Adoption of J--, In re
| Decision Date | 04 November 1965 |
| Docket Number | No. 8472,8472 |
| Citation | 396 S.W.2d 257 |
| Parties | In the Matter of the ADOPTION OF J_____. |
| Court | Missouri Court of Appeals |
Charles D. Tudor, Joplin, for Mother appellant.
James E. Brown, Joplin, for petitioners-respondents.
This is an appeal from a decree of adoption. The subject is a girl child, twelve years of age at time the decree was rendered. The successful petitioners were the natural and legal father of the child and his present wife, the stepmother. The appellant is the mother of the child. The principal question is whether the consent of the mother was not required because the mother had 'for a period of at least one year immediately prior to the filing of the petition for adoption either wilfully abandoned the child or wilfully neglected to provide [her] with proper care and maintenance.'
The father and appellant mother were married in 1951, and the daughter, an only child, was born in 1952. In July or August, 1960, they began to have trouble which resulted in a separation in September. The mother went to a friend's home. There is conflict as to whether she took the child with her; but at a conference held 'a month or so' after the separation at an apartment (then occupied by the mother) between the father, the mother, and the maternal grandmother, the daughter was required to express her preference and the result was the daughter was returned to the father's home. On November 15, 1960, the mother filed petition for divorce alleging indignities. Her petition stated that plaintiff was now required to work, and considering the time required in so working, and the amount of income realized therefrom, she was not 'now' in position to accept care and custody, that the child was receiving proper care from the father and it would be for the best interest of the child 'for the time being' to remain in the care and custody of the father. Prayer was for divorce and care and custody to the father with reservation of reasonable visiting rights in the mother. On the following day the father filed an entry of appearance, waiver of service, and consent to trial and decree without further notice. Later he filed an answer admitting all allegations of the petition except the paragraph charging indignities, which he denied. On January 3, 1961, decree of divorce was granted to plaintiff mother, and custody of the child was awarded defendant father with right of visitation in the mother at reasonable times, and right to have the child visit her at times to be agreed by the parties. Thereafter and until the mother left the vicinity for California, she visited with the daughter and had her overnight on occasions.
In early May of 1961 the mother went to California and to the home of the paternal grandmother, her former mother-in-law. It is the testimony of this paternal grandmother which contains practically the whole indictment against the mother. We will relate it more fully hereafter. In the meantime, we will attempt to finish the chronological statement of events.
The mother had been a member of the Air Force and had served in California. There she had been acquainted with one B. She got in contact with him, and the result was that on May 18, 1961, she married him. The father also did not waste much time and on June 30, 1961, married his present wife. This lady has two children of a former marriage.
In late July or early August, 1961, the mother returned to Missouri. It is apparent that she and the father had difficulty concerning visition of the mother with the child, and on August 2, 1961, she filed motion to modify the divorce decree. This motion alleged that both parties had remarried, that the father refused to permit visition, and that he had attempted to alienate the affection of the child for the mother; that the father and stepmother were both employed and it was necessary for an 'outsider' to care for the child; that the mother's present husband was employed and it was no longer necessary for her to work. The mother prayed for modification granting her care and custody. She further alleged that it was necessary for her to return to California on August 12, 1961, prior to a possible adjudication on the motion and prayed for an order permitting temporary custody of one week. On August 3, 1961, the husband filed application for disqualification of judge. On August 4 said application was sustained and a judge from another circuit was called. On August 7 the special judge conducted a hearing on that part of the motion dealing with temporary custody and ordered such temporary custody in the mother until August 11 at which time custody was ordered returned to the father. After that the mother returned to California and on November 3, 1961, dismissed her motion to modify. On November 22, 1961, the father, joined by his present wife, the stepmother, filed petition for adoption of the girl here involved and of the two sons of the present wife by her former marriage. The allegations were that the defendant parents of the children had (a) wilfully abandoned and (b) wilfully neglected to provide proper support for said children for one year last preceding the filing of such petition. To that appellant mother answered by denying wilful abandonment or neglect and alleged that she did assert her right to have reasonable visition; that after she moved to California she found it necessary to file a motion to modify and was granted temporary custody; and that she had from time to time made demand for visition and had been refused. There the matter rested in court until June 24, 1964, when the issues on the petition for adoption were tried and taken under advisement. On November 20, 1964, the mother again filed a motion to modify in respect to permanent custody and permission to take the child to California, and for temporary custody prior to November 28, 1964, when it would be necessary for her to return to California. To this motion the father filed answer setting up the substance of that which we will hereafter state, and opposing both modification and temporary custody. On this motion (heard by special judge) temporary custody of three and a half days was allowed to the mother. On December 7, 1964, the court in the adoption case decreed adoption of the child by the petitioners, father and stepmother. The memorandum filed by the judge determined that there had been an intentional abandonment of the child by the mother for a period of almost three years. This finding was based on the testimony of the paternal grandmother, given by deposition in Missouri on June 3, 1964.
It will be recalled that the mother went to the home of the paternal grandmother in California in May 1961. She (the grandmother) testified that the mother told her the following: She (the mother) had kept contact with B, whom she had known while in the Air Force. She came out to find if he was still in love with her. The next day she told the witness that she and one G, a married man with four children, were desperately in love and she didn't know what to do; that it was because of G that her marriage to the father broke up. She said that G was the only man who could satisfy her sexually, but she wanted to see B again in order to make up her mind whether to marry him or go ahead with G. She said she was going back to Missouri to see G; that she got letters from him daily. The paternal grandmother testified that G called the mother on the phone and said his wife would not agree to a divorce. The mother then became hysterical and said she thought she was pregnant by G and sent a specimen to the doctor to determine this before she married B. She married B on May 18. On June 6, B called her (the paternal grandmother) and told her that the mother had disappeared and had left a note telling him she was going away to think things out. A few days later the mother called B and asked if she could come back. B told her (the paternal grandmother) that she (the mother) had been with G, but he (B) had forgiven her. Later the mother told the grandmother she had been with G on that occasion. The grandmother testified that the mother disappeared again about six weeks later and went back to Missouri, and her sister there sent her back to California.
This witness further testified that the mother had told her on the phone that she intended to come back in November and sue for custody, and it was in anticipation of that custody fight that she gave her testimony. She said she knew of no improper conduct on the part of the mother since 1961. She had learned from a son and daughter-in-law that the mother was trying to 'cover herself with whitewash.' She was living such a life that she would be able to get the child. She and B had started going to church, and she (the grandmother) knew of no reason to believe that the mother was not being true to B. She testified that B and the mother didn't have an abundance of money. All she (the paternal grandmother) knew concerning the misconduct of the mother was covering a period of a month, and what she, the mother, told her. She knew that there was correspondence between the mother and the child, she had seen some of the letters; she knew that the mother sent the child gifts. She considered that the mother abandoned the child because of her love affair with G. She had left without the daughter. It was a psychological, not physical, abandonment. There was no need for the mother to leave Missouri. Her love affair with G after the divorce was the abandonment. She wasn't considering the child; she was considering her own love life, and that constitutes abandonment. Her son and his present wife have a good Christian home. The child does not want for anything, and there is a great deal of affection between the child and the stepmother. She is a better mother than the appellant. The child will be much happier where she is.
The petitioner father testified: He had had custody of the child since the...
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