C.W., In re, 53775

• Decision Date: 14 June 1988
• Docket Number: No. 53775,53775
• Citation: 753 S.W.2d 933
• Parties: In re Matter of C.W., a minor. S.G.W. and A.M.W., Petitioners-Respondents, v. R.B. f/k/a R.W., Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 933

753 S.W.2d 933

In re Matter of C.W., a minor.

S.G.W. and A.M.W., Petitioners-Respondents, v. R.B. f/k/a R.W., Respondent-Appellant.

No. 53775.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 14, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

July 27, 1988.

Eric Otto Stuhler, Michael T. Londoff, Leslie Ann Broome, St. Charles, for petitioners-respondents.

Craig A. Sullivan, Clayton, for respondent-appellant.

SIMON, Presiding Judge.

Appellant, R.B. f/k/a R.W., natural mother of C.W., appeals from a Decree of Adoption entered in the Circuit Court of St. Charles County terminating all rights and duties between her and her minor child, C.W. Petitioners, S.G.W., the natural father of C.W. and former husband of R.B., and his present wife, A.M.W., initiated the adoption proceedings, alleging that the natural mother, R.B., had willfully abandoned C.W. and willfully neglected to provide C.W. with proper care and maintenance for a period of at least six months immediately prior to the filing of the petition. S.G.W. consented to their adoption.

On appeal, appellant contends that the trial court: (1) lacked subject matter jurisdiction to grant the adoption because she did not consent to the adoption and the trial court failed to find any of the exceptions set forth in § 453.040 RSMo (1986) (all further references to RSMo (1986) unless otherwise noted); and, (2) erred in issuing the decree of adoption because the evidence was insufficient to establish the statutory exception contained in § 453.040(5) as to the requirement of parental consent because: (a) petitioners failed to prove by clear, cogent and convincing evidence that appellant willfully abandoned C.W. because there was no evidence of an intent to abandon, since the separation was involuntary and with just cause and excuse and the appellant repented the separation during the statutory period; and, (b) petitioners failed to prove by clear, cogent and convincing evidence that appellant willfully, substantially and continuously neglected to provide her child with necessary care and protection because the evidence established that C.W. was not in need of care and protection and failed to establish that appellant had access to C.W. We affirm.

Reviewing the sufficiency of the evidence, we view the evidence and its reasonable inferences in the light most favorable to the trial court's findings. In re B.G.S., 636 S.W.2d 146, 148[2, 3] (Mo.App.1982). The pertinent facts follow. Appellant, R.B., the natural mother, and petitioner, S.G.W., the natural father, were married in 1977. R.B. and S.G.W. resided in Pennsylvania during their marriage. C.W., their only child, was born on August 19, 1979. R.B. had a daughter, R.L., now nineteen years old, born out-of-wedlock.

In February, 1980, R.B. took C.W., then nine and one-half months old, and R.L. to Greenville, Ohio to visit her ailing mother. After three months, R.B. informed S.G.W. that she was not returning to Pennsylvania.

A neighbor of R.B.'s in Ohio during this three month period testified that the children were left alone overnight on at least three occasions. She also testified to calling Children's Services, who came and took the children away overnight, after observing no sustenance for C.W., dirty diapers, and sour bottles in R.B.'s camper.

On June 6, 1980, R.B. allowed S.G.W. to take C.W. back to Pennsylvania for a short visit. Upon returning to Pennsylvania, C.W. was hospitalized for pneumonia. R.B. did contact S.G.W., but did not inquire about C.W. Subsequently, on June 15, 1980, S.G.W. filed his petition for dissolution and custody of C.W. in the Court of Common Pleas of Allegheny County, Pennsylvania.

R.B. testified that she called often during this period, but that S.G.W. hung up on her. She also testified that during the summer of 1980, she was hospitalized in June, had surgery in July, and was on public assistance.

On July 8, 1980, the Pennsylvania court held a hearing and granted primary custody of C.W. to S.G.W. R.B. was not present. The Pennsylvania court issued its decree of dissolution on September 8, 1980, granting legal custody of C.W. to S.G.W. The decree was silent as to any custody and/or visitation rights of R.B., but provided that she could petition for review of the decree at any time. R.B. did not seek review of the decree.

During the second week of September, 1980, S.G.W.'s mother took C.W. to their home in St. Charles, Missouri. S.G.W. continued to live at the marital home in Pennsylvania, going to school and working full-time until August of 1981. Testimony was elicited that S.G.W.'s home, work, and school telephone numbers were all available to R.B. during this period.

In August, 1981, S.G.W. changed employers and moved to St. Charles, Missouri to be with C.W. He testified that his prior employer in Pennsylvania was made aware of the location of his move. S.G.W., along with C.W., continued to live at his parents' residence for a year, during which time R.B. did not send any cards, gifts, or make any telephone calls. He did not maintain a separate telephone listing, but R.B. was aware of his address and telephone number since his parents had lived in the same house for twenty years, including during R.B.'s and S.G.W.'s marriage.

In August, 1982, S.G.W. moved to a residence in St. Charles, Missouri. He maintained a listed telephone number for the period that he lived there. He married his present wife, A.M.W., in June, 1984, and thereafter moved to his present home nearby, keeping the same telephone number.

S.G.W. testified that except for a telephone call in 1982, and one in 1984, R.B. did not contact either him or his parents, nor at any time did she send a card or gift to C.W.

R.B. testified that she was unable to send cards or gifts, or to contact C.W. in any way, because she was unaware of C.W.'s whereabouts. R.B. claimed that she made approximately twenty telephone calls from June, 1980, to June, 1986, to both S.G.W. and his parents in St. Charles. She did admit that ten of the calls occurred in the first six months after S.G.W. had custody of the child. She also claimed that several calls were made to S.G.W.'s former employer and neighbors attempting to locate him without success. The remaining calls were made to his mother in St. Charles. R.B. testified that in June, 1986, she resorted to a ruse to discover C.W.'s whereabouts. R.B.'s present husband, L.B., called S.G.W.'s mother claiming to be a former friend and fellow employee of S.G.W. He asked for S.G.W.'s address so that he could contact him. After receiving the information, R.B. placed two telephone calls to S.G.W.'s mother and one to S.G.W. attempting to reestablish contact with C.W. His mother testified that those calls were made in July, 1986, after the filing of the petition of adoption.

R.B. also testified that, due to a lack of money, she never contacted the Prosecuting Attorney's office, the District Attorney's office, Coalition for Missing Children, or the police department about locating C.W. She further testified that she made no effort to have the custody order reviewed, even though she was aware that she could do so. She admitted that after marrying L.B. in June, 1984, she had money available to contact an attorney about C.W. R.B. has continued to reside in Greenville, Ohio since the divorce and her remarriage.

On July 15, 1986, S.G.W. and A.M.W. filed a petition for adoption of C.W. S.G.W. consented, but R.B. did not consent to the adoption. In its findings of fact the trial court began as follows: "Petitioner [S.G.W.] testified" and then tracked S.G.W.'s testimony and included:

that respondent [R.B.] had willfully abandoned the minor child [C.W.] and willfully neglected to provided [sic] for the minor child with proper care and maintenance for a period of at least six (6) months immediately prior to the filing of said Petition for Adoption, and more particularly, had provided no support, nor did [R.B.] see or communicate with said minor since the date of dissolution of marriage, the same being September 8, 1980;

Also, tracking testimony of another witness and certain testimony of R.B. and S.G.W., the court concluded that the adoption of C.W. should be granted to S.G.W. and A.M.W. and that all rights and duties of R.B. should cease and desist in relation to C.W.

Initially, R.B. argues that the trial court lacked subject matter jurisdiction to grant the adoption because the court failed to find any of the exceptions to parental consent set out in § 453.040.

Her claim is based on the trial court's Conclusion of Law in the Adoption Decree, which states:

... The Court having considered all of the factors contained in Chapter 453 of the Revised Statutes of the State of Missouri, determines that it is in the best interest and welfare of the minor child ... be adopted to Petitioner [S.G.W.] and Co-Petitioner [A.M.W.] and that all legal relationships, and all rights and duties between said minor child and the natural parent, the Respondent [R.B.], shall cease and desist; ....

R.B. contends that an order terminating parental rights must recite the jurisdictional facts and must set out a specific factual finding of an exception to parental consent, before a finding can be made based on a determination of the best interests of the child.

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 pursuant to § 453.030, the written consent of both parents is required to proceed with the adoption of a minor. However, pursuant to § 453.040, consent is not required if one of five exceptions applies. The exception relevant to the present proceeding is § 453.040(5):

The consent of the adoption of a child is not required of ... (5) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age,...