Missouri Court of Appeals, 2018

K.L. v. T.L.

Missouri Court of Appeals · Decided October 9, 2018

561 S.W.3d 12 (South Western Reporter, Third Series)

Counsel

Lori A. Fluegel, Kansas City, MO; Anastacia Renae Adamson, Kansas City, MO, Counsel for Respondent., Daniel Clements Berezoski, Kansas City, MO; Victor Lynn Smith, Lee's Summit, MO, Counsel for Appellant., Prior to T.L.-08's and K.L.-11's births, K.L.-05 and T.L.-07 were found to be in need of the care and supervision of the court. When T.L.-07 was born, Mother tested positive for exposure to PCP and admitted using PCP three days prior to T.L.-07's birth and at least twice during her pregnancy. Sibling K.L.-05 was nineteen months old at the time. Father was also using illegal substances, including PCP and marijuana, and tested positive for PCP and THC just after T.L.-07's birth. K.L.-05 and T.L.-07 initially remained in parental care while their parents participated in drug treatment. In October of 2007, however, the children were placed in foster care due to parental noncompliance with drug treatment and continued possession and use of illegal substances. Father tested positive for marijuana on September 4, 2007, and on October 6, 2007, police found 2.7 grams of what police believed to be crack cocaine in Father's and Mother's car. Father told police it was Mother's "dope." The parents were provided services to address concerns and facilitate reunification with their children., On November 9, 2011, and while pregnant with K.L.-11, Mother tested positive for PCP at a prenatal visit. Mother also tested positive for PCP on February 6, 2011, when K.L.-11 was born. Mother, nevertheless, denied using PCP during her pregnancy. She admitted, however, to using marijuana one time per week throughout her pregnancy and until three weeks prior to K.L.-11's birth. The Juvenile Officer and Children's Services again became involved with the family and the court took K.L.-05, T.L.-07, T.L.-08, and K.L.-11 into protective custody. The court determined that the children were in need of care and treatment, assumed jurisdiction, and placed all children in the legal custody of the Children's Division. The two older children, ages four and five, were allowed to remain in Mother's care. The two younger children, newborn and age two, were placed in foster care.3 Father and Mother were provided services to facilitate the return of the two younger children to their care., Approximately four months later, on June 7, 2011, Mother was arrested. Mother failed to notify the Children's Division of her arrest and failed to make appropriate arrangements for K.L.-05 and T.L.-07, the children remaining in her care. Father was using illegal substances at that time, including PCP and marijuana. Just prior to Mother's arrest, Father tested positive for PCP and THC by urinalysis. The two older children, K.L.-05 and T.L.-07, were then placed in foster care. Father and Mother were provided services to facilitate the return of the children to their care. Approximately six months later (January 5, 2012), all children were returned to Mother's care. The court released jurisdiction and supervision over the family on April 2, 2013., On August 24, 2015, Mother was hospitalized due to an altered mental state stemming from drug use; she tested positive for PCP and marijuana. She admitted to smoking marijuana that may have contained PCP. On August 31, 2015, Father tested positive for PCP and marijuana. The children were all placed in foster care. The parents were again provided services to facilitate return of the children to parental care. Throughout Children's Services involvement with the family, parents were provided intensive in home services, psychological evaluations, individual therapy, parent aides, random urinalysis and hair tests, drug treatment, paternity testing, parenting classes, and psychiatric treatment., On September 30, 2016, the children remained in foster care and the Juvenile Officer filed petitions to terminate the parental rights of T.L. and K.G. to K.L.-05, T.L.-07, T.L.-08, and K.L.-11.4 The Juvenile Officer alleged that termination of parental rights was in the children's best interest and warranted based on the following: 1) Pursuant to Section 211.447.5(2), the children had been abused and neglected and both parents had chemical dependencies preventing them from consistently providing the children with necessary care, custody, and control. Further, the parents repeatedly and continuously failed, although physically and financially able, to provide the children with adequate food, clothing, shelter, education, or other care necessary to meet the children's *17physical, mental, or emotional health and development; 2) Pursuant to Section 211.447.5(3), the children had been under the jurisdiction of the juvenile court for a period of one year and the conditions which led to the assumption of jurisdiction still persisted, with conditions of a potentially harmful nature continuing to exist, and; 3) Pursuant to Section 211.447.5(6), the parents were unfit to be a party to the parent and child relationship because of conditions relating to the parent/child relationship rendering the parents unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the children., Termination of parental rights is permitted when a statutory ground for termination is supported by clear, cogent, and convincing evidence and when termination is determined to be in the best interests of the child by a preponderance of the evidence. In re A.M.S. , 272 S.W.3d 305, 308 (Mo. App. 2008). "When the trial court finds multiple statutory grounds for termination of parental rights, in order to affirm the judgment this Court need only find that one of the statutory bases was proven and that termination was in the best interests of the child." In Re T.R.W. , 317 S.W.3d 167, 170 (Mo. App. 2010). In our review, we "defer to the [circuit] court's ability to judge the credibility of witnesses and will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law." Interest of K.A.W., 133 S.W.3d 1, 11 (Mo. banc 2004). We consider the evidence in the light most favorable to the circuit court's ruling and ignore any evidence to the contrary. A.M.S. , 272 S.W.3d at 307 (Mo. App. 2008) ; In re B.J.K. , 197 S.W.3d 237, 247 (Mo. App. 2006)., In determining whether to terminate parental rights under this subdivision, the court is required to consider and make findings on the following factors: 1) compliance with terms of a social service program entered into with the Children's Division, 2) the success or failure of the efforts of the Juvenile Officer, Children's Division, or other agency to aid the parent on a continuing basis in adjusting his or her circumstances or conduct to provide a proper home for the child, 3) a mental condition rendering the parent unable to knowingly provide the child the necessary care, custody and control, and 4) a 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. § 211.447.5(3)(a)(b)(c)(d). These factors "are not separate grounds for termination by themselves, but rather categories of evidence, that the court may consider along with all other relevant evidence in determining whether grounds for termination exist under § 211.447.5 (3)." In re S.Y.B.G. , 443 S.W.3d 56, 60 (Mo. App. 2014). Although the court should consider and make findings on all factors, proof of just one factor is sufficient to support termination of parental rights. Id., Father contends that the circuit court erred in terminating his parental rights pursuant to Section 211.447.5(3) because there was not clear, cogent, and convincing evidence to support the court's conclusion that harmful conditions persist with little likelihood the conditions will be timely remedied to allow return of the children in the near future. He argues that the court made no specific finding of a dangerous condition and there is insufficient evidence to show that Father is not making progress on the terms of social service plans, that Father is not adjusting his circumstances to provide a proper home for the children, and that a chemical dependency renders Father unable to provide care. We find no error., Second, Father argues that many of the circuit court's findings are legally improper because they were outside the scope of the "ambiguous pleading by the *19Juvenile Officer" which failed to comply with Missouri Supreme Court Rules 125.02, 113.01, and Section 211.452. Yet, Father never challenged the pleadings of the Juvenile Officer by filing a motion for more definite statement under Rule 55.27(d). By failing to make such a motion, parties are deemed, pursuant to Rule 55.27(f), to have waived any objection as to the particularity of the averments. Clark v. Olson , 726 S.W.2d 718, 719 (Mo. banc 1987). Likewise, any constitutional claims alleging due process violations for inadequate notice are waived if not made to the circuit court. State v. Oates , 540 S.W.3d 858, 863 (Mo. banc 2018)., Regardless, "[w]e have previously held the petition to be sufficient if it tracks the language of the statute and gives the parent adequate notice of the allegations." In re D.D.C. , 351 S.W.3d 722, 737 (Mo. App. 2011). Here, the Juvenile Officer's petitions tracked the language of Section 211.447.5(3) by alleging that the children had been under the jurisdiction of the court for a period of one year, and the conditions leading to the assumption of jurisdiction continued to persist, with conditions of a potentially harmful nature continuing to exist. The petitions alleged there was little likelihood those conditions would be remedied at an early date so the children could be returned to Father in the near future. Further, they alleged that continuation of the parent-child relationship greatly diminished the children's prospects for early integration into a stable and permanent home., Aside from tracking the statutory language, the petitions also alleged that Father had not meaningfully addressed his substance abuse issues since the children were placed in foster care. The petitions alleged that Father's participation in reunification services had been inconsistent and although Father had participated in substance abuse treatment, he continued to test positive for marijuana and/or phencyclidine on multiple occasions. The petitions alleged that Father had, for the previous nine years, failed or refused to remove illicit substances from his life and this refusal affected his ability to appropriately care for his children; the children were placed in the care of the Children's Division on multiple occasions because of Father's drug use., *21We find no support in the record for Father's contention that the court never described in its Judgment how the conditions leading to the assumption of jurisdiction related to the conditions existing at the time of trial., Finally, Father argues that the court's findings were not supported by clear, cogent and convincing evidence. He contends that, although "not in total compliance with the Written Service Agreement, [Father] was making progress towards compliance" and his participation was delayed due to a shoulder surgery. Father points to his own trial testimony, that he had stopped using illegal substances and stopped drug testing in June 2017 due to surgery, to support his contention that the circuit court completely discounted his progress in addressing his substance abuse issues. Father argues that the court overemphasized Father's attempts to have the urine collector provide a urine sample for him and downplayed Father's parenting ability. He contends that the court ignored Father's testimony that he could not complete visits with the children after his surgery due to restrictions with the use of his arm. He argues that, although his housing changed, there was no evidence that his housing was inappropriate or unstable. He states that at the time his parental rights were terminated, he did not have a chemical dependency that impaired his ability to parent the children., The circuit court's findings are supported by the record. The evidence, in the light most favorable to the Judgment, is that Father has a substance abuse problem that has disrupted the lives of his children for nine years. He has not rectified this impediment to reunification despite being provided services. Father's inability to timely rectify these conditions has caused the children instability; it has also harmed their emotional well-being. The children's therapist testified that the children suffer from post-traumatic stress disorder resulting, in part, from Father's drug use and the domestic violence witnessed by Father toward Mother in Father's home. Father, nevertheless, denies responsibility for the children's placement in foster care. The evidence supports the court's conclusion that because Father has not addressed his substance abuse issues, the children would be at risk of further harm if returned to his care. At the time of trial, Father was not residing in a home that could accommodate his children and had provided minimal support to his children while they resided in foster care., Like Father, Mother claims that there was no clear, cogent, and convincing evidence supporting termination of her parental rights pursuant to Section 211.447.5(3). Mother argues that the court did not adequately consider the entire record of evidence regarding her efforts to comply with the social service plan and to provide a proper home for the children, and failed to consider her testimony regarding treatment for her chemical dependency., As relevant to Mother, the court found that the children had been under the jurisdiction of the court for over one year, with conditions leading to the assumption of jurisdiction still persisting and conditions of a potentially harmful nature continuing to exist. The court found little likelihood that the issues would be timely remedied so the children could be returned to Mother in the near future. The court found that continuation of the parent-child relationship greatly diminished the children's prospects for early integration into a stable and permanent home., Mother does not dispute that the findings by the court, viewed in the light most favorable to the judgment, are supported by substantial evidence in the record. Her contention is that "the court below failed to give sufficient merit and weight to the mother's testimony regarding her commitment to treatment for her chemical dependency." Likewise, she argues that she "testified that she is attempting to find employment and desires to have her children with her," and the "court failed to give adequate weight to her testimony." She argues that the court's failure to give sufficient weight to her testimony rendered its findings based on insufficient evidence to support a finding of clear, cogent and convincing evidence justifying termination of her parental rights. We disagree., As discussed above, weighing the evidence and assessing the credibility of that evidence is within the trial court's exclusive province and "a trial court is free to disregard testimony in making credibility determinations and weighing evidence." In re Q.A.H. , 426 S.W.3d 7, 9 (Mo. banc 2014). It is clear that the trial court considered Mother's evidence, as reflected in the court's finding that, although "Mother testified that she has not used any illegal substances since May 2017 ... the Court finds such testimony to not be credible." The court explains within the Judgment why it discredits Mother's testimony, including that she had a child born in February of 2017 drug exposed to PCP and marijuana, that a random urinalysis in March 2017 was positive for PCP and alcohol, that Mother had failed to provide random urinalysis samples since that time, and that Mother testified to drug use in May 2017. The court found that between December 2015 and February 2017, Mother tested positive four times and failed to appear for testing at least fifty-seven times. Mother fails to explain how her own unsubstantiated averments that the court found lacking in credibility could render substantiated, credible evidence insufficient to support the court's findings., We review the circuit court's determination that termination of parental rights was in the children's best interest for an abuse of discretion. In Interest of A.C.G. , 499 S.W.3d 340, 349 (Mo. App. 2016).

Opinion of the Court

d) Given both parents' inconsistent participation in offered services, lack of consistent visitation with the children, lack of support, financial or otherwise, and failure to address the concerns that brought the children under jurisdiction, there was little likelihood the conditions could be timely remedied to allow safe return of the children to parental care.

e) This was the third time the family had been under the court's jurisdiction and the barriers to reunification in the instant matter were substantially similar to those in the previous abuse and neglect actions regarding the children. Consequently, "the parents have failed to adequately demonstrate their abilities to ameliorate their parenting skills and conduct in order to safely parent the children."

f) The parents have demonstrated a disinterest and lack of commitment to the children by failing to consistently participate in services, adjust their circumstances so that they could safely parent the children, and failing to address their substance abuse issues.

g) The children are in need of and deserve a stable and permanent home.

*25Father's Claims

Father does not dispute that a preponderance of the evidence, viewed in the light most favorable to the judgment, supports the court's conclusion that termination of parental rights is in the children's best interests. Father suggests, however, that the court failed to base its best interest determination on the requisite "totality of the circumstances" standard. He argues that the court failed to include significant evidence in its analysis, such as Father's visitation being hampered by the parent aide and foster mother, Father's visitation being hindered by Father's shoulder surgery, and that there is no adoptive resource for the children. Father argues that the court downplayed certain evidence beneficial to Father, such as the children enjoying visits with Father, ignored other evidence, such as there being a delay in authorization of a parent aide and the parent aide canceling visits, and misinterpreted evidence, such as T.L.-07's fear of Father. Consequently, Father argues that the court erred in finding the children lacked an emotional bond to Father, erred in finding Father failed to consistently visit the children, erred in finding that Father provided minimal support to the children, erred in finding that additional services would not bring about lasting parental adjustment, and erred in finding that Father demonstrated a disinterest or lack of commitment to his children.

Addressing Father's claims as presented would require us to reweigh the trial evidence. As explained above, we cannot. Father appears to suggest that because the trial court did not acknowledge every piece of Father's evidence in the Judgment, the trial court did not consider this evidence. We find nothing in the record suggesting that the court did not consider all of the evidence as well as the totality of the circumstances. We find that a preponderance of the evidence supports the court's conclusions regarding the children's best interests.

Regarding the children's emotional bond to Father, therapist Keith Hayes had been working with all of the children for approximately a year and a half prior to trial. According to Hayes, all of the children reported witnessing physical abuse and drug use when they resided with their parents. The children reported to Hayes that visitation with their parents was sporadic. Hayes testified that the sporadic visitation negatively impacted the children, particularly T.L.-07. Hayes testified that T.L.-07 was diagnosed with post-traumatic stress disorder and this manifested in symptoms of anger and fear. T.L.-07 told Hayes that he was scared of Father. He explained to Hayes that he was scared of his father because he witnessed a physical altercation between his father and his mother, and that he smelled drugs on his father. While T.L.-07 reported a fear of Father, he would "shut down" when Hayes attempted to explore that issue further, indicating to Hayes that T.L.-07 feared to elaborate in the event his statements would get back to Father resulting in repercussions for T.L.-07. Hayes testified that the children were "ambivalent" with regard to returning to their parents. The children reported that they were in an unstable environment when residing with their parents and did not want to return to that type of setting.

Hayes reported that the children expressed a love for their parents and that they wished they could be with them, but knew that was not possible. Hayes testified that the children rarely spoke about Mother, however, as if they did not expect to see her again. Hayes testified that it is common for children in foster care to love their parents but still not want to return to the environment they were previously in *26with their parents. Since working with the children regarding anxiety and stability, Hayes had observed progress in the children. Hayes expressed concern that the children would regress if returned to parental care if the issues that brought the children into care had not been rectified.

With regard to parental visitation, parental commitment to the children, and the anticipated success of further services, the court was not required to credit Father's testimony or weigh it equally with conflicting evidence The termination hearing was September 18, 2017. Although Father testified that he had not visited the children or submitted to drug testing since June 2017 due to shoulder surgery and an inability to leave the home, Father testified he "maybe went to church a couple of times" during that time frame. He testified that he voluntarily suspended visits with his children because he could not lift, hold, or feed his youngest child, a baby, and the Children's Division would not allow him to visit his older children separately. He testified that he had been cleared by his doctor to engage in activities in August, but that it was the fault of the Children's Division that he had no visits after being cleared. Although he claimed to be drug free since a drug test in June 2017 showed the presence of marijuana, he never submitted to testing after that date. When asked the last time he used drugs he responded, "I don't know. It's been a while."

With regard to Father's support of his children, the Children's Division testified that Father brought one sucker to a visit and gave a pair of shoes to one child. The court was not required to believe Father's testimony that he gave K.L.-05 $100, T.L.-08 $100, and K.L.-11 $60-$70 for their birthdays, or that he provided "items" at his visits. Nevertheless, Father testified to receiving $735 per month in disability beginning August 2016, as well as two years back pay in "lump sum" payments and $194 each month in food stamps. Father was residing with his grandmother at the time of trial. When asked what he spent his money on he indicated "storage" for his things, "burial plans," "living expenses," and "yes, I do give my grandmother things." Even crediting all of Father's testimony regarding support of his children, given Father's income and apparent lack of personal expenses, the court's conclusion that Father "has provided minimal support, financial or otherwise, for the children since the children were placed in alternative care in September 2015" is supported by substantial evidence.

The court's judgment reflects that the court considered the totality of the circumstances in reaching its conclusions regarding the children's best interests. While both Father and Mother argue that they are drug free and in a position to safely care for their children, the record does not support these claims. Neither parent disputed the underlying allegations that brought their children under the court's jurisdiction on three separate occasions. Both Father and Mother were using marijuana and PCP in 2007 when T.L.-07 was born.6 The parents were given the opportunity to care for K.L.-05 and T.L.-07 in their home at that time, but essentially declined when they refused to participate in court-ordered drug treatment and continued to use drugs.7 The children were placed in foster care approximately five months later when police found what appeared to be crack cocaine in Father's and *27Mother's car. Father tested positive for marijuana around that same time. At the time of the termination of parental rights hearing in September 2017, K.L.-05 and T.L.-07 had spent nearly four years of their lives in foster care; T.L.-08 and K.L.-11 had spent nearly three.

Although Father testified at trial that he quit using all marijuana when he was told by Children's Services that his marijuana use "was hindering" his children, Father was on notice at least as early as August of 2007 that his marijuana use was unacceptable and considered harmful to the children. At that time the court sustained jurisdictional allegations that the children were without necessary care, custody, and support because Father "[u]ses illegal substances, including PCP and Marijuana, such that his ability to parent is severely impaired." The court included Father's 2006 drug convictions for trafficking and possession, as well as Father's positive drug tests for PCP and THC from June and early July 2007, in the jurisdictional order. On December 18, 2007, Father stipulated to the Juvenile Officer's Motion to Modify that K.L.-05 and T.L.-07 were without proper custody, support or care necessary for their well-being because the parents continued to possess and use illegal substances, including marijuana and crack cocaine, significantly impairing their ability to parent, and that Father tested positive September 4, 2007, for marijuana. Even after the children were returned to the parents in 2008, removed in 2011 for parental drug use, and returned again in 2012, both parents were still using PCP and marijuana in 2015 which caused the children to be placed again in foster care. Moreover, Father's claim that he was unaware until June of 2017 that his marijuana usage was "hindering" return of the children to his care is simply implausible.8

The court's findings are supported by the record and show that the court considered the totality of the circumstances in reaching its conclusions. We find no abuse of discretion in the court's determination that a preponderance of the evidence supports termination of Father's parental rights to be in the children's best interest.

Father's fourth point on appeal is denied.

Mother's Claims

Mother makes no argument that a preponderance of the evidence does not support the court's conclusion that termination of parental rights is in the children's best interest. She rests her claims that the court erred in determining termination to be in the children's best interests on the contention that the court erred in concluding that grounds for termination of her parental rights existed under Sections 211.447.5(2), 211.447.5(3), and 211.447.5(6). As we previously concluded that the court did not err in finding termination of parental rights justified under Section 211.447.5(3), we need not address Mother's fourth point further.

We find no abuse of discretion in the court's determination that a preponderance of the evidence supports termination of Mother's parental rights to be in the children's best interest.

*28Mother's fourth point on appeal is denied.

Conclusion

We conclude that the circuit court did not err in terminating Father's and Mother's parental rights pursuant to Section 211.447.5(3). Clear, cogent, and convincing evidence supported the circuit court's Judgment that harmful conditions attributable to both parents persist, with little likelihood the conditions will be timely remedied to allow reunification with the children in the near future. Further, the circuit court did not abuse its discretion in finding termination of Father's and Mother's parental rights to be in the best interest of the children pursuant to Section 211.447.6.

We affirm the circuit court's judgment.

All concur.

Father's drug history predates 2007 as evidenced by 2006 drug convictions.

When Father was asked at trial if he completed drug court he stated, "No, I didn't. I put myself in prison, ma'am, so I - so my children could come back home."

While Father argues that his most recent drug use was for "pain management" of a 2014 arm injury and later shoulder surgery, the court was not required to accept this explanation given Father's long history of drug use prior to 2014 and Father's testimony that he turned to illegal drugs for pain management in lieu of using prescribed medication. Even if true, it would not prevent a conclusion that Father's continued illegal drug use has impaired his ability to parent and has harmed his children.

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