A.L.H., Matter of

• Decision Date: 15 August 1995
• Docket Number: No. 66713,66713
• Citation: 906 S.W.2d 373
• Parties: In re the Matter of A.L.H., a minor.
• Court: Missouri Court of Appeals

Page 373

906 S.W.2d 373

In re the Matter of A.L.H., a minor.

No. 66713.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 15, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 25, 1995.

Lynn M. Travis, Alton, IL, for appellant.

Elizabeth W. Swann, Seann & Hendrix, O'Fallon, William J. Alward, Guardian Ad Litem, Clayton, for respondent.

REINHARD, Presiding Judge.

Natural father (father) appeals from a decree of adoption in favor of natural mother and her current husband, which had the effect of terminating father's parental rights in his daughter. We affirm.

A.L.H. (daughter), the only child of mother and father's marriage, was born on September 29, 1984. The marriage was dissolved on October 2, 1987 in St. Louis County. Pursuant to a separation agreement incorporated into the decree of dissolution, custody of daughter was awarded to mother, and father agreed to pay $60.00 a week in child support. The parties waived maintenance. The visitation schedule stated that father had the right to temporary custody on every other weekend and for two weeks in the summer "as long as [father was] on vacation from his job."

On May 9, 1992, mother re-married. Daughter has lived continuously with mother and new husband since the marriage. On March 3, 1993, mother and new husband filed a petition for adoption of daughter. They alleged that father had willfully abandoned and neglected daughter for a period of "at least six (6) months immediately prior to the filing of this Petition." See § 453.040(5), RSMo 1994.

Father did not consent to the adoption and filed an answer denying the allegations of abandonment and neglect. A hearing on the petition was held on July 11, 1994. An investigation as to the suitability of the adoptive home was waived. See § 453.070.3, RSMo 1994. The court found father had willfully abandoned and neglected daughter for a period of at least six months immediately prior to the filing of the petition for adoption and found that it was in the best interests of daughter that the adoption be approved. On appeal, father asserts that the court's finding that he willfully abandoned and neglected daughter was not supported by substantial evidence and was against the weight of the evidence.

Adoption statutes are strictly construed in favor of natural parents. H.W.S. v. C.T., 827 S.W.2d 237, 239 (Mo.App.1992). Each adoption must be judged on its own unique set of facts. Id. The prerequisite to any adoption is the consent of the natural parents or involuntary termination of their parental rights. Matter of J.F.K., 853 S.W.2d 932, 934 (Mo. banc 1993).

In G.S.M. v. T.H.B., 786 S.W.2d 898 (Mo.App.1990), we summarized the requisites for step-parent adoptions:

In a stepparent adoption, either willful abandonment or willful neglect of the child by the non-petitioning natural parent obviates the need for that parent's consent to the adoption. § 453.040(5) RSMo 1986; e.g., In re Adoption of H, 712 S.W.2d 726, 727 (Mo.App.1986). The critical period is the six month period immediately prior to the date the petition for adoption is filed. § 453.040(5) RSMo 1986.

Abandonment and neglect are different, but not mutually exclusive, concepts. See, In re Adoption of Baby Boy W, 701 S.W.2d 534, 543 (Mo.App.1985). Abandonment has been defined as the "voluntary and intentional relinquishment of custody of the child with the intent to never again claim the rights and duties of a parent," Id. at 543, or, as the intentional withholding by the parent of his or her care, love, protection and presence, without just cause or excuse. In re E.C.N., 517 S.W.2d 709, 715 (Mo.App.1974); In re Watson's Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, 336 (1946).

Neglect, on the other hand, 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. Adoption of Mike and Russ, 553 S.W.2d 706, 708 (Mo.App.1977). In stepparent adoptions, it quite often is shown by a failure to provide support, without just cause or excuse, whether ordered by judicial decree or not. See, e.g. Baby Boy W, 701 S.W.2d at 544, and cases cited therein.

The issue of abandonment or neglect turns on intent, which, more often than not, is an inferred fact, determined by conduct within the statutory period, Matter of T.C.M., 651 S.W.2d 525, 529 (Mo.App.1983), along with relevant conduct both before and after this period. Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 358 (Mo. banc 1978). The proof of this intent must be shown by clear, cogent and convincing evidence. T.C.M., 651 S.W.2d at 530-31.

Id. at 900 (footnote omitted) (emphasis added).

Section 453.040(5) uses the terms neglect and abandonment in the disjunctive and thus, either ground, if supported by sufficient evidence, would support the adoption. Matter of Adoption of Pearson, 612 S.W.2d 30, 35 (Mo.App.1981). Clear, convincing and cogent evidence is that which instantly tilts the scales in the affirmative when weighed against opposing evidence. H.W.S., 827 S.W.2d at 240. Our review of this case is provided by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo.App.1979). We must sustain the court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. We review the facts and the reasonable inferences therefrom in the light most favorable to the trial court's order. H.W.S., 827 S.W.2d at 240. We accept as true the evidence and permissible inferences favorable to the judgment and disregard all contrary evidence and inferences. Id. While reference to other abandonment and neglect cases may provide some helpful guidance in reaching a decision, the very nature of these proceedings is such that each case must turn on its own unique set of facts. S.C.H., 587 S.W.2d at 947.

In this case, the trial court "specifically reject[ed] the evidence presented by [father]" contrary to the finding of abandonment and neglect "as not being credible". We defer to the trial court's determination of credibility and its resolution of conflicts in the evidence. H.W.S., 827 S.W.2d at 240.

Though, as noted, adoption statutes are strictly construed in favor of the natural parent, the "paramount concern" remains the best interest of the child. Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 357 (Mo. banc 1978). However, questions regarding the child's best interest are not reached if willful abandonment or neglect within the minimum statutory period are not proved. Id. The statutory period has been lessened twice, from two years to one year in 1947, see Laws of Missouri 1947, S.B. 335, p. 213, and from one year to six months in 1982. See Laws of Missouri 1982, H.B. Nos. 1171, 1173, 1306 & 1643, p. 433. We believe these reductions evidence a legislative intent to place a greater emphasis on the enhancement of opportunities for the establishment of permanent parental relationships for the child and a lesser emphasis on the parental interests.

The petition for adoption was filed on March 3, 1993. Thus, the relevant minimum period provided by § 453.040(5) was from September 3, 1992 to March 3, 1993. Though, as noted, conduct relevant to intent may occur before, after, or during the statutory period, the greatest weight must be given to conduct in the statutory period (the "critical period", G.S.M., supra ), and logically, the least to conduct occurring after the petition was filed.

In S.C.H., 587 S.W.2d at 948, we held that a non-custodial parent's:

... failure to contribute to the financial support of his children coupled with the other evidence as to lack of contact with them was sufficient to sustain the trial court in its findings of willful neglect in failing to provide proper care and maintenance.

The trial court's judgment here focused on father's lack of support and contact. We examine both in turn.

Father made only one payment of child support within the statutory period; $25.00 in September 1992 which father dropped off at mother's grandparents. This was the first payment made by father after June of 1991. The September 1992 payment was accompanied by a letter in which father stated that he had paid a lawyer "to get visitation to see [daughter] and that he was going to start sending twenty-five dollars a week...." However, father next made a child-support payment in October 1993 (approximately eight months after the petition for adoption was filed).

Father was, by his own admission, never current in his child support payments. Mother testified that from the dissolution, "[u]p until April of '90, it was like the visits, very spora[d]ic, usually cash and just, you know, a few dollars here, a few dollars there. Sometimes it would be forty or fifty dollars. I can't really ever remember a time that I got the full amount, but I'm sure there probably was a couple...." Mother characterized father's responses to her requests for child-support in the above period: "Normally, he just wouldn't call me back or anything. If he didn't have the money, he wouldn't call, and I think even if he did have the money, he didn't call." A short period (about a year) of "somewhat regular" payments occurred after April 1990.

In G.S.M., supra, we reversed the trial court's denial of a step-parent adoption where the evidence revealed that the father had never made a child-support payment. Judge Satz, speaking for the court, stated:

In a stepparent adoption, like the present one, the petitioners have the burden of proving the existence vel non of a condition obviating parental consent by clear, cogent and convincing evidence. Tomlinson v. O'Briant, 634 S.W.2d 546, 551 (Mo.App.1982). However, no Missouri case we have found discusses what the petitioners must do to meet their burden. A sensible allocation, we believe, permits the petitioners to establish a prima...