to her or values the things that she's saying that she wants; and when she tries to talk to her mom, her mom talks over her and doesn't listen. Mother admitted to asking Child if she was scared to go to visits with her and if she pretends to be sick so she doesn't have to go to visits, and Mother testified that she thought it was an appropriate conversation to have with Child. Mother was ordered by the court not to make inappropriate comments to Child after Mother had done so after her back surgery, but the parent aide testified that Mother continued to have inappropriate communications with Child in which she was calling Child names or, in other instances, making comments about the pending termination of parental rights proceeding in which she put pressure on Child about the upcoming evidentiary hearing.
There is no dispute that, during the case, the relationship between Mother and Grandmother has been, at best, strained. Ms. Doyle testified that the relationship between Mother and Grandma deteriorated during the time she had been involved in the case, with Mother saying Grandma doesn't like her and wants to take her girls and gloating that she's going to get her girls back on Grandma's birthday. Mother admitted to showing up at Grandma's home without speaking with Grandma ahead of time, at a time when the court orders regarding contact with Child only allowed supervised visits at places other than Grandma's home.
The latest caseworker, Alisa Connelly, testified that, since May of 2017, there have been multiple occasions on which Mother called her multiple times a day (thirteen times one day, six times another day), and called her supervisor multiple times those days, as well. Ms. Connelly testified that these calls were not for emergency situations. Ms. Connelly also testified that Mother had "more conflictual" (sic) relationships with previous caseworkers.
The trial court opined that Mother's diagnoses for post-traumatic stress disorder, generalized anxiety disorder, bi-polar disorder, borderline personality disorder, psychosis, and schizophrenia were credible and posed an ongoing risk to Child, especially in view of Mother's denial of their existence (at trial, Mother admitted only her diagnoses of bipolar and posttraumatic stress disorder). The trial court found that these mental health issues "have consistently, and do presently, interfere with [Mother's] ability to have and maintain healthy relationships and boundaries with those close to her, as well as her daily functioning, rendering her unable to knowingly provide the child the necessary care, custody, and control." The trial court found the testimony of Mother's primary care physician and current therapist to be not credible on this issue, owing, in part, to their heavy reliance on self-reporting by Mother.
The trial court noted that the status of Mother's employment remains unstable and also emphasized that there were still instances in which the condition of Mother's housing was unsanitary. The trial court found that Mother continued to show an inability to control her emotions and made inappropriate statements to Child, telling her to lie and withhold information from Grandma. The trial court noted Mother's continued relationship issues with both Child and Grandma.
Based on the evidence of Mother's mental conditions and the continued instability and interference they caused in Mother's daily functioning and relationships, the trial court found that Mother's mental conditions placed Child "at continued risk of harm and neglect if returned to [Mother]." Given the entirety of the record regarding Mother's mental conditions and their effects on Mother's ability to provide necessary care, custody, and control, and deferring to the trial court's findings of fact in accordance with our standard of review, the trial court's conclusion that Mother's mental conditions placed Child "at continued risk of harm and neglect if returned to [Mother]" is not against the weight of the evidence.
"When reviewing the record in an againstthe-weight-of-the-evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations." Ivie v. Smith, , 206 (Mo. banc 2014). Mother's arguments on this issue present the facts and evidence in the light most favorable to Mother, contrary to our prescribed factual lens of review, and essentially argue that this Court re-find contested facts found based on credibility determinations through this perspective, in violation of our standard of review, which we will not do. In re A.C.G., 499 S.W.3d at 343 n. 1 ("On appeal from a judgment of termination of parental rights, the evidence is viewed in the light most favorable to the judgment."); Ivie, 439 S.W.3d at 206 ("[T]his standard of review takes into consideration which party has the burden of proof and that the circuit court is free to believe all, some, or none of the evidence offered to prove a contested fact, and the appellate court will not re-find facts based on credibility determinations through its own perspective.").
b. Chemical Dependency § 211.447.5(2)(b)
Section 211.447.5(2)(b) provides as a ground for termination of parental rights "[c]hemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control[.]"
Here, the record reflects that in July of 2015, Mother stole drugs from the nursing home that employed her at the time, resulting in the termination of her employment, criminal charges filed against her, and the loss of her apartment. The following month, Mother was voluntarily hospitalized for mental health at Two Rivers, where it was noted that she exhibited medication-seeking behaviors. Then, in September of 2015, Mother again presented to Two Rivers but left against medical advice after learning she would be unable to obtain the drugs she was seeking. The notes for that visit indicate Mother "abuses prescription medications, Xanax and opiates" and that her mental status examination revealed that she was "[f]ocused on medications rather than relief of symptoms." Her admitting diagnoses included "sedative hypnotic use disorder." In December of 2015, medical records indicate that Mother again reported experiencing auditory and visual hallucinations at a doctor's office where she stated, "I need more Xanax."
In May of 2016, Mother's therapist noted that Mother's "frequent medical complaints and resulting test and prescriptions would indicate that she has drug seeking behavior and orientation[,]" and Mother's drug test resulted in a positive result for a narcotic prescription medication she was not prescribed, oxycodone, which Mother testified was another person's prescription medication. In June of 2016, the permanency goal for Child remained the same, the barriers to reunification listed added Mother's recent positive test for oxycodone, Mother's impulsivity and history of sporadic drug use, and additional mental health conditions that Mother concealed. Mother was again voluntarily hospitalized at Two Rivers in July of 2016 for mental health, the notes indicating she was suicidal with a plan to overdose on Valium; and in the same month, Blue Valley Surgical Associates noted its recommendation that Mother not be prescribed any narcotics due to the large amounts of sedating medications she was already taking (six).
In April of 2017 Mother sought more Valium from her psychiatrist, reporting to his office with a chief complaint that "DFS is stressing me." In addition, Mother's medical records indicate she sought treatment from St. Luke's, Truman Medical Center, St. Mary's, and Two Rivers hospitals, complaining of mental health ailments, as well as migraines, tremors, physical pain in her back, neck, and shoulders, knee, abdomen, dizziness, and difficulty swallowing.
At trial, the caseworker and the trial court observed Mother's lethargy and drowsiness. The caseworker testified that she was concerned that Mother was on a lot of medications, about drug interactions and her history with drug use, and her multiple hospitalizations during the case.
As a result of her chemical dependency, Mother has, during the pendency of Child's case, been consistently unemployed, unable to consistently keep an acceptably clean home, had ongoing relational and emotional difficulties with both Grandma and Child, and had difficulty interacting appropriately with caseworkers, as set forth above in our analysis of Mother's mental conditions.
In the findings of fact and conclusions of law, the trial court noted Mother's long-term substance abuse history, including her cocaine use years prior to this case, but which, in spite of Mother's participation in the Family Drug Court Program and drug treatment, resulted in Mother losing custody of her older children, who were adopted. The trial court found that since that time, Mother "transitioned to the abuse of prescription medication." The trial court noted that Mother was presently taking five sedating medications along with many others and that she was lethargic and drowsy.
Given the entirety of the record regarding Mother's chemical dependency and its effects on Mother's ability to provide necessary care, custody, and control, and deferring to the trial court's findings of fact in accordance with our standard of review, the trial court's conclusion that Mother "has a chemical dependency which prevents her from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable her to consistently provide such care, custody and control" is not against the weight of the evidence.
c. Failure to Provide Though Able § 211.447.5(2)(d)
Section 211.447.5(2)(d) provides as a ground for termination of parental rights "[r]epeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child's physical, mental, or emotional health and development."
The record shows that in March of 2016, Mother received $8,000 in back child support and used very little of it for Child. She made a payment of $1,244 toward a $2,106 arrearage of child support, which was for three of her children in the custody of the Children's Division. In March of 2017, Mother made another partial child support payment toward her continuing arrearage. The record also reflects that Mother is not employed and has three times applied for disability, having been denied twice.
The trial court noted Mother's financial contributions and weighed the fact that the payments were for support that was past due for not only Child but also two of her siblings, as well as the fact that Mother had just received $8,000 in back child support but only paid $1,244 toward the total of her arrearage for the three children. Perhaps most importantly, the trial court also noted Mother's testimony admitting that she could have paid $50 per month in support for Child but did not and her express justification statement: "I don't understand why I should have to pay child support, because I feel [Child] should be with me."
Given the entirety of the record regarding Mother's failure to provide for Child although able, and deferring to the trial court's findings of fact in accordance with our standard of review, the trial court's conclusion that Mother "has repeatedly or continuously failed, although physically or financially able, to provide the child with adequate food, clothing, shelter or education as defined by law, or other care and control necessary for the child's physical, mental or emotional health and development which renders the mother unable to knowingly provide the child the necessary care, custody and control" is not against the weight of the evidence.
III. "Failure to Rectify" § 211.447.5(3)
Section 211.447.5(3) provides:
The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control[.]
The trial court found by clear, cogent, and convincing evidence that this section was met, then explained its consideration and findings on each of factors (a) through (d).
Here, it is undisputed that Child has been under the jurisdiction of the juvenile court since January of 2015. The record as discussed hereinabove shows both that the conditions which led to the assumption of jurisdiction still persist and that conditions of a potentially harmful nature continue to exist, as well as factor (c) mental condition and (d) chemical dependency.
The record also shows that continuation of the parent-child relationship greatly diminishes Child's prospects for early integration into a stable and permanent home, as reflected by testimony from Child's therapist that Child is scared of Mother and it would be traumatic for her to be placed in Mother's home. Child's therapist reported that Child and Grandma reported that Mother continued to have emotional outbursts in front of Child, up to the time of the final hearing in this case. Child's therapist testified that Child continued to report that she cannot talk to her mom; she does not feel like her mom listens to her or values the things that she's saying that she wants; and when she tries to talk to her mom, her mom talks over her and doesn't listen. The parent aide testified that Mother and Child are not capable of having conversations without Mother injecting inappropriate statements to Child, which are designed either to belittle Child or coerce Child to testify positively towards Mother.
As to the terms of the social service plan and Mother's progress complying therewith, the record shows that Mother participated to some extent in services, including therapy, medication management, supervised visitation with Child, and a psychological evaluation. The trial court found, after weighing the evidence on the contested facts and making credibility determinations, however, that Mother "fails to adequately convey information to service providers such as her therapist and doctors in order for them to be able to provide her with meaningful services." The trial court also found that Mother failed to make progress in complying with the terms of the social service plan entered into with the Children's Division in failing to follow court orders regarding contact and conversation with Child, as discussed hereinabove.
As to the success or failure of Mother in adjusting her circumstances or conduct on a continuing basis to provide a proper home for Child, the testimony of Child's therapist recited above, her continuing recommendation that visits remain supervised, and the evidence regarding the lack of consistent cleanliness in Mother's home, all support the trial court's finding that Mother failed to so adjust her conduct.
Given the entirety of the record regarding Mother's failure to rectify, and deferring to the trial court's findings of fact in accordance with our standard of review, the trial court's conclusion that Child "has been under the jurisdiction of the Juvenile Court for a period of one year[,]" that "[t]he conditions that led to the assumption of jurisdiction still persist," "conditions of a potentially harmful nature to the child continue to exist[,]" "[t]here is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the natural mother in the near future[,]" and "the continuation of the parent/child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home" is not against the weight of the evidence.
As with her other arguments, Mother's arguments on this issue present the facts and evidence in the light most favorable to Mother, contrary to our prescribed factual lens of review, and essentially argue that this Court re-find contested facts found based on credibility determinations through this perspective, in violation of our standard of review, which we will not do. In re A.C.G., 499 S.W.3d at 343 n.1; Ivie, 439 S.W.3d at 206.
IV. Parental Unfitness § 211.447.5(6)
Section 211.447.5(6) provides:
(a) The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse including, but not limited to, specific conditions directly relating to the parent and child relationship which are determined by the court to be of a duration or nature that renders the parent unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, or emotional needs of the child.
Here, as previously discussed, the record shows Mother has an extensive history and ongoing issues with mental conditions and chemical dependency, an inability to parent any of her other children, an inability to support herself and maintain a consistently clean home independently, and failure to place Child's needs above her own. Mother also has a pattern of refusing to take responsibility for her role in her problems. Mother testified that at the time Child was removed from her custody, Grandma was living with her and "was supposed to be babysitting" and helping with cleaning up and helping the kids to clean up while Mother was working. She blamed her children for throwing trash and dishes on the ground. Mother attempted to minimize her stealing drugs from her employer by saying it was for someone else and her positive drug screen for taking another person's prescription oxycodone by saying it was accidental. Mother also blames caseworkers being manipulated for her not achieving reunification with Child.
Given the entirety of the record regarding Mother's parental unfitness, and deferring to the trial court's findings of fact in accordance with our standard of review, the trial court's conclusion that Mother was unfit to be a party to the parent and child relationship was not against the weight of the evidence.
As with her other arguments, Mother's arguments on this issue present the facts and evidence in the light most favorable to Mother, contrary to our prescribed factual lens of review, and essentially argue that this Court re-find contested facts found based on credibility determinations through this perspective, in violation of our standard of review, which we will not do. In re A.C.G., 499 S.W.3d at 343 n.1; Ivie, 439 S.W.3d at 206.
V. Factors of Section 211.447.7
Mother's argument on this issue states, in its entirety: "In an effort to minimize the length of this brief, Appellant incorporates herein by reference those arguments made in the First through Fifth Points Relied on herein." As we have already disposed of these arguments, we need not address this point further; however, given the seriousness of the termination of parental rights, we will review the best interests determination ex gratia.
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Once the trial court finds that a ground for termination of parental rights has been shown:
[T]he court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent's disinterest in or lack of commitment to the child;
(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.
§ 211.447.7. "There is no requirement, statutory or otherwise, that all seven of these factors must be negated before termination can take place; likewise, there is no minimum number of negative factors necessary for termination." In re B.J.H., Jr., 356 S.W.3d 816, 834 (Mo. App. W.D. 2012) (internal quotation marks omitted). We review the best interests of the child determination for an abuse of discretion. In re S.M.F., 393 S.W.3d 635, 652 (Mo. App. W.D. 2013).
Here, the trial court made findings regarding the seven factors, and they are, in relevant part:
(a) The Court finds that the child has minimal emotional ties to the mother. The relationship between the mother and the child is tenuous, and the child has repeatedly stated she does not want to visit or reside with the mother. The minor child expresses a desire to be adopted by the Petitioners and to be with her siblings.
(b) Visitation between the mother and child has been consistent. However, the minor doesn't always want to attend the visits.
(c) The mother has, on two occasions, made payment for cost of care and maintenance of the child. However, she testified she was able to pay $50.00 a month but has failed to do so. Court also finds the mother received a substantial amount of back child support but used very little of it for the needs of the child, even though she could have.
(d) There are no additional services likely to bring about a lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time. Natural mother has participated in services but has failed to make sufficient progress such that the child's wellbeing can be assured in natural mother's care. The mother refused to participate in court ordered family therapy between herself and her mother, which could have potentially resolved some of the ongoing conflicts and lessened the tension which exists between them for the betterment of the child.
(e) The parent articulates a commitment to the child, however, is unable to assume the role of caregiver to the child. She has exhibited a pattern of placing her interests above those of the child.
(f) There is no evidence that natural mother has a felony conviction such that the child would be deprived of a stable home for a period of years.
(g) Natural mother has committed deliberate acts that subject[ ] the child to a substantial risk of physical and mental harm. Natural mother continues, despite court orders not to, to discuss issues of reunification and adoption with the minor child. Credible evidence received by the Court from the parent aid[e], Debra Doyle, the child's therapist, Donna Davis[,] and by [Grandma] all establish that such comments cause mental harm to the minor child.
The seven factors set forth in section 211.447.7 were properly evaluated by the trial court and applicable findings were made. Nothing in those findings indicates that the trial court abused its discretion. Actually, those findings are similar to the findings of fact and conclusions of law that the trial court made with respect to the statutory bases for terminating parental rights. As noted above, there was clear, cogent, and convincing evidence establishing those findings of fact and conclusions of law, and they were not against the weight of the evidence. "The burden for establishing that terminating parental rights is in the best interest of the child is merely preponderance of the evidence." In re B.J.H., Jr., 356 S.W.3d at 835 (citing In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004)). Thus, "[t]he trial court's findings necessarily meet the lower burden." Id. Accordingly, Mother's sixth point is denied.
Conclusion
The judgment of the trial court is affirmed.