M------ K------ P------, In Interest of, WD

• Decision Date: 30 March 1981
• Docket Number: No. WD,WD
• Parties: In the Interest of M______ K______ P______, Female, Age 5. Appeal of Cary Jay and Pamela Jean ADAMS. 31583.
• Court: Missouri Court of Appeals

Page 72

616 S.W.2d 72

In the Interest of M______ K______ P______, Female, Age 5.

Appeal of Cary Jay and Pamela Jean ADAMS.

No. WD 31583.

Missouri Court of Appeals, Western District.

March 30, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 4, 1981.

Thomas J. Marshall, Public Defender, Moberly, for appellants.

Kenneth D. Kyser, Moberly, for respondent.

Before MANFORD, P. J., WASSERSTROM, C. J., and NUGENT, J.

MANFORD, Presiding Judge.

This is an appeal from a judgment in the form of an order terminating parental rights pursuant to Chapter 211, RSMo 1978. The judgment is affirmed.

Appellants allege four trial errors, which in summary declare (1) the order was based upon grounds not contained in the petition; (2) the order failed to include any factual findings; (3) the evidence was not clear, cogent and convincing and (4) the court erred in permitting foster parents to intervene and in permitting counsel for the foster parents to advise the juvenile officer.

These proceedings commenced upon a petition of the Howard County Juvenile Officer. The petition sought to terminate appellants' parental rights to their daughter, M____ K____ P____, age 5 years. A hearing upon the petition was conducted and the appellants' challenge that the evidence was not clear, cogent and convincing necessitates specific reference to the evidence.

The first witness was Mary Williams, a social service worker for the Lawrence County office of the Missouri Division of Family Services. ¹ She first became acquainted with the minor on October 25, 1975 because of alleged abuse against the child. The child was then 13 or 14 months old. Mrs. Williams investigated the abuse and found the child suffering from abrasions, contusions and a human bite mark. Further investigation revealed that the physical abuse had been inflicted by Cary Adams. Immediate removal of the child from custody of her mother did not occur because the mother, Pamela Adams, agreed not to return to Cary Adams' home. At this point in time, Pamela was single and her last name was Phillips. Appellants, as will be shown below, were later married.

At a later time, the date not being specified upon the record, the Lawrence County Juvenile Officer was contacted and was asked to talk with Pamela Adams. Mary Williams and the juvenile officer visited Pamela. At this visit, the natural mother of the minor (Pamela) stated she was planning to again live with Cary Adams and would give up her child. Because of this visit, the Division of Family Services initiated proceedings to remove the child from the home of Pamela Adams. A hearing was held and on October 23, 1975, the minor was made a ward of the court. The minor was placed in the foster home of James and Sandra Smith. The Smiths moved from Lawrence County to Howard County in June, 1978.

During the period from October, 1975 to June, 1978, Mary Williams was the active caseworker involved with the minor. She testified that during this period, she attempted to work with appellants and the foster parents for the express purpose of stabilizing the home situation of appellants so that the minor child could be returned. The efforts toward stabilization included a written agreement executed by Pamela Adams, setting out her responsibility to her child while in foster care. Mrs. Williams testified that Pamela Adams defaulted in regard to the agreement, which called for financial assistance for the child. According to Mrs. Williams, Pamela Adams related special home problems, including repeated abusive treatment of her by Cary Adams, this abuse apparently stemming from Cary's heavy use of alcohol.

During the period that Mrs. Williams was active in the matter, frequent visits occurred between Pamela Adams and the minor child. Mrs. Williams testified that while the relationship between appellants was stabilized by their marriage, the terms of the agreement acknowledging responsibility toward the child were not completely met due to lack of financial support, and Cary's failure to seek alcoholic counseling after requested to do so by Mrs. Williams.

The next witness for respondent was Willella Pine, a social services worker in Platte County. Appellants are now residents of Platte County and Ms. Pine came into contact with appellants on or about October 4, 1978. She made contact with appellants under a directive of the circuit court that she conduct a home study. Her recommendations to the court included the commencement of regular visits between appellants and the minor child. She also recommended to the court that parental rights be terminated in September, 1979 if the visits had not materialized. She recommended termination on that date because the minor would start to school at that time.

At the home study, she observed appellants to be friendly, with no apparent attitude problems. Appellants evinced to her their desire to have the minor in their home. The parties agreed that regular visits between appellants and the minor should commence to permit appellants and the minor to become acquainted with one another, and to prevent removing the child abruptly from one home to another.

Since October, 1978, appellants have visited with the minor on two occasions. They have seen her on other occasions at proceedings before the court. The visits were scheduled around Mr. and Mrs. Adams' working hours. In this way, all of the parties (foster parents, minor, caseworker and natural parents) were available on Saturdays. In all, some 16 visits were arranged, and two were kept. Appellants failed without notice to show up for three, and cancelled another 11.

Ms. Pine testified that Pamela Adams discussed with her the voluntary relinquishment of the minor, Cary's alcohol problem and on occasion, Cary's desire not to have the child returned.

The next witness, Margaret Langland, a caseworker, took over the case on transfer from Lawrence County and became involved in June, 1978. She testified she had two meetings with appellants. She was the one who undertook the scheduling of visits, and noted to the court appellants' failure to keep the visits. She said that appellants told her that the combination of car trouble, work and personal problems between themselves (appellants) were reasons given her by the Adamses for not keeping the scheduled visits. She revised the visit schedule to accommodate the Adamses and emphasized her willingness to be available on Saturdays. She also verified that Mr. and Mrs. Adams provided no financial assistance to the minor.

The last witness called by respondent was James Smith, one of the minor's foster parents. He advised the court that the minor had been in his home since 1975. He stated that only two visits between the minor and her natural parents had occurred. He also testified that the minor received no phone calls from the Adamses and other than a Christmas card with a dollar in it, no financial assistance had been received (from the Adamses) either.

In contrast with the foregoing testimony, the evidence was completed with the testimony of appellants. Appellant Pamela Adams stated she was the natural mother of the minor and that Cary Adams was the father. She advised the court that custody of the minor was placed with the Division of Family Services in October, 1975. She stated that for purposes of regaining custody of the minor, she married Cary Adams, she and Cary attended parental education classes, and that they went to the Barry County Mental Health Association. According to Pamela, the purpose in going to the mental health authorities was to determine whether or not Cary was an alcoholic. She testified that she attempted to visit the minor several times, but that financial, employment and auto problems prevented the visits. She stated that the visit was a 300-mile round trip and was beyond their ability to make. She testified that she and her husband both worked (each receiving recent salary increases), had reduced their bills, had adequate living accommodations for the minor and were able and desirous of raising the child. She stated she and her husband had two other children born of their marriage who were living in their home. She admitted to having discussed possible voluntary relinquishment of the minor, but attributed that to the problems and conditions she and her husband were having at the time. She stated that these problems were all behind them and that she was desirous and willing to have the child. She also testified that she hoped the child could be placed in a foster home close to her and her husband. She filed a motion for the return of the child, but stated that if the court thought it better not to return the child, she would urge the court to place the child closer to her own home so that regular visits could occur. She felt her home environment had been stabilized. She also stated she had asked the foster parents not to be present during the visits because she and her husband had hostilities against the foster parents.

On cross-examination, Pamela admitted that on occasion, her husband had mentioned he felt that the minor was not his daughter, but she thought that this did not present a problem that the two of them could not work out. In September, 1979, she admitted that she had problems with her husband, including finances and her husband's drinking. She admitted that at this time, she discussed giving up the minor.

The evidence showed that since custody was given to the foster parents in 1975, there had been only one birthday gift and one Christmas gift from appellants to the minor.

The last witness was Cary Adams. He stated that he was the father of the minor. He testified that he had a disability from military service which he described as "hyperactivity". He stated that while he received a pension for his disability and was being seen by a V.A. doctor, he was not currently on medication. He was asked whether or not he was an alcoholic and responded, "I...