H.W.S. v. C.T.

Decision Date11 February 1992
Docket NumberNo. 58820,58820
Citation827 S.W.2d 237
PartiesH.W.S. and J.C.S., Plaintiffs/Respondents, v. C.T., Defendant/Appellant,
CourtMissouri Court of Appeals

Thea Anne Sherry, William P. Grant, Govt. Counsel, Margulis & Grant, Clayton, for defendant-appellant.

James W. Whitney, Jr., Clayton, for plaintiffs-respondents.

REINHARD, Presiding Judge.

Natural mother appeals from a decree of adoption in favor of natural father and his present wife, which had the effect of terminating her parental rights to her daughter. We affirm.

H.B.S. (daughter), the only child of father and mother's marriage, was born on April 20, 1980. The marriage of father and mother was dissolved March 1, 1984 in Jefferson County, Missouri. Father and mother each remarried. Mother lived in Florida with her new husband. Father lived in Florissant, Missouri with his new wife. The decree of dissolution awarded custody of daughter to mother.

Mother later entered a plea of nolo contendere in Florida to five counts of aggravated child abuse of daughter in exchange for a recommendation by the prosecuting authorities of a sentence of seventeen years imprisonment followed by five years probation. Some of the counts alleged sexual abuse of daughter. 1

In subsequent proceedings in the state of Florida, the court modified the custody provisions of the dissolution decree and awarded custody to father. Mother consented to this order prior to the summer of 1987. Daughter has been in the physical custody of father and his present wife since July 1987.

On March 28, 1989, father and his present wife filed an amended petition for adoption of daughter. After receiving notice of the petition, mother informed father's attorney and the court by letter that she did not consent to the adoption. The court appointed counsel to represent mother's interest.

Mother was incarcerated at the time of the adoption proceeding. 2 Her counsel petitioned for a writ of habeas corpus ad testificandum, which was denied, but counsel appeared at the adoption hearing and submitted evidence on mother's behalf.

At the hearing, father testified that since he had gained custody of daughter, he and present wife had provided for all of her physical and emotional needs. He testified that mother has never communicated with daughter since he gained custody and has not provided monetary support. He conceded no support had been ordered by a court. Mother's counsel submitted letters mother had written to opposing counsel and the court which stated she did not communicate with the child because she believed a court order prevented her from doing so.

Evidence was introduced establishing that mother and her new husband (stepfather) engaged in physical, psychological and sexual abuse of daughter. This evidence consisted of the in-court testimony of father and his present wife regarding statements made by the child; the deposition of the child; and the depositions of the child's maternal grandparents.

This evidence reveals that the abuse included mother beating daughter with the buckle of a belt; inserting her finger into daughter's vagina; and engaging in oral-genital contact with daughter. Mother was also present and did nothing during at least some of the sexual acts committed upon the daughter by stepfather. These acts including touching the child's vagina; engaging in oral-genital contact with her; inserting a stick in both her vagina and rectum; and inserting his toes in her vagina while he masturbated. The child testified that stepfather also forced her to have intercourse with him.

The child and the child's maternal grandmother testified that mother and stepfather regularly used illegal drugs in the child's presence and on at least one occasion had the child sample the drugs. In addition, the child stated that mother and stepfather made her watch pornographic movies and told her that all of these activities must be kept secret or they would kill her grandparents.

The trial court found mother had both willfully abandoned her daughter and willfully, substantially, and continuously neglected to provide her with necessary care and protection for a period of more than six months prior to the filing of the petition for adoption. (A finding of either would be sufficient to eliminate the need for mother's consent.) In addition, the court found that adoption by father and his present wife would be in the child's best interest. A decree of adoption was issued granting parental rights to father and his present wife and terminating mother's parental rights.

Adoption statutes are strictly construed in favor of the natural parents. In the Interest of A.R.M., 750 S.W.2d 86, 89 (Mo.App.1988). Each adoption must be judged on its own unique set of facts. Id. at 89. In a stepparent adoption, either willful abandonment or willful, substantial, and continuous neglect of the child by the non-petitioning natural parent obviates the need for that parent's consent to the adoption. Section 453.040(5), RSMo 1986; G.S.M. v. T.H.B., 786 S.W.2d 898, 900 (Mo.App.1990). When the child is more than one year of age, the abandonment or neglect must have occurred for at least six months prior to the filing of the adoption petition. Id.

Abandonment and neglect are different, but not mutually exclusive concepts. G.S.M., 786 S.W.2d at 900. Abandonment has been defined as first, a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of a parent or perform the duties of a parent; or second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.

S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo.App.1979). Abandonment must be established by clear, cogent and convincing evidence that instantly tilts the scales in the affirmative when weighed against opposing evidence. In the Interest of A.R.M., 750 S.W.2d 86, 89 (Mo.App.1988).

Neglect 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. G.S.M. v. T.H.B., 786 S.W.2d at 900; Adoption of Mike and Russ, 553 S.W.2d 706, 708 (Mo.App.1977). In stepparent adoptions, it may be shown, inter alia, by a failure to provide support, without just cause or excuse, whether ordered by judicial decree or not. G.S.M. at 900. The statute requires that the non-petitioning natural parent must have willfully, substantially and continuously neglected to provide the child with necessary care and protection for at least six months prior to the filing of the petition. Section 453.040(5), RSMo 1986.

The issue of abandonment or neglect turns on intent, which, more often that not, is an inferred fact, determined by conduct. G.S.M. at 900. This conduct may have occurred before, after, or during the six-month statutory period. Id.

The standard of appellate review announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) is applicable to adoption proceedings. S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo.App.1979). Accordingly, we must sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d at 32. We defer to the trial court's determination of credibility and to its resolution of conflicts in the evidence. We review the facts and the reasonable inferences therefrom in the light most favorable to the trial court's order. In the Interest of A.R.M., 750 S.W.2d at 87. We accept as true the evidence and permissible inferences favorable to the judgment and disregard all contrary evidence and inferences. Rule 73.01; G.S.M. v. T.H.B., 786 S.W.2d at 900.

On appeal, mother contends there was insufficient evidence for the trial court to find that she had willfully abandoned or neglected the child. She admits that she had no contact with the child for more than a year preceding the petition for adoption. However, she claims she was unable to communicate with the child because she believed a court order prevented her from doing so.

Mother's only evidence on this issue is a letter from her to the St. Louis County Circuit Court and a letter to her counsel wherein she says she is under court order to have no contact with her daughter and has complied. The adopting mother stated that she "understood that when mother was released on bail that she would be prohibited from seeing or contacting the minor child." Father said he remembered reading something about this in some of the documents.

There was no documentary evidence to support mother's contention and based upon the record before it, the court could well have determined that no such prohibition existed during her period of incarceration. The adopting mother's statement that she understood a prohibition existed related only to the period when the mother was out on bond, presumably before trial. Father's statement was presumably in reference to this same period as it was in reference to the adopting mother's statement. Under Rule 73.01, all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(a)(2).

Mother seems to suggest the finding of abandonment was based solely on her imprisonment. Although imprisonment of a parent does not per se constitute abandonment, "a majority of the decisions hold that under appropriate circumstances imprisonment may constitute abandonment." In the Interest of A.R.M., 750 S.W.2d at 89, quoting In re Adoption of K.L.G., 639 S.W.2d 619, 626 (Mo.App.1982). See also In the Interest of B.A.F., 783 S.W.2d 932, 934 (Mo.App.1989). 3 Imprisonment is certainly not a bar...

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