Adoption of R. A. B. v. R. A. B., 59990

Citation562 S.W.2d 356
Decision Date13 March 1978
Docket NumberNo. 59990,59990
PartiesIn the Matter of the ADOPTION OF R. A. B., III, et al., J. A. H. and S. J. H., Petitioners-Respondents, v. R. A. B., Jr., Appellant.
CourtUnited States State Supreme Court of Missouri

Karl W. Blanchard, Jr., Blanchard, VanFleet, Martin, Robertson & Dermott, Joplin, for appellant.

Dean S. Johnston, Joplin, for petitioners-respondents.

RENDLEN, Judge.

Transferred from the Springfield district of the Missouri Court of Appeals after opinion, this case is decided as though on original appeal. Mo.Const., Art. V, § 10. The natural father, R. A. B., Jr., appeals from the adoption decree terminating the parental rights to his three children, ages nine, eight and six at the time of trial, and awarding them by adoption to his divorced wife (the natural mother) and her present husband, petitioners in this action. We reverse.

Consent of a natural parent is required for adoption of children under twenty-one years of age, § 453.030(3), RSMo 1969, except for special cases enumerated by statute, § 453.040. One such exception applicable here is found in § 453.040(4):

"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. . . ."

In their joint petition filed July 11, 1974, the natural mother and stepfather alleged the natural father willfully neglected to provide the minor children with proper care and maintenance for a period of at least one year immediately prior to the filing of the petition. No claim is made that he abandoned the children.

Adoption proceedings in Missouri are governed by statute, In the Matter of D. G. K. v. D. G. K., 545 S.W.2d 81, 82 (Mo.App.1976), and while it is often said that the welfare of the child is the paramount consideration in an adoption proceeding, questions regarding the fitness of the petitioners and the child's welfare are not reached if willful abandonment (here neglect) is not proved, In re E. C. N., 517 S.W.2d 709, 712 (Mo.App.1974), because consent or the proper waiver of consent under § 453.040 is jurisdictional, In re D., 408 S.W.2d 361, 365 (Mo.App.1966). "Willful neglect" as used in the statute has been construed to mean neglect that is " . . . intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes. . . ." In re E. C. N., supra at 712. The conduct of the parent constituting willful neglect or abandonment must have occurred during the year immediately preceding the filing of the adoption petition, In Matter of D. G. K. v. D. G. K., supra at 81-82, and as stated in In re Adoption of Rule, 435 S.W.2d 35, 40 (Mo.App.1968): ". . . the conduct of the parent must evidence an intent or mental attitude to forsake the status of a parent at least for the period of time declared in the statute. . . ." However, abandonment and neglect are matters of intent and "evidence of a parent's conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent. . . ." In re Adoption of K., 417 S.W.2d 702, 709 (Mo.App.1967).

In this case, the natural father (hereinafter R.) and the natural mother (hereinafter S.) married in 1964 and the following year, while living in Pittsburgh, Pennsylvania had their first child. The second child was born in 1966 and the third in 1968. The family lived in Pittsburgh until March, 1971, when the parents separated. During that time they had serious financial difficulties and R. went to Ohio for about six months but returned to Pittsburgh where S. had continued to live in the family home with the children. During the summer of 1971, R. sold two small businesses which he had operated during his marriage and realized about $3,500 from the proceeds of that sale. He testified this money was given to S., but she maintained she had received nothing and the trial court in its findings accepted her version of those facts. After the businesses were sold, R. did not work for about one year and on November 22, 1972, a divorce was granted in Pennsylvania but the decree failed to mention the children, their custody or support. Between the time of separation in March, 1971, and the divorce in November of 1972, R. visited the children whenever he was in town though "it was not set up on a regular basis." While in Pittsburgh, S. continued to live in and occupy the furnished home which the couple had purchased and during that difficult financial period she received welfare payments in the amount of $235 a month. The monthly mortgage payments on the Pittsburgh home were $151.00 and S. "occasionally made those payments." On the other hand, the father of R. made some of the payments but according to S., "quite a few months they were not paid."

In May of 1973, R. married B., a registered nurse, and with his new wife moved to New York where he entered a school described as "a culinary institute." He attended classes regularly at the "institute" through December, 1974. During the latter part of the summer of 1973, S. visited in Missouri and apparently it was then she met her future husband (hereinafter J.). While she was there, the children spent two weeks with their father and his new wife at their home in Red Hook, New York. It was admitted that the children "seemed to enjoy the visit" and there is no dispute that while in New York the children's father provided their support and that this two week visit occurred within the statutory year referred to in § 453.040(4). The children's mother also admitted that during the period of separation, R. constantly expressed an interest in the children and would from time to time provide them with gifts and clothing. Further, S. testified that she was sure appellant loved the children. The following testimony elicited from the natural mother is pertinent to these matters:

"Q. Is it your opinion then that (R) loves these children.

A. Yes, I'm sure he does.

Q. Cares very much for them.

A. I'm sure he does."

Thereafter, testimony relative to R's failure to support the children was developed.

"Q. Have you ever asked (R) for any support?

A. No, I haven't.

Q. You've never made any demand on him for the children.

A. I have told him we didn't have money, but I knew he didn't have any.

Q. How did you know he didn't have any?

A. He wasn't working.

Q. Did you know that during the last year and one-half he has been going to school?

A. Yes, he told me he was.

Q. In fact you acknowledged the fact in the August 14, 1973, letter.

A. Yes.

Q. In fact, going to school in New York at the time the children stayed with him; is that right?

A. Yes.

Q. Has your (present) husband (J) ever made a demand for support money for the children from (R)?

A. No, he hasn't.

Q. So, in fact until you moved to Missouri, the relationship simply was that (R) did not have much money and you were on welfare and you were both getting along the best you could and never any order or demand for support.

A. Yes.

Q. Mrs. (S) when you left Pittsburgh, did you, in fact, leave a large number of bills behind?

A. Yes, there were bills.

Q. Is it not true that (R) took care of these bills for you?

A. I have no idea.

Q. You just left the bills?

A. Yes."

In this connection R. testified, and it is not disputed that he did in fact take care of the bills which approximated $2,000 after she left Pennsylvania for Missouri in October, 1973, and that this occurred well within the one year statutory period. Appellant testified to these matters as follows:

"Q. (R), when (S) moved from Pittsburgh to Missouri, did she leave a substantial number of bills in the Pittsburgh area?

A. Yes.

Q. How were those bills disposed of?

A. Me.

Q. Do you have any idea

A. There are a few bills still in debate with major department stores.

Q. Do you have an estimate as to what the total amount of bills were?

A. That I paid off? I would say, approximately $2,000. I used most of my entire savings."

It is also undisputed that S. took an automobile from Pennsylvania to Missouri which previously had been subject to a mortgage indebtedness that had been paid by her former husband. She also admitted that R. and his present wife contributed two or three chairs to her house on Francis Street in Pittsburgh and which she took for her own use in Missouri.

In August of 1973, shortly after the children visited with their father in New York and just before she moved to Missouri with the children, S. wrote a cordial letter (Respondent's Exhibit No. 1) to her former husband and his new wife stating, "I am so glad to hear how well you're doing in school. You should be very proud of yourself. I know that things are rough, but everything is going to be fine . . .. Good things, or rather, beautiful things happened for me this summer and for my future." The latter statement is apparently a reference to the fact she had met her new husband that summer, whom she married in November one month after moving to Missouri. On that subject she noted in the letter, "The kids have a good outlook on you (sic) being married and they don't mind the idea that I may get married someday. Thank you for that. I don't want to live by myself forever and I wouldn't want to hurt them. But, now it seems that they understand and I feel so much better." (Emphasis supplied.) She acknowledged that the time their son had spent with his father in Red Hook, "was good for him." The letter closed with the statement that she was happy school was going well for R. and that he had been able to start a good life with his new wife,...

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