Southern District splits in parental-rights case

The full Court of Appeals Southern District split on whether a Jasper County judge should have terminated a woman’s parental rights to her autistic daughter and allowed the girl’s stepmother to adopt her.

Four judges held that the weight of the evidence didn’t show that the mother intended to abandon her daughter, identified in the opinion as R.N.D., who currently is 17. In part, the court relied on the judge’s decision not to terminate the mother’s rights to her other daughter, now 16.

Judge Nancy Steffen Rahmeyer, writing for the majority, said it was “a rare case” where the mother’s evidence of her attempts to communicate with her child countered the father’s evidence that she had abandoned the child.

Judges Gary W. Lynch and Don E. Burrell dissented. Lynch wrote that the trial judge’s weighing of the evidence was the “very essence of the proper exercise of the judicial power by a trial court to resolve highly contested, extremely difficult, and heart-wrenching family situations.”

“This is not a rare case,” he added. “Trial courts do this every day all across our state.”

Judge Daniel E. Scott wrote separately, saying he was “dubitante” — that is, doubtful — about the outcome the majority reached. He stressed that Jasper County Associate Circuit Judge Joseph L. Hensley had weighed the evidence carefully.

“I’ve not read a more thoughtful, sensitive, and considered judicial decision, trial or appellate,” Scott wrote in a footnote.

In September 2015, the mother had ceased visitation with R.N.D. following a particularly severe behavioral meltdown that apparently did damage to her home. Though the mother paid support and health insurance costs for the children and sent cards, she didn’t make attempts to see R.N.D. until March 2018, when she began texting the father to ask for meetings with the three children.

The following month, the mother filed a motion to modify custody, alleging the father has repeatedly denied her visitation with the children. The father and his wife, whom he had married in 2015, in turn asked the court to terminate the mother’s parental rights and allow the stepmother to adopt the children. During the course of the year, the mother continued to text the father asking to see the children and sent cards to them on holidays, though the stepmother testified she didn’t read the cards to R.N.D. and threw them away.

Hensley declined to terminate the mother’s parental rights to the youngest daughter. (The couple also had a son, but at that point the son had turned 18.) But the judge found that the mother had abandoned R.N.D., as she hadn’t seen her for three years. Although Hensley noted that contacting the severely autistic girl would have been difficult without the father’s help, “she never tried,” he wrote.

The Southern District’s majority reversed after finding the trial court’s ruling was against the weight of the evidence, as the mother had made repeated efforts in 2018 to contact all three children, including R.N.D.

“All the evidence which supports the judgment denying termination of Mother’s parental rights to [the youngest daughter] supports the reversal of the termination to R.N.D.,” Rahmeyer wrote.

She also said the father’s March 2018 diagnosis with cancer might have influenced the outcome.

“Although the trial court was duly concerned about the health diagnosis of Father, the law does not change to allow Mother’s rights to be terminated because Father wishes that his current wife care for their child,” Rahmeyer wrote. Chief Judge Jeffrey W. Bates and Judges William W. Francis Jr. and Mary W. Sheffield concurred.

The dissenting opinion, however, said Hensley had sorted through a “mountain of conflicting and contested evidence” to reach his conclusions and that the appellate court should defer to that assessment.

In his separate opinion, Scott argued that whether the trial court’s ruling was against the weight of the evidence depended on which evidence the Court of Appeals weighed. The trial court had rejected claims that the mother neglected her children, based on the financial support she’d provided. The abandonment claim rested on her lack of contact with R.N.D.

In 2017, the Missouri Supreme Court split 4-3 in a similar parental termination case, S.S.S. v. C.V.S.  Scott noted that the high court “discussed, but did not resolve” how financial and non-financial aspects factor into a finding of neglect, similar to the issue of abandonment in R.N.D.’s case. Scott said Hensley didn’t factor the mother’s financial support into the abandonment finding.

“If the trial court’s rubric was proper, controlling principles of review dictate affirmance,” he wrote. “On the other hand, if the court should have factored financial support into its abandonment analysis, we should reverse and remand so that court can do so. It is far better suited and positioned for that task than we are.”

The case is In re the adoption of: H.D.D, R.N.D. and S.F.D., SD36035.