Adoption of W.B.L., In re, No. 65912

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDONNELLY; BLACKMAR; RENDLEN, C.J., dissents and concurs in separate opinion of BLACKMAR; BLACKMAR
Citation681 S.W.2d 452
PartiesIn re ADOPTION OF W.B.L.
Decision Date18 December 1984
Docket NumberNo. 65912

Page 452

681 S.W.2d 452
In re ADOPTION OF W.B.L.
No. 65912.
Supreme Court of Missouri,
En Banc.
Dec. 18, 1984.

Page 453

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.

Page 454

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.

Page 455

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...

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47 practice notes
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 2012
    ...on the burden of proof applicable at trial and the error claimed on appeal to challenge the judgment. See In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984). The reviewing court cannot review the judgment of a trial court properly under a given standard of review without consider......
  • L.W.F., In Interest of, No. 17496
    • United States
    • Court of Appeal of Missouri (US)
    • November 13, 1991
    ...for appellate review in this case is that enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Adoption of W.B.L., 681 S.W.2d 452 (Mo. banc 1984). However, the application of that standard must be correlated with established principles concerning how the evidence is to b......
  • Riverside-Quindaro Bend Levee v. Water Co., No. WD 61718.
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 2003
    ...trial intangibles which may not be completely revealed by the record." SD Invs., 90 S.W.3d at 85 (quoting In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984)). An appellate court defers, moreover, to the trial court when there is conflicting evidence, even if there is evidenc......
  • Browning by Browning v. White, No. 20795
    • United States
    • Court of Appeal of Missouri (US)
    • March 13, 1997
    ...880 S.W.2d 376, 379 (Mo.App. W.D.1994). It may believe all, part or none of the testimony of any witness. In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo.banc 1984). Corbett, therefore, has failed to demonstrate, under the applicable standard of review, why a judgment against him for conv......
  • Request a trial to view additional results
47 cases
  • Pearson v. Koster, Nos. SC 92317
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 2012
    ...on the burden of proof applicable at trial and the error claimed on appeal to challenge the judgment. See In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984). The reviewing court cannot review the judgment of a trial court properly under a given standard of review without consider......
  • L.W.F., In Interest of, No. 17496
    • United States
    • Court of Appeal of Missouri (US)
    • November 13, 1991
    ...for appellate review in this case is that enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In re Adoption of W.B.L., 681 S.W.2d 452 (Mo. banc 1984). However, the application of that standard must be correlated with established principles concerning how the evidence is to b......
  • Riverside-Quindaro Bend Levee v. Water Co., No. WD 61718.
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 2003
    ...trial intangibles which may not be completely revealed by the record." SD Invs., 90 S.W.3d at 85 (quoting In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984)). An appellate court defers, moreover, to the trial court when there is conflicting evidence, even if there is evidenc......
  • Browning by Browning v. White, No. 20795
    • United States
    • Court of Appeal of Missouri (US)
    • March 13, 1997
    ...880 S.W.2d 376, 379 (Mo.App. W.D.1994). It may believe all, part or none of the testimony of any witness. In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo.banc 1984). Corbett, therefore, has failed to demonstrate, under the applicable standard of review, why a judgment against him for conv......
  • Request a trial to view additional results

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