IN THE INTEREST OF:                           )
J.B.L., a child under seventeen years of age. )
                                              )
GREENE COUNTY JUVENILE OFFICE, )
                                              )
                Petitioner-Respondent,        )
                                              )
        vs.                                   )               No. SD33979
                                              )
S.J.C.,                                       )               Filed: January 25, 2016
                                              )
                Respondent-Appellant.         )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                 Honorable D. Andrew Hosmer, Associate Circuit Judge

AFFIRMED

       S.J.C. (“Mother”), the mother of J.B.L. (“Child”), brings this appeal from a

judgment terminating her parental rights to Child. The trial court found that Mother had

abandoned and neglected Child. Mother brings seven points on appeal, challenging each

of the grounds that the trial court found to support the termination and challenging that it

was in the best interest of Child to have Mother’s parental rights terminated. We find no

error and affirm the judgment.




                                             1
                                           ABANDONMENT

           Mother’s first four points claim the trial court erred in terminating her rights on

the grounds of abandonment because the finding (1) was unsupported by the evidence,

(2) was against the weight of the evidence, (3) failed to appropriately apply the law that

Mother had “repented” from any abandonment, and (4) failed to properly weigh the

evidence of Mother’s repentance from the abandonment. Mother admirably sets forth the

challenged proposition, that Child was abandoned, and the favorable evidence to that

proposition.1 She then attempts to explain why the favorable evidence lacks probative

value. Unfortunately for Mother, under these facts, she is not able to rebut the probative

value of the evidence.

           Abandonment is:

           “a voluntary and intentional relinquishment of the custody of the child to
           another, with the intent to never again claim the rights of a parent or
           perform the duties of a parent; or . . . an intentional withholding from the
           child, without just cause or excuse, by the parent, of [her] presence, [her]
           care, [her] love, and [her] protection, maintenance, and the opportunity for
           the display of filial affection.”

In re Z.L.R., 306 S.W.3d 632, 635 (Mo.App. S.D.2010) (quoting In re E.F.B.D., 245

S.W.3d 316, 324 (Mo.App. S.D. 2008)). Pursuant to section 211.447.2:2

           2. Except as provided for in subsection 4 of this section, a petition to
           terminate the parental rights of the child’s parent or parents shall be filed
           by the juvenile officer or the division, or if such a petition has been filed
           by another party, the juvenile officer or the division shall seek to be joined
           as a party to the petition, when:
           (1) Information available to the juvenile officer or the division establishes
           that the child has been in foster care for at least fifteen of the most recent
           twenty-two months; or
           (2) A court of competent jurisdiction has determined the child to be an
           abandoned infant. For purposes of this subdivision, an “infant” means any

1
    See Houston v. Crider, 317 S.W.3d 178, 186-87 (Mo.App. S.D. 2010).
2
    All references to statutes are to RSMo Cum.Supp. 2013, unless otherwise indicated.


                                                      2
       child one year of age or under at the time of filing of the petition. The
       court may find that an infant has been abandoned if:
              ....

       (b) The parent has, without good cause, left the child without any
       provision for parental support and without making arrangements to visit or
       communicate with the child, although able to do so[.]

       The favorable evidence supporting the termination on the ground of abandonment

includes the following:

       Child came to the attention of the Children’s Division while being treated in the

Neonatal Intensive Care Unit (“NICU”) after Child exhibited symptoms at birth

indicating a withdrawal from controlled substances. Mother had admitted to using

controlled substances during her pregnancy, including methamphetamine and heroin, and

claimed she had checked into a methadone clinic just prior to Child’s birth and was

receiving treatment until the time of birth. Mother was twice requested to take a drug

test; she was a no show for the first test and, although Mother told the Children’s

Division worker that she would “be dirty for marijuana and pain pills,” she tested

negative in the second test. She did participate in “touch times” and feedings in the

NICU while Mother herself was still hospitalized, but not as consistently as she was

requested to and very sporadically after Mother’s discharge. Ultimately, after Child’s

birth, Mother was without stable housing, was unemployed, and had no income while

Child was in the NICU. Further, Mother did not advise the Children’s Division

investigator that she was incarcerated on the day that Child was discharged from the

hospital. Because the investigator did not know where Mother was and because of

Mother’s prior drug history, Child went into the foster care system on her discharge. The




                                             3
trial court could have found from this evidence that Mother initially abandoned Child at

the hospital.

       After Child entered the foster care system, the Children’s Division attempted a

service plan where Mother would attend in-patient drug treatment upon her release from

jail; however, Mother did not have any contact with the Children’s Division (and, thus,

Child) for six weeks. At that time, she called the Children’s Division to admit to being

arrested again; she also admitted that during the period of time that she had been out of

jail that she had used controlled substances and she had done nothing to be re-unified

with Child. In Mother’s words, she “was a mess” during that period. She was sent to the

Missouri Department of Corrections for parole violations and entered a one-year behavior

medication treatment program to address her drug use issues; however, Mother’s

participation in that program was terminated for two violation reports. Her release date

was pushed back as a result of her failure in the treatment program.

       Mother next argues that the following evidence should be considered in the

totality of evidence and makes the favorable evidence finding abandonment lacking in

probative value. Prior to her imprisonment and Child’s release from the hospital, the

caseworker noted that Mother had accumulated suitable supplies for Child, including a

bassinet, clothes, food, and soap. While she was in prison, Mother substantially complied

with her treatment program, including participating in Parents as Teachers, Alcoholics

Anonymous, GED classes, and an anger management program. At the time of trial,

Mother was enrolled in and waiting to begin ICVC, a victims’ impact program. Also, she

had applied for Beauty for Ashes, a Christian-based re-entry program, but had to have

only one year left on her sentence before she could go to the program. She sent letters




                                             4
and pictures monthly and offered financial support, although it was turned down by the

caseworker because child support had not been ordered yet.

         Unfortunately for Mother, these facts did not convince the trial court that Mother

had not abandoned Child, nor do they compel, under our standard of review, a reversal of

the finding that Mother abandoned Child. First, as noted by the trial court, when Mother

had the opportunity to visit Child while she was out of prison she did not do so; she

admitted that she was a “mess” during the period of time following Child’s birth.

Second, Mother was incarcerated and was not able to continue her previous drug

lifestyle. Mother was given the opportunity to obtain earlier release from prison and,

thus, be able to provide a home for Child by completing a treatment program. Instead,

she received two violation reports, one for a violent offense and one for a very minor

infraction, but both of which caused her to be dismissed from the program and pushed her

release date back. Her one and only job in prison was to prove herself fit as a parent to

Child. She may not have thought of the consequences of her failing the treatment

program but it had a real consequence to her infant child. It delayed the possibility of any

earlier reunification between Child and Mother. Thus, there was substantial evidence of

abandonment and the finding of abandonment is not against the weight of the evidence.

Mother’s first two points have no merit and are denied.

         Mother contends that, despite the evidence of abandonment, she subsequently

“repented” of the abandonment.3 “[A]bandonment, once established, continues until

parental care and support are resumed.” In re T.H., 497 S.W.2d 210, 212 (Mo.App.


3
 Mother’s third point contends the trial court erroneously declared and applied the law of abandonment
when the real issue of the case was that of “repentance” of the abandonment. We deny Mother’s third point
as it is clear in the judgment that the trial court did explicitly address the issue of “repentance.” Mother’s
substantive arguments on the trial court’s finding are addressed in our analysis of her fourth point.


                                                      5
St.L.D. 1973). Further, “[r]epentance of the abandonment may be determined by the

actual or attempted exercise of parental rights and performance of parental duties

following the abandonment.” Id. Mother cites us to the same evidence used to rebut the

proposition that Child was abandoned. The trial court found that because of her actions

prior to and after her admittance into the Department of Corrections, Mother had not

repented of her abandonment. Specifically, the trial court noted the opportunity that

Mother was given for an early release by completing the treatment program made

available to her at the Department of Corrections and her failure to do so. Given our

standard of review, we cannot find the trial court erred in making that finding. Mother

relies upon her lack of “intent” to abandon Child but the trial court could have found that

her actions belie her statement that she did not “intend” to abandon Child. She behaved

in a manner that left an infant without a mother from her birth in February of 2014, until

at least 2016 or early 2017. At no time did Mother actually, or attempt to, exercise her

parental rights and perform her parental duties. The finding that Mother did not repent of

her abandonment is not against the weight of the evidence. Point IV is also denied.

                                         NEGLECT

       Because the finding of abandonment is supported by substantial evidence and not

against the weight of the evidence, we do not address Mother’s complaints (Points V and

VI) concerning the finding of neglect.

                                    BEST INTEREST

       We will address Mother’s final point regarding a claim of error that it is not in the

best interest of the minor child to terminate Mother’s parental rights. We first note that

Child was separated from Mother at birth, thus, during this entire period of Mother being




                                             6
a self-described “mess,” this infant could not provide for herself. Child’s entire life has

been spent without Mother, thus, no bonds have been formed and cannot reasonably be

formed prior to Mother’s discharge from prison. The anticipated release date for Mother

is 2017,4 when Child will be at least three years old. Keeping in mind that it is the best

interest of the child from the facts known to the trial court at the time of trial, we cannot

find an abuse of discretion in the trial court’s finding that it is in the best interest of Child

that Mother’s parental rights be terminated. Point VII is denied.

         The judgment is affirmed.


Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. - Concurs

William W. Francis, Jr., J. - Concurs




4
 Mother testified that she has three potential release dates – earliest release of April 2016, guideline date of
2017, and a maximum outdate of 2021.


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