G.S.M. v. T.H.B.

• Decision Date: 20 March 1990
• Docket Number: No. 55671,55671
• Parties: G.S.M. & L.M.M., Petitioners-Appellants, v. T.H.B., Respondent.
• Court: Missouri Court of Appeals

Page 898

786 S.W.2d 898

G.S.M. & L.M.M., Petitioners-Appellants, v. T.H.B., Respondent.

No. 55671.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 20, 1990.

Richard Wolff, St. Louis, for petitioners-appellants.

Leah B. Haub, O'Fallon, for respondent.

SATZ, Presiding Judge.

This is a stepparent adoption. The natural mother, stepfather and guardian ad litem appeal the trial court's denial of the petition for adoption. We reverse and remand with directions.

Petitioners are the natural mother and the stepfather of R.M.B., a girl, born August 27, 1982. The natural father is the respondent. On September 1, 1983, the natural parents were divorced and the mother was awarded custody of the child. The father was granted reasonable visitation rights and required to pay $30.00 per week as child support.

Petitioners were married on August 8, 1984. The child has lived with petitioners continuously since the date of their marriage.

On March 8, 1987, petitioners filed their petition for adoption, alleging that the natural father had willfully abandoned and willfully neglected the child for a period of at least six months immediately prior to the filing of the petition. In his answer, the natural father denied these allegations.

In a stepparent adoption, either willful abandonment or willful neglect of the child by the non-petitioning natural parent obviates the need for that parent's consent to the adoption. § 453.040(5) RSMo 1986; e.g., In re Adoption of H, 712 S.W.2d 726, 727 (Mo.App.1986). The critical period is the six month period immediately prior to the date the petition for adoption is filed. § 453.040(5) RSMo 1986. ¹

Abandonment and neglect are different, but not mutually exclusive, concepts. See, In re Adoption of Baby Boy W., 701 S.W.2d 534, 543 (Mo.App.1985). Abandonment has been defined as the "voluntary and intentional relinquishment of custody of the child with the intent to never again claim the rights or duties of a parent," Id. at 543, or, as the intentional withholding by the parent of his or her care, love, protection and presence, without just cause or excuse. In re E.C.N., 517 S.W.2d 709, 715 (Mo.App.1974); In re Watson's Adoption, 195 S.W.2d 331, 336 (Mo.App.1946).

Neglect, on the other hand, normally focuses on physical deprivation or harm. It is primarily a failure to perform the duty imposed upon the parent by law and by conscience. Adoption of Mike and Russ, 553 S.W.2d 706, 708 (Mo.App.1977). In stepparent adoptions, it quite often is shown by a failure to provide support, without just cause or excuse, whether ordered by judicial decree or not. See, e.g. Baby Boy W, 701 S.W.2d at 544, and cases cited therein.

The issue of abandonment or neglect turns on intent, which, more often than not, is an inferred fact, determined by conduct within the statutory period, Matter of T.C.M., 651 S.W.2d 525, 529 (Mo.App.1983), along with relevant conduct both before and after this period. Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 358 (Mo. banc 1978). The proof of this intent must be shown by clear, cogent and convincing evidence. T.C.M., 651 S.W.2d at 530-31. To determine whether the proof was shown in a court-tried case, we defer to the trial court's determination of credibility, Rule 73.01, and we accept as true the evidence and permissible inferences favorable to the judgment and disregard all contrary evidence and inferences. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986). Moreover, we affirm the judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In establishing this standard of review in Murphy v. Carron, the Court expressly rejected both a review "de novo" and a review based upon a "clearly erroneous" standard. Id. In doing so, the Court admonished "[a]ppellate courts" to "exercise the power to set aside a decree or judgment on the ground it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Id. The precise differences between appellate review by "weighing the evidence" and appellate review "de novo", however, are not easily determined, and it would be idle to try to define those differences here.

Suffice it to say, we follow the stated guidelines as we understand them. To do so requires us to presume the trial court chose to believe the respondent natural father and to disbelieve both of the petitioners. We have done so. Nevertheless, we find the trial court's judgment to be against the weight of the evidence, and we have the firm belief that judgment is wrong.

Our findings and belief turn on the evidentiary burdens of the parties. In a stepparent adoption, like the present one, the petitioners have the burden of proving the existence vel non of a condition obviating parental consent by clear, cogent and convincing evidence. Tomlinson v. O'Briant, 634 S.W.2d 546, 551 (Mo.App.1982). However, no Missouri case we have found discusses what the petitioners must do to meet their burden. A sensible allocation, we believe, permits the petitioners to establish a prima facie case of willful neglect by showing, with clear and convincing evidence, that the natural father had a duty to pay child support and failed to do so. Once a prima facie case is made, the burden of going forward with the evidence shifts to the natural father who must show why his failure to pay support was not willful. If he does so, the petitioners must still prove by clear and convincing evidence that the natural father's explanatory evidence was pretextual or not reasonable and, thus, his failure to pay support was willful.

This allocation of the evidentiary burdens in stepparent adoption is not unusual. See, Annotation, Natural Parent's Indigence as Precluding a Finding That Failure to Support Child Waived Requirement of Consent to Adoption, 71 ALR 4th 305, 321 (1989). Moreover, it is a sensible allocation of the evidentiary burden for several reasons. First, the reason a natural parent fails to make a support payment is information that is peculiarly available to the natural parent. See In re Marriage of Vanet, 544 S.W.2d 236, 245-46 (Mo.App.1976). In such a circumstance, requiring petitioners to prove the absence of justification places an unfair burden on them. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). In addition, requiring the petitioners to prove the natural parent was without justification would be akin to requiring them to prove a negative. In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140, 143 (1986). Finally, we note the trial court in the original divorce action concluded the natural parent was able to make the payments ordered in the divorce decree. Vanet, 544 S.W.2d at 246. Given this fact, we believe the burden should be on the natural parent to at least go forward with evidence showing the failure was not willful. Compare Vanet, at 245-46.

In the present case, there is no question that the natural father never paid any child support. Therefore, it became his duty to go forward with evidence showing why his failure was not willful. To do so, he must, at least, show his failure to provide support payments was beyond his control. This focuses on several factors which include both his ability and willingness to earn an income, his willingness to support his child, and his use of his funds to provide himself only with the bare necessities of life prior to providing support for his child. See e.g. Forhan v. Forhan, 693 S.W.2d 164, 166 (Mo.App.1985). In the present case, the natural father did not do so.

Even viewed in its most favorable light, the natural father's testimony is still rambling, imprecise and, at times, inconsistent. Apparently, he remained in the metropolitan St. Louis area from the time of the dissolution in September 1983 until December 1983. From then until the fall of 1984, he lived in Minneapolis, Minnesota. In January 1985, he returned to St. Louis, then moved to Waynesville, Missouri and remained in that area until the time of the hearing on the adoption.

During his direct examination, the natural father admitted he had never made any child support payments. Without reference to any specific period of time, he explained this failure by saying he had been unemployed for "most of the time", he was "on public assistance from time to time", and he had suffered a back injury on one job which made it virtually impossible for him to earn a living. In an answer to an interrogatory read into evidence, he said he did not file a federal or state income tax return for the years 1983, 1984, 1985 and 1986.

His work record and income during this period was fleshed out during cross-examination. After the dissolution, the first place he worked was in Minneapolis, at Dolbert Electronics, from December 1983 to the fall of 1984. He earned "4 something an hour" or "about $150.00 to $160.00 per week." However, he said he used most of this income to pay "his car debts", for "sleeping and eating", and "trying to get on his feet."

After fall, 1984, he left Minneapolis, came to the metropolitan St. Louis area and then went to Waynesville. In the spring of 1985, he worked as a bus driver in Waynesville for a "short period of time." At trial, he was not asked and, thus, did not say what his salary was for this job. ²

Although it is not clear, he may have been employed as a telephone lineman for the City of St. Robert in June, 1985. ³ Apparently, he was injured on that job or another job in November, 1986, and he received $133.00 per week in worker's compensation from January, 1986 until April, 1986. He said he did not send any support money during this period of time because:

I used it mostly trying to make head way from one agency to another explaining to them why they shouldn't cut off my electricity...