A.R.C. v. Greene County Juvenile Office

PHILLIP R. GARRISON, Presiding Judge, dissenting.

I respectfully dissent from the majority opinion. I believe that the evidence contained in this record was sufficient to support the judgment terminating Appellant’s parental rights, and I would affirm the judgment.

S.T.C. was born May 26, 2002, at which time he and Appellant tested positive for cocaine. Appellant reported at that time that: when she got pregnant with S.T.C. she was using methamphetamines, was seeing several different men, and could not remember or couldn’t identify S.T.C.’s father; on the Friday before the birth she used cocaine with an ex-boyfriend because she lost her job, was stressed out, and was easily manipulated; she had used both methamphetamines and marijuana for the previous four years, except she said she had stopped that usage four or five months before the birth; and, she had gone into treatment the preceding January but had stopped going to meetings three to four weeks prior to the birth of her child. S.T.C. was taken into custody by the Greene County Children’s Division on May 27, 2002. A meeting with Appellant was held the next day at the juvenile office at which time she admitted that she was not able to take care of S.T.C.

Maria Graham (“Graham”), a case manager for alternative care with the Missouri Children’s Division in Greene County, testified that the issues identified by the agency that Appellant needed to work on in order to reach the goal of reunification were her continued drug abuse, chaotic lifestyle, and ability to care for the child. Appellant told her that “she wants with all of her heart to not use substances, but due to her bipolar diagnosis she sometimes can’t help herself,” and that “in the past when she’s been unable to afford her medications that she [would] medicate with illegal substances.”

A treatment plan was prepared for Appellant, but although a copy of the plan itself was received in evidence, it is not in *518the record here. There was testimony, however, concerning the contents of the plan and Appellant’s compliance with it, or lack thereof. In that regard, a treatment plan can provide the trial court with highly relevant evidence in a termination case. In re K.A.W., 133 S.W.3d 1, 10 (Mo. banc 2004). “A parent’s efforts to comply with such a plan will provide the court with an indication of the parent’s likely efforts in the future to care for the child.” Id. “A lack of effort to comply with a plan, or a lack of success despite effort, can predict future problems.” Id.

The treatment plan here provided, among other things, that Appellant refrain from the use of drugs and/or alcohol other than prescribed medications, and she also agreed to random urinalysis. During the time S.T.C. was in foster care, Appellant was referred to three centers for substance abuse treatment and another for treatment for substance abuse and her diagnosis of bipolar disorder. As of the time of the hearing, the agency had received no verification that Appellant had successfully completed any of those programs. As of May 2003, Appellant admitted that she had recently used marijuana and that a scheduled drug test would be positive because of it. Appellant’s visits with S.T.C. were then terminated until such time as she could prove her commitment to continued sobriety through drug and alcohol treatment. Those visits were resumed in November 2003 because Appellant had submitted several urine tests that were clean, and she had verification that she was continuing classes and treatment at a recovery center. Thereafter, Appellant had three visits with S.T.C., the last being on December 9, 2003.

There was a Family Support Team meeting on December 16, 2003, during which Appellant’s visitation with S.T.C. was apparently discontinued because of her failure to continue with treatment for substance abuse. Appellant contended that she had “forgotten to go to treatment for the [prior] six weeks” because she was busy working at a job. She assured Graham that she would again begin treatment at the same recovery center. Graham told Appellant that the hearing on the termination of her parental rights, originally set for December 2003, had been rescheduled so that she then had four more months to continue sobriety and work towards regaining custody of her son. Because of a request made at that meeting, Appellant went for a drug test that same day, but as of the time of the termination hearing on March 29, 2004, she had not furnished the results of the test. She also had failed to provide verification that she had returned to treatment as promised. Graham testified that she had been unable to contact Appellant after December 16, 2003, although she had made numerous attempts to do so by phone and by going to Appellant’s apartment.

Accordingly, Graham had been unable to request other drug tests because of Appellant’s failure to respond to attempts to contact her. Graham testified that the barrier to reunification with the child that existed at the time of the hearing was Appellant’s continued substance abuse.

The treatment plan also provided that Appellant would maintain employment, have a lawful means of steady support, and provide verification of her income to the DFS worker. Although Appellant had previously existed on subsidized rent, food stamps, and Medicaid due to her bipolar diagnosis, she had been employed at a food market working twenty hours per week since November 2003. Nevertheless, she provided no verification about her earnings, and provided no financial support or items such as clothing, toys, or diapers for S.T.C., with the exception of one toy she brought to her last visit with S.T.C. She *519took that toy with her, however, at the end of the visit. A parent’s duty to support a child does not abate while the child is in the custody of the Division of Family Services. In re A.H., 9 S.W.3d 56, 60 (Mo.App. W.D.2000). A parent who lacks the ability to fully support a child but has the ability to make minimal contributions for their support has a duty to do so. In Interest of S.J.G., 871 S.W.2d 638, 642 (Mo.App. S.D.1994). “ ‘[E]ven a minimal contribution evinces the parent’s intent to continue the parent-child relationship.’ ” Id. (quoting In Interest of M.L.K., 804 S.W.2d 398, 402 (Mo.App. W.D.1991)).

A “Court Summary” prepared by Graham and her supervisor, dated twelve days earlier, was also introduced at the hearing. Appellant’s only objection to that summary was “to any matters not within the personal knowledge of the witness that are contained therein which might be used to prove an element of the statutory allegations.” Such reports are mandated by § 211.455.3 and are admissible over hearsay objections. In Interest of T.G., 965 S.W.2d 326, 332 (Mo.App. W.D.1998); In Interest of S.J., 849 S.W.2d 608, 611-612 (Mo.App. W.D.1993). In addition, no effort was made to identify which portions of the summary the hearsay objection would allegedly apply to. When a blanket objection is made to an entire offer of evidence, if any parts of the exhibit are admissible, the blanket objection should be overruled. Friese v. Mallon, 940 S.W.2d 37, 40 (Mo.App. E.D.1997). In this case, Appellant’s counsel objected only to the portions of the exhibit “not within the personal knowledge of the witness that are contained therein,” thus implying that there were portions that were within her knowledge. As such, the objection was insufficient.

It has been held that § 211.455.3 does not itself authorize the court to use the social report to determine whether one of the statutory grounds of termination ex-

ists, and that unless another ground for admission exists for all or pari of the report, it should be considered by the court only on the issue of whether the termination is in the best interests of the child. In Interest of J.A.R., 968 S.W.2d 748, 750-751 (Mo.App. W.D.1998). That was not the basis of Appellant’s objection to the report in this case, and in fact, counsel objected to only those portions of the report that were hearsay that “might be used to prove an element of the statutory allegations.”

The “Court Summary” documented the following: a diagnosis during Appellant’s pregnancy of dependence on amphetamines and cannabis; her inability to maintain employment; that she was then living in a homeless shelter; that she had not completed parenting classes; that she had lived in five different locations during the thirteen months prior to the hearing; that Appellant had told Graham that four months before the birth of S.T.C. she was living with people who were dealing drugs and had beaten her; that in November 2003, Appellant had physically taken S.T.C. out of a foster mother’s arms and was “very paranoid and bouncing off the walls”; that Appellant had either cancelled or failed to show up for visitations with S.T.C. five times, once not knowing what day it was and once saying she had forgotten that S.T.C. was being brought to her for a visit; that on December 16, 2003, Appellant tested positive for marijuana after saying she had “forgotten” to attend treatment for the past three to four weeks; and that between August 2002 and December 2003, she had tested positive for amphetamines three times, for cocaine three times, for prescription medications eight times, and for marijuana three times. It also revealed that Appellant had been discharged from a treatment center in both June 2003 and November 2003 for “failure to comply.”

*520In this case, Appellant contends that there was not sufficient competent evidence to support the judgment finding grounds for termination. In addition to the evidence referred to above, the record reveals that the records of the Lakes Country Resource Center (“Lakes Country”) concerning Appellant were introduced at the hearing without objection. Lakes Country is a rehabilitation center for people with “disabilities or problems like that” and which has affiliates that treat for substance abuse. The Lakes Country records, however, are not included in the record on appeal in this case. Likewise, those records have not been filed as an exhibit in this case.

On appeal the trial court’s judgment is presumed valid and the burden is on an appellant to demonstrate incorrectness of the judgment. Campbell v. Rickert, 938 S.W.2d 282, 285 (Mo.App. S.D.1997). Therefore, it is an appellant’s responsibility to file the transcript and prepare a legal file so that the record contains the evidence necessary for such a determination. Flora v. Flora, 834 S.W.2d 822, 823 (Mo.App. E.D.1992). The record on appeal must contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented to the appellate court for decision. Rule 81.12(a). In order to review Appellant’s contention that there was not substantial evidence in this case to support the judgment of termination, it would be necessary that we have all the evidence before us. Such evidentia-ry omissions will be taken as favorable to the trial court’s ruling and unfavorable to the appellant. In re Carl McDonald Revocable Trust, 942 S.W.2d 926, 932 (Mo.App. S.D.1997).

Finally, the termination hearing in this case was held on March 29, 2004. Graham had been unable to contact Appellant between December 16, 2003, and the hearing date, and Appellant failed to appear for the hearing itself. This was after Appellant dropped out of treatment for substance abuse and failed to report the results of a drug test requested by Graham.

For the above reasons, I would affirm the judgment of the trial court.