Drew, In re, WD
| Decision Date | 03 August 1982 |
| Docket Number | No. WD,WD |
| Citation | 637 S.W.2d 772 |
| Parties | In re Walter David DREW, Jr., Dennis Clay Drew, and Daniel James Drew, minors. Clarence O. DREW and Angela J. Drew, Petitioners-Respondents, v. Corwin O. LITTLER and Marjorie K. Littler, maternal grandparents, Intervenors-Appellants. 32678. |
| Court | Missouri Court of Appeals |
Richard N. Brown, Brookfield, for intervenors-appellants.
Robert G. Smith, Jeff S. Elson, Brookfield, for petitioners-respondents.
Before CLARK, P. J., and MANFORD and KENNEDY, JJ.
This action for custody and adoption of three children followed the simultaneous deaths of the children's natural parents in an accident. In a contest between the Drews, the paternal grandparents, and the Littlers, the maternal grandparents, the Drews were granted the adoption decree. The Littlers appeal. Affirmed.
Walter and Donna Drew were killed in an aircraft accident July 24, 1976. They left three minor children, then aged 10, 8 and 5. Following the deaths, the Probate Court of Chariton County appointed the public administrator, Ernest Drew (not related to petitioners), as guardian of the persons and estates of the minors and the children were placed temporarily in the Drew home at his direction.
The present case originated August 10, 1976 with a two-count petition in which the Drews sought custody and adoption of the children. The Littlers moved to intervene and they filed an answer denying that the best interests of the children would be served by the Drew adoption. No proceedings are recorded thereafter in the transcript until December 1978 when the Drews moved for a change of judge. By order of the Supreme Court, Judge John Moon of the First Judicial Circuit was assigned and he presided in the disposition of Count I, the proceeding for custody pending adoption.
The hearing on Count I was conducted August 2, 1979 and the case was taken under advisement. On October 1, 1979, before entry of judgment disposing of Count I of the Drew petition, the Littlers presented for filing in this case a cross-petition for custody and adoption. They also filed at the same time an independent action for custody and adoption which was assigned a different case number by the clerk. The transcript includes no record of leave having been granted for the filing of the cross-petition some two months after the evidence in the case was heard. The transcript also contains no record of disposition of the second adoption case although the briefs suggest that case remains pending. 1
On December 27, 1979, Judge Moon entered an order granting custody of the children to the Drews pending adoption but under the supervision of the Division of Family Services. At this point, the Littlers moved for a change of judge and by order of the Supreme Court, Judge Ralph Jaynes of the Fourteenth Judicial Circuit replaced Judge Moon and conducted proceedings on Count II, the adoption. Evidence was heard January 14, 1981, including transcribed testimony from the August 1979 hearing and on March 9, 1981, Judge Jaynes entered judgment decreeing adoption of the children by the Drews. From that judgment the Littlers appeal contending (1) errors in failure to comply with § 453.070, RSMo 1978 2 in respect to investigation of the petitioners and the children, (2) failure to consolidate the pending adoption cases, (3) improper exclusion of relevant evidence, and (4) entry of judgment contrary to the weight of the competent evidence.
The first point centers on the requirement of § 453.070 that adoptions be preceded by an investigation as to the suitability of the child for adoption by the petitioning parties and of the parties as parents for the child. The statute directs that the results of the investigation be set out in a written report submitted to the court. Appellants cite In re G------, 389 S.W.2d 63, 66 (Mo.App.1965) for the proposition that the investigation and report are mandatory. Although an investigation was made in this case and a written report was filed, appellants contend the decree here does not comply with the statute because the report of investigation was not admitted in evidence. Alternatively, appellants argue that the trial court's finding of suitability was flawed because it was based on the content of a report unqualified to be admitted in evidence. Discussion of the point requires some review of the evidence and the report in question.
This adoption case was referred to the Division of Family Services early in the proceedings for the customary investigation. One of the witnesses who testified at both hearings in August 1979 and January 1981 was the director of the division for Chariton County. She stated that a series of home studies had been made and a report had been filed with the court. At the first hearing, respondents offered the report in evidence, but appellants objected on the ground portions of the report were based on hearsay. The objection was sustained. The investigator did testify, however, at both hearings as to interviews with and observations of the parties and the children and made her recommendation for adoption. The home study report is included in the record here.
Appellants apparently contend § 453.070 contemplates that the investigation report submitted to the court must be in form and content qualified for admission into evidence and, if not, no decree for adoption may issue. No citation of authority for this proposition is offered.
In the case of In re Mayernik, 292 S.W.2d 562 (Mo.1956), the appellant attacked the decree of adoption on the ground that no written report as required by the statute had been made. The court found extensive references in the transcript to interviews and inquiries by the appropriate agency signifying that the requirement for investigation had been conscientiously fulfilled. In addition, a copy of a report of investigation was contained in the transcript. Although the report had not been admitted in evidence, the judgment and decree of adoption was affirmed.
The nature of a report of investigation made by an agency, organization or institution as § 453.070 specifies, virtually insures that the content will include comments, opinions and quotations disqualifying the report for admission in evidence as such. While the report must be filed in compliance with the statute, disposition of the case depends on the evidence and if the evidence supports the judgment, it is entitled to affirmance. In re Smith, 339 S.W.2d 490 (Mo.App.1960); In re Neusche, 398 S.W.2d 453 (Mo.App.1965).
There is no question here that a full investigation was made by the Division of Family Services and that essential facts derived from that investigation were relayed to the court by the testimony of the county director. Moreover, the court had evidence from the school teacher who taught all three children within the preceding two or three years, the pastor of the church attended by the children and the Drews, the superintendent of the Keytesville schools and the guardian ad litem, all of whom spoke favorably as to the proposed adoption and the suitability of parents and children in the relationship.
Even were the report in this case to have been admitted in evidence despite the content of hearsay or, alternatively, were it to be argued that the decision of the court was influenced by the report filed but not received in evidence, the judgment must be sustained. The result is supported by substantial, competent evidence apart from the report, and any procedural defect as to rejection or receipt of the report in evidence is not of a dimension to warrant reversal of that result. N. K. M. v. L. E. M., 606 S.W.2d 179, 187 (Mo.App.1980).
In a collateral argument associated with the investigation and report which § 453.070 requires, appellants contend the statute was not observed because no investigation of their suitability as adoptive parents was made. They seem to argue that their cause suffered from the absence of a report which presumably would have been favorable and would have counterbalanced a report recommending adoption by the Drews. Appellants overlook the procedural record in the case which made the investigatory requirement of § 453.070 inapplicable to them.
The statute conditions an order for transfer of custody of a child and entry of a decree for adoption upon the filing of a written report with the court detailing the results of an investigation made by an agency having as its purpose the care and placement of children in family homes. Because no decree of adoption may be entered until the child has been in the actual and lawful custody of the petitioning parties for at least nine months, the adoption process involves a two-step proceeding; first, the placement of temporary custody and, second, the order for adoption. The investigation and report precedes each step.
In the present case, no investigation of the Littler home was either required or appropriate as an element of the case where evidence was taken for temporary custody placement because the Littlers had no petition for custody or adoption then pending. They merely appeared at the hearing as intervenors objecting to adoption of the children by the Drews. It was only later that they filed their own petition for adoption.
When the opposing petitions for adoption came on to be heard in January 1981, custody of the children had been with the Drews since 1976. The Drews therefore met the requirement of the statute that a decree of adoption be preceded by not less than nine months actual custody. An investigation and report as prescribed by § 453.070 was therefore necessary before a decree of adoption could be granted the Drews. The Littlers, however, could not then prevail on a petition for adoption because they lacked the required term of custody. The consequence was that the court had the choice of granting adoption to the Drews or, preliminary to a disposition favorable to the...
To continue reading
Request your trial
-
Kelly v. 1250 Oceanside Partners
... ... See In re Drew ... ...
-
Adoption of K. L. G., In re, s. 12270
... ... 134, 561 P.2d 1122 (1977) ... 2 Rule 52.12. For an excellent discussion of the efforts of grandparents to intervene first merely opposing adoption by the other grandparent and then by cross-petition seeking adoption by the intervenors see In re Drew, 637 S.W.2d 772 (Mo.App.1982) ... 3 Rule 66.01(b) dealing with consolidation of actions involving a common question of law or fact in part provides "it may order all the civil actions consolidated." Whether or not an order of consolidation under a similar federal rule converts the actions into ... ...
-
G.S.M. v. T.H.B.
... ... In their second point, petitioners allege that the trial court erred in finding the adoption would not be in the best interests of the child. We agree. 4 ... The primary and paramount consideration in an adoption proceeding is the welfare of the child. In re Drew, 637 S.W.2d 772, 778 (Mo.App.1982). A finding concerning the best interests of a child, perhaps, should be accorded greater deference than other findings. Matter of Williams, 672 S.W.2d 394, 395 (Mo.App.1984). However, the trial court's decision is still subject to appellate review. Id. at 396 ... ...
-
Sher v. Chand, 65221
... ... However, courts in general do not take judicial notice of records in one proceeding in deciding another and different proceeding, as a party is entitled to have the merits of his ... case reviewed upon evidence properly introduced. In re Drew, 637 S.W.2d 772, 777-78 (Mo.App.1982). In the present case, justice does not require judicial notice of the other cases, and we cannot ascertain if the trial court took judicial notice of them, nor is it clear if they were part of the record. Therefore, the records of those cases are not before ... ...