Adoption of W.B.L., In re

Decision Date18 December 1984
Docket NumberNo. 65912,65912
Citation681 S.W.2d 452
PartiesIn re ADOPTION OF W.B.L.
CourtMissouri Supreme Court

David G. Neal, Eminence, for petitioners-respondents.

Randy P. Schuller, Piedmont, for respondent-appellee.

DONNELLY, Judge.

This appeal is from the trial court's granting, upon remand by this Court in In re Adoption of W.B.L., 647 S.W.2d 531 (Mo. banc 1983), the adoption of a child on the grounds of abandonment and neglect by the natural mother under § 453.040(4), RSMo 1978. The court of appeals reversed for lack of sufficient evidence to support the judgment. Upon application, this Court granted transfer. We affirm the trial court's judgment.

On October 19, 1979, respondents, the father and stepmother of the child, filed their petition for adoption. Section 453.040(4), RSMo 1978, provides for adoption without the consent of a natural parent when the parent "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." 1 In its initial determination, the trial court found the natural mother had willfully abandoned and neglected the child from "August of 1978 until September of 1979," a period of greater than one year, and granted the adoption. Because the trial court's findings contained a gap "in the requisite statutory period between October 19, 1979, the date of filing the petition, and the end of September 1979," we remanded for the trial court to consider whether abandonment continued until October 19, 1979, as required by § 453.040(4). Without taking additional evidence, the trial court then filed an amended decree, finding that the abandonment and neglect had continued from August of 1978 until October 19, 1979, and again granted the adoption. The natural mother contests the sufficiency of the evidence supporting the determination of abandonment and neglect, and asserts that in late September or early October 1979, she attempted to exercise her visitation rights and that she repented any earlier abandonment. Accordingly, she seeks reversal of the adoption decree.

This Court must sustain the decision of the trial court unless there is no substantial evidence to support its judgment, the judgment is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). This standard of review on appeal is not inconsistent with the high "clear, cogent and convincing" standard of proof which Missouri law requires to be satisfied by the trial court as fact finder in termination cases. That same standard of proof applies both to termination cases initiated by the state, § 211.447.2(2), RSMo Cum.Supp.1984; see Santosky v. Kramer, 455 U.S. 745, 749, n. 3, 102 S.Ct. 1388, 1392 n. 3, 71 L.Ed.2d 599 (1982), and in conjunction with adoption under Chapter 453. In re T.C.M., 651 S.W.2d 525 (Mo.App.1983); In re Adoption of Richards, 624 S.W.2d 483 (Mo.App.1981); In re Adoption of Baby Boy Doe, 600 S.W.2d 658 (Mo.App.1980). The clear, cogent and convincing standard of proof is met when the evidence "instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true." In re O'Brien, 600 S.W.2d 695, 697 (Mo.App.1980). Accordingly, this standard of proof may be met although the court has contrary evidence before it. Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974). Likewise, evidence in the record which might have supported a different conclusion does not necessarily demonstrate that the trial court's determination is against the weight of the evidence. Stegemann v. Fauk, 571 S.W.2d 697, 700 (Mo.App.1978).

Prior to remand, we concluded that the "record amply supports the trial court's conclusion that there was a willful abandonment by the natural mother of the child for the one-year period between August, 1978, and September, 1979." The question remaining is the effect of the mother's actions after that time until the petition was filed on October 19, 1979.

A parent may repent of an abandonment. In re K.M.B., 544 S.W.2d 590 (Mo.App.1976). However, not every gesture by a natural parent will terminate such abandonment. D.A.Z. v. M.E.T., 575 S.W.2d 243 (Mo.App.1978); see generally Annot., 35 A.L.R.2d 662, § 6 (1954). Whether or not there has been an abandonment--or repentence of abandonment--requires an examination of the parent's intent, an inferred fact, determined by considering all the evidence of the parent's conduct, In re T.C.M., 651 S.W.2d 525 (Mo.App.1983), including that before and after the statutory period. In re Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo. banc 1978).

We maintain that adoption statutes are to be strictly construed in favor of the natural parents. In re Adoption of R.A.B., 562 S.W.2d at 360. However, in this case the factual issue of the natural mother's intent is determinative. On appeal of a court-tried case, the appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record. Mazurek v. Mazurek, 575 S.W.2d 227, 229 (Mo.App.1978); L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976). As the trier of fact, the trial court has leave to believe or disbelieve all, part or none of the testimony of any witness. In re Adoption of Shelly, 625 S.W.2d 183, 184 (Mo.App.1981); Willard v. Doyle, 612 S.W.2d 884, 888 (Mo.App.1981); Rule 73.01(c)(2). The trial court is in an especially advantageous position to determine the intent of a parent-witness in an adoption case.

In this case, the trial court found or reasonably could have found the following facts as a basis for its decision. Upon the dissolution of the marriage on June 22, 1977, primary custody of the child, then less than three years of age, was awarded to the father. The natural mother was granted reasonable visitation and custody during each month of July, the first and third weekends of other months and for one week at Christmas. She kept the child not more than 15 days in July 1977. From that time until July 1978, she assumed custody for the full period of Christmas 1977, but otherwise only sporadically exercised her privilege of weekend custody or visitation. She had custody of the child for only five days in July 1978. Thereafter she had custody of the child the last weekend in August 1978. She has not had custody of the child since that time. Although she asserted that she was unable to visit the child because of problems with transportation and finances, her own testimony showed that she owned an automobile, travelled frequently and extensively, and was frequently employed and making sufficient income to finance visitation. In addition to her failure to visit the child, the natural mother has not communicated with him by telephone or mail since August 1978.

During the statutory period, the natural mother made one attempt to contact the child for the purpose of exercising Christmas visitation in December of 1978. She called the father's mother and was told the child was not at his grandmother's and to contact the father. She did not do so. In the latter part of September or first part of October 1979, she next contacted the father concerning visitation with the child. At that time the father and stepmother had employed an attorney to file this case. Upon the lawyer's advice, the father refused to extend visitation to the appellant. He had done nothing to impede or refuse visitation until this time. After learning that this proceeding was to be commenced, the natural mother filed a motion for contempt for denial of visitation, but so far as demonstrated by the record did not pursue that motion. Even though this case was not decided until May 1981, the record does not show that she made any other effort to see or communicate with the child.

The natural mother offered various excuses for not seeing or communicating with the child after August 1978. These excuses included the absence of transportation, inclement weather, shortages of funds, lack of knowledge of the father's phone numbers, denial of visitation and the professed absence of knowledge that she was to have custody during the entire month of July. It is of critical significance that in virtually every instance these excuses...

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