In the INTEREST OF K.M.A.-B.

In the Missotlri Court of Appeals

Easterxt District

DIVISION ONE
lN THE INTEREST OF: No. E[)l0368i

K.M.A.-B. Appeal from the Circuit Court

of St. Louis County

Hon. Tliea Anne Sherry

\._./\._/\._/\_/\_/\._/\._/\_/

Filed: July ]2, 2016

J.B. ("Fatlier") appeals from the judgment terminating his parental rights The judgment
is reversed and remanded.

The evidence in this case is almost entirely undisputed, and niany of the facts were
stipulated before trial. Thus, only to the extent there was conflicting‘oi' contradictory evidence
would we need to view the facts in the light most favorable to the trial court’s judgment §§ fn
re J.M.T., 386 S.W.?>d 152, 158 (l\/lo. App. S.D. 20]2).

K.M.A.~B. was born on May ll, 2012. He had been exposed to methadone in utero and
remained hospitalized for weeks after his birth. His inotlier admitted using heroin before and after
the child’s birth, and she could not care for him. The child was taken into custody by the Childreli’s
Division on July 2nd on allegations of abuse and neglect by his rnother. Ultimately, the mother
was incarcerated and her parental rights were terminated in the same judgment as Father’s, but are

not at issue on appeal

At first, the child’s biological father was unknown to the Division. Father was identified a
few days later as 27-year old J.B. Father had never been married and had no other children.i He
was no longer in a relationship with the child’s inotlier; he said he broke off that relationship when
he learned she had problems with prescription drugs and heroin. Pather was employed full~tinie
as a roofer and carpenter and reniained gainfully employed throughout the proceedings.z Father
owned his own tln'ee-bedrooili home in St. Charles County and maintained stable housing, which
the Division found suitable with no concerns, throughout the proceedings Fathei' is a high school
graduate, and has been on his own since he was seventeen.

Father indicated at the protective custody liearitig on July 6th that he wanted custody of the
child. 'fhe trial court3 granted Father stlpervised visitation, and he met with the child four times
over the next lnonth. Every visit was reported to be appropriate_Father held and fed the iiewbor_ii,
brought him clothes, toys and supplies and asked about his health and what else he needed. Other
than the first visit, which was at the mother’s home, all of Father’s visits over the course of this
case were conducted at the Division’s social service agency. Father failed to show up for one visit
and had to cancel five others over the next two and half years.

Father was ordered to submit to drug screens at the Division’s request Father refused the
first time the Division requested a urine test on Atlgtist 15, 2012. He admitted to the case manager

that the test would be positive because he used niarijuazta to relieve his insomnia and restless leg

' Fatiter said he \vas a "t`ather' figure” to the ritother’s three other childreri, one of whom continued to spend weekends
\viti\ Father. At the time of termination, Father’s girlfriend and her nine-year old son were living with him, about
which the Division had no concerns.

2 Father never verified this employment with the Division, but there \vas no evidence to contradict his reported
employment

3 The Faini|y Couit Connnissioner issued findings and recommendations in this case, which \vere each adopted by
and confirmed as the judgment of the trial court. For ease of reference, the opinion refers simply to the trial court

throughout

reason Although it is illegal, the GAL could not find any harm to the child in the way Father used
it. The GAL described Father as "very stubborn" but understood Father’s position that inarijuana
was less harmful than some other legai, but heavier, narcotics he could take for pain. Father told
the GAL he felt he should not have to switch to those treatments for pain simply because they were
legal. Even though Father was being "pigheaded" about the issuc, the GAL did not see any direct
or potential liarni to the child. The GAL equated this situation to a 20-year old drinking a couple
of beers after work, which vvould be illegal, but not liarinftll. The GAL never observed Father
under the influence at a visit with the child and believed Fatlier when he said he would never use

inarijuana in front of the child.

'l`he child had been placed with Father’s great uncle and his wife in October of 2012, and
they have had physical custody throughout the proceedings The foster mother testified that the
child called her "Moiii," her husband "Daddy John" and Father "Daddy Jason." Father
consistently provided them $200-$3 00 in monthly support for the child as well grocery gift cards
and the items he brought to visits 'I`he foster parents are interested in adopting the child.

'l`he trial court entered judgment terminating Fatlier’s parental rights on grounds of abuse
or neglect under Section 211.447.5(2) and a failure to rectify under Section 211.447.5(3). The
statutory condition on which the trial court expressly relied to support both of those grounds was
Fatlier’s inarijuana use, finding it was a chemical dependency under Section 211.447.5(2)(b) and
21 1 .447.5(3)(d). The court also found that termination was in the child’s best interest based on its
findings under Section 211.447.7. This appeal follows. Further details of the court’s findings and
conclusion are discussed in the analysis below.

Stanclards for Terinination and Revic\v

il

The statutes governing the termination of parental rights "shall be construed so as to
promote the best interests and welfare of the child” considering (1) the constitutional rights of all
parties in the proceedings (2) protection of the birth family relationship when possible and
appropriate and (3) the entitlement of every child to a permanent and stable l1ome. Section
211.443. There are serious constitutional implications of terminating a parent’s rights, big

K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004). A parent has a fundamental liberty interest in raising

his or her child, which is protected by the due process clause. § Terininatioii of that interest is a
“drastic iiitrtision into the sacred parent-child relationship" tantamount to a "civil death penalty."
§ lt is not an interest that evaporates s,iinply because one has not been a model parent. l_d.
Conseqtieiitly, trial courts are "obligated to inaintain a preference for the parent retaining his or
her parental rights." In re D.D.C., 351 S.W.Bd 722, 729 (Mo. App. W.D. 2011). "The goal ofa
termination hearing is not to justify termination, but to determine if grounds exist for termination

and if termination is in the child’s best interests.” K.A.W., 133 S.W.3d at 19. Oiirevicw, appellate

cotlrts will closely examine the trial court’s findings in a termination judgment, strictly construing
the applicable statutes in favor of the parent and preservation of the natural parent-cliild
relationship. L_V_N_’_., 133 S.W.3d at 12.

To terminate one’s parental rights, the trial court must find clear, cogent, and convincing
evidence to stlpport at least one of the statutory grounds set forth in Section 211.447. I_d. at 9.
Evidence is clear, cogent and convincing when it "instantly tilts the scales in favor of termination"
when weighed against opposing evidence and leaves the fact-finder with the "abiding conviction
that the evidence is true." § at 12. On review, courts must determine whether the grounds for
termination were supported by substantial evidence that meets this test. in re D.D.C., 351 S.W.3d

at 729. 'l`he judgment will be affirmed unless there is no substantial evidence to support it, it is

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contrary to the evidence or it erroneously declares or applies the law. _I§A._W., 133 S.W.?id at ll.
Again, the evidence was largely undisputed in this case. To the extent there was conflicting or
contradictory evidence, the facts will be viewed in the light most favorable to the trial court’s
judgment §§ ln re J.M.T., 386 S.W.3d at 153. Even then, evidence that is contrary to termination
must be considered because termination must be supported by evidence that instantly tilts the
scales in favor of termination ivhen ivei`glied cigairzsf the evidence iii opposition and the finder of
fact is left with the abiding conviction that the evidence is true. ln re T.L.B., 376 S.W.3d l, 3-4
(l\/lo. App. S.D. 2011). The judgment will be reversed only if this Court is left with a firm belief
that the order is wrong. Q._D_.Q_., 351 S.W.3d at '729.

This judgment is wrong. As Father argues on appeal, there was no substantial evidence to
support the trial court’s finding that his inarijtlana use constituted a chemical dependency as set
forth in the statute. Therefore, that condition cannot support termination either on grounds of
abuse or neglect or failure to 1'ectify. But, whether or not his drug use was a cheinical dependency,
Father was supposed to become drug free under the service plan and produce clean drug screens
under the court’s orders. Father’s refusal to comply could support termination on the failure to
rectify ground only if there was also an adequate finding stipported by substantial evidence that
the drug use itself was potentially harmful to the child. There were no such findings connecting
Father’s use of inarijuana to harm to the child. l\/Ioreover, the findings the trial court did make on
the failure to rectify ground erroneously declared and applied the law.

Abuse or Ncgleet

To terminate on grounds of abuse or neglect, the court is required by statute to consider

and make findings on the following conditions or acts of the parent:

a A mental condition which is shown by com etent evidence either to be
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perniarient or such that there is no reasonable likelihood that the condition can

13

be reversed and which renders the parent unable to knowingly provide the child
the necessary care, custody and control;

(b) Chemical dependency which prevents the parent from consistently providing
the necessary care, custody and control of the child and which cannot be treated
so as to enable the parent to consistently provide such care, custody and control;

(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the
child or any child in the family by the parent, including an act of incest, or by
another under circumstances that indicate that the parent knew or should have
known that such acts were being connnitted toward the child or any child in the
faniily; or

(d) Repeated or continuous failure by the parent, although physically or financially
able, to provide the child with adequate food, clothing, shelter, or education as

defined by law, or other care and control necessary for the child's physical,
mental, or emotional health and developmeiit.

Section 21 1447.5(2). Here, the court found no evidence that Father had a mental condition or
co:nmitted or knew of any severe or recurrent acts of abuse against the child. And it found that
Father had provided the child with continuous financial support and other supplies and food
evidencing an intent to contribute to his care.

The court then made extensive findings on Father’s "clieinical dependency." lt began by
finding that he “suffers from a chemical dependency which cannot be treated, or has not been
treated, thereby preventing Father from consistently providing for the necessary care, custody and
control of the child." The court expressly stated in bold: "'I`llis is the condition upon which the
termination of Father’s parental rights rests." The court then detailed the history of Father’s
inarijtlana use before and during the proceedings, his repeated failure to curtail his usage and his
justifications for this refusal despite court orders and the fact that inarijtiaria use by adults even for
lnedicinal purposes is illegal in Missouri. The court stated that Fatlier’s conduct prevented his
visits with the child from being expanded to longer iinsupervised and overnight visits as a prelude

to reunification. The court concluded by finding that there was clear, cogent and convincing

evidence that Father "suffers from a chemical dependency that couid be t1'eated, but that has not
been treated due to Father’s refusal to accept treatment services and his denial that treatment is
iiecessary.” Father’s "refusal to address his chemical dependency and his refusal to accept the
need for substance abuse treatment prevents him from consistently providing for the necessary
care, custody and control of the juvenile.”

"Poor conduct or character flaws are not relevant unless they could actually result in future
harm to the child." K.A.W., 133 S.W.3d at ll. Without evidence that "clearly establishes” the

‘) ¢G

parent’s current condition and how it impacts the parent s present and future abiiity to adequately
parent" the child, the parent’s "fundanielital liberty interest in preserving the parent-child
relationship is terminated on the basis of speculation instead of verifiable facts." ln re C.W., 2l1
S.W.Sd 93, 100 (l\/Io. banc 2007) (abrogated on other grounds by ln re B.I-I., 348 S.W.Sd 770, 777
(Mo. banc 2011)). Therefore, courts must also analyze the parent’s conduct or condition for the
following: (l) is there sufficient reason to believe that it had a detrimental impact upon the child,
(2) does the conduct or condition and its accompanying impact on the child meet the requisite
severity to support termination and (3) is there a likelihood of future liarm to the child by
continuing a relationship with the parent. l, 133 S.W.?»d at 9-12. For some types of
parenting conduct and conditions, the requisite impact and level of severity is specified in the
statute itself. I;d. at ll. Cheinical dependency is one such condition.

Chemical dependency is of sufficient severity to support termination only if it (l) "prevents
the parent from consistently providing the necessary care, custody and control over the child" and

(2) "cannot be treated so as to enable the parent to consistently provide such care, custody and

control." §gi__; K.A.W., 133 S.W.Bd at ll. in other Words, not all chemical dependency is sufficient

l5

to support termination There must be evidence that the pa1'ent has an ttntreatable addiction that
renders the parent unable to adequately care for the children.

First, the court did not indicate what evidence it relied upon in reaching the conclusion on
which this entire factor is premised: that Fatlrer’s inarijuana use was an actual "chennical
dependency." The juvenile officer argues that dependency can be inferred from the evidence of
Father’s consistent use of this drug and his tlnsupported justifications for his use, showing that
Fathei' was just a "garden variety pothead" who refused to quit. The evidence certainly shows that
Father tvould not stop using rnarijtiana, but it does not show that he could not stop. 'I`here was no
evidence of a dependency No one opined that Father had an addiction. Nor is it necessarily true
that Father’s diagnosis of "cannabis abuse" equates to a conclusion of cannabis dependence. §
In re I.G.P., 375 S.W.3d l 12, 129 (Mo. App. W.D. 2012) (iiiotlaer’s abuse of marijuana and alcohol
diagnosed as polysnbstance abuse, cannabis dependence and alcohol dependence); In re C.M.H.,
408 S.W.3d 805, 812 (Mo. App. S.D. 2013) (psychologist opined that mother used rnarijuana all
the time, chronically used inetlianiplietainirre and regularly used alcohol and diagnosed cannabis
dependence, inethamphetalnine abuse and alcohol dependence). Surely one can abuse a substance,
even repeatedly, without being dependent on it or addicted to it. For instance, in in the interest
of S.T.C., there was evidence that mother used and abused drugs in the past and during pregnancy
and that, at the time of termination, she admitted to using inarijtlana. 165 S.W.3d 505, 514 (Mo.
App. S.D. 2005). But there was no testimony that she had a “clrernical dependency" at the time of
termination and thus the court’s finding was llnsupported. Ld.

Second, even assuming it did amount to an addiction, there is no evidence or even findings
by the trial court that Father’s nrarijuana use itself-as opposed to his "pigheaded” refusal to

produce a clean drug screen~preverited him from providing adequate care for the child. At all

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relevant times, Father maintained a job, had a suitable horne ready for the child and consistently
provided for the child’s needs. lt is undisputed that Father had consistently appropriate visits with
the child, in which he fed, played with, talked to, disciplined when necessary and encouraged the
child. Father was able to care for the child at those visits, even though he was also using inarijuana
during that time period outside of the child’s presence. There was no evidence that he was ever
under the influence of rnarijtzaiia in the child’s presence. Here, concluding the Father is unable to
provide care for the child is contrary to the evidence of his ongoing financial support and physical
capabilities at his supervised visits. § @, 165 S.W.3d at 514 (noting that when child is removed
from parent at birth, difficult if not impossible for court making finding regarding parent’s ability
to care for child based only on hour-long supervised visits, at least without other evidence
concerning ability, physically or financially, to provide for child).

Third, the trial court’s findings regarding treatment for this condition are internally
inconsistent and contradicted or tlnsupported by the evidence. At the outset, the court found that
Father’s chemical dependency “carmot be treated, or has not been treated." (emphasis added).
Later in those same findings, the court said Father’s chemical dependency was one that "cozrld be
treated, but that has not been treated due to Fatlier’s refusal to accept treatment services and his
denial that treatment is iiecessary.” (einphasis added). There is not substantial evidence to support
either the conclusion that the condition could be treated or the conclusion that it could not be
treated. First, there is no evidence that any drug treatment services were ever recommended or
offered to Father. Though the Division’s investigative report and social study provided to the court
at termination indicates that Father’s first case manager gave him "referrals for substance abuse

treatinent,” the reports she filed with the court indicate that she only ever referred Father to

17

substance abuse ei»alzrafions. She was no longer assigned to the case by the time Fatliei' actually
underwent that evaluation in April of 20 l 3.

Second, Father was required by court order and the Division’s service plan only to
participate in substance abuse evaluation and follow the recommendations therefrorn. The parties
stipulated that the evaluation occurred and that "no services were recommended from the substance
abuse evaluation as [F]athei' reported he did not have a substance abuse probiein."5 A person’s
acceptance of a drug problem and willingness to get help may be an important factor in the success
of any drug treatment program. But the value and weight to be given an evaluation that would
base its determination of whether Father needed drug treatment services on whether Father
believed them necessary or not, not on whether the evaluator believed them necessary, is
questionable If treatment was needed, it should have been recommended. 'l`hen, if Father refused
to attend the treatment program or was unsuccessful, those facts would be relevant to whether the
chemical dependency was untreatable. But without evidence that Father was ever advised to
undergo treatment, it is simply impossible to conclude whether he could or could not be treated.

is instructive on this issue. There, the father had an extensive history of illegal
rnethainplietainine use, including in the home while the child was present, and admitted to abusing
alcohol. 351 S.W.Bd at 726-27. He tested positive for methamphetamine at the time of the
termination liearing, after which his parental rights were terminated based in part on a finding of
chemical dependency under the abuse or neglect ground. _idm; at 728-3 O. On review, the court of
appeals found that no one opined that the father “had an addiction that could not be treated." I;d.
at 730. Evidence that he had gotten clean for a period of time, inaintained employment,
consistently ptn'stied custody and attended visitation regularly also belied any finding of an

5 I_.ikewise, the psychologist who diagnosed "cannabis abuse" did not recoinmelid treatment She only might
recommend treatment if Fathei' repeatedly tested positive for high levels ofinarijuana, of which there was no evidence.

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untreatable addiction. § Moreover, the court found that while illegal drug use is concerning, it
is not grounds for termination, nor is every chemical dependency icL Only an untreatable
chemical dependency is sufficient, and, like here, there was no evidence that treatment services
were suggested or offered to the father. § § Moreover, there was no ciear cogent and

convincing evidence that the father refused services, despite his indication that he did not believe

he would benefit from drug treatment. § 'l`iius, like in D.D.C., this was not a case where treatment
was attempted and failed thereby proving the existence of an tlntreatable chemical dependency
that prevented Father from parenting.

Ciear, cogent and convincing evidence of a chemical dependency under the statute includes
evidence such as a diagnosis of dependency, a pattern of drug use, treatment attempts and relapse,
or expert opinions regarding-or direct instances of-the impact the drug use has on the child.

For instance, in I.G.P., the mother testified that she began using illegal substances at the age of

sixteen and had already been using alcohol since age six, with heavy use of alcohol since age
twelve. 375 S.W.E»d at 129. She consistently abused rnarijuana and alcohol for many years prior
to the termination and was diagnosed with polysubstaiice abuse, cannabis dependence and alcohol
dependence. I;d. She participated in substance abuse treatment programs, but failed to remain
sober. I_d. Her abuse of substances led to the loss of her parental rights to two other children and
she used illegal substances and alcohol during pregnancy and engaged in domestic violence in the
cliildreri’s presence. l_d. The inother’s continued use of alcohol led to impaired judgment, unsafe
decision making and altercations with her boyfriend, leaving her in an unsafe place physically and
emotionally. ldm; Alcohol abuse led to leaving the child unattended and unable to be located while
at a party, blacking out, being abused by men, falling and breaking her leg and attempting suicide

while caring for the child. I_d. The mother admitted that she is totally incapable of providing care

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for her child when under the influence of alcohol. l<_i_. During her testimony, the mother said she
had even used marijuana the previous evening and that during the trial, she had used marijuana
daily, sometimes twice daily on the weekend, and was not trying to quit using rnarijuana. § Her
therapist, an expert in the field, testified that the rnotiier’s continued use of marijuana exacerbates
her anxiety, increasing the risk of harm to herself and the child. I_cL This record showed that the
mother’s ability to care for his child "is intrinsically linked to her own instability and that her
continuing abuse of rnarijtlana and alcohol, and refusal to get treatment, prevents her front
consistently providing the necessary care, custody and control over [the child]." ig at 129-30.

No such similarly clear, cogent and convincing evidence connecting Fatlier’s marijuana
use to an inability to care for the child or showing it to be an uritreatable addiction exists here.
Strictly construing the statute as is required, there was no substantial evidence that Father’s
rnarijtrana use was a "chemical dependency" sufficient to support the abuse or neglect ground for
termination under Section 211.447.5(2). The trial court found no other factors supporting
termination on that ground. The juvenile officer failed to prove by clear cogent and convincing
evidence that Fatlter' abused or iieglected the child, and the judgment must be reversed on that
ground. Point l is granted.

Failure to Rcctify

As to the failure to rectify ground, the child must have been under the jurisdiction of the
court for one year, which is undisputed in this case. The court must then also find:

that the conditions which led to the assumption of jurisdiction still persist, or

conditions of a potentially harmful iiature continue to exist, that there is little

likelihood that those conditions will be rernedied at an early date so that the child

can be returned to the parent in the near future, or the continuation of the parent-

child relationship greatly diminishes the child's prospects for early integration into
a stable and permanent home.

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syndrome, but he was uncomfortable urinating in front of other people. He told the case manager
he would submit to hair follicle testing in the future.

After a dispositional hearing on Attgttst 29, 2012, the court took jurisdiction of the child
based on findings of abuse and neglect, citing Father’s drug use. The permanency plan at that time
was to reunify the child with a biological parent or, alternatively, place the child for adoption
Meanwhile, the child would remain in foster care. Father was granted supervised visitation with
the child and was ordered to paiticipate in parenting assessments, substance abuse evaluations and
drug Screens; Father was also ordered to contribute to the cliild’s support.

On August 30, 2012, Fathei‘ tested positive for THC based on what appears to have been a
urinalysis. There is a notation of ‘°+] 34" on the results He did not show up for the next requested
drug screen in ()ctober. Thereafter, a service plan was developed for Father, which established
the following goals and accompanying tasks: continue contact with the child and improve that
relationship by visiting with the child at ieast twice a month for one supervised liour; provide
financial support by inaintaining stable einploynient or other income; cooperate with the Division
by keeping it apprised of his contact information, tttilizing the services offered, participating in
services recommended as a result of evaluations ordered under the plan and complying with Court
orders; maintain suitable housing; and ‘_‘become and reinaiii drug free" by undergoing an evaluation
and completing drug screens. Fatlier refused to discuss and sign his agreement to this plan and
instead requested a lieariiig.

Father thereafter wrote a letter to the trial court, explaining his belief that a drug testing
coinpany’s opinion about drugs in his system is a violation of his constitutional rights, but also
indicated that no drug should be used in front of a child. Fatltei' was "unable to provide” a sample

at the next requested drug screen. The case manager reminded Father of the importance of

Section 21 l.447.5(3). After making the initial findings regarding the harmful condition, the court

must then consider and inake findings on the following:

(a) 'I`he terms of a social service plan entered into by the parent and the division
and the extent to which the parties have made progress in cornplying with those

terms',

(b) The success or failure of the efforts of the juvenile officer, the division or other
agency to aid the parent on a continuing basis in adjusting his circumstances or
conduct to provide a proper horne for the child;

(c) A mental condition which is shown by competent evidence either to be
permanent or such that there is no reasonable likelihood that the condition can
be reversed and which renders the parent unable to knowingly provide the child
the necessary care, custody and control ;

(d) Clientical dependency which prevents the parent from consistently providing
the necessary care, custody and control over the child and which cannot be

treated so as to enable the parent to consistently provide such care, custody and
control.

Section 2ll.447.5(3). Here, the court found no inental condition and entered identical findings
regarding Father’s cheinical dependency as it had on the abuse or neglect ground. Those findings
cannot support termination on this ground either. But the court also made findings linder factors
(a) and (b), and, thus, we must review this ground to determine if it is adequately supported

The initial paragraph of the failure to rectify provision has been correctly interpreted to
require the trial court to make the following two tindings, each on the basis of one of two
possibilities: (l) that either "the conditions which led to assumption of jurisdiction still persist" or
"conditions of a potentially lrarmfill nature continue to exist" and (2) that either "there is tittle
likelihood that those conditions will be reinedied at an early date so that the child can be returned
to the parent in the near future" or the "continuation of the parent-child relationship greatly

diminishes the child’s prospects for early integration into a stable and permanent home." in re

21

§m.,ul._K., 197 S.W.3d 237, 243 (Mo. App. W.D. 2006) (citing In the interest ofA.R., 52 S.W.3d 625,
640-41 (Mo.App. W.D.200l));_a_c£gr_d1n re A.L.M., 354 S.W.3d 645, 653 (Mo. App. S.D. 2013).

Here, the court found that "(l) the iieglect/abtlse conditions that lead to adjudication persist
or (2) conditions of a potentially harmful nature continue to exist or (3) the continuation of the
parent/child relationships greatly diniinislies the child’s prospects for early integration into a stable
and perrnaiient horne." (emphasis added). lt appears the trial court was simply tracking the
language as pled in the juvenile officer’s petition on this ground, and other courts have incorrectly
paraphrased the necessary findings under this provision as well. But when analyzed carefully as
the court did in }“,l._K., it is clear that the plain language of the provision contains unambiguous
"signposts" that lead to a logical scheine. 197 S.W.3d at 244. 'I`he word "tliat" precedes each of
the two required findings; within each, the possibilities are stated in the disjunctive with the word
"or." l_d. The first required finding focuses on the nature of the child’s present and future
conditions, whether it is the condition that led to jurisdiction or another potentially harmful
condition. LC_L at 245. The second required finding focuses on whether that condition "dooirr[s]
the child’s prospects for living in an acceptable environment," either because the condition is
unlikely to be reinedied so that the child can return to the parent or because continuing in the
relationship with the parent under that condition will make it harder for the child to achieve a stable
and pennanent home soniewliere. l_d.

This scheme is not only a logical reading of the statute, but is consistent with one of the
essential considerations in any termination case, namely the existence of a liarmful condition

presently or in the futu1'e. _Swee i;d.; g ali K.A.W., 133 S.W.3d at 9. Because each of the trial

court’s findings here are stated in the disjunctive, it suggests there were three alternative basis for

termination without indicating on which one the trial court actually relied. Signiticantly, that

22

would mean that Father’s rights rnay have been terminated based on only a finding that continuing
his relationship with the child hindered the child’s integration into a stable and permanent home,
without any finding regarding a liarmful condition. This result would be absurd as it completely
ignores the existence of a present and future harm to the child. _S_e_e _EL, 197 S.W.3d at 245.°
Moreover, there was no evidence to suggest that the child’s relationship with Father impeded his

development or his chance at a stable lionie-liis relatives who had custody of the child planned

to adopt the child ifneeded. §me§; S.T.C., 165 S.W.3d at 516

Though this erroneous declaration and application of the initial provision of Seetion
211.447.5(3) was not raised on appeai, given the seriousness of the termination of parental rights,
it can be reviewed for plain error. The error here is plain and obvious, and termination without
elear, cogent and convincing evidence of a liarmfrrl condition would be a manifest injustice or
niiscarriage ofjustice. §§ in the interest of D.F.P., 981 S.W.Zd 663 (Mo. App. S.D. 1998).
Moreover, the trial court’s findings are general and inerely track the language of the statute, which
is also inadequate § in re H.F.G., 196 S.W.3d 45, 48 (Mo. App. W.D. 2005).

As a result of this error, the other findings on this ground are also insufficient In addition
to the threshold findings regarding the liarrnfril condition and its impact on the cliild’s chance to
get in an acceptable living environrnent, there are four factors the trial court must consider, any
one of which is a condition or act that niay have a negative impact on a child. in re G.G.B., 394
S.W.3d 457, 468 (Mo. App. E.D. 2013). These factors "are not separate grounds for termination

by theniselves, but rather categories of evidence that the court may consider along with all other

6 To the extent other courts have paraphrased the statute in a way that leads to a siinilai' result, they have done so
without analysis § In the Ititerest ofK.D.H., 871 S.\V..'ld 65 l, 656 (Mo. App. W.D. 1994); In the interest of B.L.H.,
158 S.W.3d 269, 277 (Mo. App. E.D. 2005); In the interest ofV.C.N.C., 458 S.W.Ed 443, 449 (Mo. App. E.D. 2015).
As \vas held by the court in B.J.K., such incorrect recitations of the statutory requirements of Section 21.447.5(3)
should not be relied upon or followed 197 S.W.3d at 245.

23

reievant evidence in determining whether grounds for termination exist under Section
211.447.5(3)." In interest of S.D., 472 S.W.Sd 572, 577 (Mo. App. W.D. 2015). Although the
court must make findings on all factors, proof of just one factor is sufficient to support termination
of parental rights. §

Regarding factor (a), the trial court found that the key elements of the service plan prepared
by the Division were Father’s “participation in substance abuse evaluation, substance abuse
treatment and random drug screens." it found that Father failed to yield a single clean drug screen
during the pendency of this case and denied the existence of a problem or the necessity for
evaluation and treatment and consequently "did not participate in these services." The court also
found that to the extent Father did comply with the service plan, his and the Division’s efforts
‘°proved tlnsuccessful in providing a continuing relationship between the Father and the child and
in reunifying" them. Regarding factor (b), the court found that the Division’s efforts to help Fathel'
were reasonable, yet Father faiied on a continuing basis “to adjust his circumstances or conduct to
provide a proper home for the child." "Said failure is demonstrated by Father’s inability to produce
a single clean drug screen throughout this process despite Fatlier’s knowledge that clean screens
were required for expansion of his visitation with the juvenile.”

Social service plans provide highly relevant evidence because the extent to which a parent
has or has not made an effort to accomplish the plan’s goals can help predict the effort a parent
wiil put forth in the future to care for the child or predict other future problems ln re S.M.H., 160
S.W.f’)d 355, 368 (Mo. banc 2005). The issue in termination of parental rights cases is whether
progress has been made toward the plan goals, not whether there has been full or even substantial
coinpliance. §§ § at 369. Failure to comply with parts of the service plan is not grounds for

automatic termination, nor does partial compliance with a service plan prevent termination See

24

i;d.; see ali B.L.H., 158 S.W.3d at 279. Nevertheless, failure to achieve progress towards the

terms of a social service plan can alone support termination but only when the harmful condition
llnderlyiiig termination is left uncorrected as a result. In re I.G.P., 375 S.W.?>d at 121. That is, the
court and the Division can require any number of things from a parent, but only when a parent’s
non-compliance with those requirements leaves a har'))g)‘i:l concz'itiorz untreated can that conduct
support termination. lf the mere failure to comply with court orders or the Division’s directives-
no n'ratter what they required_was alone sufficient to terminate, then the statute would say so.
lnstead, as discussed above, the presence of a harmful condition presently or in the future is the
essential consideration in termination cases. Likewise, had the legislature wanted to inake all
illegal drug use ipso j?zcto a ground for termination it could have. But again it did not. Only
conditions that are found based on the clear, cogent and convincing evidence to be harmful to the
child can support termination

There have certainly been cases in which such findings were made and easily supported by
substantial evidence. In l, for instance, the trial court relied on factors (a) and (b) to support
its failure to rectify ground, which was preznised on the liarmful condition presented by the
mother’s daily rnarijuana use, for which she was offered treatment but failed to complete, and by
her failure to obtain suitable liousing. 158 S.W.B‘d at 278-79. 'l` he child and the mother had tested
positive for inarijuana at the time of the child’s birth, and within the child’s first month at home in
niother’s custody, he suffered a lion-accidental serious injury that mother could not explain lc_l_. at
279. This was the condition that led to jurisdiction and persisted and constituted a potentially
harmful condition because the mother showed no progress in addressing her marijuana use. §
Thus, while the evidence here did not show that Father’s drug use amounted to a chemical

dependency, it certainly could have constituted a potentially harmful condition But there must be

25

a finding connecting the drug use to liarm to the child and clear, cogent and convincing evidence
to support it.

l-Iere, there was no such finding, and the evidence did little more than demonstrate the
potential and inherent risks of using any illegal niind~altering substance: narnely, that using
inarijuana while driving may pose a risk of physical harm to a child in the car and, because it is
illegal, there is also a potential risk of legal problems. But these potential risks of smoking
marijuana-even if they are inherent or obvious or a matter of common sense-were simply not
the thrust of the trial court’s concern or the basis of any of its actual findings in this judgment.
Rather, the court’s main problem with Father was his stubborn refusal to follow the court’s orders
and the Division’s plan and his iininatrire rationalizations for his behavior, Regardless of how
frustrating Father’s conduct was throughout these proceedings, it is not enough to simply say that
Father did not meet a goal of the service plan and did not adjust his circumstances to become and
reinain drug free without also making an explicit finding based on clear, cogent and convincing
evidence that use of the drug was itself a potentially harmful condition.7

If such findings were made and supported, then there was ample undisputed evidencee~at
least on this record_that the liarmful condition was intentionally left uncorrected by Father’s non~
coinpliance with the service plan and his failure to adjust his circumstances _S_Qe_ Section

21 l.447.5(3)(a)-(b). But because the findings are absent or insufficient, the judgment must be

reversed on the failure to rectify ground. Point ll is granted.

7 Father has made poor and selfish choices since the child came into custody. But that is not grounds for termination
or even a factor to be considered when determining if there are grounds for termination. To the extent his badjiidgment
demonstrates a lack of coinmitiiient to the child, that behavior can be considered in the best interest analysis, after
grounds for termination have been established See 21 l,447,7. Because the grounds for termination were unsupported
liere, and reversal is on that basis, Fatlier’s challenge to the best interest findings is not reached. Point III is moot.

26

Reversing this termination is not intended to condone Fatlier’s marijuana useaor any
parent’s illegal drug use or abuse of drugs or alcohol-atty more than it condones his obstinate
refusal to follow the court’s orders. But in this judgment and on tl?is record, there is a troubling
combination of misstatements or inisapplicatiorts of the statutory requirements and insufficient or
unsupported findings of the factors to support grounds for termination. Given the gravity and
finality of termination, this judgment cannot be affirmed with these cleficiencies.

Collcltlsion

The judgment terminating Fatlier’s parental rights is reversed, and the case is reinanded for
further proceedings including additional services, lreariitgs, and findings. Any further findings on
reinand must be based on updated evidence, particularly regarding Fatlrer’s drug use. The
conclusions here are based solely on the record before us, which contains evidence that is now
well over a year old. One cannot speculate as to what may have changed during the pendency of

this appeal or what the evidence would he at the time of any future proceedings to terminate. §

In re Z.L.R., 306 S.W.3d 632, 638 (l\/[o. App. S.D. 2010).

Mary K.Hoff, J., concurs in result in separate coitcurring opinion.
Roy L. Richter, J., concurs in separate concurring opinion of Mary K. Hoff, J.

27

In the Missottri Cottrt of Appeals

Easterit District
DIVISION ONE
lN THE INTEREST OF: No. EDI0368l

K.M.A.-B. Appeal from the Circuit Court

of St. Louis County

Honorable Thea Anne Slierry

\../\./\¢_/\_/\\_/‘~»_/H_/\»._/

Filed: lilly 12, 2016

OPINION CONCURRING IN RESULT

l concur in result.

'l`he trial court terminated Father’s parental rights based on the same statutory ground
(cheniical dependency) under Section 2ll.447.5(2)b (abuse and iieglect) and Section
21 l.447.5(3)d (failure to rectify). The trial court’s judgment, finding of facts, and conclusions of
law found that he (Fatlier) "stlffers from a chemical dependency which cannot be treated, or has
not been treated, thereby preventing Father from consistently providing for the necessary care,

custody, and control of the ohild. This is the condition upon which termination of Father’s

l parental rights rest." (Enipliasis in original).

l generally agree with the procedural and factual history found in the Honorable Robert G.
Dowd, Jr.’s opinion.

After a review of the record and the trial court’s judgment, l find that there is insufficient
evidence to support the finding that Father had a clieniieal dependency which cannot be treated
and that would prevent Father from providing for the care of the child.

Wliile Father’s illegal drug use presents significant concerns, the required level of severity
the court must find is specified by the statute In Re: K.A.W., 133 S.W.3d l, 11 (Mo. banc 2004).
Under Section 211.447.5(2)b, drug use alone is not grounds for termination nor is chemical
dependency, rather, the statute provides that termination requires a chemical dependency which
cannot be treated. In the interest of`D.D.C., 351 S.W.3d 722, 726 (Mo. App. W.D. 2011).

ln this case, there is no evidence that drug treatment was ever recommended or offered to
Father, nor that he refused treatment This is not a case where treatment was atternpted and failed.
As a result, it is hard to draw a conclusion from this record that Father suffered frorn a cheniical
dependency, much less that this tvas a harmful condition that could not be treated.

111 order to meet the high burden to terminate Father’s parental rights, the couit’s judgment
must be based on clear, cogent, and convincing evidence to support at least one of the statutory
grounds set forth in Section 21 1.447. at 9. This burden has not been met in this case. §
In the interest of S.T.C., 165 S.W. 3d 505, 514(1\/10. App. S.D. 2005).

This decision is based only on the insufficient evidence to support the necessary

requirements under the statute for termination of parental rights.

“’?"ra~‘*'~ °"A’a't§’

Mary K. Hoff, Judge

following court orders, including drug screens. Father told the case manager that he could not be
fo1'ced to do something against his religious beliefs, stating he had decided to convert to
Rastafarianisin.

Meanwhile, Father had six more visits with the child between the beginning of September
and the end of Noveriiber 2012. Again, those visits were deemed appropriate by the Division’s
case inanagers: Father was attentive to the infant, held him, talked to him, consoled him cal1nly
when he cried and played with iiim. Father brought toys, clothes and supplies, inquired about the
child’s health and asked what else the child needed.

After a review hearing in Novembei' of 2012, the court continued its jurisdiction over the
child. lt found that Father had "not sufficiently engaged in services," though it is unclear to what
services that referred Again Fatlier was granted supervised visitation and ordered to submit to a
patenting assessment, substance abuse evaluation and drug screens. Father visited with the child
nine times between Noveinbei‘ of 2012 and january of 20 l 3 and was reported to be genuine, loving,
positive and encouraging toward the child. He continued to inquire about the child’s health and
his needs and continued to consistently bring the child appropriate supplies, toys and clothes.

Father completed a parenting assessment with a psychologist in December of 20]2. Father
told the psychologist he smoked niarijllana "rarely,” only a couple of times a month, and denied
being an addict. He told her that he converted to Rastafarianisrn after he came under scrutiny by
the Division and that sacranierital rnarijllaria smoking is part of that religion, which is therefore
protected under the Constitution. He stated that his marijuana use does not negatively impact his
life and that his work and financial success reflected this.

'I`he psychologist concluded that Father had no cognitive impairment or significant

psychiatric problems lie had "tlnusual beliefs" and was immature and stubborn, as evidenced by

his assertions regarding conversion to Rastafarianisnt. But he had also been independent and self-
sufficient since he was a teen, successfully meeting all of his financial obligations without support.
Father was not apt to admit faults and appeared to underreport any difficulties he had, including
the frequency of his inarijuaita use. One screening test the psychologist used indicated a low
probability of a substance disorder. Under the DSM~IV in effect at the time, Father met the criteria
for a “cannabis abuse” diagnosis. The doctor concluded that Father appeared “gentiinely
committed" to parenting his son and that his "pareitting beliefs and expectations with regards to
his child appeared to be generally appropriate and practical." She reconnneitded he get hands-on
patenting assistance if the infant vvas returned to Fatlier’s full custody. She also recommended
continued drug screens: "Serial positive screens, particularly those that reflect high levels of THC,
would indicate the need for a referral to drug treattnettt.”

On January 14, 2013, he tested positive for THC based on a hair follicle test with the
notation "6. 18 pg/ing.” After a ltearittg later that Jaxittary, the court again continued its jurisdiction
over the child, finding that Father acknowledged continued use of marijuana. Again Father was
granted supervised visitation and ordered to undergo a substance abuse evaluation and drug
screens. In February, Father indicated to the case manager that he would appease the court and
stop using cannabinoids. He then asked tvhat would liappen if he stopped using, got custody of
the child and then moved somewhere Inarijuana use was legal. The case manager told him it would
not be in the child’s or his best interest to begin using again. On March 7th, Fatber tested positive
for THC in his hair follicle at "4.86 pg/ntg," which was lo\vet' than the levels on the Jattuary resuits.
After another hearing in tate l\/Iarcli 2013, the court continued jurisdiction, noting that Fatlter’s
drug screens continued to be positive but "dentonstrate declining levels." lt granted supervised

visits, but stated that °‘if Father’s next drug screen continues to reflect decreasing levels of

inarijtlaiia, he may be granted periods of unsupervised visitation not to exceed six liours." The
court ordered continued drug screens.

lt was stipulated that in April of 2013, Father tlnderwent a substance abuse evaluation and
that "no services were recommended from the substance abuse evaluation as father reported he did
not have a substance abuse problern." The evaluation itself is not in the record, and there are no
further details about the evaluation or its reconinieridatioiis in the record.

Father continued to visit with the child several times a month through April, May and june
of 2013, all of which were seen as appropriate and included Father encouraging the child as he
tried to take his first steps. Father did not appear for his requested drug screen in May. After a
hearing, the court continued its jurisdiction in Jttly, noting that Father had "failed to participate in
drug screens so as to provide the court the opportunity to assess the extent of his drug use." The
court still indicated that reunificatioii with Father was the perinaneiicy plan, gave him supervised
visits and ordered continued drug screens. Father continued to consistently visit with the child
weekly through Septeinber, and the case inanagers continued to report that the visits were
appropriate During that time frainee~]tlly through September-~Fatlier‘ tested positive for THC
three tinies. Tliottgh the actual results and levels of these tests are not in the record, the court noted
that Father had "provided falling levels." The court continued jurisdiction again in early October
and ordered that "upon production of clean screen, Father will move to periods of unsupervised
[visits]."

Tllereafter, Fatliei' tested positive for THC on October 22, 2013, and then refused to appear
for the next drug screen in December. In Jantlary 2()14, the court held a hearing and then changed
the pernianency plan to adoption only, not reunification with Father. lt noted that "Father has

again refused to participate in drug screens." He was granted supervised visits and was ordered to

continue with drug screens. He tested positive for THC in February. Meanwhile, Fathei‘ had been
consistently visiting with the child from October of 2013 to Marclt of 2014, and all reports were
that the visits continued to be appropriate

in April of 2014, the juvenile officer filed a petition to terminate Father’s parental rights.
lt alleged (1) abuse or neglect and (2) failure to rectify in that the child had been under court
jurisdiction for at ieast a year and the conditions that led to the assumption of jurisdiction persisted
or there existed conditions of a potentially ltarmfttl nature such that it was unlikely to be remedied
at an early date so the child could reunite with Father or continuation of the parent-child
relationship greatly dintinislied the child’s prospects for early integration into a permanent and
stable liorne. Shortly after the petition was filed, Father again tested positive for THC on April 28,
2014. There is no record of any further drug screens. After a hearing in May of 2014, the court
ordered that the Division was no longer required to make reasonable efforts to reunify the child
with Father because the petition to terminate had been filed. Moreover, Father continued to
acknowledge regular lnarijttana use. Similar orders were entered after hearings in October of 20 14
and Marcli of 20 1 5, in which the court found that Father acknowledged continued use of marijuana

Duriiig the year between the filing of the petition aitd the trial in Aprii and May of 2015,
Father consistently visited with the child under supervision. The child was then a toddier, two to
three years old. According to the case rnanager’s report, Father continued to play and interact
appropriately with the child and bring appropriate clothes, toys and supplies for him.

Father was present at the trial on the termination petition, but did not testify. I~Ie put on
one witness, the psychologist who performed the parenting assessment. She testified that since
her diagnosis of “cannabis abuse" at the end of 20 l 2, an updated DSM-V was issued. 'l`iiereunder,

she perhaps would not have diagnosed Father with what is now called "cannabis use disorder.”

Based on what she knew about Father frorn her visits with him in 2012, he met only one factor in
the DSM, namely, the interpersonal problems he was having gaining custody of his child due to
his cannabis use. Though this one factor was sufficient for the ‘°caiinabis abuse" diagnosis under
the old DSM-IV, the current DSM-V required the presence of two factors to diagnose a person
with “cannabis use disorder." The doctor testified that she had not recommended drug treatment
in 2012 because Father reported fairly inininial use and since he did not see it as a problem in his
life, he likely would not have benefitted from treatment.

The Division presented the testimony of three of the case managers who had been assigned
to this case over the years. One said Father had told her that he used rnarijuaiia for inedicinal
purposes and did not believe that he had a problem. He never told her that he used it just for
recreational reasons. She said that in the beginning, the drug screen result contained the levels of
THC and then, at some point, they changed to just reporting a positive or negative result based on
a cutoff amount of THC. The case manager understood that urine tests can detect drugs in system
from the previous 45 days and hair follicle tests can detect drugs in the system from the previous
three inontlis. She had no reason to believe from what she observed during the 27 visits she
supervised between Fatlier‘ and the child that Father would not be a good parent. He was always
appropriate, and she had no concern he would liarm the child.

When asked if the case manager thought Father’s use of marijuana would prevent him from
being a good parent, she said she had concerns because it is an illegal substance, which posed a
risk of searches by police and other risks associated with buying drugs from criminals. She also
testified that it could be harmful if he drove with the child while under the influence of Inarijtlaria.

But she admitted that she could not really say whether this potential liarm was to such a degree

that Father could not parent because he was not actually parenting the child at the time, having
been liniited in his relationship to supervised visits at a social work agency.

Another case tnanagei' testified that Father was forthcoming about his drug use, though did
not tell her arnounts. He told her he used cannabinoids to alleviate lower back pain and decrease
stress. He said he used the drug in a concentrated oil form and would never use it in front of the
child. The case rnanagei‘ described Father as very health conscious himself and also concerned
about what the child was eating. She discussed with Fatlier the huge barrier to retmification that
his drug use posed, which he said he ttnderstood and then gave her a detailed rationalization of his
use. This case lnanagel' also testified that Father was appropriate during all of the visits she
supervised. She never personally observed Father under the influence of drugs or otherwise
impaired. When asked what specifically concerned her about Father’s cannabinoid use and
pa1'enting the child, she responded "[p]rioritizing his child’s needs and decision niaking." Rather
than actively addressing this known barrier to reunification with the child, she explained, Father
chose to ininilnize and rationalize it. In this vvay, she believed, he did not put his child’s needs
frrst. But she admitted that the problem was the fact that he refused to stop using inarijuana and
the thought-process behind that decision, nor that the use of this drug itself actually impaired his
ability to parent

A third case manager_the most recent one assigned to this case~testifled similarly about
very positive interactions between Father' and the child at all the visits she supervised 'l`hey
appeared bonded and enjoyed their time together. The Gtlardian ad Litem was present for several
of the visits she supervised, and Father spent some of those visits talkingjust to the GAL instead
of playing with child. The case manager noted no problem with adults socializing while with their

children, but was concerned with lack of supervision. She cited only one example of such lack of

supervision, in which she went to pull the child off a bookshelf he had started to climb. She could
provide no other details, including if or liow Father reacted. The case manager could not say the
child would be safe in an unsupervised visit with Father because of the possible legal ramifications
of his possession of tnarijtiaiia. She did not discuss with Father his explanation for using
niarijtlana, saying that was not important because regardless of the reasons, it is illegal in Missotlri.
He did, however, give her receipts from a Denver facility for various forms of tnarijuana to show
that he purchased it legally. He never appeared under the influence of lnarijuaiia to her. She did
not believe Father would take advantage of any further referrals from her agency. He gave her no
indication that he intended to stop using tnarijuana.

The GAL testified that after his two years working on this case and based on his "firsthand
observations" of visits between Father and the child and of Father’s home and based on the
"exteilsive amount" of legal research and factual research, he recommended not terminating
Father’s rights.”' He recognized the significance of his recommending reunification with a parent
that has THC~»of unknown amounts-in his system and therefore went to “extra lengths, great
lengths to educate [hintself] on this issue." He said he observed what he called "the strongest
bond" he had ever seen between a parent and child in 17 years of GAL worl<. In getting to know
Father and visiting his home, he concluded that there was not going to be any harm in placing this
child with Father. The GAL testified that in all his discussions with Father about his inarijuana

use, he never said he used it just to get high or have fun, rather there was always some medicinal

" As the child’s legal representative in these proceedings, the GAL was to be guided by the best interests of the child
in all tnatters and exercise independent judgment in fornnx!atiitg and presenting recolmnendations to the court
Startdard 3.0, Standards with Cortttnents for Guardians ad Liteni in juvenile and Family Court Divisioit Matters.
Appendix C foEl. Missotiri Supreine Court Rule 129. Thus, the GAL was required to mailitaiii "objectivity that
preserves a ciear focus on the child’s best interests." Standard 3.0, comment. The GAL’s reconnnendatiotts lnust be
based on the evidence and consistent with the best interests of the child. Standard 13.0. To inake the reconnnettdatioxi,
the GAL "sltould have knowledge of the child’s circumstances from all sources." Standard 13.0, connnetit. "While
trial courts do not have to defer to a GAL’s recoinmerldatioit, the conclusions and reconunendations of the GAL are
etttit|ed to respectful consideration.” In re K.L.C., 332 S.W.3d 330, 343 (Mo. App. S.D. 2011).

10