Termination of Parental Rights for Parental Unfitness (Contested Ground No. 6)

The court may terminate parental rights for parental unfitness if it finds:  

1. The termination is in the best interests of the child.

2. The parent is unfit to be a party to the parent and child relationship;

3. Because of a consistent pattern of committing a specific abuse or because of specific conditions directly relating to the parent and child relationship;

4. Either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.

The statute specifies that a "specific abuse" includes, but is not limited to, abuses as defined in Section 455.010, RSMo., child abuse or drug abuse "before the child".  Section 211.447.4 (6), RSMo.

It is also presumed, under this ground, that a parent is unfit to be a party to the parent and child relationship upon a showing that within a three year period immediately prior to the termination adjudication, that the parent's parental rights to one or more other children were involuntarily terminated under Section 211.447.4(1)(2)(3) or (4), RSMo., or the similar laws of other states.  For purposes of determining whether the presumption of parental unfitness applies, the phrase ”termination adjudication” in Section 211.447.4(6) is the trial date since the decision is based upon the status of the parties as of the date of trial, not as of the date the court later enters its judgment.  In Interest of T.A.S., 62 S.W.3d 650 (Mo.App.W.D. 2001).

This presumption of parental unfitness is rebuttable and can be overcome by evidence that the circumstances leading to the previous termination of parental rights no longer exist or that the parent is no longer unfit.  In Interest of E.D.M., WD63008 (Mo.App.W.D. 2-17-2004); In Interest of A.H., 9 S.W.3d 56 (Mo.App.W.D. 2000).  Where mother had unstable housing both when the child was born and after the child was removed, where mother was discharged for noncompliance from a drug treatment program, where mother was diagnosed by a psychologist with "neglect of children" and where mother was given a poor prognosis and it was suggested that mother would need long term services and where a psychologist concluded the child would need stability as early as possible, the mother failed to overcome the statutory presumption of unfitness despite the fact that mother had the same residence for eight months, was drug free for six months, was attending drug treatment, was taking classes to obtain her GED and had above average scores on her parenting inventory.  Id.

A previous Pennsylvania TPR judgment was admissible in a Missouri TPR case to establish the presumption of parental unfitness.  This is true despite the fact that the juvenile officer did not offer into evidence the Pennsylvania statute to show that the ground was similar to one of the listed Missouri grounds.  In this case, the Pennsylvania judgment itself recited language similar to Missouri’s ”failure to rectify.”  In Interest of C.C., 32 S.W.3d 824 (Mo.App.W.D. 2000).  In the same case, a West Virginia TPR judgment outside the three year period was also admissible, not to raise the presumption of unfitness, but on the issue of "best interests.”  Id.  Once the presumption is raised, the burden of proof shifts to the parent to rebut the presumption.  Id.

Evaluation of the Section 211.447.6, RSMo., factors is not required under this ground.  It is suggested as a practice pointer that the court consider and make findings on applicable factors under Section 211.447.6, RSMo., in order to support the required finding that TPR is in the best interests of the child..  Although the ground of parental unfitness does not require consideration of any particular factors with respect to the issue of best interests of the child, it has been held that the determination of best interests on the grounds of parental unfitness and forcible rape (neither of which require consideration of the Section 211.447.6 factors) is a matter left to the sound discretion of the court.  Thus, even though the statute does not require consideration of the Section 211.447.6 factors on the ground of parental unfitness, the court must still make findings and a determination that termination is in the best interests of the child.  In Interest of K.C.M., 85 S.W.3d 682 (Mo.App.W.D. 2002).

A termination of parental rights for parental unfitness was affirmed where a father injected the children with drugs, sexually abused the children with mother’s knowledge and where both parents forced the children to videotape the parents engaging in sexual relations.  In Interest of C.W., 64 S.W.3d 321 (Mo.App.W.D. 2001).

On the other hand a termination for parental unfitness was not supported by sufficient evidence where the parent’s acts were bad judgment, but did not rise to the level of emotional abuse because mother’s acts did not constitute a ”specific abuse”.  In addition, the court found the acts were not of such a duration or nature so as to render mother unfit to parent the children for the reasonably foreseeable future.  In Interest of P.C., 62 S.W.3d 600 (Mo.App.W.D. 2001).

Where a father’s rights are terminated to two prior siblings on a default basis on contested grounds, the TPR is still not voluntary, despite father’s assertion, thus the presumption of parental unfitness attaches to a subsequent TPR filed within the time prescribed.  In Interest of E.D.M., WD63008 (Mo.App.W.D. 2-17-2004).

Parental unfitness is adequately established where there is a history of domestic violence, and mother continues to associate with father, the perpetrator thereof.  In Interest of C.M.K., SD25906 (Mo.App.S.D. 6-25-2004).