In the Matter of I.D. v. B.C.D

• Court: Missouri Court of Appeals
• Writing for the Court: Phillip R. Garrison
• Citation: In the Matter of I.D. v. B.C.D, 12 S.W.3d 375 (Mo. App. 2000)
• Decision Date: 28 February 2000
• Parties: (Mo.App. S.D. 2000) In the Matter of I.D. and J.D. for Adoption of A.K.B.D., a minor, Petitioners-Respondents, v. B.C.D., Respondent, and C.I.D., Respondent-Appellant. 22944 0

12 S.W.3d 375 (Mo.App. S.D. 2000)

In the Matter of I.D. and J.D. for Adoption of A.K.B.D., a minor, Petitioners-Respondents, v. B.C.D., Respondent, and C.I.D., Respondent-Appellant.

22944

Missouri Court of Appeals Southern District

02/28/2000

Appeal From: Circuit Court of Wayne County, Hon. William C. Seay, Judge

Counsel for Appellant: Keith D. Sorrell

Counsel for Respondent: Janet K. Brown

Opinion Summary: None

Prewitt and Barney, JJ., concur

Phillip R. Garrison, Chief Judge

The trial court entered a judgment and decree of adoption by which A.K.B.D. was adopted by her paternal grandparents, I.D and J.D. ("Grandparents"). C.I.D. ("Mother") appeals, claiming that the trial court erred because she did not consent to the adoption, and the evidence was insufficient to establish that she willfully abandoned or willfully, substantially and continuously neglected A.K.B.D. for six months immediately preceding the filing of the adoption petition. She argues that any lack of contact with the child was involuntary on her part. We affirm.

In adoption cases, as in other court-tried cases, the standard of appellate review is pursuant to Rule 73.01(c),¹ as interpreted in 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. E.D. 1992). Due regard is given to the opportunity of the trial court to judge the credibility of witnesses. In Re K.K.J., 984 S.W.2d 548, 552 (Mo.App. S.D. 1999). In determining if there was substantial evidence 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.

In this case, the petition for adoption alleged that Mother had, for a period of more than six months, willfully abandoned A.K.B.D. and willfully, substantially and continuously neglected to provide for her with necessary care and protection. These allegations were pursuant to section 453.040, which provides, in pertinent part that the consent of the adoption of a child is not required of:

(5) A parent who has for a period of at least six months, for a child one year of age or older, . . . immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection.

A.K.B.D., who was born on October 26, 1986, spent much of the time from birth until November 1993 in the actual custody of the Grandparents at the request of Mother. There was evidence indicating that Mother requested that the Grandparents care for A.K.B.D. because of conflicts in her marriage to A.K.B.D.'s father, as well as the consumption of alcohol and drugs by the father and Mother. In August 1993, the Grandparents filed a petition for temporary legal custody which was granted by the court on November 18, 1993, after Mother signed a consent agreeing to the transfer of custody for the purpose of adoption, and saying that "[d]ue to circumstances in my personal life, I feel it would be in the best interest of my minor daughter that custody be transferred to [the Grandparents]." A.K.B.D. has been in the continuous care and custody of the Grandparents since November 1993.

On November 29, 1993, Grandparents filed an amended petition seeking to adopt A.K.B.D. On October 12, 1994, the trial court heard the adoption petition and the adoption by Grandparents was ordered. That decree was subsequently set aside by this court because the amended petition had neither been served on Mother nor had she consented to the adoption. I____ D____ v. B____ C____ D_____, 941 S.W.2d 658 (Mo.App. S.D. 1997). Thereafter, Grandparents filed a second amended petition for adoption on November 24, 1997. Trial was held before the court on March 23, 1999, which resulted in the judgment and decree from which Mother now appeals.

Mother contends that the evidence was insufficient to support a finding, pursuant to section 453.040(5) that she had, for six months prior to the filing of the petition for adoption, willfully abandoned A.K.B.D., or had, for the same period of time, willfully, substantially and continuously neglected to provide her with necessary care and protection. The terms "abandonment" and "neglect" in section 453.040(5) are used in the disjunctive and, therefore, either ground, if supported by substantial evidence, will support an adoption. In Re Marriage of A.S.A., 931 S.W.2d 218, 221 (Mo.App. S.D. 1996).

The terms "neglect" and "abandonment" embody different, but not mutually exclusive concepts. Id. at 221-22. "Neglect" focuses on physical deprivation or harm, and has been characterized as a "failure to perform the duty with which the parent is charged by the law and by conscience." Id. "Neglect" is ultimately "a question of an intent to forego parental duties, 'which generally is an inferred fact, determined by conduct within the statutory period, combined with relevant conduct both before and after the period.'" Matter of B.S.R., 965 S.W.2d 444, 449 (Mo.App. W.D. 1998). The greatest weight is given to conduct within the statutory period, and the least weight is given to conduct after the petition for adoption is filed. Id. "Parental duties" includes both an obligation to provide financial support for a minor child, as well as an obligation to maintain meaningful contact with the child. Id. A parent's failure to contribute to the financial support of a child coupled with other evidence as to lack of contact with it is sufficient to sustain a trial court's finding of willful neglect. C.B.L. v. K.E.L., 937 S.W.2d 734, 738 (Mo.App. E.D. 1996).

"Abandonment" is 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, or, the...