In re E.N.C.

• Citation: 458 S.W.3d 387
• Decision Date: 09 December 2014
• Docket Number: No. ED 101311,ED 101311
• Court: Court of Appeal of Missouri (US)
• Parties: In the Matter of the Adoption of E.N.C., Minor.

458 S.W.3d 387

In the Matter of the Adoption of E.N.C., Minor.

No. ED 101311

Missouri Court of Appeals, Eastern District, Division Four.

FILED: December 9, 2014

Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 27, 2015

Application for Transfer Denied March 31, 2015

Michael D. Quinlan, St. Louis, Missouri, for Appellant.

Alan E. Freed, Susan E. Block, Lisa G. Moore, St. Louis, Missouri, for Respondent.

Opinion

ROY L. RICHTER, Judge

S.M.C.Q. (“Mother”) and her husband, M.P.Q. (“Adoptive Father”), appeal from the trial court's judgment allowing a biological paternal grandmother, C.L. (“Grandmother”), to intervene in the case of 10–year–old E.N.C.'s (“Child”) adoption and be granted legal visitation with Child on approximately 19 days during the year. Because the law does not allow for third-party intervention in an uncontested step-parent adoption case with no visitation or custody at issue, the judgment erroneously declares and applies the law. We reverse and remand with instructions to dismiss the GAL's cross-petition and Grandmother's motions for visitation.

I. Background

Child was born out of wedlock to 19–year–old Mother and 20–year–old C.D.W. (“Biological Father”) on July 31, 2003. The parties have not provided this Court with a copy of Child's birth certificate; therefore, the record does not reflect whether a father was listed on the birth certificate. Evidence was presented that Biological Father abandoned Mother during her pregnancy and Mother felt that he also had abandoned and neglected Child since the time Child was born. Mother had full custody of Child and Child spent every other weekend visiting Biological Father and members of his family, including Grandmother.

In August 2012, sealed paternity actions were filed in the City of St. Louis by Biological Father against Mother, addressing paternity and issues involving the establishment of custody between Biological Father and Mother. See Case No. 1222–FC02535. Nothing in this Court's record indicates that paternity testing was conducted to prove or disprove Biological Father is Child's biological father. Meanwhile Mother married Adoptive Father on September 28, 2012. Soon after, Biological Father voluntarily dismissed his case with prejudice in connection with his consent to terminate his parental rights and allow for Child's adoption.¹ Hearing testimony indicates that Biological Father was tired of putting Child through “an inquisition” every time she left him to go back home. Child was told that her Biological Father decided it would be better if Child had just one family.

Mother and Adoptive Father (collectively, “Petitioners”) filed a petition for Adoptive Father's adoption of Child pursuant to Chapter 453, “Adoption and Foster Care,” RSMo Supp.2012² , in St. Louis County on December 27, 2012. The consent to the adoption was signed by Biological Father, filed on January 8, 2013, and approved by the court.

On January 23, 2013, attorneys entered their appearance on behalf of paternal grandmother and “prospective Intervenor,” Grandmother, who is Biological Father's mother. It was approved by the court that day. A guardian ad litem (“GAL”) was then appointed by the court. On March 12, 2013, Mother and Adoptive Father filed an Amended Petition for Adoption, alleging that all of the parents required to give consent to the adoption by Chapter 453 had given such consent, and that Petitioners believe the adoption promotes the best interest of the child. On March 29, 2013, Grandmother filed her motion to intervene as a third party, motion for visitation and motion for further investigation regarding third party visitation, pursuant to Section 211.177.³ Grandmother alleged that since birth, Child had enjoyed a close and bonded relationship with Biological Father and his family, including a permitted and encouraged relationship with Grandmother, and that the settlement agreement consenting to termination of Biological Father's parental rights and the step-child adoption was not in Child's best interest. Because Mother and Adoptive Father have refused to allow Child any contact with Grandmother since the consent agreement, Grandmother asked for reasonable visitation with Child pursuant to Section 452.402.⁴ Petitioners filed a memorandum in opposition to Grandmother's motion to intervene, for visitation, and for further investigation. Petitioners' memorandum included arguments that the motion to intervene was untimely since the paternity action already was dismissed, there was no statutory right to intervene, no legally cognizable interest supports intervention “as of right,” and ordering grandparent visitation would constitute unreasonable interference with the parents' constitutional rights. Evidence was heard on April 11, 2013; afterward, the court entered its order permitting Grandmother's intervention and ordering mediation.⁵

On May 20, 2013, a cross-petition for declaration of paternity, custody and visitation was filed by the GAL, invoking Section 210.826(2).⁶ Three days later, Grandmother filed a Motion to Intervene as a third party and for third-party visitation and grandparent visitation in the GAL's cross-petition for declaration of paternity and custody. Objections were filed by Petitioners, as was a motion to strike the cross-petition. However, Petitioners then consented to Grandmother's intervention in the cross-petition on June 4, 2013, “without waiving Motion to Strike Cross Petition.” The cross-petition was not called up for a separate hearing. Petitioners also filed a motion to dismiss the cross-petition for declaration of paternity for failure to state a claim, arguing that neither cross-petitioner nor the intervenor has standing to seek a declaration of paternity in an uncontested step-parent adoption case wherein the biological father has voluntarily relinquished parental rights and consented to the adoption; therefore, the court lacks jurisdiction.

The final adoption hearing, along with a hearing on Grandmother's motion and the GAL's petition for determination of paternity, took place on September 27, 2013, and November 4, 2013. Child was 10 years old at the time the case was heard.

During the presentation of evidence, all parties agreed that Mother is a fit parent, and there was no dispute that Adoptive Father is a fit parent as well. It was clear that Biological Father was detached from Child; however, the parties stipulated that Child had a positive relationship with Grandmother and that together, they had “plenty of good times” and “did a lot of fun stuff.” The trial court made findings from the evidence that Grandmother spent substantial periods of time caring for Child and Grandmother had visitation with Child during the times when Child was visiting with Biological Father. Grandmother and Child engaged in a variety of activities together, including Halloween parties, trips to the Magic House, making crafts, buying presents, and frequently, Child spending the night. Grandmother presented compelling evidence of the significant bonding relationship between her and Child, including but not limited to a 2012 Christmas present from Child to Grandmother, which was a necklace with both of their birthstones and on which Child wrote “I ? you;” photographs of Grandmother, Child, and family members together spanning over eight years, during which time Child celebrated her First Communion, Grandmother recovered from cancer

, they shared time in Grandmother's home, attended movie previews, celebrated Christmas, took a Disney cruise, went to museums and amusement parks as well as Child's sporting events. The trial court noted that “photographs and other exhibits admitted into evidence reflect a happy and warm relationship between Grandmother and Child and demonstrate the Child having fun.” Further, Grandmother also welcomed Mother and Mother's other daughter (Child's half-sister) to join them, including welcoming them in holiday celebrations and taking Mother on two Disney vacations with Child. Petitioners stipulated that Grandmother and Mother had a cordial relationship with each other. Grandmother also made efforts to welcome Adoptive Father and encourage a warm relationship with him, too, when he and Mother began dating.

The trial court found from the evidence that the last time Grandmother saw Child was December 2, 2012. Prior to that time, Mother had never suggested to Grandmother that Grandmother stop seeing Child or even reduce the frequency of their visits. The evidence shows that Grandmother requested that Mother permit her to resume seeing Child under whatever terms and conditions Mother would deem appropriate. Grandmother testified at trial that she would not prefer supervised visits, but “[i]f it meant getting to see [Child], [s]he would do that.” Mother sent Grandmother an e-mail on January 11, 2013, directing Grandmother to “refrain from any contact with Child,” and remove all pictures of her from her Facebook page. Grandmother has been denied time with Child repeatedly since then. Mother testified that a relationship with Grandmother was not in Child's best interest because Child is “ready to move on with her life” and that Child would be upset if she spent time with her former younger half-brother, who was Biological Father's son and whom Child loved. The trial court found Mother's testimony lacked credibility with regard to her concerns over the relationship between Grandmother and Child, and that Child's testimony may have been influenced by Mother and Adoptive Father.

Adoptive Father testified that Grandmother was not someone he wanted any of “his” children around. He based this opinion on an experience where Grandmother bought a car from him, Grandmother's surprise presence at Child's school picnic, and Grandmother's unscheduled attendance at Child's basketball game when he and Mother were out of town.⁷ The trial court also found Adoptive Father's testimony lacked credibility and that none of his stated reasons bore upon...