Termination of Parental Rights in Missouri - Part 2
Recent Court Decisions Arguably Make Terminations More Difficult

Shawn R. McCarver¹

I. Introduction

As stated in the original article, termination of parental rights did not exist at common law.2 The cause of action is purely statutory and many opinions recite that strict and literal compliance with the statute is necessary before a termination of parental rights may be granted.3

Termination of parental rights cases may be broadly divided into three categories. The first is a termination of parental rights by consent.4 The second category is a contested termination of parental rights where the filing of the termination petition is mandatory unless excused because of certain circumstances.5 The third category is a contested termination of parental rights where the filing of the termination petition is discretionary.6

II. Termination Generally

In order to terminate parental rights, the court must find that at least one ground for termination has been proven “by clear, cogent and convincing evidence,” and the court must also find by a “preponderance of the evidence” that termination is in the best interests of the child.7

Only one ground for termination of parental rights need be properly pleaded and proven in order to support a judgment. Thus, where termination is granted for both abuse/neglect and failure to rectify, and where only failure to rectify is challenged on appeal, a termination will be affirmed because the appellant did not challenge the ground of abuse/neglect.8 On the other hand, termination must be granted on a ground actually pleaded. Thus, a termination will be reversed if the court grants termination for a ground not pleaded.9

Termination of parental rights law is no longer important to just juvenile officers. The petitioners in a Chapter 453 adoption are permitted to invoke Chapter 211 termination.10 In addition, the Children’s Division of the Department of Social Services is authorized, in Chapter 211 proceedings, to file a petition seeking a termination of parental rights.11

III. Termination Of Parental Rights By Consent

The juvenile court in a Chapter 211 termination proceeding, or the court in a Chapter 453 adoption, may “terminate the rights of a parent” if it finds “termination is in the best interests of the child and the parent has consented in writing to the termination of . . . parental rights.”12

The requirements for the written consent are set forth in § 211.444.2, RSMo Supp. 2005. The written consent is “valid and effective only after the child is at least forty-eight hours old.”13 In addition, the consent in a Chapter 211 termination must comply “with the other requirements of § 453.030, RSMo.”14 The Department of Social Services has developed a form called “Consent to Termination of Parental Rights and Consent to Adoption.”15 Use of the state form appears mandatory.16

Section 453.030 contains a review and acceptance procedure.17 The procedure states that the consent “may be withdrawn any time until it has been reviewed and accepted by a judge.”18 It is not clear whether the “review, acceptance and approval” provisions in Chapter 453 apply to terminations under Chapter 211. No case has so held, yet most practitioners submit the consent form in a Chapter 211 proceeding to the court for review, acceptance and approval. The courts have, however, given effect to the “by a judge” language of § 453.030.7, RSMo Supp. 2005. In the case of In re K.L.S., the mother’s consent was reviewed and accepted by a commissioner. The mother then moved to withdraw the consent prior to confirmation of the review and acceptance by a judge. Under those circumstances, it was held that mother could withdraw her consent.19 It has also been held that the withdrawal of a consent need not be in writing.20

Whether a parent has knowingly, voluntarily and intelligently consented to termination of parental rights turns upon the specific facts of the cases.21

Even a consent termination must be in the best interests of the child. Thus, where a parent consented in order to be relieved of financial obligations imposed by a dissolution of marriage judgment, parental rights could not be terminated.22 At least one case, In re D.C.C., has found error in failing to grant a hearing where a motion to set aside a consent is based upon allegations of “fraud and misrepresentation.”23

IV. Contested Termination Of Parental Rights-Generally

The Supreme Court of Missouri, in the case of In re K.A.W., said that termination of parental rights without consent requires proof of at least one ground by “clear, cogent and convincing evidence” and, in addition, proof by preponderance of the evidence that termination is in the best interests of the child.24 In addition, the Supreme Court has imposed additional requirements for the trial court in the consideration of termination of parental rights cases. The acts and conditions of the parent justifying termination must be analyzed for: (1) whether there is sufficient reason to believe the acts or conditions had an impact on the child; (2) whether the “acts or conditions . . . are severe enough to constitute abuse or neglect”; and (3) whether there is an indication of likelihood of future harm to the child.25 The Supreme Court has declared that findings supporting termination from earlier court hearings are not irrelevant; however, those findings must be updated to describe the time of the termination and the potential for future harm. In addition, the K.A.W. Court noted that poor conduct or character flaws are not relevant unless they could actually result in future harm to the child. The Court recognizes that some parental conduct may be harmful, but may not be sufficient to rise to the level of abuse or neglect. The Court even notes that “not every criminal act committed by [a] parent is severe enough to [constitute] abuse or neglect.”26 Failure to follow the Supreme Court’s analysis in the findings and judgment in a termination case requires reversal and remand.27 In addition, where a termination is not based upon evidence “at the time of termination,” the termination will be reversed.28 Finally, the Supreme Court has recently held that parental rights may not be terminated if a parent can raise the child with assistance from others.29

V. Mandatory Filing Of TPR Petition

In response to the enactment of the federal Adoption and Safe Families Act of 1997,30 the Missouri legislature enacted § 211.447.2, which provides that, in certain circumstances, the filing of a termination petition is mandatory.31 The requirement for mandatory filing of the termination petition may be excused where “[t]he child is being cared for by a relative,” where “[t]here exists a compelling reason for determining that filing . . . would not be in the best interest of the child, as documented in the permanency plan,” or where “[t]he family . . . has not been provided such services as provided for in § 211.183,” RSMo Supp. 2005.32 Despite the wording of § 211.447.2(1), RSMo Supp. 2005, the Supreme Court has determined that the fact that a child has been in foster care for at least 15 of the most recent 22 months is not a ground for termination. It is, instead, a “trigger” which requires the filing of a TPR (Terminate Parental Rights) petition based upon grounds in the statute.33 There are two other grounds which, if present, require the filing of a termination petition. The first is abandonment of an infant,34 and the second is where the parent has either aided, attempted or actually committed a serious crime against the child or another child of the parent.35

Both abandonment of an infant and the commission by the parent of serious crimes against the child require a determination by a “court of competent jurisdiction.”36 It is presumed that the court of competent jurisdiction to determine abandonment is the juvenile division of the circuit court in a proceeding under § 211.031, RSMo Supp. 2005. With respect to the ground for commission of crimes against the child by the parent, it is presumed that the court of competent jurisdiction is the criminal court hearing the criminal charges related to the crimes listed in the section. It should be noted, however, that no case specifically has decided what court constitutes the court of competent jurisdiction referred to in §§ 211.447.2(2) and (3), RSMo Supp. 2005.

VI. Discretionary Filing Of Termination Petition

A termination petition may be filed if one or more of the grounds set forth in

§ 211.447.4, RSMo Supp. 2005 exist.37

VII. Abandonment

Whether under §§ 211.447.2(2) or 211.447.4(1), the manner of abandonment is the same. Abandonment can be proven by either (1) proving “[t]he parent has left the child under circumstances that the identity of the child was unknown and could not be ascertained”; or, (2) “[t]he parent has, without good cause, left the child without [support] and without making arrangements to visit or communicate, . . . although able to do so.”38

Abandonment of a child over one year of age at the time of the filing of the petition requires a six month or longer period of abandonment, while the statute specifies no particular period of abandonment to prove abandonment of an infant.39

In abandonment cases, the court must consider the statutory period; however, the court may also consider the period before and after the statutory period. The greatest weight must be given to conduct during the statutory period.40 Where the termination is based upon the mandatory filing section, which does not specify a particular period of abandonment, the issue is largely determined by the intent of the parties.41 Abandonment becomes a question of the intent of the parent, to be “discovered by examining all evidence of the” conduct of the parent.42

Terminations for abandonment have been approved despite impediments: token contact;43 failure to exercise parental rights after discovery that mother had not had an abortion;44 “transportation and employment problems”;45 and denial of visitation pursuant to an alleged court policy which stopped visitation after the filing of the termination petition.46

Terminations for abandonment have also been affirmed: where a parent had only token visits and failed to notify the Children’s Division of a change of address and failed to complete a service plan;47 where a parent abandoned an infant despite involuntary removal of the child from the parents;48 where the parents thereafter failed to visit, communicate or provide support, despite intervention in a case, exercising visitation and seeking a paternity test;49 where those actions occurred after the filing of the petition;50 where mother failed to enroll in or participate in therapy;51 where father lives out of his truck as an over the road driver and has infrequent contact;52 and where a parent has consistent communication, and completion of programs while incarcerated, but the actions occur after filing of the petition.53

On the other hand, terminations for abandonment have been reversed: where a parent concealed the location of the child and, upon discovery, the other parent asserted parental responsibilities;54 where a parent suffered from a medical condition and was approved for disability, which resulted in the children receiving Social Security;55 where a parent quit an out-of-state job, moved to Missouri, attended therapy, visited and attended some school activities;56 where a parent made consistent efforts to preserve paternity interests, but those efforts were frustrated by the other parent’s non-cooperation and by the juvenile officer;57 and where a parent sent regular correspondence to a child, the grandparents and to the Children’s Division.58

Normally, a parent may leave a child in the temporary custody of a third party provided there is good cause. A parent, however, must continue to show parental interest and concern for the child. If, after the temporary placement is made, the parent makes only sporadic or token efforts at communication and support, termination may be granted for abandonment.59

A parent may repent of abandonment; however, not every gesture will result in repentance. The court may attach little or no weight to infrequent or token contacts or support where the parent has a history of the same, but attempts to repent shortly before trial.60

The proof in an abandonment case “must include evidence showing some ability

. . . to make a monetary contribution” and to visit or communicate.61 A parent with “the ability to make minimal contributions for . . . support has a duty to do so” even in absence of a demand.62 Even “the substantially reduced wages received by [an] incarcerated [person] do not excuse [the] obligation . . . [of] monetary contributions towards support.”63 While the reduced wages of a prisoner do not excuse the obligation to provide support, incarceration in and of itself is not a ground for termination of parental rights.64 Incarceration, while not a separate ground for termination, does not excuse the obligation of a parent “to provide [the child] with a continuing relationship through communication and visitation.”65 Finally, abandonment has been established where one parent kills the other parent, resulting in mental anguish or separation because of the surviving parent’s lengthy prison term and where one parent’s continued association with the violent and abusive other parent contributes to the child remaining in foster care for 30 months.66

VIII. Abuse/Neglect

The court may terminate parental rights if a child has been abused or neglected.67 An actual “adjudication of abuse or neglect” is no longer a prerequisite to a termination under this ground.68 The ground of abuse/neglect contains a listing of four “aggravating factors.” Those factors relate to: (1) mental condition, (2) chemical dependency, (3) severe or recurrent abuse, and (4) repeated or continuous neglect.69 A termination of parental rights for abuse/neglect will not be affirmed without evidence of at least one of the four aggravating factors.70 When termination is based upon abuse/neglect, the trial court is required to make findings on all four of the aggravating factors, and failure to do so requires remand. Even if a factor is irrelevant because no evidence was adduced, the court must make a finding so stating.71 Further, the abuse or neglect upon which the termination is based must be sufficient to justify a termination of parental rights.72 In In re B.C.K., the appellate court imposes a requirement that the mother be “incapable of caring for the children at the time of the termination.”73

IX. Aggravating Factor: Mental Condition

Mental illness by itself does not render a parent unfit.74 A termination will be analyzed for: (1) documentation, (2) duration and (3) severity of effect. The mental condition must be either “permanent or such that there is no reasonable likelihood that the condition can be reversed.”75 The condition must render “the parent unable to knowingly provide the child with the necessary care, custody and control.”76 The mental condition must still persist at the time of termination.77 Psychiatric testimony is not necessary to establish the mental condition, and psychological testimony has been held to be sufficient.78

A termination has been reversed where the parent suffers from a permanent mental condition which can be controlled. In the case of In re D.L.M., when the parent became destabilized as a result of refusal of medication, the parent sought help on her own and placed the child with a grandmother prior to entering the hospital.79

X. Aggravating Factor: Chemical Dependency

To terminate on the basis of abuse/neglect for the aggravating factor of chemical dependency, evidence must show that the chemical dependency “prevents the parent from consistently providing the necessary care, custody and control of the child and [that the dependency] cannot be treated so as to enable the parent to consistently provide care, custody and control.”80 Thus, where a parent is chemically dependent and alcohol is smelled on the breath while the parent visits the children, and where alcohol is observed in the home and the parent refuses substance abuse treatment, termination is appropriate.81 A termination for chemical dependency is also appropriate where mother was addicted to cocaine, failed to complete an in-patient drug treatment program, and where two reunification attempts failed.82

XI. Aggravating Factor: Severe Or Recurrent Abuse

Termination for severe or recurrent abuse requires “[a] severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent, . . . or by another under circumstances” indicating “the parent knew or should have known that [the] acts were being committed.”83 Under this ground, parental rights to children who have not been sexually abused may also be terminated where two other children have been abused.84 In addition, where a parent sexually abuses his minor sisters, those sisters constitute children “in the family” within the meaning of § 211.447.4, RSMo Supp. 2005. Thus, this is an appropriate ground for termination of father’s rights with respect to father’s daughter.85 The “knew or should have known” language of the statute presents significant proof problems. Cases tend to turn on the specific facts, and terminations have been both affirmed and reversed where it is alleged a parent “should have known” that a child was being abused.86

XII. Aggravating Factor: Repeated Or Continuous Neglect

The statute permits a termination on the ground of abuse/neglect based upon the aggravating factor of repeated or continuous neglect where there is a failure by the parent to provide “adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the . . . physical, mental, or emotional health and development” of the child.87 The statute requires a showing that the parent is physically or financially able to provide the listed items.88 Terminations under this aggravating factor have been granted where a parent: has unstable housing arrangements; lives with different partners; was discharged from drug treatment; was incarcerated;89 failed to provide support;90 had no employment even when not pregnant, and continued to associate with an abusive parent.91

Terminations for abuse/neglect based upon the aggravating factor of repeated or continuous neglect have been reversed: where a father provided for the child while in Missouri and repented of a previous abandonment;92 where mother’s parenting techniques constituted bad judgment rather than emotional abuse;93 and where the evidence failed to show any of the four aggravating factors under the ground of abuse/neglect.94 A parent has an affirmative duty to provide support and it is not required that there be evidence that support was either requested or ordered.95

XIII. Failure To Rectify

The court may terminate parental rights for failure to rectify where the child has been under the jurisdiction of the court for a period of one year.96 In addition, there must be evidence of the “conditions which led to the assumption of jurisdiction” and whether those conditions still persist at the time of termination, and there must be “conditions of a potentially harmful nature [that] continue[d] to exist” at the time of termination.97 There must also be evidence “that there is little likelihood that [the] conditions will be remedied at an early date so that the child can be returned to the parent in the near future” or evidence that “continuation of the parent-child relationship [will] greatly diminish[ ]the child’s prospects for early integration into a stable and permanent home.”98

As with the ground of abuse/neglect, the ground of failure to rectify has four “aggravating factors.” The court is required to make findings on each of the four factors. A finding is required even if “no evidence is adduced” on a particular factor.99 The aggravating factors relate to the terms of the social service plan, the success or failure of the efforts of the juvenile officer, mental condition and chemical dependency.100 Although there seems to be some confusion among the decisions concerning whether proof of at least one of the four aggravating factors is required to terminate for failure to rectify, the more recent decisions seem to hold that there must be proof of at least one of the four aggravating factors “to terminate for failure to rectify.”101 Termination for failure to rectify may be granted on a different condition than that for which the child was originally adjudicated or taken into protective custody.102

In one case, In re A.D.R., it was argued that the conditions requiring removal must have been rectified because two subsequently born children were never removed from the home.103 The parents argued that the state should have been precluded from arguing failure to rectify, because if the conditions had not been rectified, the two subsequently born children would have been removed by the Children’s Division.104 The argument was rejected, and termination for failure to rectify was affirmed.105

XIV. Aggravating Factor: Social Service Plan

There is no statutory right to a certain level or standard of treatment that must be offered by the Children’s Division.106 The failure of the division to follow its own guidelines or to offer adequate services to improve parenting skills is not a valid defense.107 In fact, the fact that a parent has entered into a social service agreement with the Children’s Division in one county and may be reasonably complying with the terms of said agreement does not deprive the juvenile division of jurisdiction to terminate parental rights.108 That said, however, the “failure to comply with a . . . service agreement does not” constitute a separate ground for termination of parental rights.109 Failure to comply is “merely a factor to [be] consider[ed] in deciding whether” to terminate parental rights for failure to rectify.110 Thus, where a parent has complied with the majority of the terms and reunification is imminent, a termination for failure to rectify is reversed despite a relapse into drug abuse.111

While partial or substantial compliance has resulted in reversal of some terminations, compliance with the service plan has, in other cases, not prevented a termination.112 The court is required to make findings on the terms of the social service plan and the extent of compliance therewith. The court need not quote the terms of the plan. It is sufficient if the plan is identified by date.113

XV. Aggravating Factor: Success Or Failure Of Efforts Of Juvenile Officer Or Division

A complete absence of treatment or services is no defense in a termination proceeding. The Children’s Division is not required to provide all available services prior to termination where the parent’s failure to cooperate would render additional services useless. In addition, the failure of the division to fund a program is no defense where the parent alleges that the failure to complete the program is a result of a lack of funding.114 With regard to the success or failure of the efforts of the juvenile officer or the division, the findings of the court must identify the specific efforts made by the state and the parents’ cooperation or hindrance with respect thereto.115

XVI. Aggravating Factor: Mental Condition

Failure to rectify may not be used as a ground for termination of parental rights where the child was initially brought under the jurisdiction of the juvenile court because of the permanent mental illness of a parent which does not improve.116 Further, where a parent suffers from a permanent mental condition but can parent the child with assistance from others, a termination for failure to rectify is not proper.117

Cases related to mental condition discussed under the ground of abuse/neglect are equally relevant under the ground of failure to rectify, as the statutory wording of this factor is the same as under abuse/neglect.118

XVII. Aggravating Factor: Chemical Dependency

The statutory standard for chemical dependency as an aggravating factor on the ground of failure to rectify is the same as under the ground of abuse/neglect and, accordingly, cases related to chemical dependency are equally relevant to both grounds.119

XVIII. Felony Convictions

Parental rights may be terminated “[w]here the parent has been found guilty [of] or pleaded guilty to a felony violation of chapter 566, RSMo.”120 Despite the wording of the statute in referring specifically to violations of chapter 566, RSMo, it has been held that convictions of Missouri crimes are not required. The court in In re E.C.H.J. held that an Iowa conviction for an offense having the same elements as one of the crimes under Chapter 566, RSMo, was sufficient to justify termination.121 For purposes of this section, “a ‘child’ means any person . . . under eighteen at the time of the crime

. . . who resided with [the] parent or was related within the third degree of consanguinity or affinity to [the] parent.”122

XIX. Forcible Rape

The court may terminate parental rights for forcible rape where “[t]he child was conceived and born as a result of an act of forcible rape.”123 A guilty plea or conviction of “the forcible rape of the birth mother . . . [is] conclusive evidence supporting . . . termination” under this ground.124

It should be noted that consideration of the so called “best interest factors” as set forth in § 211.447.6 is not required when a termination is granted upon the grounds of forcible rape.125 This does not mean, however, that the court is excused from making a finding that termination is in the best interests of the child. A determination of best interests is a matter left to the sound discretion of the court. The court must still make factual findings and a determination that termination of parental rights is in the best interests of the child.126

XX. Parental Unfitness

Parental rights may be terminated where a “parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse.”127 The statute specifically mentions “abuses as defined in § 455.010, RSMo, child abuse or drug abuse before the child.”128 The abuse or condition rendering the parent unfit must “be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.”129

The statute contains a presumption “that a parent is unfit to be a party to the parent-child relationship upon a showing that within a three-year period immediately prior to the termination adjudication [that] the parent’s . . . rights to one or more other children were involuntarily terminated” under §§ 211.447.4(1), (2), (3) or (4), RSMo, or the “similar laws of other states.”130 The phrase “termination adjudication” is the trial date since the “decision [is] based upon the status of the parties as of the date of the trial, not as of the date the court later enters its judgment.”131

The presumption of unfitness may be established by admission into evidence of a termination judgment from another state.132 A termination judgment from another state that is outside the three-year period is also admissible, but not to raise the presumption of unfitness. Such a judgment is admissible on the issue of best interests.133 Once the presumption of parental unfitness is raised, the burden shifts to the parent to rebut the presumption.134 The presumption of parental unfitness “can be overcome by evidence that the circumstances . . . lead[ing] to the [previous] termination of . . . parental rights . . . no longer exist[s], or that the parent is no longer unfit.”135

Evaluation of the § 211.447.6, RSMo, factors is not required under this ground.136 However, as with the ground of forcible rape, this does not relieve the court of making findings and a determination that termination is in the best interests of the child. Determination of best interests is a matter left to the sound discretion of the trial court. Even though the statute does not require consideration of the factors listed in § 211.447.6, RSMo Supp. 2005, the court must still make findings of fact and a determination that termination is in the best interests of the child.137

Terminations for parental unfitness have been affirmed: where the parents injected the children with drugs, sexually abused the children, had the children “videotape the parents engaging in sexual relations;”138 and where there is a history of domestic violence and one parent continues to associate with the perpetrator of the domestic violence.139

The presumption of parental unfitness does not arise based upon a voluntary or consent termination. However, a termination rendered on a default basis on a contested ground is considered involuntary, and gives rise to the presumption of parental unfitness.140 A termination for parental unfitness will not be upheld where there is evidence of bad judgment that does not rise to the level of abuse and where the acts are not of a duration or nature so as to render the parent unfit for the reasonably foreseeable future.141

XXI. Section 211.447.6 - The “Best Interest Factors”

In all contested termination of parental rights cases except forcible rape and parental unfitness, the court is required to evaluate and make findings on the factors listed in § 211.447.6, RSMo Supp. 2005, when appropriate and applicable to the case.142 On the other hand, if there is any evidence as to a particular factor, the court must make findings on the factor or the case will be remanded.143

Where there is evidence on a factor, the trial court is still free to disbelieve the evidence, but the court must address the evidence in the findings.144 The court may not make a conclusory finding on the issue of best interests. The court must recite specific facts.145 Although not a statutory factor, some courts have focused on, or at least prominently mentioned, whether the child is adoptable and whether there is an adoptive home available for the child. A termination can be granted without having an adoptive home available; however, the juvenile officer or the division might be well advised to introduce evidence on this point.146

The burden of proof in the trial court on the issue of best interests is preponderance of evidence. On appeal, the standard of review on the issue of best interests is whether the trial court abused its discretion.147 Expert testimony is not required to establish best interests, and a finding of best interests can be supported even where the parent’s expert recommends against termination.148

XXII. Summary

In summary, termination of parental rights based upon consent requires a showing that the parent knowingly, voluntarily and intelligently consented, and that termination is in the best interests of the child. A termination on any of the contested grounds, however, requires proof of each and every element of at least one ground and a finding that termination is in the best interests of the child. The grounds of abuse/neglect and failure to rectify require a consideration of each of the four aggravating factors (even if no evidence was adduced on a particular factor), and all cases require the specialized findings mentioned by the Supreme Court in the K.A.W. case referenced herein.

While it may be argued that B.C.K. and K.A.W. have made terminations more difficult, those cases recognized the concept that the right to parent one’s child is a constitutionally protected fundamental liberty interest. Accordingly, the courts are uniform in holding that strict and literal compliance with the statutes is required in order to terminate parental rights.

Footnotes

1 Shawn R. McCarver has maintained a private law practice since 1984, with an office presently in Farmington. He graduated summa cum laude in 1981 with a B.S. from Central Missouri State University, and received his J.D. from the University of Missouri-Columbia School of Law in 1984, where he was a member of the Missouri Law Review. In addition to his private practice, Mr. McCarver served as legal counsel for the 24th Judicial Circuit from 1985 to 2002. Entire article Copyright 2006, Shawn R. McCarver.

2 Shawn R. McCarver, Termination of Parental Rights in Missouri, 45 J. Mo. Bar 475 (1989).

3 In re W.F.J., 648 S.W.2d 210 (Mo. App. W.D. 1983); In re S.T.C., 165 S.W.3d 505 (Mo. App. S.D. 2005); In re A.H.Y.O., 169 S.W.3d 152 (Mo. App. S.D. 2005).

4 Section 211.444, RSMo Supp. 2005.

5 Sections 211.447.2 and 211.447.3, RSMo Supp. 2005.

6 Section 211.447.4, RSMo Supp. 2005.

7 Section 211.447.5, RSMo Supp. 2005. In re A.M.C., 26 S.W.3d 386, 393 (Mo. App. E.D. 2000). In re W.S.M., 845 S.W.2d 147 (Mo. App. W.D. 1993); T.S. v. P.S., 797 S.W.2d 837 (Mo. App. W.D. 1990); In re J.D.B., 813 S.W.2d 341 (Mo. App. W.D. 1991); In re J.N.C., 913 S.W.2d 376, 380 (Mo. App. W.D. 1996).

8 In re T.F.S., 52 S.W.3d 44 (Mo. App. S.D. 2001).

9 In re E.F.B.D., 138 S.W.3d 145 (Mo. App. S.D. 2004). It should be noted that pleadings are deemed amended under the implied consent rule where evidence is admitted without objection. However, the implied consent rule only results in amendment to conform to the evidence if the evidence bears solely on the unpleaded issue. For example, if evidence of abuse/neglect is admitted without objection, the pleadings are not deemed amended under the implied consent rule because evidence of abuse and neglect is also relevant on the issue of best interests, which is an issue already in the case. Id.

10 Section 211.447, RSMo Supp. 2005.

11 Sections 211.447.2, 211.447.3 and 211.447.4, RSMo Supp. 2005.

12 Section 211.444.1, RSMo Supp. 2005.

13 Section 211.444.3, RSMo Supp. 2005.

14 Section 211.444.3, RSMo Supp. 2005.

15 The form can be obtained from the Department of Social Services and is form number CS-126. The form is also identified as MO 866-3539 (7-98).

16 Section 453.030.8, RSMo Supp. 2005.

17 Sections 453.030.6 and 453.030.7, RSMo Supp. 2005.

18 Id.

19 In re K.L.S., 119 S.W.3d 548 (Mo. App. E.D. 2003).

20 In re Baby Girl P., 159 S.W.3d 862 (Mo. App. W.D. 2005).

21 In re A.M.K., 723 S.W.2d 50 (Mo. App. E.D. 1986) (parent told psychotherapist “she wanted to give her children up for adoption because . . . she could not provide for them” and because they imposed “too great of a strain on her”); In re A.M.W., 64 S.W.3d 899 (Mo. App. S.D. 2002) (consent valid despite expert testimony from psychiatrist and psychologist that mother suffered from major depression and probably did not understand the consent form where mother told social worker she had not bonded with the child, that she might hurt the child, that she wanted the child taken into foster care, and where mother refused services offered by the Children’s Division); In re R.R.T., 744 S.W.2d 829 (Mo. App. W.D. 1988) (foster mother told father it was her philosophy that child should be available for visits after the adoption, but after adoption informed father he would have no rights — father’s consent still valid despite contention he signed under a false impression); In re Baby Girl P, W.D. 65656 (Mo. App. W.D. 2006) (mother did not orally withdraw her consent where she was merely distressed and grieving about giving up her child).

22 In re B.L.G., 731 S.W.2d 492 (Mo. App. S.D. 1987). See also, In re R.A.S., 826 S.W.2d 397 (Mo. App. W.D. 1992).

23 In re D.C.C.. 971 S.W.2d 843 (Mo. App. W.D. 1998).

24 In re K.A.W., 138 S.W.3d 1, 12 (Mo. banc 2004).

25 Id. at 11. See also, In re B.C.K., 103 S.W.3d 319 (Mo. App. S.D. 2003).

26 Id. at 11. In re A.A.T.N., 181 S.W.3d 161 (Mo. App. E.D. 2005) (court may take judicial notice of its files).

27 In re J.M.N., 134 S.W.3d 58 (Mo. App. W.D. 2004).

28 In re K.W., 167 S.W.3d 206 (Mo. App. E.D. 2005).

29 In re S.M.H., 160 S.W.3d 355 (Mo. banc 2005).

30 Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified as amended at 42 U.S.C. § 1305).

31 Section 211.447.2, RSMo Supp. 2005.

32 Section 211.447.3, RSMo Supp. 2005.

33 In re M.D.R., 124 S.W.3d 469 (Mo. banc 2004). It should be noted that this case expressly overruled 13 prior opinions, some of which were from each of the three districts of the Court of Appeals, and all of which had held that this was a separate ground for termination of parental rights, as set forth in the statute.

34 Section 211.447.2(2), RSMo Supp. 2005.

35 Section 211.447.2(3), RSMo Supp. 2005.

36 Id.

37 The grounds are: (1) abandonment of a “child over one year of age,” § 211.447.4(1); (2) abuse/neglect, § 211.447.4(2); (3) failure to rectify, § 211.447.4(3); (4) felony convictions, § 211.447.4(4); (5) forcible rape, § 211.447.4(5); and (6) parental unfitness, § 211.447.4(6). All citations are to RSMo Supp. 2005.

38 Sections 211.447.2(2) and 211.447.4(1), RSMo Supp. 2005.

39 Id.

40 In re M.H., 828 S.W.2d 951 (Mo. App. S.D. 1992), In re A.L.H., 906 S.W.2d 373, 375 (Mo. App. E.D. 1995).

41 In re N.R.W., 112 S.W.3d 465, 469 (Mo. App. W.D. 2003).

42 In re B.L.B., 834 S.W.2d 795, 799 (Mo. App. E.D. 1992).

43 In re J.W., 11 S.W.3d 699 (Mo. App. W.D. 1999); In re Adoption of H.M.C., 11 S.W.3d 81 (Mo. App. W.D. 2000).

44 In re B.B.B., 905 S.W.2d 118 (Mo. App. W.D. 1995).

45 In re C.S., 910 S.W.2d 811, 813 (Mo. App. E.D. 1995).

46 In re T.T. v. T.M., 954 S.W.2d 429 (Mo. App. W.D. 1997).

47 In re E.L.B., 103 S.W.3d 774 (Mo. banc 2003).

48 In re N.R.W., 112 S.W.3d 465 (Mo. App. W.D. 2003).

49 In re K.N.H. v. C.A.M., 118 S.W.3d 317 (Mo. App. S.D. 2003).

50 In re E.T.C., 141 S.W.3d 39 (Mo. App. E.D. 2004).

51 In re E.D.H., 138 S.W.3d 761 (Mo. App. E.D. 2004).

52 In re P.G.M., 149 S.W.3d 507 (Mo. App. S.D. 2004).

53 In re J.B.D., 151 S.W.3d 885 (Mo. App. S.D. 2004).

54 In re G.M.T., 965 S.W.2d 200, 203 (Mo. App. E.D. 1998).

55 In re B.S.B., 76 S.W.3d 318, 321 (Mo. App. W.D. 2002).

56 In re A.R., 52 S.W.3d 625 (Mo. App. W.D. 2001).

57 In re C.J.G., 75 S.W.3d 794 (Mo. App. W.D. 2002).

58 In re J.M.S., 83 S.W.3d 76 (Mo. App. W.D. 2002).

59 In re M.J.A., 826 S.W.2d 890, 897 (Mo. App. S.D. 1992); In re J.W., 11 S.W.3d 699 (Mo. App. W.D. 1999); and In re C.M.D. v. M.D., 18 S.W.3d 556 (Mo. App. W.D. 2000).

60 See In re Y.M.H., 817 S.W.2d 279 (Mo. App. W.D. 1991) and In re M.L.K., 804 S.W.2d 398 (Mo. App. W.D. 1991).

61 In re Baby Girl W., 728 S.W.2d 545 (Mo. App. W.D. 1987).

62 In re S.J.G., 871 S.W.2d 638, 642 (Mo. App. S.D. 1994); In re B.L.B., 834 S.W.2d 795 (Mo. App. E.D. 1992).

63 In re M.L.K., 804 S.W.2d 398, 402 (Mo. App. W.D. 1991). But see In re J.M.S., 83 S.W.3d 76, 84 (Mo. App. W.D. 2002) (Failure to pay minimal support from prison wages is a de minimis failure in light of extensive postage used for correspondence to child, grandparents and Children’s Division).

64 Section 211.447.6(6), RSMo Supp. 2005; H.W.S. v. C.T., 827 S.W.2d 237 (Mo. App. E.D. 1992). See also In re M.N.M., 906 S.W.2d 876 (Mo. App. S.D. 1995).

65 In re M.L.K., 804 S.W.2d 398, 402 (Mo. App. W.D. 1991); In re S.L.J., 3 S.W.3d 902 (Mo. App. S.D. 1999); In re R.K., 982 S.W.2d 803 (Mo. App. W.D. 1998).

66 In re D.R.M., 780 S.W.2d 145 (Mo. App. W.D. 1989); In re A.B.M., 17 S.W.3d 912 (Mo. App. S.D. 2000); In re the Adoption of B.D.W., S.D. 27007 (Mo. App. S.D. 2006).

67 Section 211.447.4(2), RSMo Supp. 2005.

68 In re P.J.M., 926 S.W.2d 223, 224 (Mo. App. E.D. 1996).

69 Section 211.447.4(2)(a)-(d), RSMo Supp. 2005.

70 In re D.L.M., 31 S.W.3d 64 (Mo. App. E.D. 2000).

71 In re K.D.C.R.C.B-T, 928 S.W.2d 905 (Mo. App. E.D. 1996). See also In re M.A., W.D. 65819 (Mo. App. W.D. 2006) (findings are required even if termination is denied).

72 In re K.A.W., 133 S.W.3d 1 (Mo. banc 2004), In re B.C.K., 103 S.W.3d 319 (Mo. App. S.D. 2003).

73 In re B.C.K. 103 S.W.3d at 321. See also In re C.F.C., 156 S.W.3d 422 (Mo. App. E.D. 2005).

74 In re A.M.F., 140 S.W.3d 201 (Mo. App. S.D. 2004).

75 Section 211.447.4(2)(a), RSMo Supp. 2005.

76 Id. See also In re M.W.S., 160 S.W.3d 435 (Mo. App. W.D. 2005).

77 In re K.W., 167 S.W.3d 206 (Mo. App. E.D. 2005).

78 In re D.C.H., 835 S.W.2d 533, 534 (Mo. App. S.D. 1992). But see In Re: S.P.W., 707 S.W.2d 814 (Mo. App. W.D. 1986).

79 In re D.L.M., 31 S.W.3d 64, 69 (Mo. App. E.D. 2000).

80 Section 211.447.4(2)(b), RSMo Supp. 2005.

81 In re A.D.G., 23 S.W.3d 717 (Mo. App. W.D. 2000).

82 In re J.L.B., 9 S.W.3d 30 (Mo. App. W.D. 1999).

83 Section 211.447.4(2)(c), RSMo Supp. 2005. In re T.M.E., 169 S.W.3d 581 (Mo. App. W.D. 2005).

84 In re B.M.P., 704 S.W.2d 237 (Mo. App. S.D. 1986).

85 In re L., 888 S.W.2d 337 (Mo. App. E.D. 1994).

86 In re T.S., 925 S.W.2d 486, 488 (Mo. App. E.D. 1996) (where father knew “mother was ‘easily angered’” and had a “temper problem,” and that the situation became explosive when the children were sick or crying is insufficient to prove father should have known of the abuse); In re D.B., 916 S.W.2d 430 (Mo. App. E.D. 1996) (that mother fought with her boyfriend because she suspected he was abusing the children is sufficient, in combination with her continuing to live with the boyfriend, and establishes mother “should have known” children were being abused); In re T.H., 980 S.W.2d 608, 612 (Mo. App. W.D. 1998) (mother “should have known” sufficiently established where mother lied about the incident to the authorities); In re A.M.C., 983 S.W.2d 635 (Mo. App. S.D. 1999) (conclusory testimony that there had been abuse not sufficient to support termination where it is not supported by specific details or facts).

87 Section 211.447.4(2)(d), RSMo Supp. 2005.

88 Id. See also In re S.M.H., 170 S.W.3d 524 (Mo. App. E.D. 2005).

89 In re A.H., 9 S.W.3d 56 (Mo. App. W.D. 2000). In re J.L.B., 9 S.W.3d 30 (Mo. App. W.D. 1999); In re the Adoption of B.D.W., S.D. 27007 (Mo. App. S.D. 2006).

90 In re R.J.B., 30 S.W.3d 868 (Mo. App. S.D. 2000); In the Matter of S.J.S., 134 S.W.3d 673 (Mo. App. E.D. 2004).

91 In re J.L.M., 64 S.W.3d 923 (Mo. App. S.D. 2002).

92 In re A.R., 52 S.W.3d 625 (Mo. App. W.D. 2001).

93 In re P.C., 62 S.W.3d 600 (Mo. App. W.D. 2001).

94 In re B.S.B., 76 S.W.3d 318 (Mo. App. W.D. 2002).

95 In re Q.M.B., 85 S.W.3d 654 (Mo. App. W.D. 2002); In re E.T.C., 141 S.W.3d 39 (Mo. App. E.D. 2004); In re E.D.H., 138 S.W.3d 761 (Mo. App. E.D. 2004).

96 “The jurisdiction of the court attaches from the time the child is taken into custody.” Section 211.131.3, RSMo Supp. 2005.

97 Section 211.447.4(3), RSMo Supp. 2005.

98 Id. In re F.N.M., 951 S.W.2d 702, 705 (Mo. App. E.D. 1997). Despite the wording of the statute, the cases now hold that termination for failure to rectify must be based not merely upon the original conditions that led to the assumption of jurisdiction, but there must also be “conditions of a potentially harmful nature [that] continue to exist” at the time of the termination. In re C.F.C., 156 S.W.3d 422 (Mo. App. E.D. 2005); In re B.L.H., 158 S.W.3d 269 (Mo. App. E.D. 2005).

99 In re D.A.H. v. M.A., 921 S.W.2d 618, 622 (Mo. App. W.D. 1996); In re E.K., 860 S.W.2d 797 (Mo. App. E.D. 1993); In re H.F.G., W.D. 65382 (Mo. App. W.D. 2005); In re M.A., W.D. 65819 (Mo. App. W.D. 2006) (findings are required even if termination is denied).

100 Section 211.447.4(3)(a)-(d), RSMo Supp. 2005.

101 In re R.L.K., 957 S.W.2d 778, 782 (Mo. App. S.D. 1997); In re E.T.C., 141 S.W.3d 39 (Mo. App. E.D. 2004); In re N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000).

102 In re S.H., 915 S.W.2d 399, 403 (Mo. App. W.D. 1996).

103 In re A.D.R., 26 S.W.3d 364, 370 (Mo. App. S.D. 2000).

104 Id.

105 Id.

106 In re N.D., 857 S.W.2d 835, 836 (Mo. App. W.D. 1993).

107 Id. See also In re B.M.P., 704 S.W.2d 237 (Mo. App. S.D. 1986); In re E.T.C., 141 S.W.3d 39 (Mo. App. E.D. 2004).

108 In re P.E.B., 708 S.W.2d 315, 321 (Mo. App. S.D. 1986).

109 In re C.N.G., 109 S.W.3d 702 (Mo. App. W.D. 2003).

110 Id.

111 Id. See also In re S.J.H., 124 S.W.3d 63, 70 (Mo. App. W.D. 2004) (TPR reversed where parent made steady progress in six of the nine areas covered by the service plan).

112 In re Q.D.D., 144 S.W.3d 856 (Mo. App. S.D. 2004). See also In re C.K.G., 827 S.W.2d 760 (Mo. App. S.D. 1992); In re K.L.C., 9 S.W.3d 768 (Mo. App. S.D. 2000); In re L.D.R., 169 S.W.3d 137 (Mo. App. E.D. 2005).

113 In re N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000); In re H.F.G., W.D. 65382 (Mo. App. W.D. 2005).

114 In re A.M.C., 32 S.W.3d 155, 160 (Mo. App. W.D. 2000).

115 In re H.F.G., W.D. 65382 (Mo. App. W.D. 2005).

116 In re J.I.W., 695 S.W.2d 513, 515 (Mo. App. W.D. 1985).

117 In re A.S.W., 137 S.W.3d 448, 454 (Mo. banc 2004).

118 Section 211.447.4(3)(c), RSMo Supp. 2005.

119 Section 211.447.4(3)(d), RSMo Supp. 2005.

120 Section 211.447.4(4), RSMo Supp. 2005.

121 In re E.C.H.J., 160 S.W.3d 815, 818 (Mo. App. W.D. 2005). In addition, a termination may be had under this section if the plea was an “Alford” plea. “‘Alford’ pleas involve a plea of guilty without an admission of actual guilt.” Id.

122 Section 211.447.4(4), RSMo Supp. 2005.

123 Section 211.447.4(5), RSMo Supp. 2005.

124 Id.

125 Section 211.447.6, RSMo Supp. 2005.

126 In re K.C.M., 85 S.W.3d 682, 690 (Mo. App. W.D. 2002).

127 Section 211.447.4(6), RSMo Supp. 2005.

128 Id.

129 Id.

130 The sections cited refer to abandonment of a child over one year of age, abuse/neglect, failure to rectify or felony convictions.

131 In re T.A.S., 62 S.W.3d 650, 659 (Mo. App. W.D. 2001).

132 In re C.C., 32 S.W.3d 824 (Mo. App. W.D. 2000) (In this case, the statute from the other state was not offered into evidence. However, the judgment recited language similar to Missouri’s “failure to rectify.”)

133 Id.

134 Id. In re D.M.B., 178 S.W.3d 683 (Mo. App. S.D. 2005).

135 In re E.D.M., 126 S.W.3d 488, 495 (Mo. App. W.D. 2004); In re A.H., 9 S.W.3d 56 (Mo. App. W.D. 2000).

136 Section 211.447.6, RSMo Supp. 2005.

137 In re K.C.M., 85 S.W.3d 682 (Mo. App. W.D. 2002).

138 C.W. v. R.F., 64 S.W.3d 321 (Mo. App. W.D. 2001).

139 In re C.M.K., 140 S.W.3d 219 (Mo. App. S.D. 2004).

140 In re E.D.M., 126 S.W.3d 488 (Mo. App. W.D. 2004).

141 In re P.C., 62 S.W.3d 600, 604 (Mo. App. W.D. 2001).

142 Unlike the aggravating factors under the grounds of abuse/neglect and failure to rectify, the factors to be considered under § 211.447.6 only require “findings as to [those] factors” which, in the discretion of the court, are “deem[ed] applicable to the case.” In re K.O., 933 S.W.2d 930, 933 (Mo. App. E.D. 1996).

143 In re N.M.J., 24 S.W.3d 771 (Mo. App. W.D. 2000).

144 In re T.A.S., 32 S.W.3d 804 (Mo. App. W.D. 2000).

145 In re A.P., 988 S.W.2d 59 (Mo. App. S.D. 1999). Although the statute does not require the court to consider the listed factors on the grounds of forcible rape and parental unfitness, the court must still make findings of fact on the issue of best interests rather than a mere conclusory finding. Thus, it is probably a better practice for the court to consider and make factual findings at least on the factors mentioned in the statute together with any other facts which support the conclusion that termination is in the best interests of the child. In re K.C.M., 85 S.W.3d 682 (Mo. App. W.D. 2002). The determination of whether termination is in the best interests of the child is, however, “an ultimate conclusion . . . based on the totality of the circumstances.” In re L.A.M.R., 179 S.W.3d 418, 421 (Mo. App. S.D. 2005).

146 See In re B.L.H., 158 S.W.3d 269 (Mo. App. E.D. 2005).

147 In re K.C.M., 85 S.W.3d 682 (Mo. App. W.D. 2002).

148 In re A.Y.M., 154 S.W.3d 412 (Mo. App. S.D. 2004).