In the Interest of: M.T.E.H., M.E.H., Natural Father v. GREENE COUNTY JUVENILE OFFICE , 468 S.W.3d 383 ( 2015 )

In the Interest of: )
M.T.E.H., )
)
M.E.H., Natural Father, )
)
Appellant, )
)
v. ) No. SD33637
)
GREENE COUNTY JUVENILE OFFICE, ) Filed: June 24, 2015
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable David Jones, Circuit Judge
AFFIRMED
In an October 2014 judgment, the trial court terminated all parental rights in, to, and
over M.T.E.H., a seven-year-old child ("Child"), under section 211.447.1 Child's father,
M.E.H. ("Father"), appeals the portions of the judgment that terminated his rights.2 Father's
first, third, and fourth points allege, respectively, that it was against the weight of the
evidence for the trial court to find that: (1) Father abandoned Child; (2) Father failed to
rectify conditions that were potentially harmful or that caused Child to be taken into care
1
All statutory references are to RSMo Cum. Supp. 2013; all rule references are to Missouri Court Rules
(2015).
2
The judgment also terminated the parental rights of Child's mother ("Mother"), as well as her parental rights
over five of Mother's other children, none of whom were sired by Father. Mother is not a party to this appeal,
and we present evidence related to her only to provide context for the evidence relevant to Father's appeal.
1
such that Child could not be returned to him "in the near future" ("failure to rectify"); and
(3) Father's "actions and conditions" demonstrated a negative impact on Child and presented
a danger of "future harm" to Child. Father's second point asserts that the trial court erred in
finding "that [Child] had been abused and/or neglected by [Father]" based upon Father's
mental condition, chemical dependency, and "continued failure by [him] to provide for
[Child] with adequate clothing, shelter or education[.]"
Finally, Father claims the trial court abused its discretion in finding that termination
was in the best interest of Child as Father had "maintained visitation and contact with
[Child] when [it was] allowed by the [trial] court[,]" made "in-kind contributions to [Child,]"
and had "shown an increased interest and commitment [to] reunification."
We reject Father's error claims regarding abandonment, the impact of his actions on
Child, the risk of future harm to Child, and whether termination was in Child's best interest.
As a result, we affirm the portions of the judgment that terminated Father's parental rights.
Applicable Principles of Review and Governing Law
Sections 211.447.5(1)-(6) and .6 allow the termination of parental rights over a
particular child based upon grounds that include: (1) abandonment; (2) abuse or neglect;
and (3) failure to rectify. Although a trial court may find that multiple grounds for
termination have been met, the affirmation of any one of those challenged grounds on appeal
makes it unnecessary to address any additional grounds. In re K.A.W., 220 S.W.3d 310, 318
(Mo. App. S.D. 2007).
A reviewing court will affirm the trial court's judgment unless there is
no substantial evidence to support it, it is against the weight of the evidence
or erroneously declares or applies the law. In re Adoption of C.M.B.R., 332
S.W.3d 793, 815 (Mo. banc 2011). The trial court's judgment will only be
reversed if this Court is left with a firm conviction that the judgment is
wrong. Id.
2
An appellate court reviews conflicting evidence in the light most
favorable to the trial court's judgment. Id. The reviewing court defers to the
factual findings and credibility determinations made by the trial court. Id. If
the evidence presents two reasonable but different inferences, the reviewing
court considers the inference in the light most favorable to the judgment. Id.
In re Q.A.H., 426 S.W.3d 7, 12 (Mo. banc 2014).
If the trial court finds that at least one statutory ground supports termination, it must
then consider whether termination "is in the best interests of the child. On that question . . .
the standard of review on appeal is abuse of discretion." In re P.L.O., 131 S.W.3d 782, 789
(Mo. banc 2004).
Facts and Procedural Background
The trial of this matter took place over the course of three days in August and
September 2014. We summarize the relevant facts in accordance with our obligation to
view the evidence in the light most favorable to the judgment, Q.A.H., 426 S.W.3d at 12,
and we discuss any facts that are unfavorable to the judgment only to provide context for
Father's error claims.3
3
We also observe that, in addition to three court summaries admitted for purposes of a best interest
determination only, the transcript reveals that at least 13 exhibits related to Child and Father were admitted at
trial, including:
17--"MACCS Records" [similarly titled exhibits were described by the deputy juvenile officer as
relating to child support records];
21--"Case Docket [number]" concerning Father;
22--"Case Docket [a second number]" concerning Father;
23--"Case Docket [a third number]" concerning Father;
24--"Case Docket [a fourth number] concerning Father;
25--"Case Docket [a fifth number] concerning Father;
46--"Case Docket" with a case number corresponding to the termination proceeding concerning Child;
60--Records for a behavioral health facility concerning Father;
61--Police department records concerning Father;
64--"Psychological Assessment" concerning Father;
70--"Psychological Assessment" concerning Child;
73--"Treatment Plan" concerning Father; and
88--"Case Docket [the fourth number] (Updated)" concerning Father.
3
An investigations supervisor for the Children's Division ("the Division"), Charlotte
Nolan, testified that near the end of November 2012, she "receive[d] a hotline report that
involved allegations relating to [Mother] and her children[.]" The reporter claimed that four
children were "found on the crossroads of the Kansas Expressway and Kearney, dodging
traffic," when "a family friend" picked them up in her car. It had also been reported that the
children "had been at different stores stealing items." At the time of these reports, the
Division had already received reports about other incidents. One of these incidents involved
Child, "who was five at the time, riding his bike alone at night[,] and almost getting hit by a
car." Another incident involved an officer responding to the home at 11:30 p.m. in mid-
November 2012 and discovering "all of the five oldest children alone in the home[.]"4
Ms. Nolan also recalled that Father and Mother were present at a "72-hour meeting"
held after Child was taken into protective custody. Father appeared "frustrated" and was
"uncooperative." "[H]e indicated that he also knew where [one of the other children being
sought for protective custody] was, but he was only concerned about [Child]. Father asked
that Child be placed with him, his estranged wife, or "a girlfriend[.]" Ms. Nolan discussed
with Father his "history of substance abuse" and that "he was currently on probation for a
manufacturing and distribution [sic] within a school zone[.]"
None of these exhibits are included in the legal file, nor were they otherwise filed or deposited with
this court. Where the record indicates the relevancy of these exhibits, we will presume that their content would
be favorable to the judgment and unfavorable to Father. See In re C.A.M., 282 S.W.3d 3d 398, 401 (Mo. App.
S.D. 2009).
4
Respondent asserts in its brief that Child was taken into custody on December 10, 2012, and Respondent filed
its petition the following day, asserting drug use, criminal history, and a lack of custody rights by Father, in
addition to factual averments regarding Mother. Respondent asserts that the trial court found allegations in the
amended petition to be true and continued Child in the legal custody of the Division following a hearing in
January 2013. In support of these facts, Respondent cites its admitted Exhibit 47, which is listed in the
transcript as "Case Docket" with a specific case number and the abbreviation "C/AN[.]" This exhibit was not
included in the record on appeal. Father, however, does not dispute this information in a reply brief, and we
therefore presume that the exhibit would support these assertions by Respondent. Cf. id.
4
A foster care case manager, Katie Groce, testified that she began working on the case
involving Child and five siblings on December 10, 2012. She recalled that "there [was]
some discussion [with Father at the 72-hour meeting] as to [the] things he would need to do
in order to be considered" as the custodian for Child. Ms. Groce prepared a treatment plan
for Father.
A psychological evaluation of Father was performed in January 2013 by Dr. Mark
Bradford. Dr. Bradford opined that:
[Father] suffered from chronic anxiety, generalized anxiety, and cannabis
dependence and antisocial personality disorders. He'd been using marijuana
for many, many years and was still using at the time I saw him. So at the
time I saw him . . . he did have a chemical dependence. Since that time, I
have no knowledge.
In Dr. Bradford's opinion, Father's drug dependence stemmed "from his teen years. [Father]
had a lot of anger, and his way of dealing with his anger was to use pot probably." In
addition to anger, Dr. Bradford opined that Father had "[a] lot of anxiety . . . and he
basically soothed his nerves by lots of cannabis." Dr. Bradford did not believe that Father's
chemical dependence would change "without treatment[.]"
Father had weekly, supervised visits with Child, most of which were supervised by
Ms. Groce, and those visits were increased from one to two hours in February 2013. Father
brought "clothes and different things, a snack, things like that" for Child when he came to
the visits. While Father interacted appropriately with Child "[f]or the most part," there
appeared to be some kind of "an issue" with Father on one occasion, and Father would not
explain to Ms. Groce "what was going on. And then the second time that [they] had issues,
he just denied being upset or angry during the visit."
5
Ms. Groce had "not been able to do home visits in [Father's] home since February . .
. 2013, due to safety concerns from [her] agency." Father "started to become more verbally
aggressive in FST [family support team] meetings, and [Ms. Groce] believe[d] there were a
couple of police reports where [Father] was listed as a suspect for some domestic assaults
and those type . . . of things[.]"
A licensed professional counselor, Chelsea Fowler, testified that she began every-
other-week sessions with Child in spring 2013. Child was not well adjusted initially, and the
counselor was working with Child "on manners, his respect and some mild anger
management issues." Child's progress in these areas "cycle[d]." Ms. Fowler explained that
"whenever [Child] gets a piece of really difficult news about something happening with
[Mother or Father], then he has a spike in reactive behaviors and loss. And he just--He has a
lot of unresolved grief." Child expressed to Ms. Fowler that he wanted to remain with his
brothers, and she opined that removing Child from his siblings would have "a very negative
impact [on him]."
Concerning Child's description of his relationship with Father, Ms. Fowler testified:
Probably every session, he asks, "Will I see my dad?" Why or why not?
"Will he come see me? Will he write me?" And he's also able to express
that--We talk about in session that he has a volcano, and that's his anger, and
that's the visual that we utilized. And he has said that his dad has a really,
really big volcano.
By the date of trial, Ms. Fowler thought that Child had progressed to the point of being well
adjusted. She recommended the termination of Father's parental rights, which she believed
to be in Child's best interest.
In April 2013, the trial court suspended Father's visits with Child. The order doing
so provided that Father would be allowed to resume visits with Child if Father had "a hair
6
test," "a clean U/A[,]" and also completed anger management training.5 Ms. Groce did not
recall the specific reason that caused the suspension of the visits, but she thought that Father
knew "what he needed to do in order for visits to start up again[.]"
In May 2013, Father completed an anger management program, but the family
support team asked Father to complete another such program because the first one "had not
appeared to help him." According to Ms. Groce, Father completed a hair test, and "[h]e was
able to provide a clean U/A later in September" 2013. Ms. Groce recalled that Father also
sent one letter to Child in September 2013.
Dr. Bradford performed a psychological evaluation of Child in August 2013, and the
report of that assessment was received into evidence. Dr. Bradford opined that Child had "a
mild adjustment disorder who [sic] needed to be taught right from wrong and be pointed in
the right direction." In order to address Child's needs, Dr. Bradford recommended "a safe,
stable home, no chaos, but a good law-abiding, stable home which recommends good
school, respect for authority, do your homework, be a good citizen, stay away . . . from
drugs, stay away from bad behavior and that sort of thing."
A therapist, Aaron McGuire, testified that except for one week, he had weekly
sessions with Father for about two months beginning in September 2013. The purpose of
that therapy was to work on Father's "anger control[,]" anxiety, and "frustration with the
current situation" with a goal of reunification with Child. Mr. McGuire opined that while
Father understood "the obstacles that were keeping him from having placement of [Child,]"
Father also blamed "the system" for the situation.
5
Based upon testimony from Ms. Groce and Dr. Bradford, the trial court could reasonably have concluded that
"a clean U/A" meant a urine analysis that was negative for controlled substances.
7
Mr. McGuire stated that Father appeared willing to make changes and was "trying to
use better self-control[,]" but after his November 18, 2013 session with Father, Father "just
never showed back up," even though another session had been scheduled and Father had not
been released from therapy. Mr. McGuire or his office "never heard from [Father]" again.
At the time Father discontinued therapy, Mr. McGuire "very much" thought that Father "still
had a need or a use for therapy[,]" and he described Father's progress in therapy at the time
he stopped coming as "minimal[.]"
After November 2013, Father's contact with Ms. Groce became "very sporadic, if it
ha[d] occurred at all." As a result, she was unable to ask Father to take random drug tests.
Ms. Groce continued to send Father letters asking him to contact her, and she provided him
with "upcoming dates" relevant to Father's case. During the course of the case, some of the
mail sent to Father at the address he had reported as current was returned, unopened, from
that address. Father also did not answer or return telephone calls from Ms. Groce.
Father failed to keep Ms. Groce informed of "new pending legal issues" after
November 2013, but she learned that "additional legal issues" had arisen based upon "docket
sheets through Case.net or arrests with mugshots, [or] pictures of mugshots." Father did not
make Ms. Groce aware that he was attending "any other individual counseling" after he
stopped seeing Mr. McGuire. Ms. Groce was aware that Father had completed another
anger management program in December 2013.
Ms. Groce testified that visitation between Father and Child did not resume after
April 2013, and Father did not ask her for any visits with Child.
In February 2014, Child had a visit with Mother, "and an associate of [Father's]
brought gifts to the visit . . . . that . . . were partially from [Father], as well as other members
8
of that family." Those gifts, and items provided during Father's previous visits, were the
only support Father had a hand in providing for Child.
In April 2014, Ms. Groce visited Father in jail. They discussed that Father could
come to her office later for a meeting, presumably after his release, and Father made a
statement indicating that he knew "the type of vehicle that [Ms. Groce] drove." Ms. Groce
had been careful "not to drive [her vehicle] around [Father], due to safety concerns[.]" Ms.
Groce did not feel that her agency could provide any other services to Father "that would
enable reunification between [Father] and [Child] in the near future[,]" and she
recommended that Father's parental rights be terminated.
A probation and parole officer, Dedra Roark, testified that she began supervising
Father in April 2014 and met with him regularly. Ms. Roark believed that Father had
violated his probation during her period of supervision by using marijuana, and she said that
Father had tested positive for using marijuana on "[a] lot" of occasions. A proceeding
seeking the revocation of Father's probation was ongoing. Father had been referred to a
drug treatment program, but he was discharged from that program a month before trial due
to his unsuccessful performance. Father had also undergone "a few" substance abuse
evaluations. If Father had attended any other substance abuse program, Ms. Roark was
unaware of it, and Father had not reported "attending NA or AA meetings[.]" In Ms.
Roark's view, Father was "unsuccessful" on probation.
At the start of the first day of trial, Father was not personally present, and he did not
appear by counsel. Later that day, while Dr. Bradford -- the tenth witness called by
Respondent -- was testifying, Father entered the courtroom. At that point, Dr. Bradford's
written psychological evaluation of Father had already been received into evidence. When
9
Father entered the courtroom, Respondent's counsel stopped her direct examination of Dr.
Bradford and advised the trial court of Father's arrival.
Father's explanation for not having appeared on time for the trial was that he "wasn't
going to come." Father informed the trial court that he did not have an attorney, and the trial
court explained to Father that no appointment of counsel for Father had been made because
Father had made a bond for $100,000 and had "paid for [Mother's] attorney[.]" When the
trial court asked Father if he "want[ed] time to go out and hire" a lawyer, Father questioned
whether that would make a "difference[,]" and he stated that he was not "going to keep
wasting money." Despite that statement, Father also indicated that he could possibly hire an
attorney in "[a]bout a month or so." The trial court declined to delay the trial that long.6
At one point during this exchange, Father's ability to consent to a voluntary
termination of his parental rights was discussed, and Father stated, "I ain't signing my rights
over to no--anybody. If it was going to my family, yeah, I'd sign them over now. We don't
even have to go to court." Father additionally stated that there was "no sense" in "signing
[his] rights over" and added, "You all going [sic] to have to take [Child]. I'm not signing
them over to somebody that ain't his parents."
Dr. Bradford eventually resumed testifying. When he began to talk about Mother's
projection of "blame on the men in her life," Father interjected, "Hey--[.]" The trial court
directed Dr. Bradford to stop his testimony "for a moment[,]" and Father stated, "That's just
more better for our kids, right? Fuck that." The trial court then noted for the record "that
[Father] has departed the courtroom."
6
Father's appeal does not include any claim that the trial court abused its discretion by continuing to proceed
with the trial.
10
When the trial resumed a week later, Father was not present, and an attorney did not
appear on his behalf. At the end of the presentation of evidence that day, Mother informed
the trial court that Father was "in custody." When the trial resumed for its final day about
three weeks later, Father appeared from jail, and he was also accompanied by appointed
counsel.
The trial court indicated that Child's counselor could be recalled if Father wished,
and Father's counsel stated that he did not "see any reason to have . . . . that witness back on
the stand." Respondent did recall Ms. Groce as a witness, and she testified that Father had
telephoned her after she had initially testified at trial. He asked about "what services he
could do to work towards getting [Child] returned to him." Near the end of their
conversation, Father asked "what would happen if his rights were terminated[.]" Ms. Groce
testified: "I explained to him what that would mean, and at that time he stated that we
would be taking life from him, and if we did that, that he would 'take life from one of you,'
were his statements, 'life for life.'" She regarded this as a threat and reported it to the police.
Father testified during the last day of trial, and he admitted "that there was an issue
with [him] not being willing to visit [Child.]" Father said he missed visits and he knew that
this could be regarded as appearing contrary to his professed love for Child, but he indicated
that it was hard for him to see Child and then have to walk out without him. Father regarded
Child as his "twin" and testified that Child was "exactly like" him.
Father admitted that he did not finish a parenting class "[b]ecause then [he] kind of
lost faith that [he] wasn't going to get [Child] back." Father also admitted that he continues
to use marijuana even though he knows that it is in violation of his terms of probation, and
he stated that he was "going through courts now for that." Father explained that he "use[d]
11
marijuana to cope with [his] anger and [his] bitterness of [sic] a lot of things," and he
reasoned that using marijuana was "better than going off and smoking meth, crack and other
things like that, or drinking." Father agreed that he had not completed the treatment
program "the way the team wanted [him] to do it[,]" and he said that this was because of his
anger or bitterness over Child "being taken." Additionally, Father said that he didn't "know
how to communicate with" "a certain caseworker," and he "didn't want to hear anything
about her."
Father testified that he had "ADHD." He also stated that he was "[b]ipolar," but he
was not treating either of these conditions by seeing anyone or taking any prescription
medication. He saw "no need" to see a psychiatrist because he was not getting into trouble,
but he thought he would receive medicine for his mental health issues in prison. Father said
he could not work because he had "a lot of anger issues" and was "very hyper." He
maintained that he had been receiving benefits on account of his disability since he was
"eight years old[,]" and he stated that his "disability check" was $735 to $740 per month.
Father said that he was paying for his lawyer in his criminal case from his disability
payments, and he also had "a support team behind [him]."
After all of the witnesses had testified, the guardian ad litem recommended that
Father's parental rights be terminated.
In its judgment terminating Father's parental rights, the trial court found, in addition
to findings concerning neglect and failure to rectify, that:
[C]hild has been abandoned by [Father]. The evidence presented established
that [Child] was older than one year at the time of hearing, and that [Father]
had not visited or otherwise contacted [Child] since April 2013,
approximately 16 months previous. At that time [Father's] visits were
suspended due to failure to get into drug treatment and his angry outbursts.
He was not prevented from sending cards or letters to [Child] and the visits
12
were to be restarted if he were to engage in substance abuse treatment and
complete an anger management course. [Father] did not complete treatment
and has continued to use marijuana by his own admission. [Father] started
anger management classes, but did not complete them. [Father's] own
testimony was that he was angry and didn't like supervised visitation so he
stopped going and gave up. It was [Father's] choice to stop having contact
with [Child]. Since the visits were suspended [Father] has provided a present
or two, but has not, in any way, provided for [Child's] needs and the only
thing preventing him from seeing and caring for [Child] has been his own
choices.
In connection with its finding that Father had neglected Child, the trial court also
stated:
As previously described [Father] has chosen his anger and marijuana over
contact with [Child]. When the case first began [Father] routinely provided
gifts, clothing and other in-kind items for [Child] and some of the other boys.
However, after a few months [Father] stopped going to visits, stopped going
to treatment, stopped seeing his counselor and stopped having any
communication with [Child]. [Child's] counselor described how much
[Child] misses [Father] and how much he wants contact from him. [Father]
testified how much [Child] means to him but his actions do not reflect this.
In what has most likely been the hardest year in [Child's] life, [Father] has
failed to address any of [Child's] needs. He has not provided for [Child
financially], emotionally, medically or developmentally. There was no
evidence that there was anything preventing [Father] from providing for
[Child] other than his choices not to participate in the case and to continue to
engage in criminal behavior that was likely to lead to incarceration.
In considering "the acts and conditions" that supported a termination of the parental
rights of Father and Mother, the trial court also found that the "negative impact on [Child]"
due to "[F]ather's abandonment of [Child], . . . [Father's and Mother's] continued drug use,
[Father's and Mother's] continued involvement in criminal behavior, [Father's and Mother's]
neglect of [Child], and [Father's and Mother's] failure to make changes in [their] lifestyle
present an ongoing danger to the welfare of [Child]." Further, "[C]hild is significantly likely
to suffer future harm if parental rights are not terminated because of [F]ather's abandonment,
13
[Father's and Mother's] continuing neglect, drug use and [Father's and Mother's] failure to
demonstrate an ability to provide [Child] with appropriate parenting."
The trial court also found that termination would be in Child's best interest,
discussing seven factors set forth under section 211.447.7. Some of those findings will be
detailed in our analysis of Point 5. The judgment ordered the termination of Father's
parental rights in, to and over Child. This appeal by Father timely followed the entry of that
judgment.
Analysis
Point 1 – Abandonment
Father's first point claims the trial court's finding that Father had abandoned Child
was against the weight of the evidence, in that
1. Enough evidence was presented that [Father] was making attempts to see
[Child].
2. That [Father's] issues with drugs did not interfere with his ability to parent
[Child] or to attend visitation.
3. That he was able to control his angry outbursts while in the presence of
[Child].
4. That [F]ather had attended drug treatment and anger management classes
immediately preceding the initiation of this matter.
5. That [Father's] only drug of choice is marijuana and it did not interfere
with the visitation with [Child] or the caring thereof.[7]
7
Father's point is defective. It only indirectly hints at legal reasons that might support its claim of reversible
error, and it fails to "explain in summary fashion why, in the context of the case, those legal reasons support
the claim of reversible error" as required by Rule 84.04(d)(1)(C). Most importantly, Point 1 provides no
context explaining how the evidence supporting the judgment was so deficient in probative value when it is
considered in the context of all the evidence that it is unbelievable concerning the findings as to abandonment.
See Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010) (discussing elements of an against-the-
weight-of-the-evidence challenge). Although we choose to review the point ex gratia, insofar as we discern
Father's argument, cf. In re E.A.C., 253 S.W.3d 594, 600 (Mo. App. S.D. 2008) (multifarious point in violation
of Rule 84.04(d) reviewed gratuitously "due to the gravity of the termination of parental rights)), this flaw in
the point carries into the argument that follows it. As discussed, infra, there is no demonstration of why the
14
"[A]n against-the-weight-of-the-evidence challenge presupposes the threshold issue
of the existence of substantial evidence supporting a proposition necessary to sustain a
judgment[.]" Houston, 317 S.W.3d at 186. Additionally, we still "defer to the trial court's
credibility determinations" in assessing such a challenge. Id. A challenger must still
"identify all of the favorable evidence in the record supporting the existence of that
proposition [necessary to the judgment]" and in presenting contrary evidence, he must still
resolve conflicts in testimony according to the trial court's explicit or implicit credibility
determinations. Id. at 187. The challenger must then "demonstrate why the favorable
evidence, along with the inferences drawn from that evidence, is so lacking in probative
value, when considered in the context of the totality of the evidence, that it fails to induce
belief in that proposition." Id.
Section 211.447.5(1) provides that a ground for termination exists when
The child has been abandoned. For purposes of this subdivision a "child"
means any child over one year of age at the time of filing of the petition. The
court shall find that the child has been abandoned if, for a period of six
months or longer:
(a) The parent has left the child under such circumstances that the
identity of the child was unknown and could not be ascertained,
despite diligent searching, and the parent has not come forward to
claim the child; or
(b) The parent has, without good cause, left the child without any
provision for parental support and without making arrangements
to visit or communicate with the child, although able to do so[.]
As explained in In re Interest of V.C.N.C., 458 S.W.3d 443, 448 (Mo. App. E.D.
2015) (internal quotations omitted):
Abandonment can be defined as "a willful delivery of the child with intention
that the severance be permanent [or] a voluntary and intentional
evidence supporting the judgment is so lacking in probative value when viewed in the light of all of the
evidence that it simply cannot be believed.
15
relinquishment of the custody of the child to another with the intent to never
again claim the rights of parent or perform the duties of a parent." [C.M.B.R.,
332 S.W.3d at 816]. The question is largely the intent of the parents, and can
be proven by showing the parents, without just cause or excuse,
"intentionally withheld [their] presence, care, love, protection, maintenance
and the opportunity for display of filial affection from the child." [Id.]
Generally, it is difficult to find abandonment when custody has ended
involuntarily. [Id.] However, the court may still find abandonment when "a
parent's lack of involvement goes beyond what is attributable to the
estrangement and discouragement caused by the enforced separation." [Id.]
"Only the parent's conduct prior to the filing of the petition for termination may be
considered to establish the six-month period." In re J.B.D., 151 S.W.3d 885, 888 (Mo.
App. S.D. 2004). But actions occurring both before and after the six-month statutory period
may be considered in determining a parent's intent. R.P.C. v. Wright Cnty. Juv. Office, 220
S.W.3d 390, 392 (Mo. App. S.D. 2007).
Father begins his against-the-weight-of-the-evidence argument by conceding that
Respondent "did establish that [Child] was over one year in age and that no visitation had
occurred for approximately 16 months."8 Father further acknowledges that the trial court's
suspension of visitation in April 2013 "did not prevent [F]ather from sending cards or
letters," and Father states that "[n]o evidence was presented to suggest that [F]ather had sent
cards or letters while his visits were suspended." Finally, Father admits that he continued
using marijuana even though he "understood that it was a violation of his parole."
Father's argument then proffers an explanation for the termination of his visits,
claiming that "there [is] little to scant evidence in the record that justified the suspension of
8
That sixteen-month time period included a six-month period of time between April 2013 (when visits ceased)
and the day the petition was filed in December 2013, during which no contact occurred between Father and
Child, with the possible exception of a letter Father may have sent Child in September 2013. The trial court
found that Father had not "otherwise contacted [Child] since April 2013[.]" Even if we assume that the trial
court believed Father sent one letter to Child in September 2013, it could properly have considered that contact
as merely token. See In re J.W., 11 S.W.3d 699, 704 (Mo. App. W.D. 1999) (for purposes of abandonment,
"[a] court may disregard contacts that it finds to be 'token or nominal'") (quoting Z.H. v. G.H., 5 S.W.3d 567,
570 (Mo. App. W.D. 1999)). Section 211.447.8 also provides that "[t]he court may attach little or no weight to
infrequent visitations, communications, or contributions."
16
visitation, [and] there is indication that the [family support] team sought to dishearten Father
by stating that he was not a reunification option from the beginning." Respondent counters
that while Father "may have had real struggles that are ongoing . . . that does not change the
fact that he abandoned [Child] by failing to contact him and by failing to provide support for
a period of time in excess of 6 months."
We agree with Respondent. First, Father has not challenged the propriety of the trial
court's suspension of visits he now argues was based on "scant" evidence. Further, given the
fact that the order suspending visits specifically stated the things Father needed to do in
order to resume his visitation with Child, the critical facts are whether Father attempted to
meet those conditions and then pursued continuing contact with Child.
Even if the suspension of visits and the Division's earlier refusal to recommend
placement with Father are regarded as factors that could discourage a parent from
communicating with and supporting a child, Father was also referred to many services that,
if Father had taken advantage of them, would have encouraged Father to persist in efforts to
support and reunite with Child. Father's increase in visitation time early on permitted him
an opportunity to strengthen his relationship with Child, and individual counseling with Mr.
McGuire was intended to help Father deal with his frustration over Child's removal so as to
help Father reunite with Child.
Most importantly, Father testified that he intentionally chose not to visit Child
because it was hard for him to see Child and then have to walk out without him. Father has
not demonstrated why the trial court could not find, based on this admission and all of the
other evidence, that even though Father had completed the steps that would have enabled
him to resume his visitation with Child, Father did not visit Child simply because he was
17
"unwilling" to do so. His claim that "[e]nough evidence was presented that [he] was making
attempts to see [Child]" does nothing to call into question the probity of the evidence
demonstrating that, apart from one token letter, Father stopped communicating with Child
for at least six months "without good cause[.]" See section 211.447.5(1)(b).
We also find it significant that Father fails to address the evidence that he did not
support Child. None of Father's subpoints or arguments contend that there was evidence that
he had made provision for parental support of Child. The provision of even minimal support
may demonstrate that a parent does not intend to abandon his child but intends instead "to
continue the parent-child relationship." R.P.C., 220 S.W.3d at 393. Father's own testimony
revealed that he received monthly disability payments and had "a support team behind
[him]." Despite the availability of these resources, Ms. Groce testified that Father provided
nothing in terms of support after April 2013, apart from gifts "partially from [Father]"
supplied on one occasion in February 2014 -- an action that took place after the termination
petition was filed and is not cited by Father in argument supporting Point 1 as evidence of
his intent to support Child. As earlier noted, the trial court may "attach little or no weight to
infrequent . . . contributions[,]" section 211.447.8, and "[i]t is well-settled . . . that a parent's
post-filing conduct is often given little weight in determining repentance" of abandonment.
In re E.F.B.D., 245 S.W.3d 316, 326 n.10 (Mo. App. S.D. 2008). Father's argument does
nothing to challenge the trial court's finding that, apart from a "a present or two," Father "has
not, in any way, provided for [Child's] needs[,] and the only thing preventing him from
seeing and caring for [Child] has been his own choices." Point 1 fails.9
9
Because the trial court's finding that Father had abandoned Child was not against the weight of the evidence,
points 2 and 3 are moot, and we need not address them. See K.A.W., 220 S.W.3d at 318.
18
Point 4 – Impact of Father's Actions on Child
Father's fourth point contends that it was error for the trial court to find, "as a ground
to terminate Father's parental rights, that the acts and conditions of [Father] supported
termination of parental rights[.]" It then lists three specific reasons:
1. There was enough evidence that [Father's] actions did not constitute
abandonment and did not have a negative impact on [Child]. That there
was not enough evidence to find that the mother [sic] had continued to
neglect [Child].
2. There was not enough evidence to establish that [F]ather's actions
constituted abuse and neglect.
3. There is not enough evidence to establish that [Child] would suffer future
harm if [Father's] parental rights were not terminated.[10]
The judgment's consideration of "the acts and conditions of the parent supporting
termination of parental rights" followed its analysis of the specific grounds for termination
(abandonment, neglect, and failure to rectify). This subsequent consideration of whether
those grounds had a negative impact on Child, were severe enough to be abuse or neglect,
and indicated a risk of future harm does not, of itself, constitute another, distinct statutory
ground for termination. While the judgment does not explicitly cite K.A.W., this portion of
the judgment appears to track a portion of that opinion, which states:
The trial court relied upon several specific acts and conditions of [the
m]other in support of the grounds for termination. Each one must be
supported by clear, cogent and convincing evidence and will be analyzed for:
whether there was sufficient reason to believe that it had an impact upon the
[children], whether it was severe enough to constitute abuse or neglect and
whether it provides an indication of the likelihood of future harm to the
[children].
10
Point 4 is defective for the same reason as Point 1 and it further fails to specify whether its evidentiary
challenge is that there is not substantial evidence supporting the judgment or it is against the weight of the
evidence. These are separate challenges that should be asserted in separate points. See In re Estate of L.G.T.,
442 S.W.3d 96, 109 n.13 (Mo. App. S.D. 2014). But, given the gravity of termination of parental rights, we
will again review the point ex gratia as best we discern it. Cf. E.A.C., 253 S.W.3d at 600.
19
133 S.W.3d at 12.
In any event, Point 4 and its supporting argument suffer from the same flaw we
noted in Father's first point -- it does not address all of the evidence supporting the trial
court's finding that Father's abandonment had a negative impact on Child. Father's argument
does nothing to detract from the trial court's finding -- originally made within the context of
its neglect finding -- that Father stopped contacting Child, and "[C]hild's counselor
described how much [Child] misses [Father] and how much he wants contact from him."
Ms. Fowler testified that Child continually asked about when he would see Father or hear
from Father, and Child would question why he would not see or hear from Father. She also
testified about the reactionary "spike" in Child's behaviors when something had happened
concerning his parents. The trial court's finding that Father's abandonment had a negative
impact on Child and that he neglected Child was not against the weight of the evidence.
Father also incorporates his argument supporting his second point concerning
neglect, but that argument did nothing to undermine the probative value of the evidence that
he had failed to support Child although he was able to do so. See 211.447(5)(2)(d). Instead,
he argues that he had not been ordered by a court to provide for Child's needs and that if he
had had other visits, it could be assumed that he would have provided additional in-kind
assistance. Of course, the absence of a court order "does not relieve Father of his duty to
support his child." In re M.J.H., 398 S.W.3d 550, 561 (Mo. App. S.D. 2013). And, as
previously discussed, Father intentionally chose not to attend visits, so it can hardly be
assumed that he would have chosen to provide additional in-kind visitation, and he does not
even address his ability to provide at least minimal financial support given that he received
monthly benefits and had his own support team. It was not against the weight of the
20
evidence for the trial court to find, in the context of addressing additional considerations,
that Father's failure to support Child was severe enough to constitute neglect.
Concerning the direction in K.A.W. that "[t]here must be some explicit consideration
of whether the past acts provide an indication of the likelihood of future harm[,]" 133
S.W.3d at 10, Father acknowledges the trial court's finding of such a risk. He then simply
incorporates his "[a]rguments 1 and 2" addressing "the issues of abandonment, continued
neglect, drug use and failure to demonstrate ability to appropriately parent" in support of his
contention. We are unable to find any such argument in any portion of Father's brief.
We need not address an issue that is raised in a point but abandoned in argument.
See In re S.M.B., Jr., 254 S.W.3d 214, 219 n.5 (Mo. App. S.D. 2008) (a best-interest
determination that was challenged in a point, but not developed in the supporting argument
was not reviewed). Point 4 fails.
Point 5 – Best Interest Determination
Father's fifth point contends the trial court abused its discretion in finding that it was
in Child's best interest to terminate Father's parental rights based on his claims that he: (1)
"maintained visitation and contact . . . when [it was] allowed by the [trial] court"; (2)
"ma[d]e in-kind contributions to [Child]"; and (3) has "shown an increased interest and
commitment [to] reunification."
"[A] finding that termination is in the child's best interest is a subjective assessment
based on the totality of the circumstances." C.A.M., 282 S.W.3d at 409. The trial court's
discretion to make this determination "is abused when [the] court's ruling is clearly against
the logic of the circumstances then before the court and so arbitrary and unreasonable as to
shock the sense of justice and indicate a lack of careful consideration." In re A.S., 38
21
S.W.3d 478, 486 (Mo. App. S.D. 2001). Father does not assess the totality of the evidence
and then demonstrate that the trial court's finding was shocking or was made without careful
consideration. Cf. In re A.Y.M., 154 S.W.3d 412, 417 (Mo. App. S.D. 2004) (parent's best
interest contention rejected where it failed to claim that "the [trial] court's ultimate best
interests conclusion was unproven by the totality of the evidence presented" and there was a
preponderance of evidence supporting the best interest finding).
We will not repeat here the evidence concerning Father's failure to ask for renewed
visits, his token letter, and his discontinuance of even in-kind support for Child after the
petition was filed. The trial court was not required to credit Father's claimed increased
interest or commitment to reunification, nor was it required to subscribe to Father's
speculation in his brief that "he would have been more committed to the treatment plan and
regaining visits" if he had not been told by the family support team that he was not being
considered as a placement for Child.11 See In re D.M.B., 178 S.W.3d 683, 687 (Mo. App.
S.D. 2005) (the trial court "was free to believe or disbelieve all, part or none of the
witnesses' testimony"). To the contrary, our review for an abuse of discretion requires us to
defer to the trial court's factual findings and credibility determinations. Q.A.H., 426 S.W.3d
at 12. We will not reweigh the evidence or speculate as to conclusions that could have been
drawn from evidence presented that was not favorable to the judgment.
Moreover, Father's point fails to challenge two of the trial court's other findings
supporting its best-interest determination. The trial court found that Child's emotional ties to
Father caused Child to worry when he did not see Father, and it found that Child
11
Father does not cite the record for this alleged evidence. It may be a reference to his own testimony that
even though he was told about what could be done to possibly permit him to have custody, he "was already
ruled out because of [his] background." He went on to testify that his "background" meant "drug case[s]" in
two cities.
22
"experience[d] anxiety and extreme frustration that his parents are not willing to change."
Nothing in the record suggests that to continue Child in such a state would serve Child's best
interest.
Further, Father's fifth point did not address the trial court's finding that "[a]dditional
services would not be likely to bring about a lasting parental adjustment" given that Father
"has previously refused to complete or begin" other services. Father's argument does
summarize this finding, but it then simply incorporates his other argument in support of
Point 3 on this topic. "Arguments raised for the first time in the argument portion of a brief
and not raised in the points relied on are not preserved for review and are considered
abandoned." In re Adoption of C.M., 414 S.W.3d 622, 668 n.81 (Mo. App. S.D. 2013).
Moreover, Father's Point 3 argument does not aid him; he conceded there that "there [wa]s
ample evidence that [F]ather did not finish all the programs [to which] he was referred," and
Father's assertion that "there is no evidence . . . that the team's issues with [F]ather were
affecting his ability to parent" flies in the face of Father's own trial testimony.
Father testified that he did not complete treatment because he was angry or bitter.
And he stated that he did not "know how to communicate with" a particular caseworker and
he "didn't want to hear anything about her"--not that a caseworker or "the team" had an issue
with providing services to him. The trial court could reasonably find from this evidence that
additional resources were unlikely to bring about a lasting adjustment in Father.
Indeed, Father's actions at trial in appearing late, interrupting the proceedings with
inappropriate remarks, and abruptly leaving the courtroom provided the most current
evidence of Father's problems with assimilating services, controlling his behavior, and
putting his commitment to Child above his own desires. As Respondent persuasively
23
argues, Father's testimony focused on his own needs instead of Child's needs. This provided
additional support for the trial court's conclusion that terminating Father's parental rights
would serve Child's best interest. Point 5 is also denied, and the judgment is affirmed
insofar as it relates to the termination of Father's parental rights in, to, and over Child.
DON E. BURRELL, J. - OPINION AUTHOR
MARY W. SHEFFIELD, P.J. - CONCURS
NANCY STEFFEN RAHMEYER, J. - CONCURS
24