Insufficient evidence
In the Interest of S.T.C.
Court of Appeals of Missouri, Southern District
No. 26298, June 23, 2005
http://www.courts.mo.gov/courts/pubopin ... enDocument
"However, "[c]ourts have required that abuse or neglect sufficient to support termination under section 211.447.4(2) be based on conduct at the time of termination, not just at the time jurisdiction was initially taken." In the Interest of K.A.W., 133 S.W.3d 1, 10 (Mo.banc 2004). "Past behavior can support grounds for termination, but only if it is convincingly linked to predicted future behavior." Id. at 9-10."
"There is no question that there was evidence that Child has been under the jurisdiction of the juvenile court for more than one year preceding the termination hearing. However, the evidence cited by the trial court in support of its findings under this ground does not substantiate the contention that the conditions under which jurisdiction was assumed continued to exist. Those conditions were Appellant's alleged use of cocaine, and, according to Ms. Cobb's testimony, Appellant's "instability to keep a home and a job." There was no evidence at trial that Appellant continued to use cocaine, and, as stated previously, there was no testimony that Appellant suffered from a chemical dependency.
Subsequent to custody being taken, the only reference we find regarding Appellant's alleged substance abuse was, according to Maria Graham, Appellant's admitted use of marijuana in May of 2003. Ms. Graham testified that the barrier to reunification was Appellant's "continued substance abuse." We do not find this to be substantial evidence that "the conditions leading to the assumption of jurisdiction continue to exist[.]" (FN4)
Furthermore, we found no testimony to support the finding that the continuation of the parent/child relationship greatly diminishes the child's prospects for early integration into a stable, permanent home. There was no testimony received on this issue, although there was evidence that Child is developing normally and that the foster parent "indicated a willingness" to "consider adopting [Child]."
The finding that Appellant failed to keep a stable home or job was not supported by the evidence at trial. Throughout Ms. Graham's service as Appellant's caseworker, Appellant lived at the same address, and there was no testimony that Appellant's housing was inappropriate, or that there was "drug activity in and about the premises." Ms. Graham testified that Appellant was working in a part-time position, at Food for Less.
"[A] parent's failure to comply with a written service agreement does not, in itself, constitute a ground for termination parental rights." C.N.G., 109 S.W.3d 702, 707 (Mo.App. 2003). "It is merely a factor to consider in deciding whether the grounds set out in section 211.447.4(3) exist." Id. The evidence at trial regarding Appellant's noncompliance with the social service plan, we believe, was not sufficient to justify termination of her parental rights. That mother failed to complete parenting classes to which Appellant had been referred prior to Ms. Graham's assignment as caseworker was not within Ms. Graham's personal knowledge, as she stated that she thought the referral was made within the first six months of the juvenile court taking jurisdiction, a period of time in which Ms. Graham was not assigned to Appellant's case. Further, there was no testimony that Appellant was "discharged from several programs due to positive drug screens and non-compliance[.]"
As to the finding that Appellant failed to provide verification of successful completion of counseling, Ms. Graham's testimony was: "We had asked that [Appellant], first and foremost, complete her drug and alcohol abuse treatment, and we would continue follow-up therapy as needed from there." She then indicated that they never got "to the second step." [Tr. 45] We cannot find testimony to support this finding.
"The goal of a termination hearing is not to justify termination, but to determine if grounds exist for termination." K.A.W., 133 S.W.3d at 19. "It is only when grave and compelling reasons exist that parental rights should be severed[.]" In the Interest of A.R.S., 609 S.W.2d 490, 491 (Mo.App. 1980). "The severance of the parent-child relationship is an exercise of awesome power which requires literal compliance with statutory authority." In re S.P.W., 707 S.W.2d 814, 820 (Mo.App. 1986). "By requiring strict compliance with the rules of evidence, we help to insure that a decision to terminate parental rights is made only on reliable, credible and relevant evidence." Id.. "Statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship." K.A.W., 133 S.W.3d at 12. As stated previously, the state bears the burden of proof, which must be met by the presentation of substantial evidence. Id. at 9. Here, we do not find that the State met its burden. Point II also has merit.
Because we find that neither statutory ground used for termination is supported by clear, cogent and convincing evidence, we must reverse the termination of Appellant's parental rights.
The judgment is reversed."
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