text:
    In re the ADOPTION OF B.D.W., a minor.
    No. 27007.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 31, 2006.
    Application for Transfer to Supreme Court Denied Feb. 22, 2006.
    Application for Transfer Denied April 11, 2006.

      William J. Fleischaker, Joplin, for appellant.
    Jerry L. Holcomb, Joplin, for respondent.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Mother appeals from the grant of the termination of her parental rights in a suit on a petition brought by the foster parents of B.D.W. for adoption and to terminate Mother’s parental rights. The first count of the petition alleged that, pursuant to section 453.040(7), consent of the natural Mother was not necessary for adoption because she had for a period of at least six months immediately prior to the filing of the petition for adoption willfully abandoned the child and/or willfully, substantially, and continuously neglected to provide the child with the necessary care and protection. The second count of the petition alleged four grounds under section 211.447.4 to support a determination that Mother’s consent was unnecessary for an adoption: section 211.447.4(1), in that Mother abandoned the child by leaving her without any provision for parental support and without making arrangements to visit or communicate with her although able to do so; section 211.447.4(2), in that the child was adjudicated, abused or neglected and there was a repeated and continuous failure by Mother to provide the child with adequate food, clothing, shelter or education, or other care and control necessary for the child’s physical, mental or emotional health and development; section 211.447.4(3), because B.D.W. had been under the jurisdiction of the juvenile court for a period in excess of one year and the conditions which lead to the assumption of jurisdiction still persisted or conditions of a potentially harmful nature continued to exist and there was little likelihood that the conditions would be remedied at any early date thus diminishing the child’s prospects for early integration into a stable and permanent home; and section 211.447.4(6), in that Mother was unfit to be a party to the parent/child relationship due to a specific pattern of committing specific abuse toward the child and being unable for the reasonably foreseeable future to appropriately meet the ongoing physical, mental or educational needs of the child. In an extensive, detailed judgment, filed April 15, 2005, the court transferred legal custody of the child to the Petitioners for the purpose of adoption and terminated the parental rights of Mother and Father. The trial court granted the termination for multiple reasons on five statutory bases, sections 453.040(7), 211.447.4(1), 211.447.4(2)(d), 211.447.4(3), 211.447.4(3)(a), and made findings under sections 211.447.6(l)-(5).

Mother brings five points on appeal, the first four points specifically challenging the sufficiency of the evidence under sections 453.040(7), 211.447.4(1), 211.447.4(2)(d), and 211.447.4(3). Mother does not allege error in the court’s findings on the factors used in deciding whether to terminate the parent-child relationship under section 211.447.6. Additionally, Mother claims in point five that the trial court erred in refusing to order an execution of a medical authorization and the production of the child for a physical and mental exam.

FACTS

B.D.W. was born November 9, 2000; she came under the jurisdiction of the Jasper Juvenile Court beginning January 31, 2001, at the age of two and one-half months, and was fifty-two months old at the time of the termination order. Petitioners filed their petition for adoption and the termination of parental rights on July 30, 2003; the hearing was held February 10, 2005, and the judgment was entered April 15, 2005. The court transferred legal custody of the child to the Petitioners for the purpose of adoption and terminated the parental rights of Mother and Father.

B.D.W. came into the jurisdiction of the juvenile court after the Division of Family Services (“DFS”) received a report in January 2001 regarding domestic violence in the household of Mother and Father. When Father was arrested at the home for the domestic violence, police also found a bag allegedly containing marijuana and other drug paraphernalia. DFS reviewed Father’s records and discovered that he had been convicted approximately nine years prior of misdemeanor assault of an infant.

Mother initially retained the physical custody of B.D.W. on the condition that Mother and child would remain at a women’s shelter, Lafayette House. During this time, Mother filed an order of protection against Father alleging that on January 29, 2001, Father hit, slapped, and choked her; she further stated that for two years he had consistently abused her in the same way, often leaving her with black eyes. A full order of protection was issued; however, Mother subsequently dismissed the order. She stated, “It is hard to resolve any problems if we can’t talk.” On March 26, 2001, Lafayette House reported concerns to DFS over Mother’s behavior because Mother was not caring properly for child. Mother left the child unattended for long periods of time in her carrier, reportedly spending long periods of time on the phone with Father and her participation in the domestic violence program at Lafayette House was minimal. B.D.W. was placed in foster care with Petitioners on March 26, 2001, and has remained in their custody throughout the proceedings.

Although Lafayette House had secured housing for Mother separate from Father when she left the shelter, she chose to move in with Father. Mother missed five of ten appointments with her counselor after leaving Lafayette House. Mother and Father were granted supervised visitation with B.D.W. of one visit per week; however, the couple soon lost this visitation as a result of Father’s actions during visitation. On June 25, 2001, Father was holding B.D.W. and stated that he could snap the child’s neck before anyone could do anything about it. On July 2, 2001, Father verbally assaulted and threatened a DFS caseworker and was arrested; he later pled guilty to assault, peace disturbance and unlawful use of a weapon. The court ordered services for Mother and Father to cease on July 3, 2001, until they could demonstrate emotional stability; however, counseling was provided to Mother.

Mother’s therapist explained to her that the expectation of DFS was to reunify Mother and B.D.W. and explained what was required of Mother in order for reunification to occur. Mother was told to continue attending domestic violence classes and individual counseling at Lafayette House to work on co-dependency issues. Mother was again allowed supervised visits of one hour per week with B.D.W., beginning August 14, 2001, after she returned to counseling at Lafayette House. A parent aide transported B.D.W. to and from the visits and Father transported Mother to and from the visits. This arrangement soon led to problems when Father threatened the parent aide and a DFS security guard during a supervised visit on September 26, 2001. The visits were subsequently ceased by court order and Father was barred from DFS property.

Even though a DFS caseworker informed Mother that reunification with B.D.W. would be difficult with Father in her life, Mother arrived with Father at the next visit and soon began missing appointments with her counselor. Mother married Father in September 2001, despite his aggression towards her and others, but did not inform her caseworker of the marriage. Mother’s caseworker later discovered that Mother and Father were married and in letters dated December 11, 2001, and March 5, 2002, the caseworker specifically informed Mother and Father what was required of them if they wished to be reunited with B.D.W. Father would need to attend marriage counseling, domestic violence classes, individual therapy, and submit to drug testing. Mother would need to continue attending domestic violence classes and individual therapy.

Mother, meanwhile, was allowed supervised visits with B.D.W. beginning in March of 2002; however, she was still in a relationship with Father. By April of 2002, with B.D.W. under the jurisdiction of the juvenile court for more than one year, DFS reported that services provided to Mother included a drug assessment, parenting classes, a parent aide, domestic violence classes, individual counseling, marriage counseling, and visitation with the child and team meetings. At this point, DFS also reported that Father had been admitted in December of 2001 to an institution in a delusional state and treated for depression with psychotic features. His physician stated that Father risked a fifty to seventy-five percent relapse rate if he did not stay on medication. Because a relapse meant he would become violent, DFS requested documentation of stability in Father for a period of ninety days. He was required to attend counseling and submit to drug testing. Drug evaluations of Father in April and June of 2002 showed that Father was positive for drugs; he admitted in team meetings that he used marijuana on a daily basis. Follow-up treatment was recommended, but it did not appear that he continued with treatment and he failed to reach any type of stability.

At a permanency hearing held June 20, 2002, with both Mother and Father present and B.D.W. having been in alternative care for fifteen months, the case goal still remained reunification. Progress still failed to occur and in September of 2002, a caseworker spoke with Mother about the possibility and meaning of terminating parental rights and informed her of possible options. Mother told the caseworker that she had married Father in order to bring their family together and she still trusted Father despite the fact that her relationship with him interfered with possible reunification between her and B.D.W.

Shortly after this meeting, Mother filed a second petition for an order of protection on October 11, 2002, alleging that Father had put a screwdriver to her throat, beat her with a flashlight, kicked her in the ribs, hit her in the nose, pinned her to the floor, choked- her, and accused of her of “sleeping around.” She admitted that she feared he would abuse her over the “slightest thing” and stated that he had threatened to kill her. Mother dismissed the petition a few days later, just as she had done with the first full order of protection. Mother did not inform her caseworker that severe abuse had occurred earlier in the month, nor did she inform DFS of any of the abuse alleged in the petition. In fact, she lied to DFS about violence in the relationship.

The permanency planning review team met again on October 30, 2002, and this time recommended that DFS seek termination of parental rights. Twenty-one months had now passed since the inception of the court’s jurisdiction and little or no progress had occurred on the part of B.D.W.’s parents. Mother was advised at this meeting that if she remained in a relationship with Father, her parental rights could be terminated. On November 2, 2002, Father assaulted Mother again and he was charged with assault in the second degree. Again, Mother did not report the abuse to DFS; however, she had a meeting with DFS a few days after the incident and the caseworker observed Mother’s bruised face and bloodshot eyes. Mother admitted that in the past Father had broken her nose approximately five times, but she still maintained that he would improve his ways. She stated that her goal was to reunite her family. She hoped Father would want her and B.D.W. and that he would one day be safe to be around. The court ordered visits between Mother and B.D.W. terminated on November 5, 2002. Mother’s last visit occurred on November 4, 2002.

After the assault on Mother in November, Father pled guilty to assault in the third degree and received 30 days shock incarceration and a one-year suspended execution of sentence. Mother remained by his side. She reported to DFS in January 2003 that she and Father were still together, receiving services from Lafayette House, attending marriage counseling, and generally doing well. The couple, however, was evicted from their home in February of 2003 and a petition for rent and possession was filed against them on August 25, 2003.

Father was ordered to pay $105.00 per month for child support on March 8, 2002, but to the date of the hearing paid no support. Mother was ordered to pay $228.00 per month, retroactive to November 15, 2002, but failed to make the payments. Her unemployment benefits were intercepted pursuant to the child support order. When the court approved a case goal of adoption and termination of parental rights at a July 10, 2003 permanency hearing, Mother’s attorney requested support payments be abated, and the court complied. She subsequently paid nothing from July 22, 2003, until May 13, 2004; however, by the time of the hearing, she was current in all past due support. She failed to provide the child with anything equivalent to money that would constitute adequate support such as food, clothing, or other necessaries during the period that she did not pay support.

After the court had approved a case goal of adoption at the July 10, 2003 permanency planning hearing and the Petitioners had filed their petition for adoption and termination of parental right in July 2003, Mother sent a letter to the court, dated September 25, 2003, stating that she was finally separated from Father and living with her father and grandmother. B.D.W. had now been in foster care for thirty-three months.

Wess Baugh, a licensed psychologist, testified at the termination hearing that he had done a psychological evaluation and parenting assessment on Father and separately interviewed Mother in conjunction with Father’s evaluation. Baugh noted that prior to her relationship with Father, Mother had maintained an emotionally abusive long-term relationship with a man that cheated on her and treated her badly. This man was eventually arrested for sodomy of teenage girls and producing pornography. Baugh recommended that Father not be considered a placement for B.D.W.; he also stated that Mother’s efforts to convince the court that she was separated from Father should be considered suspect. He believed Mother’s co-dependence might cause her to deceive the court and testified, “With regard to [Mother] that if she remains in a relationship with [Father] that she should not be considered a viable placement option although she shows intelligence, devotion to the child, her judgment in remaining with [Father] who, I felt, was a physical and emotional threat to her and the child, is a poor one and would put the child at risk.”

Baugh also believed that Father’s aggressive presence would intrude on any attempt at successful reunification between Mother and B.D.W. Father brought in a “rap sheet” containing forty-four offenses over the years in response to Baugh’s request for a list of all infractions or charges against Father. Father also admitted that he disrespects legal authority and believes that they are as crooked as anyone else is, they just have “a badge.” Baugh testified that in the time after he evaluated Father, he was not aware that Mother had received or even sought treatment. Baugh opined that therapy was necessary for Mother if she wanted to be a successful parent or responsibly choose a future partner. Baugh had serious concerns that unless Mother had received treatment, she would enter into future relationships with the same potential for disaster.

Psychologist Judith Kellenberger testified that she had conducted a bonding assessment between B.D.W. and Petitioners on November 26 and December 2, 2002. Kellenberger was aware that B.D.W. had been with the Petitioners all but about three months of her life. Kel-lenberger testified that B.D.W. had a very strong attachment to Petitioners, who she perceived as parents. She believed removing B.D.W. from the care of Petitioners would be detrimental to the child.

Jan Snider Kent, a clinical psychologist who evaluated B.D.W. on several occasions, claimed B.D.W. suffered from several behavior disorders in addition to respiratory problems requiring extensive medical intervention. Kent believed B.D.W.’s needs were met by Petitioners and recommended that no visitation occur between B.D.W. and Mother. Kent stated that B.D.W. did not deal well with change because she was emotionally very fragile and opined that any change for B.D.W. would “just be. devastating to her.” B.D.W. did not remember Mother.

While acknowledging at trial that DFS had advised her to separate from Father, Mother claims she remained with him for five years because she believed she could make him better. She admitted that for two years after the court initiated jurisdiction, her situation had remained unchanged and little progress had occurred; she also disclosed that when she and Father were together, Father used illegal drugs on a daily basis. Although she claims to have separated from Father in July 2003, she did not file for divorce until July 2004 and she stated that Father continued to harass her even after that. Mother had contact with Father the week before the trial. She claimed he called her at her job. When asked if she talked to him, the following exchanged occurred:

A. Yeah, a little bit before I realized it was him. And he demanded to know how my little brother died.
Q. And did you at that — did you terminate the conversation?
A. I was asking him: What do you mean? Because I didn’t realize it was him at first and I was wanting to know how he found out this information.
Q. Once you realized it was him what did you do?
A. I quit talking and he demanded to know again how my little brother died. And then he said: Never mind, I already know. I’m going after your dad and I’m taking him out.
Q. Okay. And then what did he do— after that phone conversation?
A. He hung up on me. And I turned around and called my family and then called the police.

Also, Father had been at her place of business just two days before the trial. Mother testified,

I tried to ignore him at first. One of the other salesmen brought him to my attention. I said: What do you want? He brought in a birth certificate that had a wrong date on it, according to him, demanded to know where I got it because my handwriting was on the envelope it was in.
And I told him the only time I had any access to his stuff is if he gave it to me or his mom gave it to me to hang on to. And then he said that he had already talked to his mom and for me to expect to hear from the FBI. And then he turns around and walks off.

Trial Court Findings and Conclusions

The trial court made detailed findings of fact and conclusions of law. First, pursuant to section 453.040(7), Mother’s consent for adoption was not necessary because she had willfully abandoned the child and had willfully, substantially, and continuously neglected to provide the child with necessary care and protection for a period of at least six months, immediately prior to the filing of the petition for adoption. Her abandonment was evidenced by her continued enmeshment with B.D.W.’s violent and abusive father, which contributed to the child remaining in alternative care for an inordinate period of time leading up to the court’s approval of a case plan of adoption and the filing of the petition for adoption. The neglect was evidenced by Mother’s failure to pay child support in the six months preceding the filing of the Petition for Adoption, specifically from July 22, 2003, up to May 13, 2004.

Pursuant to section 211.447.4(1), grounds existed for termination of parental rights because Mother abandoned the child for a period in excess of six months without good cause, by leaving 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 abandonment occurred because of Mother’s continued enmeshment with the child’s violent and abusive father, which contributed to the child remaining in alternative care for an inordinate period of time leading up to the court’s approval of a case plan of adoption. The neglect again was evidenced by Mother’s failure to pay support in the six months preceding the filing of the petition for adoption, specifically from July 22, 2003, to May 13, 2004. Mother made no payment of support from the date of the support order on November 15, 2002, up to June 17, 2003, which is another six-month period of non-support. In addition, the six payments made between June 17, 2003, and July 22, 2003, were via involuntary withholding from Mother’s unemployment benefits. The only voluntary payments made by Mother commenced approximately nine months after the filing of the petition for adoption and this period was preceded by another six months of non-payment. Mother was capable of gainful employment during the majority of the time the child had been under the court’s jurisdiction as the unemployment benefits involuntarily intercepted were indicative of some work history by Mother as well as her employment at Hank’s Fine Furniture.

Pursuant to section 211.447.4(2) (d), grounds existed for the termination of parental rights because the child had been adjudicated, abused or neglected and there was repeated and continuous failure by Mother to provide the child with adequate food, clothing, shelter, education, or other care and control necessary for her physical, mental, or emotional health and development. Again, this was evidenced by Mother’s failure to pay child support. Mother did frequently bring gifts, clothing, and toys to B.D.W., but overall these efforts did not constitute adequate food, clothing, shelter, or education, and the court considered them to be “token” efforts. Father had a prior conviction for abusing another young child and he had abused Mother since 1999, when they began dating, and Mother remained with him. Her inability to remain apart from the child’s violent and abusive father from the date of the court’s jurisdiction until well after the change of case plan from reunification to termination, a period of approximately thirty months, demonstrated a failure by Mother to provide the child with adequate support as defined by law and a failure to provide care for B.D.W. during her lifetime. Except for three months of her life, all support to B.D.W. was provided by the State of Missouri and the Petitioners.

Pursuant to section 211.447.4(3), grounds existed for the termination of parental rights because B.D.W. had been under the jurisdiction of the juvenile court for a period in excess of one year and the conditions which led to the assumption of jurisdiction continue to persist, or conditions of a potentially harmful nature continue to exist, and little likelihood exists that those conditions will be remedied at an early date so that the child can be returned to Mother in the near future and the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home.

Pursuant to 211.447.4(3)(a), grounds for termination of parental rights existed because the child had been under the court’s jurisdiction from January 31, 2001, through the date of trial on February 10, 2005, a period in excess of forty-eight months. The conditions that led to the court taking jurisdiction included domestic violence in the presence of the child, Father’s prior criminal conviction for the abuse of another child, Father’s arrest for domestic violence, and the presence of marijuana and drug paraphernalia in the home. The terms of the social service plan of DFS were reasonable, and Mother made only minimal progress towards reunification from the date of the initiation of the court’s jurisdiction until well after the case goal changed to termination of parental rights. Mother admitted Father was violent and abusive toward her for most of the duration they were together. She admitted that Father had broken her nose on several occasions. She filed and subsequently abandoned two adult abuse actions against him while this case was pending. She was deceptive to DFS caseworkers about the times Father was violent toward her. She also failed to timely inform DFS that she and Father were married. Services provided to her have been numerous. The referrals included referrals to Lafayette House and Ozark Center for a substance abuse assessment in March 2001, parenting classes in 2001, a parent aide in July 2001, case management at DFS, domestic violence classes at Lafayette House over a two-year period, counseling with Regina Jordan for co-dependency issues, individual counseling, shelter at Lafayette House from January 2001 to March 2001, marriage counseling, Family Center Out of Home Meetings, Permanency Planning Team meetings, and the opportunity to have visitation with B.D.W., facilitated by DFS. Despite all the services focused on preventing domestic violence, she continued to remain in an abusive relationship.

After Father abused her in 2002, Mother filed an adult abuse order of protection but then abandoned it. She received another severe beating in early November 2002 and she failed to timely report these incidents to DFS until her injuries were so obvious she could no longer ignore it. In early 2003, she reported to a caseworker at DFS that she and Father were attending marriage counseling and things were going well; however, on February 10, 2003, she and Father were evicted from their home. Mother and Father remained in a relationship until at least July 2003, a period of over thirty months, all of which time, child had been in alternative care. During this time, Mother proved to the court that she was unable to protect herself from Father and would not report the violence to individuals that could help her. Mother’s track record showed that little had changed from the time the court gained jurisdiction until the time the petition for adoption was filed.

Mother’s long history of abuse, her inability to protect herself, and her unwillingness to report the abuse showed that a future risk of substantial harm to the child would exist if she were placed in Mother’s care. Even after the petition for adoption was filed, DFS provided Mother with a detailed and thorough home study at her residence. The home study noted the long history of being abused by Father, reconciliation with Father despite the abuse, and the fact that her present home was insufficient in size for Mother and B.D.W. The author of the report stated that reunification would be a very lengthy process. Any attempt at reunification would only delay child’s integration into a stable and permanent home. The home study opined that Mother could remedy the inadequate size of the home in the future if required, but this belief was speculative at best. Further, Mother’s track record of trying to remedy her relationship with Father was not good after she repeatedly attempted to separate from him. Mother admitted at trial that Father continued to harass her, and this caused concern over her ability to protect herself or B.D.W. Mother was represented throughout most of the proceedings by capable and experienced counsel who advocated for Mother, including filing a motion to change caseworker and a motion to abate child support as well as representing her at all permanency review hearings.

Pursuant to 211.447.4(3)(b), grounds for termination of parental rights existed because the efforts of DFS and the Juvenile Office were reasonable, but Mother was unable to adjust her conduct on a continuing basis to provide a proper home for B.D.W. B.D.W. has been in the custody of Petitioners for most of her life. Despite extensive services to address domestic violence and co-dependency, she was unable to change her situation in any type of timely fashion. Mother was frequently less than forthcoming with DFS over the nature of her relationship with Father and his continued abuse. Even if one were to believe Mother’s contention that she is now free from the child’s father and can be a healthy parent, it has to be recognized that this transformation took Mother the better part of three years to achieve while B.D.W. was out of her care and bonding with Petitioners. B.D.W. now believes Petitioners are her parents. Petitioners have met her medical and behavioral needs. This bonding was confirmed by psychologists Judith Kellenberger and Jan Snider Kent.

Pursuant to section 211.447.6(1), grounds for termination existed because B.D.W. has few, if any, emotional ties to Mother. As stated, B.D.W.’s last contact with Mother was on or about November 5, 2002, when B.D.W. was not quite two years old. Psychologists Judy Kellenber-ger and Jan Snider Kent both testified that B.D.W. had significant bonds and emotional ties to Petitioners and any attempt to reintroduce Mother into her life would be detrimental to B.D.W. because she considers Petitioners her mom and dad.

Pursuant to section 211.447.6(2), grounds for termination existed because Mother failed to maintain regular visitation and contact with B.D.W prior to the court ceasing visitation in November, 2002. Mother chose her relationship with Father rather than diligently addressing the problems, which prevented her from achieving reunification with B.D.W. in a timely fashion, despite the numerous services provided her by DFS. Mother’s visitation was ordered ceased in November 2002 and Mother still remained with Father despite his abuse and his interference with reunification.

Pursuant to 211.447.6(3), grounds for termination existed because Mother contributed little support toward the cost of care and maintenance of B.D.W. while B.D.W. was in alternative care, even though she was financially able to do so. Mother was ordered to pay $228.00 per month for child support, retroactive to November 15, 2002. Mother failed to make these payments, but her unemployment benefits were intercepted pursuant to the child support order and the Missouri Automated Child Support System received payments in the sum of $78.66 on June 17, June 24, July 1, July 8, July 15, and July 22, 2003. Mother also failed to provide the child with anything equivalent to money that would constitute adequate support such as food, clothing, or other necessaries during this period of time. Mother’s support payments resumed ten months after the filing of the petition for adoption. Mother was gainfully employed during the majority of the time the child had been under the jurisdiction of the court and was capable of making payments.

Pursuant to 211.447.6(4), grounds for termination existed because no additional services remained that DFS and the juvenile office could provide to Mother. No service could bring about the lasting parental adjustment that would enable B.D.W. to return to Mother within an ascertainable period of time. The terms of the social service plan of DFS were reasonable, but Mother made only minimal progress toward reunification.

Pursuant to 211.447.6(5), grounds for termination existed because Mother manifested a disinterest in and lack of commitment to B.D.W. Mother’s failure to consistently support B.D.W., her inability to address the issues of domestic violence and co-dependency in a timely fashion, and her continued enmeshment with Father demonstrated this disinterest and lack of commitment. Mother’s professed separation from Father took the better part of three years to achieve, during which time B.D.W. was out of her care and bonding with Petitioners who she believes are her parents.

Burden of Proof/Standard of Review

“[We] will affirm the trial court’s decision to terminate parental rights unless the ‘record contains no substantial evidence to support the decision, the decision is against the weight of the evidence, or the trial court erroneously declares or applies the law.’ ” In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). A trial court can terminate parental rights only if the grounds for termination are supported by clear, cogent and convincing evidence, which is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true. Id. Furthermore, “[t]he presence of evidence to support one statutory ground for termination is sufficient to terminate a parent’s rights.” Id. “[B]e-cause parental rights are a fundamental liberty interest, statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship.” Id. Therefore, a decision to terminate such rights will be reviewed closely. Id.

Abandonment, under sections 453.040(7) and 211.447.4(1), has been described as “‘an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and opportunity for the display of filial affection.’ ” In re P.G.M., 149 S.W.3d 507, 514 (Mo.App. S.D.2004) (quoting In re Watson’s Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, 336 (1946)). Neglect is “ ‘primarily a failure to perform the duty imposed upon the parent by law and by conscience.’ ” In re K.L.C., 9 S.W.3d 768, 773 (Mo.App. S.D.2000) (quoting C.B.L. v. K.E.L., 937 S.W.2d 734, 737 (Mo.App. E.D.1996)). It must be intentional, deliberate, and without just cause or excuse. C.B.L., 937 S.W.2d at 737.

Points I-IY

The fundamental rationale for each of Mother’s arguments in her first four points is that there was insufficient evidence to support a finding that Mother had abandoned or neglected B.D.W. because the only evidence against Mother was her being “enmeshed” in a relationship with Father and she had in fact provided meaningful financial support to the child. Although Mother claims there was no deliberate abandonment of the child by Mother, she focuses her argument on the claims of financial abandonment. While it is true that failure to provide support alone has not been held to warrant termination of parental rights, it is not necessary for us to address whether the evidence concerning the payment of child support was sufficient to find abandonment or neglect of the child. See C.B.L., 937 S.W.2d at 738 (court had found no case where failure to provide support alone had been held to warrant termination of parental rights; failure to contribute to the financial support of a child coupled with other evidence as to lack of contact with them was sufficient to sustain the findings of the willful neglect in failing to provide proper care and maintenance). The evidence of the intentional, deliberate choice by Mother of involvement with a clearly unsuitable husband and father, rather than choosing to parent B.D.W. is sufficient evidence of neglect.

From the start, we base our decision on the premise that Father was inappropriate as a caretaker throughout all of the proceedings; the unchallenged evidence is that Father was a bully to DFS workers, a wife abuser, a regular illegal drug user, a child abuser, and uncommitted to making any changes to make himself an acceptable parent. It is also uncontroverted Mother knew Father was a daily illegal drug user and that he was seriously abusive to her; she testified that he had broken her nose on several occasions, bloodied her eyes, bruised and kicked her, choked her, and put a screwdriver to her throat. The single real issue before this Court is whether the victim of abuse, who has had no allegations of direct abuse or neglect of the child, can have her parental rights terminated for remaining in the abusive relationship for a period of over thirty months while the child is out of her care and in foster care. We answer in the affirmative.

Substantial evidence supports a finding, whether designated as abandonment or neglect, that Mother was given every opportunity and many resources to remove her from the abuser, yet Mother made the voluntary choice to stay with Father to “keep her family together,” in spite of the fact that it was her relationship with him that was keeping the child from being in the family. The evidence is replete with opportunities for Mother to choose the parental relationship over a relationship with Father, yet she defied all advice from DFS, her family, and counselors. Mother sought the protection of the court through orders of protection and then dismissed them. Although Mother argues that no one directly told her if she did not leave Father her parental rights would be terminated, it was not necessary for anyone to do so. She was told repeatedly that the child would not be returned to her with Father present; the child would not have been in foster care at all had she chosen the child over Father while in Lafayette House. It was not until the petition for adoption and the termination for her parental rights was filed that she indicated that she was willing to give up on the relationship with Father; however, she did not do so for another year.

Mother argues that by the time of the hearing she had divorced Father, began living independently, was steadily employed, began paying child support and retained counsel to fight the termination. Those are commendable changes and it may have been a different situation had so much time not elapsed before Mother made those decisions. The trial court, however, was free to consider the evidence before it that Mother’s efforts to convince the court that she was truly separated from Father were suspect in that she hid the abuse from the court, did not inform anyone of her marriage to Father, and lied to the DFS caseworker about her present living conditions when she had been evicted from her home. Mother did not present evidence at trial that she had resolved her “co-dependency” issues with counseling. The issues of abandonment or neglect are determined by the parent’s conduct, which may have occurred before, after or during the six-month statutory period. H.W.S. v. C.T., 827 S.W.2d 287, 240 (Mo.App. E.D.1992). The court must look to the totality of a parent’s conduct prior to and after the filing of a petition for termination and past patterns of a parent provide vital clues to present and future conduct. In re K.A.W., 133 S.W.3d 1, 9 (Mo. banc 2004).

The harmful condition of continued exposure of a child to a violent person, who exhibited disregard for a child’s welfare, has been held to be sufficient to terminate parental rights, even if there was no evidence that the violence or erratic behavior was ever specifically directed at the child. In re L.D.R., 169 S.W.3d 137, 142 (Mo.App. E.D.2005). As L.D.R. noted, “the trial court need not wait until an incident occurs in order to conclude that Mother poses a significant risk of harm to her children” and despite father obtaining an order of protection, he was still unable to prevent her contact with the children. Id.

Likewise, In re C.M.K., 140 S.W.3d 219 (Mo.App. S.D.2004), held that the termination of parental rights was supported by substantial evidence when the mother was found to be unfit to be a party to the parent-child relationship due to a pattern of domestic violence. Id. at 226. In C.M.K., the mother continued to associate with the children’s father despite the fact that she had been warned of the effects on the children. Id. at 224. The court, while commending the mother for her efforts to be re-united with her children, noted that, while the record did not contain any information that the children were physically abused by the mother, “Mother was well-aware that the children’s exposure to domestic violence was not healthy and she was advised on numerous occasions to distance herself from Father’s abuse.” Id. at 225-26. Substantial evidence supports the trial court finding that the child was neglected when Mother failed to protect the child from a clearly inappropriate caregiver by maintaining a relationship with him with a clear risk to herself and the child. Finding neglect under any of the sections supports the termination of Mother’s parental rights, we deny points one through four.

Point V

Mother claims in point five that the filing of the petition for termination of parental rights placed the medical condition of B.D.W. at issue and, therefore, the court erred in refusing to order an independent physical and mental examination or to produce B.D.W.’s medical records. The trial court had ordered the juvenile office to produce any medical records that it had to counsel for Mother, but did not order that an authorization be signed allowing an independent examiner to review the records. Mother argues that the child’s medical condition is relevant to the extent that it reflects upon whether it was in the best interest of B.D.W. to terminate Mother’s parental rights.

We do not find that the court abused its discretion in refusing to order an independent physical examination or to order an authorization for the child’s medical records. As noted herein, the grounds for termination of Mother’s parental rights are not based upon B.D.W.’s medical condition, but rather are based on Mother’s insistence upon a relationship with Father, which was potentially harmful to the child. Mother was provided with the child’s counseling records and there is no indication that she would not have been allowed to depose or subpoena the counselor or therapist’s records to prepare for trial. Substantial evidence for termination existed without any evidence of the child’s physical or mental health; the child had spent all but three months out of Mother’s care. To the extent the child’s physical and mental health were relevant, it was on the issue of the child’s best interest. Substantial evidence supports the court finding that there was no bond between Mother and child, who was five years old at the time of the trial, but a strong attachment between the child and the people who had raised her and that removing the child from these people would be detrimental to the child’s mental health. Mother did not contend otherwise. She acknowledged that it would be in the child’s best interest to remain with the foster parents until a reunification could occur. Given that Mother was essentially a stranger to B.D.W., we do not find that Mother was prejudiced in the denial of an independent examination of the child or an authorization for the production of further medical records. The point is denied.

The judgment is affirmed.

PARRISH, J., and MAUS, Senior Judge, concur.

      . Father’s rights were terminated at the same hearing, but he does not appeal the judgment. We set forth the petition for termination and adoption only as it relates to the termination of Mother’s parental rights.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . The Division of Family Services is now known as the Children’s Division.


source: Caselaw Access Project

author: KENNETH W. SHRUM, Presiding Judge. PHILLIP R. GARRISON, Judge,

license: Public Domain

text:
    Alfred C. COLE and Janis E. Cole, Plaintiffs-Respondents, v. FERRELL-DUNCAN CLINIC, Defendants-Appellants.
    No. 26731.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 31, 2006.
    Motion for Rehearing and Transfer Denied Feb. 22, 2006.
    Application for Transfer Denied April 11, 2006.

      Susan Ford Robertson, Ford, Parshall & Baker, Columbia, MO, for appellant.
    David W. Ansley and Deborah K. Dodge, Hall, Ansley, Rodgers & Condry, P.C., Springfield, MO, for respondent.
   KENNETH W. SHRUM, Presiding Judge.

Alfred C. Cole (“Alfred”) and Janis E. Cole (collectively called Plaintiffs) sued Ferrell-Duncan Clinic, Inc. (“Defendant”) for medical negligence and loss of consortium. Their suit was filed April 15, 2003. They alleged, inter alia, that Dr. Jack Mantell (a physician employed by Defendant) negligently failed to inform Alfred about PSA tests (for prostate cancer detection) and negligently failed to order PSA tests when Alfred went to Dr. Man-tell for physical exams on December 8, 1997, and January 27, 1999; that in October 2002, Alfred was diagnosed with prostate cancer; that when Alfred saw Dr. Mantell for physical examinations in 1997 and 1999, he had a material chance of recovery from prostate cancer, but Dr. Mantell’s negligence caused Alfred to lose part of his material chance of recovery.

Defendant timely objected to evidence and jury instructions about Alfred’s 1997 and 1999 visits with Dr. Mantell. It did so on the grounds that any part of Plaintiffs’ claim arising from those visits was time barred (§ 516.105). The court overruled Defendant’s objections.

After a jury verdict favorable to Plaintiffs, Defendant appealed. The sole issue is whether the “continuing care” exception to the statute of limitations (§ 516.105) applied here, thus allowing the jury to consider evidence that section 516.105 would otherwise have made inadmissible. Finding no error in the trial court’s rulings, we affirm.

Defendant is a health care entity that provides health care to people in the southwest Missouri area. As of 2001, it employed about 100 physicians. Beginning December 8, 1997, and continuing through February 4, 2003, Alfred used some of Defendant’s physicians for his healthcare. He started in December 1997 with Dr. Jack Mantell (Defendant’s employee) as his primary care physician.

Plaintiffs originally contacted Dr. Man-tell “and asked if he would take [them] as patients” after Alfred’s employer (Burlington Northern Railroad) changed insurance programs and they (Plaintiffs) had to get a primary care physician. After Dr. Mantell agreed to be his physician, Alfred began having Dr. Mantell do periodic physical examinations of him. As Alfred worded it, he wanted Dr. Mantell to “have the chance” of identifying “what risks [he] might be facing relative to [his] health,” including “early detection of cancer.”

Alfred first saw Dr. Mantell on December 8, 1997, when he was sixty-one years old. The history given Dr. Mantell included that Alfred suffered from “nocturia [urinating at night] one to two times.” As a part of the physical, Dr. Mantell did a digital rectal exam. The purpose was to check Alfred’s prostate gland, i.e., feel its size, texture, roughness,' and symmetry. This was done because abnormality in the prostate can indicate cancer in the gland. Dr. Mantell’s December 8 record of Alfred’s exam read “[p]rostate is small, no irregularity.”

On January 27, 1999, Dr. Mantell made another of his periodic examinations of Alfred. As before, this included a digital rectal exam. This time Dr. Mantell found Alfred’s prostate “normal.” Dr. Mantell next saw Alfred October 20, 2000. On that date, Dr. Mantell reported that Alfred’s prostate was “small.” Dr. Mantell’s final examination of Alfred was on August 28, 2001. During that exam, Dr. Mantell told Alfred his prostate was a “little enlarged.”

Mfred testified that during the years he used Dr. Mantell for routine checkups, he was unaware that blood tests were available to screen for prostate cancer. M-though Dr. Mantell had blood drawn from Mfred on some occasions for various reasons, he conceded he never ordered PSA testing of Mfred’s blood, nor did he discuss this with Alfred. Dr. Mantell testified he did not normally inform his patients about PSA testing unless they brought up the topic with him. His reasons for not routinely doing a PSA test of Mfred’s blood were the risk of false positive and false negative results and infections.

Mter Dr. Mantell retired in September 2001, Alfred started using Dr. John Waites (another physician employee of Defendant) as his primary care provider. When Dr. Waites first saw Mfred on July 3, 2002, he started the prostate health part of the exam by ordering PSA testing. The results showed Alfred’s PSA was “significantly elevated to 30.4.”

Alfred was referred to another of Defendant’s employees, Dr. Peter Trinca, a urologist. Biopsied tissue from Mfred’s prostate was positive for cancer and later tests revealed the cancer had spread to surrounding tissues.

Ultimately, Alfred went to The Mayo Clinic where his prostate cancer was treated surgically. Following surgery, Alfred was given hormone therapy, but was told “there is a likelihood that [his cancer] will return.” Medical expert, Dr. Finkel, testified that Dr. Mantell deviated from the accepted standard of care in failing to inform Alfred of PSA testing availability. Other medical experts testified that had Dr. Mantell offered a PSA test in 1997 and 1999, it would have shown an elevated prostate antigen level; that a biopsy would have disclosed cancer, and prompt treatment would have kept the cancer from spreading outside the prostate. Consequently, he would not have lost sexual function, he would be at a stage T1 rather than stage T3B in his cancer development, and the chance of cancer reoccurrence for Alfred would be much less.

At trial Defendant repeatedly objected that the jury should not hear about or be instructed it could find negligence based on any pre-April 15, 2001, facts. Defendant’s objections and arguments were based on the two-year time limit prescribed by section 516.105 for medical malpractice claims. The trial court, however, overruled all such objections. It based its ruling on the so-called “continuing care” exception to section 516.105. The jury found for Plaintiffs and awarded them damages. This appeal followed.

The “continuing care” exception to section 516.105 was first recognized in Missouri in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943). There, the defendant doctor left a surgical needle in the plaintiff during an appendectomy (performed August 25,1937) and did not find it during the period he provided post-surgical care (which was until October 1939). Thatcher’s malpractice suit was filed August 29, 1941. His petition charged defendant with negligence for (1) leaving the needle, (2) failing to properly treat plaintiff thereafter, and (3) not finding the needle during post-surgery treatment. The trial court ruled Thatcher’s claim was time barred. The Supreme Court of Missouri disagreed, saying: “Taking a common sense view of the situation, and one in harmony with justice, the conclusion seems apparent that the statute of limitations did not begin to run against plaintiff until the treatment by the defendant ceased.” Id. at 762.

The “continuing care” exception remains as a part of Missouri law. This court has said it applies “when the treatment which continues is of such a nature as to charge the defendant with the duty of continuing care and treatment which is essential to recovery.” Reynolds v. Dennison, 981 S.W.2d 641, 642[1] (Mo.App.1998). The “continuing care” duty lasts “unless the physician-patient relationship is ended by (1) mutual consent of the parties, (2) the physician’s withdrawal after reasonable notice, (3) dismissal of the physician by the patient, or (4) the cessation of the necessity that gave rise to the relationship.” Weiss v. Rojanasathit, 975 S.W.2d 113, 119—20[11] (Mo.banc 1998).

The public policy that drives the continuing care exception is explained in Shaw v. Clough, 597 S.W.2d 212 (Mo.App.1980):

“By its very nature, the tolling exception to the bar of limitation rule rings out with logic, with morality and with ‘common sense’ as recognized in Thatcher. The doctor-patient relationship is in most instances a highly personal and close one, encompassing on the part of the patient a basic confidence and reliance upon the skills and judgment of the doctor with a reasonable expectation that such will be met by a deep sense of obligation and proper exercise by the doctor of his incomparable superior knowledge and the dedicated use of his best talents and judgment. If he is careless or negligent in his treatment of his patient, and his patient suffers injury and damage, he, like all others, whether professional or lay, can be held responsible under civil law for his actions.”
“The rationale of the decisions in Thatcher and other jurisdictions adopting this exception are based upon the concept that it stems primarily from the nature of the relationship and that the obligation and treatment be considered as a ‘whole’ until it ceases and the obligations arising therefrom should not be conceptually fragmented.”

Id. at 215-16.

Defendant acknowledges the continuing care exception, but avers it has no application here. Defendant argues Alfred never alleged nor tried to prove that Dr. Mantell was providing treatment for prostate cancer or was providing treatment essential to recovery with respect to any condition of Alfred’s prostate. Continuing, Defendant asserts Alfred “was not going back ... on December 8, 1997, and January 27, 1999 for treatment necessary for a condition or complication caused by Dr. Mantell and he was not undergoing treatment necessary for recovery of any condition.” With this as its premise, Defendant maintains the continuing care exception simply does not apply here and that the trial court erred when it ruled that it did. This court disagrees.

Alfred testified he asked Dr. Mantell to see him periodically so he (Dr. Mantell) would “have the chance” of identifying “what risks [he] might be facing relative to [his] health.” Dr. Mantell accepted Alfred as his patient. He did the first of several periodic physical examinations of Alfred on December 8, 1997. He continued this for Alfred until he (Dr. Mantell) retired in 2001.

Each of Alfred’s periodic physicals included a digital rectal examination by Dr. Mantell. Its purpose was to detect abnormalities, if any, in the prostate gland. As Dr. Mantell explained it, an abnormality could indicate an infection, a benign hypertrophy, or cancer. The prostate part of each exam was not something Alfred specifically asked be done; it was a screening examination that Dr. Mantell undertook as part of a health care management program he performed for Alfred.

With that as background, we start with Defendant’s assertion that Alfred did not see Dr. Mantell on December 8, 1997, or on January 27, 1999, for “treatment” of a condition that was “essential to recovery;” consequently the “continuing care” exception was not implicated. The first question this argument raises is whether the prostate exam that Dr. Mantell did as part of his periodic examination of Alfred was a “treatment” as that term was used in Thatcher. We answer, “Yes.”

In analyzing the “continuing care” exception, this court has said that “ ‘[treatment includes measures necessary for the physical well being of the patient.’ ” Reynolds, 981 S.W.2d at 642 n. 1. Also, “treatment” has been described as “covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” (Emphasis supplied.) Black’s Law DictionaRY, 1502 (6th ed.1990). From this, we conclude that Defendant (through Dr. Mantell) began “treatment” of Alfred on December 8, 1997, within the meaning of that term as envisioned by Thatcher and its progeny. Specifically, examination of Alfred’s prostate gland was “treatment” in that early detection of prostate cancer was a “measure[] necessary for the physical well being of [Alfred]” and an important step toward its cure or containment.

The second issue raised by Defendant’s argument is whether Dr. Mantell’s “treatment” of Alfred, i.e., periodic prostate exam to detect the possible presence of cancer, was “essential to [his] recovery.” Defendant would have us answer that question “no” because “[t]here was no underlying ‘condition’ that necessitated [Alfred] to seek[ ] ‘treatment’ by Dr. Man-tell.”

As an initial observation, it is difficult to imagine a more essential step in the treatment, cure, or containment of prostate cancer than early detection. Certainly, this record is replete with evidence that confirms this observation. The record also refutes Defendant’s claim that Alfred had no “underlying condition” that required “treatment” by Dr. Mantell. Dr. Edward Moss testified that had Dr. Mantell ordered PSA tests from the beginning, an elevated PSA would have been found in 1997 and 1999; that the predictable PSA test results for 1997 and 1999 (had the test been done) would have triggered biopsies of Alfred’s prostate; and in his opinion, the biopsies would have disclosed cancer in 1997 and 1999. Thus, there is substantial evidence that Alfred had a “condition” in 1997 and 1999 at the time of his visits with Dr. Mantell. The “condition” was prostate eancer. The “treatment” was the screening examination performed by Dr. Mantell.

The fact that Alfred did not know he had the “condition” when he sought treatment from Dr. Mantell is not fatal to the trial court’s ruling on the continuing care exception. In Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191, 194 (Mo. banc 2001), the plaintiff suffered from chronic back pain. He went to the defendant radiology group for an x-ray and magnetic resonance imaging (MRI) of his spine. One of the defendant’s radiologists, Dr. Szoko, reviewed the films February 24, 1995, but found no cancerous tumor on his spine. Other radiologists employed by defendant separately interpreted plaintiffs MRI July 31, 1995, and November 3, 1995 without finding the tumor. Later, another radiologist (not employed by the defendant) read plaintiffs films as showing a cancerous tumor. Plaintiff sued Dr. Szo-ko, the defendant, and other physicians employed by defendant who read the plaintiffs films. On appeal from a summary judgment favorable to all defendants, the Montgomery court affirmed the judgment favorable to Dr. Szoko. Id. at 195. It reversed, however, as to the corporate defendant, holding that the health care entity remained liable for the negligence of Dr. Szoko for his acts of February 12, 1995, based on the “continuing care exception.” Id.

Thus, the Montgomery court put its stamp of approval on the continuing care exception even though Montgomery was not being “treated” on February 24, July 31, and November 3 for a condition or complication caused by physicians employed by the defendant and even though Montgomery did not know he had a ean-eerous tumor. Moreover, the fact that Montgomery’s “treatments” were x-rays and MRI, i.e., examinations to aid in making a diagnosis, did not deter the Supreme Court of Missouri from finding it was treatment “necessary for recovery of any condition.”

The Montgomery case is strong support for our view that the “continuing care” exception was properly applied here. We find that the “continuing care” exception to the time limitation statute as envisioned by the Thatcher and Montgomery courts was properly applied here. The “treatment” was periodic, continuing prostate examination; it was treatment of such a nature as to charge Defendant with the duty of continuing care; and it was treatment that was “essential to recovery.” Consequently, the trial court did not err when it let the jury hear the evidence about Alfred’s visits with Dr. Mantell in 1997 and 1999 and be instructed thereon. Defendant’s point is denied. The judgment is affirmed.

GARRISON, J., Concurs in Separate Opinion.

BATES, C.J., Concurs.

PHILLIP R. GARRISON, Judge,

concurring.

I concur with the opinion authored by Judge Shrum, but write separately to emphasize that Alfred reported instances of “nocturia” to Dr. Mantell not only on his first visit on December 8, 1997, but also on the subsequent visits of January 27, 1999, and October 20, 2000. In my view, this brings this case even more in line with Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191 (Mo. banc 2001).

      . The record shows that a “PSA test” is a blood analysis that checks for "prostate specific antigen.” This antigen is an enzyme that the prostate makes and secretes into the pros-tatic fluid and into the bloodstream, at least to a certain extent. A PSA test measures the enzymes in the blood stream. PSA levels below a certain defined range indicate less likelihood of prostate cancer, whereas if the PSA level is above the four-unit threshold, “likelihood or risk of prostate cancer is felt to be significant.”

      . All statutory references are to RSMo (2000) unless otherwise stated.

      . In relevant part, section 516.105 provides: "All actions against physicians, hospitals ... and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of...." (Emphasis supplied.)

      . The court reasoned that "where a physician commits an act of neglect on one specific date, and has no other contact with the patient, the statute of limitations begins to ran on that date.” Id. at 194[8].

      . We do not ignore Defendant’s attempt to distinguish the Montgomery case by saying the plaintiff there had "an underlying condition— back pain — for which he continued to seek treatment,” whereas here Alfred did not go to Dr. Mantel December 8, 1997, or January 27, 1999, for "treatment" of a "condition” that was "essential to recovery.” We find that is a distinction without a difference, for reasons already given. Alfred had an underlying condition — prostate cancer — for which he was seeking an early diagnosis so it could be successfully treated. The Montgomery case teaches that the fact Alfred did not know he had cancer is irrelevant. See also Reynolds, 981 S.W.2d at 643.


author: PER CURIAM.

text:
    Donte A. HUNTER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 85624.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 7, 2006.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 15, 2006.
    S. Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Alison K. Brown, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Donte A. Hunter, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Thomas K. SMITH, Appellant.
    No. 26698.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 10, 2006.
    Motion for Rehearing or Transfer Denied March 3, 2006.
    Application for Transfer Denied April 11, 2006.

      M. Shawn Askinosie and Teresa L. Grantham, Springfield, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Thomas K. Smith (“Appellant”) appeals his conviction for murder in the first degree, a violation of section 565.020. Following a jury trial, the trial court sentenced Appellant to a term of life imprisonment without the possibility of parole. Appellant now brings six points of trial court error discussed below. We affirm the judgment of the trial court.

Viewing the evidence in the light most favorable to the jury’s verdict, State v. Chaney, 967 S.W.2d 47, 49 (Mo. banc 1998), on January 19, 2003, Keith Allen (“Allen”), his live-in girlfriend, Holly Zloto-polski (“Zlotopolski”), and her sons were cutting wood on his property when they saw Appellant driving through their field. Throughout the afternoon, they made several trips to their home to unload wood and during that time they continued to encounter Appellant on their property. At some point in the late afternoon, Allen became frustrated with Appellant’s appearance on his property and told Zloto-polski that he wanted she and her sons to return to the house. Allen told Zlotopolski “he was going to find out what [Appellant] wanted.” Allen and Zlotopolski got into his truck, the two children got onto their bicycles, and they started for home. On their way back to the house, they passed Appellant, who was standing in their neighbor Dennis Bryant’s (“Bryant”) front yard drinking a beer. When their truck slowed down to pass Bryant’s house, Allen told Zlotopolski that Appellant was “a puss.”

After dropping Zlotopolski and the children off at the house at 4:20 p.m., Allen told them he was leaving “to go lock the gate, he didn’t want [Appellant] up there on the hilltop.” Zlotopolski never saw him alive again.

At around 7:30 that evening, Myron Dixon (“Dixon”) and Odie Atchison (“At-chison”) were “coon hunting” in the area surrounding Allen’s property. As they approached Johnson Rowe Road, they saw in the road “a S15 pickup [parked and running] with a gentleman [later determined to be Allen] lying underneath the pickup.” Dixon stated that Allen, who “wasn’t moving,” was lying on the ground behind the open driver’s side door of the truck “in front of the back wheel” and there was “a ball cap laying out in the middle of the road.” Dixon and Atchison drove past the truck, parked, and called 9-1-1.

Deputy Shawn Cox (“Deputy Cox”) arrived on the scene within five minutes. Dixon and Atchison walked up to the truck with Deputy Cox and Dixon noticed that Allen “was lying in a pool of blood, and that he was probably dead.” Dixon also noticed that there appeared to be marks on the truck from shotgun pellets “just above the body and kind of on the inside of the bed [of the truck] and on the back of the cab” and there was a rifle lying underneath the truck.

Deputy Cox testified that when he arrived on the scene at 7:45 p.m. he observed Allen’s “body lying underneath a truck.” Deputy Cox noted that Allen’s “head and part of [his] shoulders were under the back end of the truck;” there was “a large amount of [coagulated] blood, quite a bit around [Allen’s] body;” there were “injuries to [Allen’s] head and neck, arms ...;” there was a gun lying underneath the vehicle; and there was no movement or response from Allen.

When the police began investigating Allen’s death, Appellant’s name “came up” almost immediately when the officers interviewed Zlotopolski. Around midnight that evening, Deputy Cox and several other officers went to Appellant’s home, which was about half a mile from the scene of Allen’s murder. Upon arrival, Lieutenant Tim Gideon (“Lieutenant Gideon”) advised Appellant of his Miranda; rights and Appellant acknowledged that he understood those rights. When Deputy Cox did a “protective sweep” of the house to make sure there were no other occupants, he located “a deer rifle and a handgun” as well as some shotgun shells and a “marijuana pipe.” Additionally, the officers located a “black-powder rifle” in Appellant’s truck, which was parked outside his home, and which also showed signs of recent damage.

Missouri State Highway Patrol Sergeant Rob Vaughn (“Sergeant Vaughn”) interviewed Appellant that evening at his home. According to Sergeant Vaughn, Appellant, who appeared to be intoxicated, stated that he knew Allen but “had not really seen or even talked to Keith Allen in two years.” Appellant told Sergeant Vaughn that he and Allen “used to be friends, but that Mr. Allen had gotten involved with methamphetamine and [Appellant] didn’t want to be around him.” Appellant went on to state that he had seen Allen driving several times that day, but did not know anything else.

After being interviewed by Sergeant Vaughn and the officers, Appellant was placed under arrest for possession of a marijuana pipe, which was found near a chair Appellant had been occupying. He was then taken to the Stone County Jail. After being repeatedly interviewed at the Stone County Jail and continually denying his involvement, Appellant finally admitted to being involved in Allen’s death and agreed to show the police “where the rifle — the .12 gauge shotgun was hidden in the woods outside [his] residence.”

Testifying on his own behalf at trial, Appellant asserted that he shot Allen in self-defense. He stated that he had not been on Allen’s property on the evening in question. He testified that at around 4:30 in the afternoon he went to feed corn to some wild turkeys on a piece of land adjoining his property. He stated that he “loaded [his] truck with some corn, got [his] shotgun, and went ... out to the woods.... ” To access the adjoining property, he drove through an unlocked gate to an old logging road and fed the turkeys. While he was feeding the turkeys, he heard a truck which he suspected was Allen’s and he went back toward the gated entrance to the logging road.

When Appellant approached the gate on his return, he saw Allen’s truck “in the middle of the road” and Allen “was standing outside of his truck.” Appellant stated that he stopped his truck about “three or four car lengths” from Allen, at which time his shotgun was sitting on the seat next to him. According to Appellant, Allen came right up to his truck window and started screaming and yelling at him and told him that he was “going to blow [Appellant’s] f-ing head off if he catches [Appellant] over there on his land.” Appellant stated that he tried to explain to Allen that he had not been on his property, but that Allen would not listen to him. Appellant testified that he did not feel threatened at that time, but instead thought that Allen “had had a bad day and he was going to take it out on [him].” “[T]he next thing [Appellant] kn[e]w [Allen] was running back to his truck.” Appellant stated that Allen then “pulled a gun out.” Appellant stated that at that time he was “scared out of [his] brain” and “thought [he] might get shot right there on the spot.” When he saw the gun, Appellant stated that he grabbed his own gun, jumped out of his truck, and ran behind his truck to hide. Then he “just stuck [his] gun around the side of the truck, figuring [he] would scare the living crap out of [Allen] ...” and fired. Appellant stated that although he remembers firing his gun only once that day, he understood that the evidence showed Allen was shot several times. He went on to state that his shotgun was a pump action gun and that he must have pumped it several times in order to have fired it repeatedly, but he did not specifically recall doing so.

Appellant testified that after firing at Allen, he “got back in [his] truck and figured [Allen] was probably hiding behind the truck ... So [he] just got in [his] truck and left.” He stated that he could not get past Allen’s truck, which was parked in the road, so he ran into it with his truck and pushed it out of the way and drove home. Appellant stated that when he went past Allen’s truck he did not see him lying on the ground and he had no idea he had actually shot Allen. When he got home, he stated that he waited in the woods for an hour or so before going in the house because he suspected that Allen would come after him. Eventually Appellant tired of waiting for Allen, leaned his shotgun against a tree, and went into the house. He was arrested several hours later.

Appellant repeatedly insisted that he believed his life was in danger at the time he fired at Allen. He stated that he did not call 9-1-1 to help Allen because he did not know Allen was injured. Appellant admitted to having had a drinking problem in his past, but stated that he only had two beers on the night in question. Appellant also admitted he did not tell the police the truth when they first interviewed him, because he was scared and because he did not feel they were being truthful with him.

Following trial, the jury convicted Appellant of murder in the first degree and he was subsequently sentenced to life imprisonment without the possibility of parole. This appeal followed.

Appellant alleges six points of trial court error. In his first point of trial court error, Appellant maintains that the trial court erred in allowing State’s Exhibit # 5 “to go back to the jury during deliberations after such evidence was altered because the exhibit no longer represented the exhibit admitted by the court in that the altered exhibit was misleading and caused extreme prejudice to [Appellant].” Appellant argues that because he made marks on the exhibit during his testimony the exhibit should have been re-admitted into evidence and that it was, thus, an improperly admitted exhibit that should not have been presented to the jury. He also asserts that because he marked on the diagram as part of his testimony, the diagram became testimonial in nature and was improperly allowed to be seen by the jury during its deliberations.

During the course of the police investigation, Lieutenant Gideon created a diagram of the crime scene based on his notes and other officers’ notes and observations. At trial, this diagram was entered into evidence by the State as State’s Exhibit #5 and the State used the diagram to illustrate several points. Lieutenant Gideon testified that the drawing was not to scale, but was meant to “show[] where things [were] in relationship to each other.” Defense counsel objected to the introduction of the diagram on the basis that Lieutenant Gideon “created this himself, it’s self-serving.” In overruling defense counsel’s objection, the trial court stated that “the issue is, is whether or not it is of some benefit to the jury ...” and reminded defense counsel that he would have “the opportunity to cross-examine upon the exhibit.”

Later, during the course of Appellant’s testimony, Appellant himself made marks on the diagram to reflect his recollection of the scene which he felt differed from the rendition on the diagram.

Thereafter, during its deliberations, the jury sent a note to the trial court requesting to see “the diagram not drawn to scale.” Defense counsel objected to the jury’s request and argued the jury should not be permitted to view the diagram because “it was offered and admitted as it was, after that the prosecutor modified it or had the witness modify it. After that point it was not re-offered as a changed exhibit and it was not re-admitted.” The trial court overruled the objection, and stated it did not “know of any such requirement to do that.” The diagram was then sent to the jury room for consideration.

“ ‘The decision to send an exhibit to the jury room during deliberations lies within the sound discretion of the trial court.’ ” State v. Smith, 90 S.W.3d 132, 142 (Mo.App.2002) (quoting State v. Barnett, 980 S.W.2d 297, 308 (Mo. banc 1998)); see also State v. Skillicorn, 944 S.W.2d 877, 896 (Mo. banc 1997). “ ‘An objecting party has the burden of showing the prejudicial result of sending exhibits to the jury.’ ” Smith, 90 S.W.3d at 142 (quoting State v. Sullivan, 925 S.W.2d 483, 485 (Mo.App.1996)).

It is our view that the diagram at issue was properly admitted into evidence by the trial court as demonstrative evidence. Appellant does not cite, nor did this Court’s independent examination reveal, any case law which requires that in the factual scenario at hand such evidence must be re-admitted into evidence. Further, the diagram at issue was viewed by the jury during the majority of the trial, and this Court sees no prejudice in allowing the jury to see the diagram during deliberations whether it appeared in its originally submitted form or not. The diagram was properly received in evidence and the trial court did not abuse its discretion in allowing the jury to view it during deliberations. Smith, 90 S.W.3d at 142. Point One is denied.

In Appellant’s second point of trial court error, he maintains the trial court erred in overruling his motion to suppress certain statements he made to the police on the night of the murder and the following morning. He asserts these prejudicial statements were not only involuntary and coerced, but were also “based upon promises [by law enforcement] that [Appellant] would not be charged with premeditated murder....” Additionally, Appellant maintains he “asked for a lawyer more than once during questioning and law enforcement did not cease questioning him.”

Appellate review of a trial court’s ruling on a motion to suppress is limited to a determination of whether the evidence was sufficient to support the finding. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). This Court will view the evidence in a light most favorable to the judgment and will reverse the judgment only if clearly erroneous. Id. The Court will consider all evidence presented at trial, including evidence presented at a pretrial hearing. Id.

A trial court’s ruling on a motion to suppress is interlocutory and is subject to change during trial. State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App.2001). “Accordingly, a motion to suppress, in and of itself, preserves nothing for appeal, and ordinarily, a point relied on that refers only to a ruling on such motion is fatally defective.” Id.

“To properly preserve the issue of the admissibility of the evidence sought to be suppressed, the evidence must be objected to at the time it is offered for admission at trial.” State v. Wolf, 91 S.W.3d 636, 642 (Mo.App.2002); see also State v. Cardona-Rivera, 975 S.W.2d 200, 203 (Mo.App.1998). “Accordingly, a point relied on attacking the trial court’s ruling on a pretrial motion to suppress, without attacking the court’s ruling admitting the evidence, is deficient in that it does not identify the actual ruling that is subject to challenge and, therefore, does not preserve the issue for appellate review.” Id. “ ‘Failure to object at the earliest opportunity to the admission of evidence constitutes a waiver of the claim.’ ” State v. Evenson, 35 S.W.3d 486, 491 (Mo.App.2000) (quoting State v. Stewart, 17 S.W.3d 162, 166 (Mo.App.2000)).

Here, Appellant made statements to the police on numerous occasions. He was interviewed by Sergeant Vaughn at his home on the evening of January 19, 2003, before he was arrested and he was interviewed by Sergeant Vaughn the following morning at the Stone County Jail. During both of these interviews Appellant maintained he was not involved in Allen’s death. Thereafter, Appellant was interviewed on several other occasions, all of which were videotaped by the authorities. In the latter interviews, Appellant confessed to being involved in Allen’s death.

On February 17, 2004, Appellant filed a motion to suppress the statements he made to authorities both before and after his arrest. Following a hearing on February 20, 2004, the trial court overruled Appellant’s motion.

At trial, Sergeant Vaughn testified at length on direct examination without objection from defense counsel regarding the various statements Appellant made to police. Thereafter, defense counsel cross-examined Sergeant Vaughn regarding the statements. Saliently, it was defense counsel who played Appellant’s confession for the jury and offered two videotaped interviews, together with a transcript of Appellant’s confession, into evidence.

Although it might have been the trial strategy of defense counsel to not object to the introduction of Appellant’s confessions, in an attempt to lessen the impact of such a confession, nevertheless, “a ‘specific objection to evidence at the time the evidence is offered is required to preserve the issues for appellate review, and the failure to object at the earliest opportunity constitutes a waiver of that claim.’” State v. Patton, 157 S.W.3d 278, 283 (Mo.App.2005) (quoting State v. Collins, 72 S.W.3d 188, 194 (Mo.App.2002)). “The rules of appellate review require an objection and proper request for relief as a predicate to examination on appeal of matters arising at trial.” State v. Hensley, 83 S.W.3d 681, 687 (Mo.App.2002). By failing to object to the receipt into evidence of his statements to the police, Appellant waived this claim of error. Point denied.

For ease of analysis we now review Appellant’s remaining points out of order. In Appellant’s sixth point on appeal, he asserts the trial court erred in admitting “multiple gory, gruesome and inflammatory photographs of the deceased ... because the photographs were used to shock and inflame the jury’s prejudices against [Appellant].” He maintains that not only were the photographs duplicative, but their “prejudicial effect outweighed the probative value of this evidence.” “ ‘Photographs, although gruesome, may be admitted where they show the nature and location of the wounds, where they enable the jury to better understand the testimony, and where they aid in establishing any element of the state’s case.’ ” State v. Middleton, 995 S.W.2d 443, 462 (Mo. banc 1999) (quoting State v. Murray, 744 S.W.2d 762, 772 (Mo. banc 1988)). “ ‘It is within the discretion of the trial court to determine whether potentially prejudicial or inflammatory evidence should be admitted, and relevancy is the principal criterion.’” State v. Simpson, 908 S.W.2d 839, 842 (Mo.App.1995) (quoting State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980)). “A photograph, generally speaking, is superi- or to words as a means of description, and it should not be rejected because by presenting an accurate portrayal it tends to be inflammatory.” State v. Burnfin, 606 S.W.2d 629, 630 (Mo.1980) (internal citation omitted). “The admission of photographs is a discretionary act and will be found erroneous only if the ruling resulted in fundamental prejudice and an abuse of discretion.” State v. Wilhite, 858 S.W.2d 293, 295 (Mo.App.1993).

Here, the State showed various witnesses pictures of the deceased and the crime scene at issue and requested that the photographs be admitted into evidence. Defense counsel objected that some of the pictures were duplicative in that they were merely close-ups of other pictures. The trial court found that some of the pictures were “from a different angle ...” and that the close-up photographs “exemplifie[d] the wounds and be some [sic] evidence of the death of the decedent.” Accordingly, the trial court overruled Appellant’s objection and the photographs were admitted. Later, defense counsel objected to another series of photographs of the crime scene from “various angles” and the trial court again overruled the objection.

The photographs at issue revealed the nature and extent of the wounds Allen suffered and aided in proving the State’s case. “Insofar as the photograph may be shocking or gruesome, it is because the crime is of that sort. ‘Gruesome crimes produce gruesome, yet probative, photographs.’” State v. Burris, 82 S.W.3d 583, 591 (Mo.App.2000) (citation omitted). As the photographs helped the jury to understand the nature of the crime, their admission was not error. Further, there is no merit to Appellant’s argument that certain of the photographs were duplicative of photographs already entered into evidence. Generally, “prejudice does not exist when the objectionable evidence is merely cumulative of other evidence that was admitted without objection and that sufficiently establishes ‘essentially the same facts.’” State v. Haddock, 24 S.W.3d 192, 196 (Mo.App.2000) (quoting State v. Martinelli, 972 S.W.2d 424, 486 (Mo.App.1998)). Point Six is denied.

In his fourth point on appeal, Appellant maintains the trial court erred in allowing testimony relating to the fact that he “possessed drug paraphernalia at his home prior to [his] arrest.” According to Appellant, such testimony regarding prior uncharged misconduct was both prejudicial and irrelevant. Appellant concedes that he did not properly preserve this point for appellate review and, therefore, requests plain error review under Rule 30.20. Plain error review is used sparingly and is limited to those cases where there is a clear demonstration of manifest injustice or miscarriage of justice. State v. Ballard, 6 S.W.3d 210, 214 (Mo.App.1999). Claims of plain error are reviewed “under a two-prong standard.” State v. Roper, 136 S.W.3d 891, 900 (Mo.App.2004). “In the first prong, we determine whether there is, indeed, plain error, which is error that is ‘evident, obvious, and clear.’ ” Id. (quoting State v. Scurlock, 998 S.W.2d 578, 586 (Mo.App.1999)). “If so, then we look to the second prong of the analysis, which considers whether a manifest injustice or miscarriage of justice has, indeed, occurred as a result of the error.” Id. “A criminal defendant seeking plain error review bears the burden of showing that plain error occurred and that it resulted in a manifest injustice or miscarriage of justice.” Id. “The outcome of plain error review depends heavily on the specific facts and circumstances of each case.” Id.

Based on the facts and circumstances of this case, we decline to exercise plain error review. See Roper, 136 S.W.3d at 900. Here, there were numerous instances in both the State’s case in chief and in Appellant’s presentation of his case where there were references to Appellant’s possession of a marijuana pipe. In its opening statement, the State, in outlining its case for the jury, noted that Appellant was arrested and taken into custody on the night of the murder for possessing a marijuana pipe which the police officers found in his home. Defense counsel did not object to this reference. During Deputy Cox’s testimony, Deputy Cox repeatedly mentioned the fact that Appellant “attempted to hide [the pipe] under [a] chair” while he was being interviewed. During his cross-examination of Deputy Cox, defense counsel even asked Deputy Cox “how long had you been there prior to your finding the pipe?” Additionally, there were numerous instances of other witnesses referencing the marijuana pipe without objection by defense counsel. Indeed, defense counsel even mentioned the marijuana pipe in its own closing argument.

To hold that a miscarriage of justice or a manifest injustice occurred, we must determine that there is a reasonable probability that the jury’s verdict would have been different, had the error not taken place. State v. Dorsey, 156 S.W.3d 791, 805 (Mo.App.2005). The evidence admitted at trial, including the testimony of Appellant himself, undermines his claim that but for the evidence that a marijuana pipe was seized from his home the jury’s verdict would have been different. Appellant has failed to demonstrate that manifest injustice or a miscarriage of justice occurred. Patton, 157 S.W.3d at 284. Point denied.

In Appellant’s fifth point on appeal he maintains the trial court erred in allowing a photograph of the marijuana pipe, State’s Exhibit #3, to be entered into evidence. Appellant once again requests plain error review as in Point Four above.

During direct examination by the State, Deputy Cox identified a photograph of the marijuana pipe in question, which was identified as State’s Exhibit # 3. The State asked that the photograph be admitted into evidence and defense counsel announced, “No objection.” “An announcement of ‘no objection’ amounts to an affirmative waiver of appellate review of the issue.” State v. Markham, 63 S.W.3d 701, 707 (Mo.App.2002); see also State v. Burge, 39 S.W.3d 497, 499 (Mo.App.2000). “Under those circumstances, even plain error review is not warranted.” Markham, 63 S.W.3d at 708-09. Accordingly, we decline to exercise plain error review. The photographic evidence was properly admitted by the trial court. Point denied.

Appellant’s third point on appeal asserts the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence. He argues that the State’s evidence was insufficient to allow a reasonable fact finder to determine that he “knowingly caused the death of Keith Allen after deliberation.” “ ‘We review the denial of a motion for acquittal to determine if the State adduced sufficient evidence to make a submissible case.’ ” State v. Howard, 973 S.W.2d 902, 906 (Mo.App.1998) (quoting State v. Foster, 930 S.W.2d 62, 63 (Mo.App.1996)). “Our standard of review is whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.” State v. Wright, 998 S.W.2d 78, 81 (Mo.App.1999). The court must examine the elements of the crime and consider each in turn; reviewing the evidence in the light most favorable to the judgment, disregarding any contrary evidence, and granting the State all reasonable inferences from the evidence. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). We defer to the superior position of the jury to assess the credibility of witnesses and the weight and value of their testimony. State v. Nichols, 20 S.W.3d 594, 597 (Mo.App.2000).

“A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.” § 565.020.1. “Deliberation” required for conviction for murder in the first degree is defined as “cool reflection for any length of time no matter how brief.” § 565.002(3); see also State v. Johnston, 957 S.W.2d 734, 747 (Mo. banc 1997). “Proof of deliberation does not require proof that the defendant contemplated his actions over a long period of time, only that the killer had ample opportunity to terminate the attack once it began.” Id. (internal citation omitted). “It is sufficient to show that the defendant merely considered taking another’s life in a deliberate state of mind.” State v. Stacy, 913 S.W.2d 384, 387 (Mo.App.1996).

Deliberation required for conviction for murder in first degree may “be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the killing.” State v. Howard, 896 S.W.2d 471, 480 (Mo.App.1995). The inference of deliberation can be strengthened by the fact that a defendant left the scene of the crime immediately after shooting without checking on the victim; that defendant failed to procure aid for the victim; and that defendant disposed of the weapon used in the shooting. Id. at 481. “Deliberation c[an] also be inferred from the number, severity, and location of wounds to the victim[ ].” Id.

In the present matter, there was sufficient evidence to prove that Appellant “knowingly caused the death of Keith Allen after deliberation.” Zlotopolski testified that there had been hostility between Allen and Appellant at the time the murder was committed. She went on to detail the fact that Appellant had repeatedly trespassed on Allen’s property on the day of the murder. Zlotopolski stated that Allen had been concerned enough by Appellant’s actions to send her and her children back to the house and to leave the house after dark to lock the gate.

Appellant himself testified that he was feeding the turkeys, heard what he suspected was Allen’s truck, and went to the location where he thought Allen would be — all the while with a loaded shotgun on the seat of his truck. Further, Appellant shot Allen three times using a “pump action” shotgun which had to be pumped between each shot. After the shootings, Appellant failed to check on Allen or to even assist him in case he was injured. See Howard, 896 S.W.2d at 481. Nor did he call law enforcement authorities regarding the matter. When the police interviewed him, Appellant initially denied any involvement in the murder and even stated he had not talked to Allen in several years. All of these facts lead to the conclusion that Appellant deliberately caused Allen’s death.

Finally, we note that the jury was not required to accept Appellant’s testimony that his actions were in self-defense and that he was in danger of death or serious bodily harm at the time he shot Allen. Appellant’s “description of his mental state is not binding on the jury.” State v. Mitchell, 975 S.W.2d 191, 196 (Mo.App.1998). The jury is not bound by any self-serving claims made by Appellant and is entitled to reject any or all of his testimony as false. See State v. Gunn, 57 S.W.3d 347, 350 (Mo.App.2001) (holding that “the jury is entitled to accept the State’s evidence as true, and reject the defendant’s testimony as false”). The jury could reasonably have found that Appellant’s testimony in this regard was not credible and that Appellant was not in fear of death or in fear of serious bodily harm when he shot Allen, but acted knowingly and with deliberation when Appellant shot Allen on three, separate occasions. Point denied.

The judgment of the trial court is affirmed.

SHRUM, P.J., and BATES, C.J., concur.

      . Appellant was also charged with armed criminal action pursuant to section 571.015; however, the State dismissed that charge during trial.

      . Appellant and Allen were neighbors who had known each other for approximately four years. When Appellant’s children visited him on the weekends, he would often bring them to Allen’s house so that they could play with Zlotopolski’s sons.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The shotgun shells were later identified as being the same type of shells found at the scene of Allen’s murder.

      . At the scene of the crime, the officers noticed “[o]n the rear bumper of [Allen’s] truck there was a straight-line scratch mark that went through the dust ...” and "a small dent on the [black] bumper that [was] pushed in....” Later, the officers impounded Appellant's truck because "[o]n the front right-hand side of the bumper there was a small, [recent] black speck and small — like a fresh mark which [they] thought would be compared to the black scratch on the back of Keith Allen's [truck].” Lieutenant Gideon testified that the black marks on Appellant’s truck appeared to be “paint transfer” from Appellant’s truck coming into contact with Allen's vehicle. Appellant later admitted that he ran into Allen’s truck when he was fleeing the scene.

      .There was no objection on this basis in the trial court. "The ground of an objection on appeal is limited to that stated at trial.” State v. George, 921 S.W.2d 638, 645 (Mo.App.1996). We will not review this portion of Appellant's argument for that reason.

      . Sergeant Vaughn also testified that the diagram "didn't appear to be” to scale.

      . "Demonstrative evidence is admissible if it establishes a fact at issue, throws light on the issue, or aids the jury in any way in arriving at the correct verdict.” State v. Ford, 867 S.W.2d 681, 684 (Mo.App.1993).

      . "Self defense requires ... a real, specific, actual and immediate threat of bodily violence to which the defendant’s actions are an appropriate and proportional response.” State v. Harris, 870 S.W.2d 798, 809-10 (Mo. banc 1994). "[S]elf-defense may be justification for the use of physical force when and to the extent a person reasonably believes such force is necessary to defend himself from what that person reasonably believes to be the use or imminent use of unlawful force by the other person.” State v. Watson, 839 S.W.2d 611, 614 (Mo.App.1992).


text:
    Darryl A. HOLLAND, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86118.
    Missouri Court of Appeals, Eastern District, Division Two.
    March 7, 2006.
    Jessica Hathaway, Assistant Appellate Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Darryl A. Holland (“Mov-ant”), appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Following a jury trial, Movant was convicted of stealing, section 570.030, RSMo 2000, and resisting arrest, section 575.150. Movant was sentenced as a prior and persistent offender to a total of twelve years of imprisonment. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    Jennifer MISSEY, Claimant/Appellant, v. SCHNUCKS MARKETS, INC., and Division of Employment Security, Respondents/Respondents.
    No. ED 86599.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2006.
    Jennifer Missey, De Soto, MO, pro se.
    Ninion S. Riley, Attorney, Jefferson City, MO, for Division of Employment Security.
    Schnucks Markets, Inc., St. Louis, MO, pro se.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Jennifer Missey (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and conclude that the Commission did not err in finding that Claimant left her employment voluntarily without good cause attributable to such employment. Quik ’N Tasty Foods, Inc. v. Div. of Employment Sec., 17 S.W.3d 620, 625 (Mo.App. W.D.2000). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    STATE of Missouri, Respondent, v. Bobby J. CORDER, Appellant.
    No. ED 86120.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 7, 2006.
    Timothy J. Forneris, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Bobby Joe Corder (“Defendant”) appeals from the judgment upon his conviction following a jury trial for the class C felony of possession of a controlled substance in violation of Section 195.202, RSMo 2000, the class C felony of receiving stolen property in violation of Section 570.080, RSMo 2000, and the class A misdemeanor of possession of drug paraphernalia in violation of Section 195.233, RSMo 2000. Defendant was sentenced as a prior and persistent felony offender to concurrent eight year terms of imprisonment. Defendant argues the trial court erred in denying his motion for judgment of acquittal and in sentencing him on the jury’s verdict of guilty of receipt of stolen property, because the evidence was insufficient to permit the jury to find beyond a reasonable doubt that Defendant retained stolen property.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).