Adoption of D---R---E---, In re, D----
| Decision Date | 28 August 1985 |
| Docket Number | E---,No. 14058,D----,A,R----,14058 |
| Parties | In re the ADOPTION OFMinor. |
| Court | Missouri Court of Appeals |
G. Weber Gilmore, Gilmore, Gilmore, Taylor & Burns, Sikeston, for respondent.
Bruce Lawrence, Leible & Lawrence, Sikeston, for appellant.
Appellant is the father of a female child, nine years of age, sought to be adopted by respondent. The marriage of appellant and the child's mother was terminated by a decree of dissolution and the mother received custody. Nearly seven years later appellant filed a motion to modify the dissolution decree, seeking custody of the child. Two weeks later respondent, the stepmother of appellant's ex-wife, filed a petition to adopt the child under chapter 453, RSMo 1978. The mother consented to the adoption. Appellant did not.
The petition and motion were consolidated by agreement. After an evidentiary hearing the trial court denied the motion to modify and granted custody of the child to respondent. The decree stated:
The Court finds that it would be in the best interest of said child, [D____ R____ E____ ] to terminate the rights of the Father, and Mother.
That [appellant], though legally required and financially able, has failed to support his child, [D____ R____ E____ ] for a period of six (6) months as provided in 211.447 RSMo, sub-section 2F. Further, that he has paid less than One Thousand Dollars ($1,000.00) since said child has been born.
That the child has been in the custody of [respondent], with the exception of two (2) months, for her entire life, having been boluntarily [sic] placed there by the natural mother and father and left without provision for support and only token communication and visitation from the father.
That the parents abandoned the child to [respondent] without good cause.
[Appellant's] Motion to Modify, Case No. 486, is hereby denied as the Court has, by this Decree, terminated his paternal rights.
Appellant does not raise error in connection with his motion to modify. He contends that his parental rights should not have been terminated and that he did not abandon his daughter or fail to support her. Respondent has filed a motion to dismiss the appeal, stating that the decree is not an appealable order since no final decree of adoption has been entered.
An order transferring custody and finding that consent to an adoption is not required is not appealable. Marsch v. Williams, 575 S.W.2d 897, 898 (Mo.App.1978). An appeal in an adoption case lies only from the decree of adoption. Id. In contrast, if the court's order is an attempt to terminate appellant's parental rights under chapter 211, it is appealable. § 211.261, RSMo 1978; In the Interest of T.P.S., 595 S.W.2d 320 (Mo.App.1980).
Respondent asserts that the portion of the court's order purporting to terminate parental rights under § 211.447, RSMo Supp.1984, should be treated as an unappealable finding under § 453.040(4), RSMo Supp.1984, that consent of appellant to the adoption is not required.
Under § 453.040(4), RSMo Supp.1984, consent to the adoption of a child is not required of:
A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection;
Section 211.447.2(2)(f), RSMo Supp.1984, provides that upon a petition filed by the juvenile officer, parental rights may be terminated if the "parent, who is both legally required and financially able, has failed to support the child for a period of six months".
Citing In the Interest of H.J.P., 669 S.W.2d 264, 271 (Mo.App.1984), respondent contends that the trial court's . H.J.P. involved an erroneous reference within the provisions of chapter 211, RSMo 1978. On...
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