C.E.H. v. L.M.W., WD
| Decision Date | 25 August 1992 |
| Docket Number | No. WD,WD |
| Citation | 837 S.W.2d 947 |
| Parties | In the Matter of C.E.H. (a Minor), Plaintiff, T.W. and M.L.W., Respondents, v. L.M.W., Natural Mother, Appellant, R.H., Natural Father, Defendant. 45292. |
| Court | Missouri Court of Appeals |
James Franklin Ralls, Jr., Kansas City, for appellant.
John Roger Cady, Platte City, for respondents.
Before HANNA, P.J., and FENNER and ULRICH, JJ.
This case involves termination of the parental rights of appellant/mother, L.M.W. (hereinafter referred to as "natural mother"), who is a member of the Cherokee Indian Nation of Oklahoma, holding Cherokee registry number C0062066. The issues raised on appeal concern the jurisdiction of this state to entertain the termination of parental rights and adoption proceeding and the applicability of the Indian Child Welfare Act of 1978 (the "Act"). 1
The natural mother grew up in Kansas City, Missouri. In January, 1988, at age eighteen, she met the natural father and they commenced living together. The natural mother became pregnant, but before the child's birth both natural parents moved to Pittsburg, Kansas. The child, C.E.H., was born October 29, 1988 and remained with the natural mother for two months until the child began making the mother "crazy." At this point, the child was taken to the maternal grandmother's residence in Oklahoma. The child stayed with the grandmother about four or five months until the grandmother demanded the natural mother take back custody of the child. The natural mother was then living in Springfield, Missouri and traveled to the grandmother's house to pick up the child. Shortly thereafter, because of her inability to tolerate children, the natural mother took the child to the maternal grandfather's house in Kansas City, Missouri. She allegedly remarked: "Things haven't changed at all ... I love [children], but I can't take more than two hours and they make me crazy."
The natural father believed it would be in the best interests of C.E.H. to place the child for adoption. In that regard, he contacted Mr. Robert Michael, his childhood mentor. Some time in late 1988, both natural parents and Mr. Michael went to an attorney in Kansas City, Missouri to discuss the possibility of placing C.E.H. with adoptive parents. After meeting with the attorney, the natural parents asked Mr. Michael to help them find someone who would adopt the child.
As a result of inquiries, the adoptive mother, T.W., expressed an interest in adopting C.E.H. Due to medical problems T.W. was unable to have children of her own. T.W.'s parents (the "adoptive grandparents") then contacted Mr. Michael who further explored the possibility of adoption.
Mr. Michael had consulted with both natural parents on many occasions concerning the adoption. At all times, the natural mother expressed her opinion that it would be in the best interests of C.E.H. to be adopted by someone else. Consents for adoption were prepared and on August 25, 1989, the natural parents traveled to Kansas City, Missouri to execute the consent forms. After signing the forms, Mr. Michael again discussed the adoption with the natural parents, both individually and together. The natural mother continued to stress her sincere desire to have C.E.H. adopted. An error was subsequently discovered in the consent forms which required them to be redone. New consent for adoption forms were prepared and a few days later they were again executed by both natural parents.
The natural parents traveled to Oklahoma in late August 1989, picked up C.E.H., transported the child to Kansas City, and left the child in the care of Mr. Michael. 2 Mr. Michael immediately transported C.E.H. to the home of the adoptive mother. At that time, C.E.H. was ten months old and has since continued to reside with the adoptive parents.
On September 7, 1989, the adoptive mother petitioned the trial court for adoption of the child and on September 28, 1989, the court transferred temporary custody to her. It was on this same day that the natural mother signed a withdrawal of her consent, which was filed with the court on October 4, 1989. On the following day, the natural mother's attorney filed a motion to dismiss the termination of parental rights and adoption proceeding claiming the Act governed the controversy and pursuant to § 1913, once a natural parent withdraws consent, the child is to be returned to the natural parent.
In response to these events, the adoptive grandmother traveled to Springfield, Missouri to discuss the purported withdrawal of consent with the natural mother. During that visit, the natural mother repeatedly told the adoptive grandmother she desired for the adoptive mother to continue with the legal proceedings to adopt C.E.H. The adoptive grandmother testified that the natural mother said, The natural mother complained the withdrawal of consent was executed because her parents had threatened to disown her if she allowed the adoption to continue. She required the support of her family to subsist because the natural father only came home sporadically and she was again pregnant. 3 She told the adoptive grandmother that she never intended to bring C.E.H. home from the hospital but was persuaded to do so by her parents. She vowed not to make that mistake with the child with whom she was then pregnant. As a result, after the birth of her second child, the natural mother promptly gave the child up for adoption.
The natural mother also told the adoptive grandparents that neither the maternal grandmother nor the maternal grandfather provided a proper environment for her child. Later that afternoon the natural father returned home with some friends and the natural mother introduced the adoptive grandparents as the child's grandparents. When the adoptive grandmother remarked that the natural mother had withdrawn her consent for adoption, the natural father became very upset and asked her why she did that, since she could not take care of the child. The mother became emotional, but agreed. The father indicated he wanted the adoption to proceed.
The adoptive grandparents told the natural mother to telephone at any time if she ever wanted to see where the child was living, or have contact with the child. The natural parents visited the adoptive grandparents' family business on a couple of occasions during the first six months of 1990, but during their visits neither parent requested permission to visit with the child. The next contact by the natural parents with the adoptive grandparents came when the natural father called them at home and said he and the natural mother had been picked up for shoplifting. The adoptive grandparents next heard from him in January, 1991, when he called to tell them he was living in his automobile in Gladstone, Missouri. Shortly thereafter, he informed them he was at the Kansas City jail and requested funds to post bond.
As indicated, the adoptive mother filed a petition for transfer of custody and adoption on September 7, 1989. This petition was in the nature of a voluntary termination of parental rights/adoption proceeding and a guardian ad litem was appointed. The case was first set for disposition April 26, 1990. After consent was withdrawn by the natural mother, 4 the adoptive mother and the guardian ad litem filed an application for continuance and on February 7, 1990, the court granted leave to the adoptive mother to file a first amended petition alleging the natural parents neglected and/or abandoned the child. The first amended petition transformed the case to an involuntary termination of parental rights. On April 5, 1990, a second amended petition was filed which presented the same factual basis for adoption, but included the fact that the adoptive mother had married and listed her husband as an additional petitioner.
The case was reset for trial August 7, 1991, via telephone conferences between the attorneys and the judge. The record indicates the attorney for the natural mother notified her of the court date by letter. On the day of trial, the attorney for the natural mother moved for a continuance, alleging he had been unable to notify his client of the hearing date. The continuance was denied and the hearing proceeded.
Neither of the natural parents appeared at the hearing, however both were represented by counsel. The natural father's sister was present and stated to the court that the natural mother wanted to appear but was unable because she had flown to Peoria, Illinois the day before. Both adoptive parents were at the hearing. At the request of the natural mother's attorney there was a representative from the Heart of America Indian Center present who stated she was at the trial to make sure the procedural requirements of the Indian Child Welfare Act were followed. Also in court was the child's guardian ad litem, a juvenile officer from the 6th Judicial Circuit, and several witnesses who testified at the hearing, including the adoptive grandmother, a medical expert, and Mr. Michael. Two registered notices were sent to Tanya Coming Deer of the Cherokee Indian Nation of Oklahoma, but no representative from the tribe appeared.
On August 12, 1991, the natural parents' rights were terminated on a finding that both natural parents had willfully abandoned and neglected the child. On that same day, an order approving the adoption was issued and this appeal followed.
The first issue is whether the Indian Child Welfare Act is applicable, and if so, whether the trial court had jurisdiction to hear the matter or whether the case should have been transferred to the tribal court of the Cherokee Indian Nation of Oklahoma.
The Indian...
To continue reading
Request your trial
-
Yavapai-Apache Tribe v. Mejia
...doctrine of forum non conveniens in determining whether to transfer a child custody case under section 1911(b). E.g., In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992); In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988); Chester County Dept. of Social Servs. v. Coleman, 303 S.......
-
Crystal R. v. Superior Court
...from removal to a tribal court, or the extent of the child's bonding with a prospective adoptive family. (See, e.g., Matter of C.E.H. (Mo.App.1992) 837 S.W.2d 947; Matter of Adoption of T.R.M. (Ind.1988) 525 N.E.2d 298; In re Interest of C.W., supra, 479 N.W.2d 105; In re Robert T. (1988) 2......
-
Thompson v. Fairfax County Department of Family Services
...to a tribal court); In re Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060, 1065 (1990) (same); T.W. v. L.M.W. (In re C.E.H.), 837 S.W.2d 947, 954 (Mo.Ct.App.1992) (same); State v. Elise M. (In re Zylena R.), 284 Neb.834, 825 N.W.2d 173, 184–86 (2012) (overruling prior cases and ......
-
In re AB
...jurisdiction to a tribal court. See J.L.P., 870 P.2d at 1258-59; Armell, 141 Ill.Dec. 14, 550 N.E.2d at 1064-67; In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992); Matter of Guardianship of Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451, 456 (1993); Yavapai-Apache Tribe v. Mejia, 906 S.W.......
-
You're Breaking Up: the Faulty Connection Between Congressional Intent and Supreme Court Interpretation in Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)
...1995). 96. In re of S.A.M., 703 S.W.2d 603, 608-09 (Mo. Ct. App. 1986). Application of the doctrine may be weakening. See C.E.H. v. R.H., 837 S.W.2d 947, 951-52 (Mo. Ct. App. 1992) (considering what would happen if ICWA applied, "being exceedingly sensitive to the valuable purposes of the 9......