Adoption of Pearson, Matter of, WD

• Decision Date: 02 February 1981
• Docket Number: No. WD,WD
• Citation: 612 S.W.2d 30
• Parties: In the Matter of the ADOPTION of Steven Sean PEARSON and Holly Deann Pearson, Steven E. PEARSON, Appellant, v. Paul Douglas SIRON and Dorothy Dean Siron, Respondents. 30826.
• Court: Missouri Court of Appeals

Page 30

612 S.W.2d 30

In the Matter of the ADOPTION of Steven Sean PEARSON and

Holly Deann Pearson, Steven E. PEARSON, Appellant, v. Paul Douglas SIRON and Dorothy Dean Siron, Respondents.

No. WD 30826.

Missouri Court of Appeals, Western District.

Feb. 2, 1981.

James W. Gallaher, Jefferson City, for appellant. Barry, Neff, Gallaher & Venters, Jefferson City, of Counsel,

James T. Buckley, Sedalia; of counsel for respondents. Brown & Buckley, Sedalia, of counsel.

Before PRITCHARD, P. J., SWOFFORD, J. and HOUSER, Senior Judge.

HOUSER, Senior Judge.

This is a petition for adoption, contested by the natural father. The adoption was decreed, the court finding that the father for more than one year prior to the filing of the petition willfully neglected to provide his children with proper maintenance and support, and willfully abandoned them. Section 453.040(4), RSMo 1978. The father has appealed.

Appellant, Steven E. Pearson, and Dorothy Dean were married in 1969. Son Sean was born in June, 1971. Daughter Holly was born in August, 1973. The parents separated in October, 1973, and were divorced November 28, 1973. Custody of the children was awarded to their mother. Their father was ordered to pay $30.00 a week for their support. In April, 1974 Dorothy filed a complaint against Steven in the Magistrate Court of Lafayette County for nonsupport of the children. In May, 1974 the prosecuting attorney filed an information against Steven for nonsupport. On February 15, 1975 Dorothy and Paul Douglas Siron were married. They discussed the adoption of her children before their marriage and filed a joint petition for adoption in Lafayette County Circuit Court on November 20, 1975, as soon as the ninth-month waiting period expired. In December, 1975 Steven filed a motion to modify the divorce decree to enforce rights of visitation, and a motion for temporary custody of the children. On April 6, 1976 the petition for adoption and the motions were consolidated and tried before the circuit judge, who took them under advisement. The judge retired September 1, 1978 without having ruled upon them. The proceedings in Lafayette County were subsequently dismissed. On October 30, 1978 Paul and Dorothy filed a new petition for adoption in the Circuit Court of Pettis County, they having moved to Sedalia in June, 1977. The proceedings on the second petition for adoption were tried in Pettis County Circuit Court in February, 1979.

Section 453.040(4), RSMo 1978 provides that

" * * * consent of the adoption of a child is not required of * * * a parent who has for a period of at least one year immediately prior to the filing of a petition for adoption, either willfully abandoned the child or wilfully neglected to provide him with proper care and maintenance * * *."

"The result in this case is dictated by this court's limited scope of review. Rule 73.01 directs the court to review the case upon both the law and the evidence, giving due regard to the trial court to judge the credibility of the witnesses. The trial court's decree is to be sustained unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976)." In the Matter of D______ G______ K______, Jr. v. D______ G______ K______, Sr., 545 S.W.2d 81, 83 (Mo.App.1976).

Under this binding rule we are obliged to affirm the judgment decreeing adoption. There is substantial evidence to support the judgment finding statutory neglect on the part of the natural father, the fitness of the adoptive parents and that the welfare of the children will be promoted by the adoption. The court properly declared and applied the law. A contrary holding would be against the overwhelming weight of the evidence.

After the divorce Dorothy and the children lived at Higginsville. Right after the divorce Steven came to visit the children several times; thereafter "sometimes"; "not often"; "not regularly"; "off and on". During 1974 and in the early part of 1975, on several occasions, Steven took the children on weekends to his mother's house in Russellville. He also took them there for one week in the summer of 1974 and another full week "right after Christmas." During the first half of 1975 Steven came to visit the children at Dorothy's house "once a month", "off and on", and his visits were "very irregular". The last time he tried to arrange a visitation was on June 29, 1975. Just before Christmas in 1976 Steven, traveling with two friends on a trip to Kansas City, came to Dorothy's door unannounced. Dorothy did not allow him to visit the children, on the ground that she had had no prior notice of Steven's intention to visit, and that Holly, then two and one half years old, had not been prepared for the visit of her father, whom she did not know.

The following table summarizes testimony evidencing an intent or mental attitude on the part of Steven to forsake the status of a parent:

                                                1973   1974  1975   1976   1977  1978  1979
                                                -----  ----  -----  -----  ----  ----  ----
                Birthday presents or cards?            Yes    No     No     No
                Christmas presents or cards?     Yes   Yes    No     No     No    No
                Any attempts to communicate
                with the children?                 No, except as above      No    No    No
                Any phone calls to Dorothy?                                 No    No    No
                Any letters or cards to
                Dorothy about the children?                                 No    No
                Any inquiry about the children
                through other persons?                                      No    No
                Any money paid to Dorothy
                for the support of the
                children?                        No     No    A total of    No    No    No
                                                               $270.00
                

From November 28, 1973 to May, 1974 Steven was a college student at Joplin. From May, 1974 until November, 1974 he worked on his father's farm between Eldon and California. From November, 1974 to January, 1975 Steven worked at Eldon Optical Company. On January 3, 1975 he sustained an injury to his shoulder which kept him from doing any manual labor for four or five months. In July, 1975 he was employed as a guard at the state penitentiary in Jefferson City. This employment lasted about one year. After a two or three month break he worked for seven or eight months as a route salesman for Royal Crown Cola. Then he worked for the Jefferson City Housing Authority for eight months. From January, 1977 to August, 1978 he worked as an accountant for Midstate Oil Company. After a one or two month period of studying to take an examination for a broker's license, in October, 1978, Steven took a position in Jefferson City as an insurance broker.

The Sirons moved to Sedalia in June 1977. The one-year period prior to the filing of the second petition for adoption commenced October 30, 1977. There was no contact between Steven and Dorothy, Paul and/or the children; no visitation or effort to see or visit the children; no expression of interest of any kind by Steven as the father of the children, from June 29, 1975 to the hearing in February, 1979, with the exception of the unannounced visit near Christmas, 1976.

Steven seeks to be excused from visitations during this period of three years and seven months on the ground that the Sirons refused to allow visitation; that they frustrated his attempts to meet his children. Dorothy testified that at no time did she ever refuse the father permission to see the children (with the exception of the Christmas, 1976 situation, and times when a proposed visit conflicted with plans and arrangements already made). She testified that she did not refuse him, but she conceded that when he called she would ask him about child support, and used his failure to pay child support as "a threat", saying "You can't see them if you don't pay". She emphasized, however, that if he came to the house he saw them. While the Sirons did nothing to encourage communication between the children and their natural father, and did not welcome his visits, there is testimony to support a finding that the Sirons did not engage in a course of conduct to deliberately deprive Steven of visitation rights or discourage such rights, or to disparage or denigrate the natural father. On the whole record we find that while the relationship between Steven and the Sirons was not cordial, neither was it hostile or prohibitory, and that if Steven had made reasonable efforts to see the children, he could have visited and communicated with them. The bald fact is that Steven gave the children some attention for the first year or two after the divorce, but thereafter his interest in them waned, and for three years or more, including the year prior to the filing of the adoption petition on October 30, 1978, he ignored them. There is substantial evidence from which the conclusion is inevitable that Steven's neglect of the children was intentional, deliberate...