Adoption of J. M. K., In re, 23574

• Decision Date: 01 October 1962
• Docket Number: No. 23574,23574
• Citation: 363 S.W.2d 67
• Parties: In the Matter of the Adoption of J. M. K., Infant, by A. C. and A. C., Appellants, M. F., Respondent.
• Court: Missouri Court of Appeals

Page 67

363 S.W.2d 67

In the Matter of the Adoption of J. M. K., Infant, by A. C.

and A. C., Appellants, M. F., Respondent.

No. 23574.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1962.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 21, 1962.

Burrus & Burrus, Rufus Burrus, Independence, for appellants.

Arthur T. Stephenson, Foust & Lyons, Kansas City, for respondent.

CROSS, Judge.

This action was instituted under the provisions of the Missouri adoption statutes. The petition prays for an award of temporary custody of a minor child, and a final decree of its adoption in favor of petitioners A. C. and A. C., husband and wife, hereinafter designated as Mr. C. and Mrs. C. The child whose legal custody and adoption is sought by petitioners is a boy, J. M. K., born on December 1, 1955, out of wedlock, to M. N., whose name presently is M. F. The named mother opposes the purposes of the petition. There have been two hearings on the petition in the juvenile division of the circuit court and two appeals to this court.

At the first hearing, upon the conclusion of petitioners' evidence, the child's mother offered no evidence but filed a motion to dismiss the petition on the grounds that (1) petitioners' evidence shows that custody was obtained contrary to the provisions of Section 453.110 V.A.M.S., and such section prohibits the court from vesting custody in them; (2) petitioners' evidence shows they have violated the above statute and the court should not further encourage the unlawful act contrary to the equitable principle of clean hands. The trial court sustained the motion on the grounds alleged and entered an order dismissing the petition. From that order, petitioners prosecuted their first appeal to this court.

In determining the former appeal ¹ there was no evidence before us other than the undisputed testimony of petitioners--standing without explanation or contradiction by any evidence on behalf of the mother. From that evidence we concluded that the mother had transferred the child to petitioners in violation of Subsection 1 of Section 453.110 V.A.M.S., and that thereby both the mother and petitioners had violated the statute. We held that in such a situation the trial court should not have dismissed the petition without a full inquiry into the question of the child's custody from the standpoint of his best interests, but instead should have heard evidence on that issue and made an adjudication thereon. We deemed that procedure necessary in view of the following provision contained in Section 453.110: 'If any such surrender or transfer is made without first obtaining such an order, such court shall have the right on petition of any * * * interested person * * * to inquire into the facts and to make such order as to the custody of such child as may be for the best interests thereof'. Accordingly, we reversed the judgment of dismissal and remanded the cause to the trial court to permit a full inquiry into the question of the child's custody from the standpoint of his best interest.

In accordance with the foregoing mandate, the circuit court has tried the cause on all issues raised by the petition. That court has fully heard the evidence of all the parties relevant to the proposed adoption and the welfare of the child. At the conclusion of the trial the court denied the petition for temporary custody of the child, ordered that he be returned to the care and custody of his natural mother and dismissed the petition for adoption. Petitioners again appeal from the trial court's judgment.

Petitioners urge one broad assignment of error--that the court erred in dismissing the petition. In support of the assignment, petitioners argue that it was shown by the evidence: that petitioners had custody of the child and were proper parties to petition for adoption; that the mother's consent to adoption was not necessary because she had 'either willfully abandoned--or willfully neglected to provide him with proper care and maintenance'; that petitioners were suitable persons to adopt the child; that the mother had abandoned and failed to care for the child, was unable physically and financially to care for him, and was of such unstable emotional disposition as not to be a proper person to have his custody; and that the best interest of the child would require that he be placed in petitioners' custody. We consider that only two basic questions have been raised by petitioners: (1) Was there abandonment or neglect of the child by the mother as defined by the adoption statutes? (2) What custody disposition is in the child's best interest?

As appellants suggest, our review of this cause is governed by Civil Rule 73.01, V.A.M.R. Accordingly, we shall review the case upon both the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. As stated in In re Hyman's Adoption, Mo.App., 297 S.W.2d 1, cited by appellants, '* * * (the trial court's) judgment will not be set aside unless clearly erroneous and in conflict with the clear preponderance of the evidence disclosing manifest abuse of judicial discretion'. Similar admonition is expressed in Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379, also a child custody case, in the following language: '* * * in performing this duty (to review the whole record) we must bear in mind that the findings of the trial court should not be lightly disturbed. In fact, such findings will ordinarily be deferred to, unless from a consideration of all the facts and circumstances it appears that said findings are in conflict with a clear preponderance of the evidence so as to disclose a manifest abuse of judicial discretion. (Citing cases)'.

But, say appellants, the trial court entered its judgment denying petitioners custody of the child and dismissing their petition without making any specific finding of facts. Therefore, appellants argue, since there is no finding of facts by the trial court, 'this court has no benefit of such specific fact finding * * * so there is no reason to defer to such a finding by this court * * *'. We do not agree with the proposition urged, in view of the following provision contained in Civil Rule 73.01: 'All fact issues upon which no specific findings are made shall be deemed found in accordance with the result reached'.

This action was filed as a proceeding for adoption. In Missouri the right of adoption depends upon statute (except for the possibility of equitable adoption). Chapt. 453 V.A.M.S. In re Slaughter, Mo.App., 290 S.W.2d 408. The cited adoption chapter is considered to be a code within itself. In re Smith's Adoption, Mo.App., 314 S.W.2d 464. No adoption may be effected under the adoption statutes except through compliance with the terms of those enactments. State ex rel. M. L. H. v. Carroll, Mo.App., 343 S.W.2d 622; In re Slaughter, supra. As a matter of simply justice the adoption statutes are to be strictly construed in favor of the natural parent. In re Slaughter, supra.

Petitioners cannot secure a decree of adoption in this case except by compliance with the provision of Section 453.030 V.A.M.S. requiring written consent of the mother for such adoption, or by showing the existence of one of the four conditions named in Section 453.040 as exceptions to the requirement of written consent. There is no showing or claim on the part of petitioners that the mother has given such written consent. Petitioners do insist, however, that they have established the exception provided in Subsection 4 of Section 453.040 V.A.M.S., which reads as follows: 'The consent of the adoption of a child is not required of * * * (4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance'. It is apparent that the issue of abandonment or neglect goes to the very heart of this case. Consequently, that issue is the first subject of our consideration. We here note the essential facts and circumstances shown in evidence relative to that question, particularly as they touch the central figures concerned--the mother and the child.

The woman who bore the child now sought by petitioners (sometimes referred to herein as M. F.), has suffered extraordinary misfortune and affliction from the time of her pregnancy. The pregnancy itself resulted from her misplaced faith in the baby's father. She named that man as H. A. K., district manager of a large and well known corporation. She met him while he was living in the same building where she had an apartment. Representing himself as a widower whose former wife, a T.W.A. hostess, had been killed in a plane crash, H. A. K. proposed marriage. The proposal was accepted and the engagement consummated.

Some time in 1955 after M. F. became pregnant, she was the victim of an automobile wreck while riding with H. A. K. She was thrown out of an open convertible and injured. She was hospitalized and operated on for a herniated disc. Right after the operation, H. A. K. came to the hospital and 'told [her] the truth'. He stated that it was not true that his wife had been killed, but that she had divorced him. He told M. F. that he couldn't marry her because he was Catholic and couldn't remarry until his wife was dead. He proposed to place her in a Catholic home to have her baby and that the institution take the child for some disposition when it was born. He then 'took a plane and left for St. Louis'.

She left the hospital in a distraught and despondent condition. She was returned to the hospital within a short time thereafter because she had taken an overdose of codeine--'sleeping pills'--prescribed by her doctor with instructions for her to continue taking them for relief from her back condition. Petitioners insinuate and insist that the incident was an attempt...