In re P.G.M.

• Decision Date: 12 October 2004
• Docket Number: No. 26083.,26083.
• Citation: 149 S.W.3d 507
• Parties: In the Interest of P.G.M., f/k/a Baby Girl S. S.L., Appellant, v. Jasper County Juvenile Office, D.C.M. and T.A.M., Respondents.
• Court: Missouri Court of Appeals

149 S.W.3d 507

In the Interest of P.G.M., f/k/a Baby Girl S.

S.L., Appellant, v. Jasper County Juvenile Office, D.C.M. and T.A.M., Respondents.

No. 26083.

Missouri Court of Appeals, Southern District, Division Two.

October 12, 2004.

Motion for Rehearing or Transfer to Supreme Court Denied November 3, 2004.

Application for Transfer Denied December 21, 2004.

Gary Brotherton, Columbia, for Appellant.

Joseph L. Hensley, Hensley Law Firm, L.L.C., Joplin, for Respondents D.C.M. and T.A.M.

JOHN E. PARRISH, Presiding Judge.

S.L. appeals an adoption judgment that terminated his parental rights to P.G.M.¹ This court affirms.

P.G.M., a girl, was born as a result of a relationship the birth mother (A.S.) had with S.L.² A.S. learned she was pregnant with P.G.M. in May 2002 during that relationship. The relationship A.S. had with S.L. continued until August 2002, when S.L. was convicted and imprisoned for what A.S. described as "credit card fraud."³ A.S. and S.L. corresponded for "three months after he was locked up."

During S.L.'s relationship with A.S., both used drugs. A.S. explained the life style they employed, "We were living in hotel, from hotel to hotel. I had figured I was pregnant and got a pregnancy test and I had been using heavy Oxycotin [sic] with him and was getting violently ill from it and had a bad feeling that something was wrong and I must be pregnant. So I took the test and it was positive." She was asked the following questions and gave the following answers:

Q. Did you have a permanent home at the time?

A. Did I have a permanent home?

Q. Uh-huh, at that time?

A. No. He was running the credit card thing, scammin' [sic] the credit cards, and we were going from hotel room to hotel room. We didn't have a permanent place at that time.

Q. Okay. You say he was running a credit card scam. Can you tell the Court what you mean by that?

A. He's incarcerated for that reason right now, credit card fraud. He was obtaining credit card information, Social Security numbers, date of birth from people, using their credit card information over the phone to order rooms, anything we needed by phone, and was able to give us a place to stay at night.

After S.L. went to prison, A.S. was left without support. She stated she was pregnant, sick, and had "walking pneumonia." She told the trial court she "had no utilities"; that she "was freezing to death, it was wintertime."

A.S. testified that immediately after S.L. was incarcerated, she was in a treatment program at a place she identified as Lafayette House; that her decision to place the baby for adoption was made then. She told the trial court that S.L. knew of her plan since September 2002. She said S.L. knew how to contact her; that she had family in the area where she was located and he was aware of them. He also knew she was in Lafayette House and knew how to contact them.

D.C.M. and T.A.M. (petitioners) met A.S. in November 2002. A.S. chose them to be the adoptive parents for her baby. After an initial meeting, petitioners' contacts with A.S. were at doctors' offices for prenatal care and by telephone. A.S. told petitioners that she did not believe she could take care of the child; that "she was an addict and she did not want to put the child through that." A.S. told them that the baby's father was also an addict; that he was incarcerated and would not be able to provide for the child.

Petitioners attended doctors' appointments with A.S. A study of petitioners' home had been prepared before the birth. They were with her during delivery of the child February 4, 2003. Petitioners participated in activities for new parents provided by the hospital. They stayed at the hospital with the baby. Petitioners filed their petition seeking custody and adoption of P.G.M. February 6, 2003. An order was entered permitting them to remove P.G.M from the hospital.⁴

S.L. was served with summons in the adoption case on February 14, 2003. He filed a pro se document denominated "Respondent's Response Pleading" on February 24, 2003. It included statements that he did not consent to transfer of custody or adoption and that he was indigent and requested appointed counsel. On March 10, 2003, counsel was appointed to represent S.L.

The parties appeared before the trial court December 4, 2003. An amended petition was filed that alleged, with respect to S.L., that his consent to adoption was not required for the reason that he abandoned the child without provision for parental support and without making arrangements to visit or communicate with her although able to do so. As with the original petition, petitioners sought termination of parental rights and adoption. The trial court heard evidence and, at the conclusion of the evidence, took the case under advisement.

The trial court entered judgment December 24, 2003. On January 2, 2004, the trial court filed an Amended Decree of Adoption. The trial court found that S.L. abandoned the child for a period of six months prior to the filing of the amended petition; that S.L. left the child without any provision for parental support and without making arrangements, either prior to or after his incarceration, to visit the child although able to do so. The trial court further found that S.L. made only token efforts at support for the child, made no efforts to communicate with her, and, viewing his conduct as a whole, willfully intended to abandon the child. The petition for adoption was granted.

In an adoption case, as in other court-tried cases, appellate review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Therefore, 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 the evidence, or unless it erroneously declares or applies the law. H.W.S. v. C.T., 827 S.W.2d 237, 240 (Mo.App.1992). Deference is given to the trial court's determinations of witness credibility. In re K.K.J., 984 S.W.2d 548, 552 (Mo.App.1999). In determining if substantial evidence exists to support the judgment, we defer to the trial court on factual issues and do not substitute our judgment for that of the trial court. Id."Greater deference is granted to a trial court's determination in custody and adoption proceedings than in other cases." Id."We review the facts and all reasonable inferences therefrom in the light most favorable to the trial court's judgment." In re C.J.G., 75 S.W.3d 794, 797 (Mo.App.2002).

In re K.N.H., 118 S.W.3d 317, 319 (Mo.App.2003).

S.L. asserts in Point I that the trial court erred in terminating his parental rights because it was not proven "that [S.L.] abandoned his infant daughter." Point I contends the record on appeal "does not contain `clear, cogent and convincing evidence' that, for a period of at least six months and without good cause [S.L.] abandoned [the child] by intentionally leaving her without parental support and without arranging to visit or communicate though able to do so."

Rule 84.04 states requirements for an appellant's brief. One requirement is that points relied on be stated as specified in Rule 84.04(d). The requirements for points on appeal directed to decisions of a trial court are set out in subparagraph (d)(1). It requires the point to (1) identify the trial court ruling being challenged; (2) state concise legal reasons for the claim of error; and (3) explain in summary fashion, in the context of the case, the legal reasons that support the claims of error. Point I complies with requirements (1) and (2); however, it fails to provide the information required by (3), viz., in what manner, in the context of the case, the evidence elicited at trial was deficient.⁵

An insufficient point on appeal preserves nothing for appellate review. Tidball v. A.G. Service Center, L.C., 75 S.W.3d 850, 853 (Mo.App.2002). However, "[w]hether to dismiss an appeal for deficiencies in an appellant's brief is discretionary." Keeney v. Missouri Highway and Transp. Com'n., 70 S.W.3d 597, 598 n. 1 (Mo.App.2002). "That discretion is generally not exercised unless the deficiency impedes disposition on the merits." Id."A brief impedes disposition on the merits where it is so deficient that it fails to give notice to [the court] and to the other parties as to the issue presented on appeal." Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997). Because of the nature of the case, this court, to the extent it can glean what is asserted from the argument portion of the brief, will consider the issue to which Point I alludes on the merits.

S.L.'s appellant's brief is anything but concise. The first part of the argument directed to Point I complains of the lack of allegations in the initial petition regarding grounds to terminate S.L.'s parental rights. However, that is not the petition on which the trial court adjudicated S.L.'s parental status. The petition on which the trial court entered judgment with respect to S.L. was filed December 4, 2003. The trial court declared that the amended petition "created a cause of action against [S.L.]"; that "the amended pleading contemplated the acts of [S.L.] from the date of the birth of the child to the time of trial, and specifically the six months prior to December 4, 2002."⁶

The judgment that is appealed includes the finding that "the allegations of the Amended Petition for Adoption are true and that the rights of the biological father should be terminated." The findings note that S.L. had been incarcerated since August 19, 2002. They continue:

Despite his incarceration, the biological father was aware the mother of the child was pregnant the same month he went to prison in August of 2002, approximately six (6) months before the birth date of the child. He did nothing at that time to secure housing or make financial arrangements for the child. The record reflects that prior to the child's birth, the biological father did talk to a worker at the Lafayette House and a Division of...