Marriage of A.S.A., In re

• Decision Date: 22 October 1996
• Docket Number: No. 20768,20768
• Citation: 931 S.W.2d 218
• Parties: In re the MARRIAGE OF A.S.A. and K.L.A. A.S.A., SR., Petitioner-Respondent, v. K.L.W., Respondent-Appellant, V.W. and P.D.W., Intervenors-Appellants. In re the ADOPTION OF A.S.A., JR. and K.J.A. A.S.A., SR. and J.J.A., Petitioners-Respondents, v. K.L.W., Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 218

931 S.W.2d 218

In re the MARRIAGE OF A.S.A. and K.L.A.

A.S.A., SR., Petitioner-Respondent, v.K.L.W., Respondent-Appellant,V.W. and P.D.W., Intervenors-Appellants.

In re the ADOPTION OF A.S.A., JR. and K.J.A.

A.S.A., SR. and J.J.A., Petitioners-Respondents, v.K.L.W., Respondent-Appellant.

No. 20768.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 22, 1996.

Motion for Rehearing or Transfer

Denied Nov. 8, 1996.

Donald Rhodes, Bloomfield, for appellant.

Barbara A. Godley, Kennett, for respondents.

SHRUM, Judge.

This is a step-parent adoption case brought by A.S.A., Sr. (Father) and his present wife, J.J.A. (Adoptive Mother).¹The two children who are the subjects of the adoption petition were born of the now-dissolved marriage of Father and K.L.W. (Mother).The adoption case was consolidated with a separate case brought by Mother in which she sought to modify the dissolution decree so as to give her custody of the two children, or alternatively, provide Mother with specified visitation periods.²Mother's parents, V.W. and P.D.W. (Intervenors), were allowed to intervene in the modification case.³The trial court terminated Mother's parental rights to the children, decreed their adoption, and denied Mother and Intervenors any relief in the modification case.Mother and Intervenors appeal.⁴This court affirms.

Father and Mother were married on June 26, 1987.Two children were born of their marriage: Son, born September 19, 1987; and Daughter, born December 29, 1990.Father and Mother separated on February 18, 1991, and their marriage was dissolved on May 9, 1991, in Clay County, Arkansas.Pursuant to a stipulation and property agreement incorporated into the divorce decree, Mother was awarded custody of the two children and Father was given the right to visit the children.Father was ordered to pay child support of $60 per week.

Mother began dating a man in 1992 who introduced her to cocaine, which she admitted using from that time until Memorial Day, 1993.She also admitted to being a heavy user of "crank" and various other illegal drugs.Mother bore a child by another man in October 1992, which she gave up for adoption because she was unable to care for it.Also in this period following her divorce from Father, Mother pled guilty and was placed on probation in three separate criminal matters: forgery, passing bad checks, and two counts of fraudulent use of a credit card.

On July 17, 1992, in Dunklin County, Missouri, Father filed a petition to register the foreign decree of divorce and requested a transfer of custody of the children to him.On August 21, 1992, the court ordered custody to be vested in Father, subject to reasonable rights of visitation in Mother.At that time, the two children were already in Father's physical custody, since Mother had left them with him when going to Mississippi to visit the man she had been dating (the one who had introduced her to cocaine).Mother said she had no place to live during this period of time.

Mother bore another child in June 1994, and married the child's father in October 1994.Father also re-married, in June 1993.Father and Mother's two children have lived with Father continuously since the change of custody in August 1992.

On December 14, 1994, Mother filed a motion for contempt alleging that Father was refusing to allow her to exercise her visitation rights, along with a motion to modify asking that periods of visitation be specifically delineated.On December 27, 1994, Respondents filed a petition for adoption of the two children, alleging that Mother had abandoned and neglected the children.Mother subsequently amended her motion to modify to request that custody be transferred to her, but essentially abandoned that request at trial, choosing instead to pursue her visitation requests.

The modification and adoption proceedings were consolidated on December 28, 1994.Intervenors were allowed to join the modification proceeding, and Intervenors filed a motion for visitation privileges.A trial was held on the consolidated cases on July 6, 1995.The trial court found that Mother had willfully abandoned and neglected the minor children for a period of time including but not limited to six months immediately prior to the filing of the petition for adoption, and that adoption of the children by Respondents would be in their best interests.On appeal, Appellants contend that there was not substantial evidence to support the trial court's findings that Mother had abandoned and neglected the children and that the adoption was in the best interests of the children.They also assert that the trial court erred in denying Mother's motion to modify and motion for contempt as well as Intervenors' motion for visitation privileges.

Point I: Abandonment and Neglect

In their first point relied on, Appellants assert that the trial court erred in granting Respondents' petition for adoption because there was no clear, cogent, and convincing evidence that the children had been abandoned or neglected by Mother.We disagree.

We are cognizant of the overarching principles that adoption statutes are strictly construed in favor of natural parents, and that each adoption must be adjudged on its own unique set of facts.H.W.S. v. C.T., 827 S.W.2d 237, 239(Mo.App.1992).However, the "paramount concern" is still the best interest of the child.Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 357(Mo.banc 1978).See also§ 453.005.⁵

Consent of the natural parents or involuntary termination of their parental rights is a prerequisite to any adoption.Matter of J.F.K., 853 S.W.2d 932, 934(Mo.banc 1993).While the question of whether an adoption is in the best interests of the child is one of "paramount concern," it is not reached until it has been determined that consent has been given or the need for consent has been obviated by one of several statutory grounds.Adoption of R.A.B., 562 S.W.2d at 357.Among other grounds, consent need not be obtained from:

"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."

§ 453.040(5).The terms "abandonment" and "neglect" in § 453.040(5) are used in the disjunctive and therefore either ground, if supported by substantial evidence, will support an adoption.Matter of Adoption of Pearson, 612 S.W.2d 30, 35(Mo.App.1981).While our discussion will be limited to neglect for purposes of economy, we recognize that these two terms embody different, but not mutually exclusive concepts.G.S.M. v. T.H.B., 786 S.W.2d 898, 900(Mo.App.1990).

Neglect focuses on physical deprivation or harm.Id.The essence of neglect has been characterized as a "failure to perform the duty with which the parent is charged by the law and by conscience."In re C., C., & C., 380 S.W.2d 510, 515(Mo.App.1964)."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."G.S.M., 786 S.W.2d at 900.A non-custodial parent's failure to contribute to the financial support of his or her children combined with other evidence of lack of contact is sufficient to sustain a finding of willful neglect in failing to provide proper care and maintenance.S.C.H. v. C.W.H., 587 S.W.2d 945, 948(Mo.App.1979).

Neglect, which must be willful under § 453.040(5), is thus a question of intent, which is frequently a fact inferred from relevant conduct, particularly within the statutory period, but also before and after this period.Seeid.That is, the greatest weight is given to conduct within the statutory period, and the least weight is given to conduct after the petition for adoption was filed.Matter of A.L.H., 906 S.W.2d 373, 376(Mo.App.1995).Intent must be shown by clear, cogent, and convincing evidence.Matter of T.C.M., 651 S.W.2d 525, 531(Mo.App.1983).This court has already discussed the meaning of this standard at length, in In Interest of M.J.A., 826 S.W.2d 890(Mo.App.1992):

"The clear, cogent, and convincing standard of proof ... is consistent with the Due Process Clause of the Fourteenth Amendment which requires the state, in a parental rights termination case, to 'support its allegations by at least clear and convincing evidence.'Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599, 603(1982).A clear and convincing evidence standard 'adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.'Id. at 769, 102 S.Ct. at 1403, 71 L.Ed.2d at 617.

"The Missouri Supreme Court has stated that where the clear, cogent, and convincing evidence standard applies, 'the court should be clearly convinced of the affirmative of the proposition to be proved.'Grissum v. Reesman, 505 S.W.2d 81, 85-86(Mo.1974)(emphasis in original).The Grissum court noted, 'The word "cogent" adds little, if anything; it means impelling, appealing to one's reason, or convincing.'Id. at 86.

"In several opinions, various districts of the Missouri Court of Appeals have cited the following definition of clear and convincing evidence, drawn from In re Sedillo, 84 N.M. 10, 498 P.2d 1353, 1355(1972):

For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.

See, e.g., Matter of O'Brien, 600 S.W.2d 695, 697(Mo.App.1980);In the Interest of J.A.J., 652 S.W.2d 745, 748(Mo.App.1983);In the Interest of M.N.M., 681 S.W.2d 457, 459(Mo.App.1984);In re J.D.K., 685 S.W.2d 876,...