Contested Termination of Parental Rights - Generally

The power given the juvenile court to terminate parental rights is purely statutory and, without the TPR legislation, the power of the juvenile court to terminate parental rights would not exist. In Interest of W.F.J., 648 S.W.2d 210 (Mo.App.W.D. 1983).  Accordingly, termination of parental rights demands strict and literal compliance with the statutory authority from which the power is derived, and whoever seeks to terminate parental rights must carry the full burden of proof. Id.   But see In Interest of P.J.M., 926 S.W.2d 223 (Mo.App.E.D. 1996).

Both the rule favoring parental custody and the desire for family reunification are superseded by concern for the child's best interests and welfare. In Interest of L.A.P., 640 S.W.2d 511 (Mo.App.S.D. 1982).

Parental rights may not be terminated except on clear, cogent and convincing evidence. S.K.L. v. Smith, 480 S.W.2d 119 (Mo.App. 1972).  In addition, parental rights may not be terminated on the ground that the children would be better off with someone else. Id.

The juvenile court in a Chapter 211 TPR proceeding or the court before which a Chapter 453 adoption is pending may terminate the rights of a parent to a child if:

1. The court finds that termination is in the best interests of the child by preponderance of evidence and

2. At least one of the grounds authorizing a non-consensual termination of parental rights is proven to exist by clear, cogent and convincing evidence.

In most contested termination of parental rights cases, the court must also make additional findings on the factors listed in Section 211.447.6, RSMo.  Consideration of the factors listed in Section 211.447.6, RSMo is not required where the termination is based solely upon Sections 211.447.4(5) or 211.447.4(6), RSMo., or Section 211.444, RSMo.

The supreme court, in Interest of K.A.W., SC85683 (MO. en banc 3-30-2004), has imposed additional requirements for the trial court’s consideration in TPR cases.  The acts and conditions of the parent justifying termination must be analyzed for:

(1) whether there is sufficient reason to believe that the acts or conditions had an impact on the child;

(2) whether the acts or conditions are severe enough to constitute abuse or neglect; and,

(3) whether there is an indication of likelihood of future harm to the child.  

Findings supporting termination in earlier determinations are not irrelevant, but they must be updated to address the extent to which they describe the time of termination and the potential for future harm.  Id.  Poor conduct or character flaws are not relevant unless they could actually result in future harm to the child.  Id.  Some parental conduct may be harmful, but not rise to the level of abuse or neglect, and not every criminal act committed by a parent is severe enough to constitute abuse or neglect.  Id.  In K.A.W., the court reversed a termination on grounds of severe emotional abuse where the mother had twice attempted to placed her twins for adoption.  The court also rejected the contention that her stress and indecisiveness rose to the level of a mental condition as described in the aggravating factors on the grounds of abuse/neglect and failure to rectify.  Id.

A TPR for abuse/neglect and failure to rectify was reversed and remanded where the trial court did not follow the supreme court’s analysis set forth in the K.A.W. case, supra.  In Interest of J.M.N., WD63811 (Mo.App.W.D. 5-18-2004).  A TPR for abuse/neglect and failure to rectify was reversed by the Eastern District where jurisdiction was assumed because of inadequate supervision, unsanitary living conditions and failed efforts of the division to prevent removal.  In the case, while under the jurisdiction of the court, mother exposed a sexually abused child to a person known to be a registered sex offender, burned a child’s hand as punishment, locked a child in the dog cage, and bit a child on the stomach during a trial in-home placement.  Although mother had a permanent mental condition and had not made any progress in the treatment of the condition, the court of appeals found insufficient evidence that the condition still persisted at the time of termination.  In addition, the court found that the trial judge failed to consider how mother’s mental condition would result in a likelihood of future harm to the children.  Further, because the acts of abuse that occurred while the children were under the jurisdiction of the court were prior to the filing of the termination petition, termination was not based upon evidence of severe or recurrent abuse ”at the time of termination.”  On the failure to rectify ground, although mother failed to comply with her social service agreement, the court found that there was insufficient evidence that mother remained unable to care for the children at the time of the termination.  In Interest of K.W., ED84769 (Mo.App.E.D. 5-10-2005).

A parent need not prove that he can raise the child by himself, without assistance from others to avoid a TPR.  In Interest of S.M.H., SC86440 (MO. en banc 3-15-2005).

A termination of parental rights judgment which fails to make a finding that termination is in the best interests of the child will be reversed and remanded for findings on the issue of best interests.  In Interest of D.F.P., 981 S.W.2d 663 (Mo.App.S.D. 1998).  In addition, the trial court should determine that at least one ground for termination has been properly pleaded and proven before proceeding to the issue of best interests.  Where the trial court proceeds directly to the finding on best interests, the case will be reversed and remanded with directions that the trial court should determine whether a ground for termination exists before considering the issue of best interests.  In Re: M.O., 70 S.W.3d 579 (Mo.App.W.D. 2002).