L.W.F., In Interest of, No. 17496
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | MAUS; FLANIGAN; MONTGOMERY |
| Citation | 818 S.W.2d 727 |
| Docket Number | No. 17496 |
| Decision Date | 13 November 1991 |
| Parties | In the Interest of L.W.F., Minor, John DiMuccio and Linda DiMuccio, Petitioners-Appellants. |
Page 727
John DiMuccio and Linda DiMuccio, Petitioners-Appellants.
Southern District,
Division Two.
Page 728
Lynn E. Heitman, Springfield, for petitioners-appellants.
MAUS, Judge.
By their two-count petition in customary form, John DiMuccio and Linda DiMuccio seek to adopt L.W.F. That petition incorporates the attached consent of the mother, S.L.L., to an adoption. The alleged putative father denied paternity but consented to that adoption. The trial court denied the mother's motion to revoke her consent. The mother has not appealed. The trial court denied the prayer of Count I to transfer legal custody of L.W.F. to the petitioners. The child was placed in the custody of the Juvenile Officer. The petitioners appeal.
L.W.F. was born to S.L.L. on January 2, 1987 1. At that time, S.L.L. was married to K.B.F. A decree dissolving that marriage was entered on December 19, 1989. That decree awarded custody of their child, B.D.F., to the husband, K.B.F. The decree also declared that K.B.F. was not the father of L.W.F.
The evidence of the mother's circumstances subsequent to the dissolution of her marriage is sketchy. She worked at a laundry. However, in October of 1990, she was injured. The nature and extent of her injury is not shown. At the hearing upon her motion to withdraw her consent held on February 27, 1991, she had not returned to work.
After the dissolution of her marriage, S.L.L. was having a difficult time in providing care for L.W.F. In early 1990, she started thinking about placing L.W.F. for adoption. At an uncertain time in 1990, she called her mother, who lived in California, and asked her mother to provide care for L.W.F. for a few months. Her mother declined to do so. Her mother said that petitioners John DiMuccio and Linda DiMuccio,
Page 729
who also lived in California, were interested in adopting a child. She suggested that S.L.L. might contact Linda. Linda DiMuccio is a maternal cousin of S.L.L.S.L.L. called Linda DiMuccio. S.L.L. testified that she talked to Linda about keeping L.W.F. Linda replied that she and her husband were interested in adopting L.W.F. S.L.L. said she told Linda she did not want anyone in the family to adopt the child.
Linda testified to a different account of the conversation. She said S.L.L. called her in the summer of 1990 and said she heard that Linda and her husband were interested in adopting L.W.F. Linda said they were. The mother said her only stipulation was that her father, W.L., the maternal grandfather, should have no dealings with the child. S.L.L. further told Linda that all that was necessary for the adoption was for S.L.L. to sign a form and for Linda to pick up the child at a coffee shop. Linda said she would check on this procedure. Linda did consult an attorney, who advised that this was not the proper procedure for an adoption. Linda then told S.L.L.'s mother that she and her husband would pursue an adoption only in a lawful manner.
S.L.L. had known R.K.N. for three or four years. R.K.N. was a business associate and "girlfriend" of the maternal grandfather, W.L. S.L.L. discussed with R.K.N. the possibility of permitting L.W.F. to be adopted. Finally, in the fall of 1990, she told R.K.N. she had decided to do so.
On September 11, 1989, S.L.L. executed a Power of Attorney. By its terms, this instrument appointed R.K.N. as S.L.L.'s attorney to provide care for L.W.F. and to "have any and all powers that I myself have as natural and legal parent of said child; with the exception of the power to consent to the marriage or adoption of the child." See § 475.024. Shortly after executing this instrument, S.L.L. placed L.W.F. in the custody of R.K.N. In explaining her purpose, the mother testified:
"The purpose was, I was not able to support my child. I--You know, I wasn't able to care for him at all. And she was--I was entrusting her to take, you know, care of him, healthwise, you know, clothingwise, everything. And she was, in turn, going to keep him until an--the adoption was final."
In later testimony, she said that the adoption was not to be by any member of her family. After L.W.F. was in R.K.N.'s custody, R.K.N. called Linda and advised her of that fact.
The circumstances which resulted in the preparation of the petition for adoption and S.L.L.'s consent for adoption are not clearly developed in the record. The office of the petitioners' attorney and that of R.K.N. and W.L. adjoined. The attorney and R.K.N. were acquainted. R.K.N. gave the petitioners the attorney's telephone number and told them the attorney would prepare the adoption papers for the petitioners. She further advised the petitioners to call the attorney if they wanted her to proceed. The attorney prepared a Power of Attorney, the petition for adoption and the consent to adoption.
The two-count petition is substantially in customary form. See Mo. Juvenile Law, § 9.77 (MoBar 1985, 1988). It is styled "In the Circuit Court of Greene County, Missouri" and bears an appropriate caption. It refers to and incorporates by reference the consent to adoption hereinafter described. The petition was executed in San Bernardino County, California on September 20, 1990.
The attorney also prepared an instrument entitled "Voluntary Relinquishment of Parental Rights and Consent to Adoption." After the preliminary recitals, the instrument provides that S.L.L. "hereby voluntarily relinquishes her parental rights to the minor child L.W.F., born January 2, 1988, and consents to the adoption of said child." That instrument was executed in Greene County, Missouri on September 11, 1990.
The petition for adoption, with the attached consent, was filed in the Circuit Court of Greene County on September 24, 1990. On October 17, 1990, S.L.L. executed an instrument entitled "The Waiver of Issuance and Service of Process and Voluntary Entry of Appearance." By that
Page 730
instrument, she entered her appearance in the above-styled cause. It was filed on October 18, 1990.That instrument, and the voluntary relinquishment of parental rights and consent to adoption, were headed "In the Circuit Court of Greene County, Missouri." Each bore the caption "In the Interest of L.W.F., male, born 01/02/88." Neither instrument included the name of the petitioners in the action.
In November 1990, Linda DiMuccio visited in R.K.N.'s home in Springfield for a few days to get acquainted with L.W.F. Then, R.K.N. and L.W.F. and Linda DiMuccio went to the DiMuccio home in California. After a few days, R.K.N. left L.W.F. with the DiMuccios and returned to Springfield. In December 1990, R.K.N. and W.L. went to California. One purpose of the planned trip was to return L.W.F. to R.K.N.'s home in Springfield. They had been advised that he should not remain in the petitioners' custody for more than thirty days until approval by the court. R.K.N. and W.L. did visit in the DiMuccio home. R.K.N. testified that John DiMuccio was upset because W.L. was there on Christmas. S.L.L. said that she had been told that the DiMuccios did not want W.L. to have any contact with the child. R.K.N. and W.L. returned to Springfield on December 26, 1990. They did not return with L.W.F., as the attorney had advised them a home study was underway. A hearing on Count I had been set for February 28, 1991.
S.L.L. first testified that when she signed the Power of Attorney and the Consent, she was told the adoptive parents "were a friend of Mrs. Heitman's and [Mrs. Heitman] knew these people that wanted to adopt and were quite well off and could afford it." S.L.L. later testified that when she signed those instruments "I didn't understand that the adoptive parents were already picked out." She testified that she told R.K.N. she did not want the child adopted by any member of her family. S.L.L. said the attorney knew this. S.L.L. felt this way because no one in her family had a college education and no one in her family would insist on the child going to college.
R.K.N. testified that she was aware of this direction of S.L.L. Nevertheless, she placed the child with the petitioners for adoption. She discussed this with W.L., but kept it secret from S.L.L. R.K.N. testified that as the date for the hearing approached, she determined that she had to tell the mother who really had the child for adoption. She testified:
"A. When I realized that--Well, I got the--got bad vibes that all the agreements between Mr. [W.L.] and the DiMuccios was all falling apart...."
She was referring to an understanding that W.L. could maintain contact with the child. So, she and W.L. went to the mother's mobile home and told her that the DiMuccios were the petitioners for adoption and had custody of the child.
On February 21, 1991, S.L.L. filed a motion to set aside her Voluntary Relinquishment of Parental Rights and Consent to Adoption. This motion was heard on February 27, 1991. In support of that motion, S.L.L. testified that she had always stipulated that the child could not be adopted by any member of her family. She stated this was because her family had not insisted that any child in the family go to college. She wanted L.W.F. back in her custody until other adoptive parents could be found. She still consented to an adoption by suitable parents.
R.K.N.'s testimony at the hearing on the mother's motion to withdraw included the following:
"Q. And to your knowledge, has [S.L.L.] ever requested any money or financial assistance from the DiMuccios or anybody else?
A. I am not aware--Anything that--You know, they said--I'm not really sure what they said. So, you know, I would really rather not, you know, comment.
Q. You don't know?
A. Yeah."
The subject was not further pursued.
At the conclusion of the testimony, the court took a five-minute recess. When court reconvened, the court announced:
"Mother's motion to withdraw her consent is denied. I don't...
To continue reading
Request your trial
-
In re M. N. V., ED 108888
...degree of weight to specific favorable and unfavorable factors, much less identify any single factor as absolute. In Interest of L.W.F. , 818 S.W.2d 727, 734 (Mo. App. S.D. 1991) (citing In Interest of J.L.H. , 647 S.W.2d 852 (Mo. App. W.D. 1983) ). However, every inquiry should be guided b......
-
Buschardt v. Jones, No. WD
...on a case-by-case basis, always with the purpose in mind of determining the best interests of the children. See In Interest of L.W.F., 818 S.W.2d 727, 734 Initially, we note that the evidence here indicates that neither parent in this case had strong convictions against cohabitation. Stepha......
-
Colombo v. Buford, No. WD
...findings may be considered in determining whether the trial court erroneously applied or declared the law. In Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991); Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982). Therefore, we will review these findings and conclusions along with th......
-
United Missouri Bank, N.A. v. Beard, No. WD
...given findings and conclusions " 'do form a proper basis for assigning error and should be reviewed.' " In Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991) (quoting Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982)). The preceding factual summary tracks the findings of fact made b......
-
In re M. N. V., ED 108888
...degree of weight to specific favorable and unfavorable factors, much less identify any single factor as absolute. In Interest of L.W.F. , 818 S.W.2d 727, 734 (Mo. App. S.D. 1991) (citing In Interest of J.L.H. , 647 S.W.2d 852 (Mo. App. W.D. 1983) ). However, every inquiry should be guided b......
-
Buschardt v. Jones, No. WD
...on a case-by-case basis, always with the purpose in mind of determining the best interests of the children. See In Interest of L.W.F., 818 S.W.2d 727, 734 Initially, we note that the evidence here indicates that neither parent in this case had strong convictions against cohabitation. Stepha......
-
Colombo v. Buford, No. WD
...findings may be considered in determining whether the trial court erroneously applied or declared the law. In Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991); Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982). Therefore, we will review these findings and conclusions along with th......
-
United Missouri Bank, N.A. v. Beard, No. WD
...given findings and conclusions " 'do form a proper basis for assigning error and should be reviewed.' " In Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991) (quoting Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982)). The preceding factual summary tracks the findings of fact made b......