In re T.S.D.

• Decision Date: 28 January 2014
• Docket Number: No. ED 99499.,ED 99499.
• Citation: 419 S.W.3d 887
• Court: Missouri Court of Appeals
• Parties: In the Matter of T.S.D.

419 S.W.3d 887

In the Matter of T.S.D.

No. ED 99499.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 28, 2014.

Melvin G. Franke, Pacific, MO, for appellant.

Rachel J. White, Washington, MO, for respondents.

Samantha Wacker, Washington, MO, Guardian Ad Litem.

Introduction

KURT S. ODENWALD, Judge.

Marilyn D. (“Mother”) appeals from the trial court's judgment finalizing the adoption of her biological son, T.S.D., by J.D. and M.D. The trial court found that because Mother willfully abandoned and willfully, substantially, and continuously neglected T.S.D. under Section 453.040(7), Mother's consent was not required for the adoption. On appeal, Mother claims three points of error. First, Mother claims that the trial court erred in failing to comply with the requirements of Sections 453.070, 453.077, and 453.110 in that the pre-adoption assessment and post-placement assessment reports were not admitted into evidence, and that the pre-adoption assessment was not ordered by the trial court. In her second and third points on appeal, Mother argues that the trial court's finding that she abandoned and neglected T.S.D. was against the weight of the evidence and not supported by substantial and competent evidence, thereby requiring her consent to the adoption. Because the trial court's judgment is not against the weight of the evidence and is supported by substantial and competent evidence, we affirm the judgment of the trial court.

Factual and Procedural History

Viewed in the light most favorable to the trial court's judgment, the following evidence was adduced at trial. T.S.D. was born to Mother in the state of Washington on July 22, 1999. At the time of T.S.D.'s birth, Mother was married to J.D., although J.D. was not the biological father of T.S.D. Despite not being T.S.D.'s biological father, J.D. was present at his birth, cut his umbilical cord, and remained actively involved in T.S.D.'s life. Mother and J.D. separated in 2001, at which point T.S.D. lived with J.D. the majority of the time and went to school in J.D.'s school district. Mother and J.D.'s divorce was finalized on April 13, 2005.

In January 2005, J.D. moved to Missouri and T.S.D. moved in with Mother. Mother did not enroll T.S.D. in her school district, so T.S.D. did not attend school. In March 2005, Mother called J.D. and told him she “couldn't handle” the kids. J.D. then drove to Idaho to meet Mother and pick up T.S.D. and his older sister, D.D.¹ Since that time, T.S.D. and D.D. have lived with J.D. T.S.D. has only seen Mother once since 2005, when J.D. drove T.S.D. and D.D. to Washington for a month-long visit in 2006. After that visit, Mother would call T.S.D. and D.D. approximately three or four times a year. During a year-and-a-half to two-year period, Mother made no phone calls to the children. Prior to the filing of the petition for adoption, Mother sent T.S.D. and D.D. a total of three packages containing undersized clothing and a few token gifts. The packages contained far fewer gifts for T.S.D. than for D.D. Additionally, Mother collected $247 a month in child support from T.S.D.'s biological father, totaling approximately $21,000 over the years. Despite her receipt of child support for T.S.D., Mother sent only one check to J.D. for T.S.D.'s support. Mother also claimed T.S.D. as a dependent on her income taxes, but has never requested that T.S.D. come live with her. In the six months prior to the filing of this adoption action, Mother had no contact whatsoever with T.S.D.

In 2007, J.D. married his current wife, M.D. On December 16, 2011, J.D. and M.D. filed a petition for transfer of custody and adoption of T.S.D. ² The petition allegedthat Mother abandoned and neglected T.S.D. when she gave T.S.D. to J.D. in 2005, has seen T.S.D. only once since then, and has sent only “token gifts” from time to time. J.D. and M.D. arranged for a domestic adoption home study which they filed simultaneously with their adoption petition. The home study was prepared by Karla Jacquin (“Jacquin”), a self-employed, licensed clinical social worker.

An adoption hearing was held on May 16, 2012. The trial court heard testimony from D.D., J.D., and M.D., as well as from Mother and Mother's fiance. The trial court also heard testimony from Jacquin, who testified as to the home study that she prepared for J.D. and M.D.³ Jacquin stated that she met with the family at least twice in their home, toured the home, collected references, conducted individual interviews with all family members, ordered criminal background checks, and reviewed the Missouri and national sex offender registries. Jacquin testified that nothing in the criminal background checks caused her any concern. Jacquin also testified that she had no concerns regarding the safety and welfare of T.S.D. in the home, the family's ability to care for, maintain, and educate T.S.D., and the financial ability of the family to care for T.S.D. Based on the favorable home study, Jacquin stated that she would approve J.D. and M.D.'s adoption of the children.

The appointed guardian ad litem (“GAL”) for the children also testified at the adoption hearing. The GAL testified that she had the opportunity to review the home study completed by Jacquin and all discovery, as well as to meet with J.D., M.D., D.D., T.S.D., Mother, Mother's sister, Mother's friend, and the children's school principals. Based on her investigation, the GAL recommended that the adoption of T.S.D. be approved. The GAL testified that T.S.D. does not have a bond with Mother and shared negative memories of his time with Mother. The GAL stated that T.S.D. was allowed to stay up until 2 a.m. when he stayed with Mother and lived on a diet of McDonald's and Ramen noodles. The GAL further testified that T.S.D. did not express any desire to visit Mother and in fact expressed apprehension and fear at the thought of having to visit or live with Mother.

The GAL then testified that T.S.D. had a very close bond with J.D. and M.D. and excelled academically and socially while in their care. The GAL also stated that T.S.D. had a fear of having to leave his home with J.D. and M.D. Based on her investigation, the GAL believed that it was in the best interest of T.S.D. for him to be adopted by J.D. and M.D. and “very strongly” felt that the adoption should be approved.

On June 7, 2012, the trial court entered its findings of fact and conclusions of law and its order transferring custody for adoption. The trial court found that under Section 453.040(7) Mother willfully abandoned T.S.D. for more than six months prior to the filing of the petition and willfully, substantially, and continuously neglected T.S.D. by not providing necessary care and protection. Therefore, Mother's consent to the adoption was not required. The trial court further held that transfer of custody was in the best interest of T.S.D. and ordered that custody of T.S.D. be transferred to J.D. and M.D. for subsequent adoption.

T.S.D. remained with J.D. and M.D. for the statutorily required six-month placementperiod. During that period, Jacquin completed three post-placement assessment reports based on a combination of six phone calls and home visits with the family. Based on her findings, Jacquin felt that adoption was in the best interest of T.S.D. and recommended that the adoption be finalized.

On December 10, 2012, the trial court held an adoption finalization hearing. Neither Mother nor her counsel attended the hearing. However, both J.D. and M.D. testified that they believed adopting T.S.D. was in the child's best interest. The GAL also testified that she reviewed the post-placement assessment reports completed by Jacquin and felt confident in her recommendation that the adoption be finalized. The trial court then entered its order finalizing the adoption and terminating all parental rights and duties of T.S.D.'s biological parents. This appeal follows.

Points on Appeal

In her first point on appeal, Mother claims that the trial court erred in finding Mother's consent to the adoption was not necessary because she abandoned and neglected T.S.D. Specifically, Mother claims the trial court failed to comply with the requirements of Sections 453.070, 453.077, and 453.110 in that the pre-adoption assessment and post-placement assessment reports were not admitted into evidence and the pre-adoption assessment was not ordered by the trial court as required by statute. In her second point on appeal, Mother argues that the trial court erred when it found she abandoned T.S.D., thereby eliminating the requirement of her consent to the adoption, because such finding was against the weight of the evidence and not supported by substantial and competent evidence. In her final point on appeal, Mother similarly asserts that the trial court erred in finding that she neglected T.S.D. because such finding was against the weight of the evidence and not supported by substantial and competent evidence.

Standards of Review

In adoption proceedings, the best interests and welfare of the child is the primary and paramount consideration. In re C.D.G., 108 S.W.3d 669, 674 (Mo.App.W.D.2002) (citing In re Drew, 637 S.W.2d 772, 778 (Mo.App.W.D.1982)). This Court gives greater deference to the trial court's determinations of credibility when custody of a minor child is involved than in other civil cases. Id. “Generally, we will not disturb the judgment below unless the welfare of the child requires another disposition.” Id.

This Court's review of adoption proceedings is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). H.W.S. v. C.T., 827 S.W.2d 237, 240 (Mo.App.E.D.1992). We must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. “Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against...