No Harm To Daughter Shown In Case
From – Missouri Lawyers Weekly
August 21, 2000
Even though a mother suffered from schizophrenia and depression, her parental rights should not be terminated merely because she had an irreversible mental illness, the Missouri Court of Appeals’ Eastern District has ruled.
The state argued that the mother suffered from an irreversible mental condition which rendered her unable to provide her child with the necessary care, custody and control.
But the court disagreed.
“Termination of parental rights should not be granted on account of mental illness unless it is shown by clear, cogent and convincing evidence that [the child] is harmed or is likely to be harmed in the future,” wrote Judge Paul J. Simon for the court. “The focus should be on the ability of mother to care for [the child] and her ability to maintain a parental relationship with [the child] which would not be harmful to her.”
The decision is In the Interest of D.L.M., MLW No.26855, issued on Aug. 15.
Guidance To DFS
“This decision is important because it stands for the proposition that simply having a mental illness is not enough to terminate parental rights,” saidLeigh Joy Carson, the St. Louis attorney who represented the mother.
“I think this decision is also valuable because it gives the Division of Family Services and juvenile officers guidance on what they need to present to the court in order to terminate the rights of a mentally ill parent.”
A mother suffering from schizophrenia, schizo-affective type, had a child in 1991. The child was brought under the jurisdiction of the Family Court in 1993 after the mother was taken into protective custody due to her mental state. The child was eventually placed with the Division of Family Services and the mother was given visitation rights.
On Jan. 3, 1997, the mother was granted physical custody of her child after she substantially complied with a DFS service plan. On March 6, 1997, the mother was again hospitalized for schizophrenia as a result of failing to take her medicine. The child was briefly placed in the custody of her maternal grandmother and then was returned to the mother.
The child was again removed from the home on Feb. 20, 1998, after the mother admitted using cocaine on several occasions, she failed to take her psychiatric medications, and because an assault occurred in her home. The child was first placed with her maternal grandmother and then with foster parents. The mother entered into a service plan in which she was ordered to pay support and maintenance for her child, which she did.
The mother was hospitalized yet again for 10 days in Dec. 1998. She was delusional and hallucinating after failing to take her medication. The mother notified her caseworker and checked herself into the hospital.
‘Irreversible Mental Condition’
A petition to terminate the mother’s parental rights was filed on Dec. 17, 1998. The trial court found that there was clear, cogent and convincing evidence that the mother suffered from “an irreversible mental condition appealed.
“Prior to terminating the right of a parent, there must be clear, cogent, and convincing evidence that one or more of the grounds set forth in Sections 211.447.2, 211.447.3, or 211.447.4 RSMo, exists,” Simon said, noting that the juvenile officer relied on §211.447(2) to terminate the parental right of the mother.
“Although reunification of the family is the desired outcome of DFS involvement, the primary concern in any termination case is the best interest of the child.”
In order to terminate parental rights, §211.447(2) requires the trial court to make four findings: “(a) a mental condition shown to be either permanent or such that there is no reasonable likelihood of its reversal and which renders the parent unable to knowingly provide necessary care, custody and control of the child; (b) a chemical dependency preventing the parent from consistently providing necessary care, custody and control; (c) a severe act or recurrent acts of physical, emotional or sexual abuse toward the child under circumstances indicating that the parent knew of should have known of such act; and (d) a repeated or continuous failure by the parent, although 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 development.”
Looking at the first factor, “the trial court found that [the] mother suffered from a mental condition which could not be reversed and which rendered her unable to knowingly provide necessary care to her child.
“In support of this conclusion, the trial court asserted that the mother suffered from Schizophrenia, Schizo-Affective Type, and was taking six different medications to control the mental condition,” Simon noted.
In addition, the trial court noted the mother’s hospitalization in Dec. 1998 indicated that “when mother’s mental condition ‘decompensates,’ she is unable to adequately care for the child.”
Simon said, “It is not disputed that [the] mother suffers from Schizophrenia, Schizo-Affective type,” which is a permanent condition.
Simon also noted that the mother was hospitalized on two occasions as a result of failing to take her medication. “The doctor testified that at the times [the] mother was hospitalized, her condition was such that she would not have been able to take care of her children,” he said.
“However, the evidence shows, that the mother voluntarily hospitalized herself on both of these occasions, and that on at least one of these occasions [the] mother dropped her children off at [her mother’s] house prior to hospitalizing herself.
“Furthermore, the evidence shows that the mother has a history of calling for help when facing her mental illness related problems.”
Simon indicated, “‘Unlike neglect, abandonment, abuse or nonsupport, the mental illness of a parent is not per se harmful to a child.
“Termination of parental rights should not be granted on account of mental illness unless it is shown by clear, cogent and convincing evidence that [the child] is harmed or is likely to be harmed in the future.”
No Evidence Of Harm
“The focus should be on the ability of mother to care for [the child] and her ability to maintain a parental relationship with [the child] which would not be harmful to her,” Simon asserted.
“The periods during which [the] mother was hospitalized were the periods during which she was unable to care for her children.
“On at least one occasion, her child was safe with her maternal grandmother,” he said, finding that there was no evidence that the child “has been harmed or is likely to be harmed.”
Turning to the question of chemical dependency, Simon said, “The trial court found that [the] mother suffered from a chemical dependency, but that she successfully completed a substance abuse program in August of 1998 and had participated in and completed one or more substance abuse treatment programs, but that she later relapsed and used cocaine following such treatment.
“The trial court concluded that: ‘Said chemical dependency does not presently prevent her from consistently providing the necessary care, custody and control for the child,”‘ Simon indicated and agreed with the determination.
After reviewing the other factors, Simon concluded that the decision to terminate parental rights was not supported by clear, cogent and convincing evidence and reversed the trial court.