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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 suppor t 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.2 ABANDONMENT Mother’s first four points claim the trial court e rred 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) fai led 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 abandonmen t. Mother admirably sets forth the challenged proposition, that Child was abandoned, a nd the favorable evidence to that proposition. 1 She then attempts to explain why the favorable ev idence 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 r ights of a parent or perform the duties of a parent; or . . . an intenti onal 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 s ection, 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 divis ion shall seek to be joined as a party to the petition, when: (1) Information available to the juvenile officer o r 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 determine d 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. 2 013, unless otherwise indicated.3 child one year of age or under at the time of filin g of the petition. The court may find that an infant has been abandoned if :

. . . . (b) The parent has, without good cause, left the ch ild without any provision for parental support and without making a rrangements 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 Divi sion while being treated in the Neonatal Intensive Care Unit (“NICU”) after Child e xhibited symptoms at birth indicating a withdrawal from controlled substances. Mother had admitted to using controlled substances during her pregnancy, includi ng methamphetamine and heroin, and claimed she had checked into a methadone clinic jus t prior to Child’s birth and was receiving treatment until the time of birth. Mothe r was twice requested to take a drug test; she was a no show for the first test and, alt hough Mother told the Children’s Division worker that she would “be dirty for mariju ana and pain pills,” she tested negative in the second test. She did participate i n “touch times” and feedings in the NICU while Mother herself was still hospitalized, b ut not as consistently as she was requested to and very sporadically after Mother’s d ischarge. Ultimately, after Child’s birth, Mother was without stable housing, was unemp loyed, and had no income while Child was in the NICU. Further, Mother did not adv ise the Children’s Division investigator that she was incarcerated on the day t hat Child was discharged from the hospital. Because the investigator did not know wh ere Mother was and because of Mother’s prior drug history, Child went into the fo ster care system on her discharge. The4

trial court could have found from this evidence tha t Mother initially abandoned Child at the hospital. After Child entered the foster care system, the Ch ildren’s Division attempted a service plan where Mother would attend in-patient d rug 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 p eriod of time that she had been out of jail that she had used controlled substances and sh e had done nothing to be re-unified with Child. In Mother’s words, she “was a mess” du ring that period. She was sent to the Missouri Department of Corrections for parole viola tions and entered a one-year behavior medication treatment program to address her drug us e issues; however, Mother’s participation in that program was terminated for tw o violation reports. Her release date was pushed back as a result of her failure in the t reatment program. Mother next argues that the following evidence sho uld be considered in the totality of evidence and makes the favorable eviden ce finding abandonment lacking in probative value. Prior to her imprisonment and Chi ld’s release from the hospital, the

caseworker noted that Mother had accumulated suitab le supplies for Child, including a bassinet, clothes, food, and soap. While she was i n prison, Mother substantially complied with her treatment program, including participating in Parents as Teachers, Alcoholics Anonymous, GED classes, and an anger management pro gram. 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 letters5

and pictures monthly and offered financial support, although it was turned down by the caseworker because child support had not been order ed yet. Unfortunately for Mother, these facts did not conv ince 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 ou t 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 obt ain earlier release from prison and, thus, be able to provide a home for Child by comple ting a treatment program. Instead, she received two violation reports, one for a viole nt offense and one for a very minor infraction, but both of which caused her to be dism issed 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 consequence s 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. Th us, there was substantial evidence of abandonment and the finding of abandonment is not a gainst the weight of the evidence. Mother’s first two points have no merit and are den ied. Mother contends that, despite the evidence of aban donment, 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 erro neously declared and applied the law of abandonment when the real issue of the case was that of “repent ance” of the abandonment. We deny Mother’s third p oint 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.6

St.L.D. 1973). Further, “[r]epentance of the aband onment 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 co urt found that because of her actions prior to and after her admittance into the Departme nt of Corrections, Mother had not repented of her abandonment. Specifically, the tri al 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 a nd 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 b ut the trial court could have found that

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

in a manner that left an infant without a mother fr om 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. T he finding that Mother did not repent of her abandonment is not against the weight of the ev idence. 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 addre ss Mother’s complaints (Points V and VI) concerning the finding of neglect.

BEST INTEREST We will address Mother’s final point regarding a c laim of error that it is not in the

best interest of the minor child to terminate Mothe r’s parental rights. We first note that Child was separated from Mother at birth, thus, dur ing this entire period of Mother being7

a self-described “mess,” this infant could not prov ide 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. Th e anticipated release date for Mother is 2017, 4 when Child will be at least three years old. Keep ing in mind that it is the best

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

find an abuse of discretion in the trial court’s fi nding 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 rele ase dates – earliest release of April 2016, guideli ne date of 2017, and a maximum outdate of 2021.