Adoption of LeGrande, In re, KCD
| Decision Date | 02 April 1979 |
| Docket Number | No. KCD,KCD |
| Parties | In re Adoption of Eric T. LeGRANDE. John Paul SAVONA and Debbie Lou Savona, Respondents, v. George Milton LeGRANDE, Jr., Appellant. 30226. |
| Court | Missouri Court of Appeals |
Austin F. Shute, Kansas City, for appellant.
Louis W. Krings, Kansas City, for respondents.
Before SHANGLER, P. J., SWOFFORD, C. J. and WASSERSTROM, J.
Appeal by natural father from decree terminating his parental rights and awarding adoption of his minor son to natural mother and her present husband. Reversed.
Respondents, the natural mother and her present husband, alleged that Appellant had willfully abandoned and willfully neglected his minor son for a period of at least one year immediately prior to the filing of the petition in this proceeding. A hearing was held and the court made findings of fact and conclusions of law. Since the findings and conclusions were upon willful neglect, this opinion is limited to the consideration of that alone and contains no dissertation inclusive of the similarities or differences, whether apparent or subtle, between willful neglect and willful abandonment.
Proceedings in adoption are statutory. See Chapter 453, RSMo 1969. Section 453.040(4) specifically addresses itself to the matter of consent by a natural parent and prescribes those instances wherein consent is not a prerequisite. The pertinent section reads as follows:
The case herein clearly falls within the language of that statute.
In their efforts to balance the interest of natural parents and the welfare of children, the courts have clearly expressed that willful neglect and willful abandonment mean the intent or mental attitude of the natural parent. Cases hold that " ' . . . the parent's consent to the adoption is not to be dispensed with upon the ground of his neglect of his child unless it is shown that such neglect was intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego his parental duties over the period of time which the statute prescribes.' " In Re E.C.N., 517 S.W.2d 709 (Mo.App.1974), cited in D G K____ v. D G____ K____, 545 S.W.2d 81 (Mo.App.1976); Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo.banc 1978). That the establishment of this intent can, from the parent's conduct, be determined both before and after the statutory period, see Matter of Adoption of Fuller, 544 S.W.2d 345 (Mo.App.1976).
Each case must be decided upon its own individual circumstances. Such cases, being of an equitable nature, require this court to review both the facts and the law pursuant to Rule 73.01.
Appellant and Respondent Debbie Savona, natural parents of the child, were divorced July 25, 1975. The decree provided custody in the mother and ordered Appellant to pay $35.00 per week child support. Appellant was granted reasonable visitation. The mother testified that during and immediately following the divorce proceeding, there was a hostile atmosphere between the parties. She further testified that an attempted reconciliation following the entry of the divorce decree failed. Although ordered by the court to pay a fixed sum of child support, the Appellant failed miserably to comply with the court's order in regard to the monetary support of his son. There was a contradiction of testimony over the child support payments. Appellant stated his former wife agreed not to enforce the payment for child support if Appellant did not contest the divorce. This was denied by the former wife.
While neither party had the authority to waive or ignore the court order to pay child support, the point raised by this evidence goes to the matter of Appellant's intent to willfully neglect his child within the meaning of the term.
This court, in no manner,...
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