E. C. N., In re

• Decision Date: 23 December 1974
• Docket Number: No. 35580,35580
• Parties: In the Matter of E. C. N. et al. H. J. N. and M. A. N., Petitioners-Respondents, v. E. M. N., Intervenor-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 709

517 S.W.2d 709

In the Matter of E. C. N. et al.

H. J. N. and M. A. N., Petitioners-Respondents, v. E. M. N., Intervenor-Appellant.

No. 35580.

Missouri Court of Appeals, St. Louis District, Division One.

Dec. 23, 1974.

Strubinger & Wilbers, L. H. Wilbers, Jefferson City, for intervenor-appellant.

Ralph F. Voss, Linn, for petitioners-respondents.

RENDLEN, Judge.

This is an appeal from decree of adoption by which the parental rights of the divorced natural mother were terminated in a proceeding brought by the natural father and his present wife, stepmother of the adoptive children. The trial court granted adoption of seven children whose ages at that time ranged from seven to sixteen years, and though the case was instituted by a single petition and tried as one case, the court entered separate decrees of adoption for each child. We deem these decrees combined for purpose of this appeal. From the action of the trial court E.M.N., natural mother, brings this appeal.

Except under special circumstances enumerated by statute, consent of the natural mother is required for adoption of children under twenty-one years of age, § 453.030(3), RSMo. 1969. ¹ E.M.N. (now married to H.W.) did not consent to the adoption but instead filed her motions in opposition to that proceeding. By her combined 'Motion to Intervene and Motion in Opposition of Petition for Adoption' and by her undisputed testimony on this fact, appellant refused her consent. According to her testimony she would not consent to the adoption because she loved the children.

With the mother not consenting, the issue presented is whether she has by her willfull conduct for a period of at least one year immediately prior to the filing of the petition, obviated the necessity of her consent for the adoption. We examine all the circumstances to measure her conduct and from such examination determine her intentions.

Under certain circumstances consent of a parent to adoption is not required as a condition to the court's right to decree adoption. One such circumstance or exception is found in § 453.040(4) for that 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 wilfully neglected to provide him with proper care and maintenance.'

The petition alleges appellant had for a period of one year 'willfully abandoned the said children' and had 'neglected to provide them with proper care and maintenance'. There was no allegation of willfull neglect.

Respondent, H. J. N., and appellant, E. M. N., were married July 28, 1956, and seven children were born of that marriage, whose given initials and dates of birth are as follows: E. C. N., June 11, 1957; M. J. N., May 23, 1958; D. G. N., February 6, 1960; M. W. N., March 7, 1961; J. M. N., September 10, 1962; C. K. N., December 3, 1963 and B. J. N., August 17, 1965. Following the separation of the parties in May of 1971, E. M. N. went to Alaska. During the last week of September or the first week of October she returned and visited the children. On these visits she was permitted to see the children only in the presence of the father. From the time of those visits in October of 1971 until the adoption proceeding, June of 1973, she was not given the opportunity to speak with the children alone.

On August 6, 1971, H. J. N. brought an action for divorce and E. M. N. filed answer October 7. On December 2 of that year, the divorce petition was presented by H. J. N. and the court found that defendant's answer was not timely filed, adjudged E. M. N. in default, proceeded on plaintiff's petition, decreed divorce and awarded custody of the minor children to H. J. N. The decree made no provision relative to visitation rights for E. M. N.

On April 22, 1972, H. J. N. married his present wife, M. A. N., and on December 9 of that year they filed joint petition for adoption of the seven children. Their petition contains the allegation that they were without 'knowledge as to the actual whereabouts' of E. M. N. and though no issuance or service of process appears in the record on appeal, E. M. N., within thirty days, filed her combined motions asserting her nonconsent and opposition to the adoption. It is curious that petitioners allege they had no knowledge of her whereabouts, when, as we will see from the record, she had been corresponding with the children for twenty months, had been in contact by phone with H. J. N., on occasion in contact with petitioners' attorney and apparently was served at an address provided by petitioners.

In this case it is our duty to review the record, as in actions of equitable nature, upon the law and the evidence, and reach our own conclusions, giving due deference to the trial court on questions of credibility. Unless the judgment is clearly erroneous and in conflict with the clear preponderance of the evidence, it should not be lightly disturbed. § 510.310; Civil Rule 73.01(d), V.A.M.R.; In re the Adoption of Rule, 435 S.W.2d 35 (Mo.App.1968).

Adoption proceedings are governed by statute, Chapter 453, and this chapter is considered a code unto itself. In re Smith, 314 S.W.2d 464 (Mo.App.1958). It is well settled that as a matter of simple justice the adoption statutes are to be strictly construed in favor of the natural parent. In re Slaughter, 290 S.W.2d 408 (Mo.App.1956). Also, adoption statutes, being in derogation of the common law, are to be strictly construed in respect to the forfeiture of parents' rights. In re G. K. D., 332 S.W.2d 62 (Mo.App.1960). The rights of the natural parent to the children are not to be unreasonably disregarded. As stated by this court in In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, 691 (1938):

'It is of course true that the statute is to be liberally construed with a view to promoting the best interests of the child, but such liberal construction is obviously not to be extended to the question of when the natural parents may be divested of their rights to the end that all legal relationship between them and their child shall cease and determine.'

Though the welfare of the child is of primary importance, the court has no authority to decree the adoption to petitioners in absence of the mother's written consent or a showing of a condition defined by the statute as a legal substitute therefore, in this instance willful abandonment or willfull neglect. Hartwig v. Hartwig, 333 S.W.2d 101 (Mo.App.1960). As stated by the court in In re Adoption of J. M. K., 363 S.W.2d 67, 74--75 (Mo.App.1962):

"Adoption is purely a creature of statute and even 'the best interests of the child' cannot give the court jurisdiction where it has none'. Mo. Law Review, Vol. 27, No. 3, p. 405.

'Questions in regard to the fitness of the petitioners and the welfare of the child are not reached if abandonment is not proved'. 2 Am.Jur.2d, Adoption, Section 60, p. 910.'

The petition alleges simply that the appellant 'neglected' to provide care and maintenance for the children. This falls short of the statutory requirement of 'wilfull neglect' contained in § 453.040(4). The statute has been modified to specifically include the adverb 'willfully' before the verbs 'abandoned' and 'neglected'. The prior statute was construed to mean essentially the same. See In re Perkins, supra, 117 S.W.2d at 692, in which this court stated:

'. . . 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.'

The evidence here was insufficient for a finding of willfull neglect and the court quite properly made no such finding.

We now examine the record concerning the finding of 'willful abandonment'. H. J. N. and E. M. N. separated on May 17, 1971, following a stormy period in which each informed the other that they were in love with someone else. E. M. N. had met G.W. and was working for him 'so that we could have a little extra on the side for the children'. She was informed by H. J. N. that 'he was in love with this other woman'. E. M. N. testified:

'So I said, 'Well, okay,' I said, 'I guess it's a turnabout fair.' I said, 'I've fallen in love with somebody else, too.' And I asked him for a divorce. And he said, 'No.' And I said, 'Well, I will leave, then.' And I said, 'But I do want to take the children with me.''

Prior to this time they had had a 'constant relationship' with another couple. They went out every Saturday night with the same couple. During those outings, and at the prompting of the two men involved, they changed partners. This resulted in the separation for it was more than E. M. N. could take. Though this less than exemplary behavior is not to be condoned, the undisputed testimony discloses that the misonduct was mutual.

As shown by petitioners' exhibit #8, on May 21, 1971, E. M. N. wrote to the children asserting her love for them and discussing birthday presents, cards, the automobile, the oldest daughter's graduation presents, the childrens' health and similar matters. E. M. N. also admitted she was in love with another man but hoped the children would someday understand and hoped they would love her. Following that letter, E. M. N. received four letters from the children which she answered by hers of August 2, petitioners' exhibit #9. She again explained she did not and had not for some time loved H. J. N., and in response to the apparent request of the children for her to return, she replied that 'I can't come back to a man I don't love and haven't for a long time'. She reminded the children that they were 'just a letter away' and if she could help with some of their problems 'just ask'. She repeated her love for them and asked that they write and tell her what they needed for school and that she would try to...