Adoption of K. L. G., In re, s. 12270

• Citation: 639 S.W.2d 619
• Decision Date: 30 August 1982
• Docket Number: 12271,Nos. 12270,s. 12270
• Parties: In re ADOPTION OF K. L. G. and S. D. G., Minors, J. E. G. and I. I. G., Petitioners-Appellants, K. I. S., Natural Mother, Appellant, D. F. and B. F., Petitioners-Respondents.
• Court: Missouri Court of Appeals

Page 619

639 S.W.2d 619

In re ADOPTION OF K. L. G. and S. D. G., Minors J. E. G. and I. I. G., Petitioners-Appellants K. I. S., Natural Mother, Appellant D. F. and B. F., Petitioners-Respondents.

Nos. 12270, 12271.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 30, 1982.

Motion for Rehearing and to Transfer to

Supreme Court Denied Sept. 15, 1982.

Sandra K. Skinner, Fiedler, Jones, Conklin & Skinner, Springfield, for appellant.

Charles A. Moon, Springfield, for petitioners-appellants.

Ivella McWorter Elsey, Robert M. Sweere, Springfield, for petitioners-respondents.

MAUS, Chief Judge.

This action was commenced by the maternal grandparents' petition for adoption of one of three illegitimate children born to their daughter. The daughter consented to that adoption. That petition was amended to seek the adoption of all three children. Initially the amended petition alleged the mother had abandoned the two children added in the amended petition. Later the daughter consented to their adoption of those two children. The latter two children were in the custody of foster parents. The foster parents were permitted to intervene in the pending action. In that action they filed their petition to adopt the latter two children alleging their mother had abandoned and neglected them for more than one year before the filing thereof. A separate hearing was held in regard to the grandparents' adoption of the child named in the original petition. That adoption was granted as prayed. Thereafter, an extended hearing was held concerning the adoption of the other two children. The grandparents, the foster parents and the mother fully participated in that hearing and presented and cross-examined witnesses.

The trial court entered a judgment denying the petition of the grandparents and granting the adoption prayed by the foster parents. The grandparents and mother appeal, each presenting in substance the same two points of alleged error.

The first point is that the trial court erred in permitting the foster parents to intervene and file their petition for adoption. They contend that such action is prohibited by Matter of Trapp, 593 S.W.2d 193 (Mo. banc 1980). Trapp did condemn intervention by foster parents who desired to adopt one of the children, the subject of that proceeding. In reaching that result the court observed the foster parents did not have a legal interest entitling them to intervene as a matter of right under Rule 52.12(a)(2). It further concluded § 452.485 was not applicable. However, Trapp was a custody proceeding under Chapter 211. The sole issue was the fitness of the natural parents to have custody of their children returned to them.

Trapp has been construed "to be limited in scope and application to those cases involving foster parents as parties in proceedings pursuant to Chapter 211." Frederick v. Frederick, 617 S.W.2d 629, 631 (Mo.App.1981). Upon this basis, supported by the compelling reasons for permitting intervention in adoption hereafter discussed, Trapp does not establish the action of the trial court was prejudicially erroneous.

The appellants then argue the reasoning of Trapp declares the intervention was erroneous because it injected into an adoption based upon neglect or abandonment the issue of fitness of the foster parents. In effect they argue that in any adoption based upon neglect or abandonment there must be a bifurcated hearing. It is true in granting such an adoption the evidence must establish and the court must determine the neglect or abandonment without consideration of fitness of the adoptive parents. Adoption of R. A. B. v. R. A. B., 562 S.W.2d 356 (Mo. banc 1978). This determination has been made in countless cases without a bifurcated hearing. If appropriate, the trial court may in its discretion order a separate hearing of any issue. Rule 66.02. No rule or statute requires a bifurcated hearing. The absence of such a rule or statute is an expression of confidence in the courts to accurately analyze the evidence in respect to the two issues.

Again relying upon Trapp, the appellants' basic position is that no one should have been permitted to participate in the hearing upon the grandparents' petition except the petitioners, the mother and the guardian ad litem. This position is unsound. Historically, in proceedings involving the welfare of children, the courts have utilized various procedures to make available to the court all sources of information. ¹ For example, the appearance and participation of a grandparent as "an informant" was approved in In re J.---- L.---- H.----, 373 S.W.2d 635 (Mo.App.1964). Where there are two sets of petitioning adoptive parents, if the court did not permit each set to participate in the hearing upon each petition it could lose an advantage of a means of eliciting full and accurate information pertaining to the welfare of the child or children. The advantage to the court and to the children of investigation, presentation of evidence and cross-examination by an adversary is dramatically demonstrated in this case by a comparison of the information developed upon the hearing concerning the older child involving only the petitioners and mother and that concerning the two younger children involving in addition the foster parents. Trapp may establish foster parents have no legal interest to intervene as a matter of right. However, contrary to some decisions, Petition of Benavidez, 52 Ill.App.3d 626, 10 Ill.Dec. 362, 367 N.E.2d 971 (1977), the claim of the first petitioning adoptive grandparents does have a question of law or fact in common with the claim of the intervening adoptive foster parents. "In both the primary issue is the welfare of the identical child." State ex rel. Earnest v. Meriwether, 270 S.W.2d 20, 22 (Mo. banc 1954). It is difficult to discern how a court can determine an adoption by one set of adoptive parents is in the best interests of a child without a comparison of the fitness of each of the sets of adoptive parents. With such a basis, it has been held that intervention in an adoption case may be permitted. Thelen v. Ekberg, 237 Mo.App. 258, 167 S.W.2d 645 (1943). ² Or, if two petitions for adoption are filed in the same court, the consolidation of those actions has been approved. IN RE J.---- L.---- H.----, SUPRA. ³ Also see In re Mayernik, 292 S.W.2d 562 (Mo.1956) and State ex rel. Earnest v. Meriwether, supra. The approval of consolidation is recognition of a question of law or fact common to the two actions. Rule 66.01(b). The interdependence of such actions is demonstrated by the following: "We are convinced that respondent judge did not err in holding that the petitions were in effect but one action and in further holding that, after being disqualified to hear and determine the second petition, he was also disqualified to hear and determine the first." State ex rel. Earnest v. Meriwether, supra, at p. 23. The trial court did not err in permitting the foster parents to intervene.

The appellants both contend the evidence is insufficient to support the determination the mother, for more than one year before the filing of the foster parents' petition, abandoned and neglected the children within the meaning of § 453.040. The amended petition of the grandparents praying for the adoption of the two younger children was filed September 25, 1979. The petition of the foster parents was filed February 22, 1980. The mother first contends the one year period must be that preceding the filing of the amended petition of the grandparents. This contention is unsound. The clear implication of the statute is that it is the year preceding the filing of the petition under which adoption is to be decreed. Matter of Adoption of Pearson, 612 S.W.2d 30 (Mo.App.1981); In re Adoption of S., 581 S.W.2d 113 (Mo.App.1979). In any event, this is not a decisive issue because, as hereinafter demonstrated, the evidence establishes an abandonment in respect to both periods. In re Adoption of S., supra.

The mother's argument would also focus the attention of this court upon her conduct during the one year period. However, the key element in the definition of abandonment or neglect is the intent of the non-consenting parent. Intent may be, and usually must be, determined from the actions of that parent. Young v. Young, 588 S.W.2d 207 (Mo.App.1979). Her conduct before and after the critical year is to be considered in determining her intent as demonstrated by her actions in the critical year. D---- G---- K---- v. D---- G---- K----, 545 S.W.2d 81 (Mo.App.1976).

In considering this point, this court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses, Rule 73.01(c)(2), and to reject the testimony of any witness. Estate of Sheets v. Sheets, 558 S.W.2d 291 (Mo.App.1977). In reviewing the evidence, all fact issues upon which no specific findings were made shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(2). When the record is reviewed in accordance with those principles, the following is an outline of the evidence supporting the judgment of the trial court.

At a time not clear from the record the mother was married to and divorced from one C. S. He was not the father of any of her three illegitimate children who were born on the following dates. B. J. (male) on February 23, 1971; K. L. (female) on April 13, 1972; and S. D. (female) on April 1, 1975. These children were reported to have different fathers. According to a record in evidence, the mother had an abortion in 1979. At the time of the birth of the first child in 1971 the mother was 16 years old. While the record concerning her residence is vague, as it is in many other respects, except for the sojourns noted herein the mother lived in the home of her parents. After their birth, each of the children was taken to that home. However, K. L. had a brief stay in a foster home before the...