Interest of B.J.D.B. v. J.B.G.

KENNEDY, Judge. The natural mother appeals the trial court’s order terminating her parental rights. Section 211.447.2, RSMo Supp. 1984. The issue is the sufficiency of the evidence. Judgment affirmed. The child, B.J.D.B., born June 3, 1977, came under the custody of the Missouri Division of Family Services as a result of orders of the Juvenile Division entered March 7, 1978. The agency has retained legal custody since that date. The natural father, F.A.B., has abandoned the child since birth and has not attempted communication with her since she was placed in the custody of the agency. He did not appear to contest the termination of his parental rights. The natural mother, J.B.G., entrusted her daughter to the care of an aunt when the child was approximately four months old, and entered a state hospital, for psychiatric care. The aunt voluntarily relinquished custody of the child to the Division of Family Services in January of 1978, indicating that she was unable to care for the child. The mother, J.B.G., did not contact the Division until May of 1980, when she appeared briefly, without prior notice, and refused services. She contacted the Division again in October of 1980, and indicated that she wished to establish contact with her daughter, who by that time was over three years old. In March of 1981, J.B.G. entered the first of three treatment plans with the Division. The length of the plan was 180 days. By the terms of the plan, J.B.G. was required to attend parenting classes at Western Missouri Mental Health Center, have a complete psychological evaluation, maintain an independent living arrangement, and arrange regular monthly visits with her daughter. J.B.G. visited B.J. seven times over the course of the following eleven months, and substantially complied with the other requirements of the treatment plan, but she received an unfavorable report from the social worker assigned to her case. The visits, which took place in the State Office Building, lasted approximately one hour and were observed by the social worker. The social worker testified at the termination hearing that J.B.G. did not appear to be forming a bond with her daughter during the visits, and that the child was “quiet and aloof” during the visits. She did not recommend that the agency return B.J. to her mother. A second treatment plan was initiated in December, 1982. The trial court modified the plan to deny J.B.G. visitation with the child until she complied with the requirements of the plan. J.B.G. had no contact with her daughter from January, 1982, until the court terminated the visitation in December, 1982. The plan instituted in December, 1982, required J.B.G., among other things, to continue treatment with her doctor at the state hospital, take her prescribed medication, and schedule and keep regular monthly appointments with the social worker. The social worker testified that J.B.G. complied with some of the provisions of the second plan, but only made scheduled office visits for the first few months. J.B.G. did not continue with her recommended psychiatric treatment or medication. J.B.G. entered a third treatment plan with the Division in May of 1983. At this time she had been denied visitation with her daughter for a year and a half. By the terms of the third treatment plan, J.B.G. agreed to maintain her independent living arrangement, supply child support, call the social worker once a month to schedule an office visit, and appear at the appointed time. She did not schedule any visits, and did not supply child support in kind by bringing the child toys and clothing. The juvenile officer filed a motion to terminate her parental rights August 31, 1983, three months after the third plan was initiated. The motion alleges five statutory grounds for termination, as follows: abandonment, neglect, failure to support, mental condition, and failure to rectify. Section 211.-447.2(2), RSMo Supp.1984. [330] At the termination hearing, the juvenile officer introduced the records of the Western Missouri Mental Health Center regarding treatment of J.B.G. for mental disorders. The records show that she was admitted to Western Missouri for inpatient psychiatric care on seventeen separate occasions between 1972 and the -filing of the petition for termination, and had also been a patient in various other mental hospitals. The trial court found that J.B.G. has been diagnosed as having “an affective disorder, either of a manic depressive or schizoaffec-tive nature, schizophrenia of a chronic undifferentiated type, depressive neurosis, schizoid personality, atypical manic-depressive compounded by habitual excessive drinking and other substance abuse and emotional immaturity and chronic free-floating anxiety.” The court concluded from the medical reports that J.B.G.’s mental condition could be controlled by a regimen of appropriate medication and counseling, which she refuses to follow, and that as a result of her mental condition, she is unable consistently to form an intent or act knowingly. We must sustain the decision of the trial court unless there is no substantial evidence to support its judgment, the judgment is against the weight of the evidence, or erroneously declares or applies the law. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Missouri law requires the high “clear, cogent and convincing” standard of proof to be met by the authority seeking termination. In re Adoption of W.B.L., 681 S.W.2d at 454. The “clear, cogent and convincing” standard of proof is met when the evidence “instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” Id. (quoting In re O’Brien, 600 S.W.2d 695, 697 (Mo.App.1980)). But it may be met, even if the court has contrary evidence before it. Id. This test has recently been interpreted as meaning that the court, weighing all the evidence for and against the termination, “should be clearly convinced of the affirmative of the proposition to be proved.” In re J.D.K., 685 S.W.2d 876 (Mo.App.1984) (quoting Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974)). The authority seeking termination must prove one or more of the statutory grounds for termination. In the Interest of M.N.M., 681 S.W.2d 457, 458 (Mo.App.1984). Only after it has made a determination that one or more of the statutory grounds exists may the trial court reach the issue of the best interests of the child. In re Adoption of M.D.L., 682 S.W.2d 886, 889 (Mo.App.1984). The statute permits termination when the child has come under the jurisdiction of the juvenile court pursuant to the provisions of Section 211.031, RSMo Supp.1984, the custody of the child has not been with the parents for six months or longer, the parents have failed to rectify the conditions that formed the basis for the juvenile court’s jurisdiction, and no reasonable cause exists to believe that the parents will rectify the conditions if given more time. Section 211.447.-2(2)(i)b, RSMo Supp.1984. Further statutory grounds include neglect, as shown by failure to reasonably comply with an appropriate court-approved plan, or mental condition that renders the parent “unable to form an intent or act knowingly,” such that the parent has substantially neglected the child and there is no reasonable likelihood that the condition is reversible. Section 211.447.2(2)(b), (g)a, RSMo Supp.1984. The trial court found that the evidence supported each of three of the grounds alleged for the termination of the mother’s parental rights, namely, six months’ neglect; failure to rectify the conditions which caused the juvenile court originally to take jurisdiction of the child; and the mother’s mental condition. We will review only one of the three, namely, that “(t)he (mother) has a mental condition which renders (her) unable to form an intent or act knowingly and is shown by competent evidence to be permanent or that there is no reasonable likelihood that the condition is [331] reversible, and such parent has substantially and repeatedly neglected the child or failed to give the child necessary care and protection.” On this point, the trial court found as follows: The court further finds that the evidence is clear, cogent and convincing that the mother suffers from and has suffered from a mental disorder variously described as an affective disorder, either of a manic depressive or schizoaffective nature, schizophrenia of a chronic undifferentiated type, depressive neurosis, schizoid personality, atypical manic-depressive compounded by habitual excessive drinking and other substance abuse and emotional immaturity and chronic free-floating anxiety with the result that she is unable to appropriately or positively react to stress, exercises poor judgment and insight and evidences paranoid-like ideation; that while said mental conditions are not curable they may be controlled by a regular and consistent regimen course of appropriate medication and counseling which the mother refuses to follow because she refuses to consistently and regularly accept the fact of the condition of her mental health and, further, as a result (she) is unable consistently to form an intent or act knowingly; that as a result of the aforesaid condition or conditions of the mother’s mental health, she was hospitalized at the St. Joseph State Hospital from March 28, 1974 to August 28, 1975, from October 25, 1977 to February 5, 1978 and from February 26, 1979 to April 10, 1979; that since 1972, the mother has been admitted, either voluntarily or involuntarily to the Western Missouri Mental Health Center on forty-nine occasions including approximately seventeen inpatient admissions of various durations, and numerous after-care and day-center admissions; that by reason of said pattern and history, there is no reasonable likelihood that the mother will in the future consistently follow such treatment and that it is reasonably likely that the symptoms and consequences of said mental abnormalities will re-occur in the future and that there is no reasonable likelihood that the condition is reversible and that said mother has substantially failed to give the child necessary care and protection and it is not reasonably likely that she could give the child necessary care and protection by reason of all of the aforesaid. There is an abundance of evidence in the record to support the above findings in every particular. We cannot disagree with the trial judge that the evidence was clear, cogent and convincing that the mother’s mental illness will preclude her from giving the child necessary care and protection. The dissent criticizes the trial court’s inference that the mental condition shown by the evidence resulted in the mother’s inability to form an intent or to act knowingly. It selectively quotes excerpts from the medical records which would support an opposite conclusion. There is, however, an overwhelming corpus of evidence which supports the trial court’s inference. To quote from the medical records: “Much of (mother’s) conversation made no sense. Patient seemed to be hearing things and be out of touch ... Patient was loud, aggressive, uncooperative, not relating to reality. Patient seems in process of psychosis. Patient cannot care for self or function outside ... At this time she is delusional ... Insight poor ... The patient appears withdrawn, expressionless, and avoids eye contact ... Her speech was monotonic and she spoke only when she was spoken to ... In past, patient has exhibited lack of insight and poor judgment, combined with lack of impulse control (has left the unit AWOP or signed out AMA numerous times.)” Added to the medical evidence is the evidence of the family services caseworkers who had frequent contacts with this mother over a long period of time. They observed such incongruous behavior and the most irrational conversation which are entirely consistent with the medical [332] records, all of which support the trial judge’s conclusions with respect to her mental condition. That this mental condition is permanent and inescapable; it has continued for perhaps as long as 20 years with only occasional and temporary improvement. Furthermore, it is a perfectly reasonable inference from this record that the mental condition is the basic cause for the many years of failure to give the child “necessary care and protection”. The trial court could reasonably infer from the evidence that the mother’s mental condition rendered her unable to form an intent or to act knowingly, without any express medical testimony of that fact. It is a conclusion which naturally and inevitably flows from the symptoms described in the testimony. See In the Interest of J.I.W., 695 S.W.2d 513 (Mo.App.1985). Having found that the evidence supports the trial court’s finding of the existence of one of the disjunctive grounds for the termination of parental rights under § 211.-447, RSMo, it is not necessary for us to determine whether the evidence also supports the court’s findings on the other two grounds. Judgment affirmed. DIXON, J., dissents in separate opinion.