R.E.M., In Interest of, s. WD

• Decision Date: 15 April 1986
• Docket Number: Nos. WD,s. WD
• Citation: 712 S.W.2d 398
• Parties: In the Interest of R.E.M. and R.J.M., Minors. T.D.C., Juvenile Officer, Plaintiff-Respondent, v. C.B.M., Natural Mother, Defendant-Appellant. 37259, WD 37261.
• Court: Missouri Court of Appeals

Page 398

712 S.W.2d 398

In the Interest of R.E.M. and R.J.M., Minors.

T.D.C., Juvenile Officer, Plaintiff-Respondent, v. C.B.M., Natural Mother, Defendant-Appellant.

Nos. WD 37259, WD 37261.

Missouri Court of Appeals,

Western District.

April 15, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 22, 1986.

Application to Transfer Denied

July 15, 1986.

George D. Halper, Kansas City, for defendant-appellant.

Debra J. Wilson, Kansas City, for plaintiff-respondent.

Before LOWENSTEIN, P.J., and TURNAGE and BERREY, JJ.

BERREY, Judge.

The appellant seeks to overturn the juvenile court's termination of parental rights as to her two boys, R.J.M., age five (5) and R.E.M., age four (4). Both boys are presently in foster care under the supervision of the Division of Family Services. R.J.M., Sr., the father of the minor children, was served by publication in this matter but did not appear. He is not a party to this appeal.

R.J.M. has been under the care of the Division of Family Services most of his life. He was detained in foster care December 1980, and adjudicated into Division of Family Services' custody on February 3, 1981. He was returned to his parents on December 14, 1982, and recommitted to Division of Family Services' foster care on January 26, 1983. R.E.M. had been under the juvenile court's jurisdiction almost since birth and was returned to his parents' custody on February 2, 1982. On January 26, 1983, he was again taken by Division of Family Services and placed in foster care.

At the February 3, 1981 adjudication of the custody of R.J.M., it was determined C.B.M., the mother, left R.J.M. with his grandmother, a nursing home resident. The juvenile court then took jurisdiction and sustained a petition alleging R.J.M. was without proper care, custody, and support due to several conditions including instability of the home, financial crises, mental problems, and marital problems. R.J.M.'s initial contact with the Missouri Division of Family Services dates from December 1, 1980, when a "hotline" tip was received concerning him. The social worker responded and first met appellant in a jail cell, unable to cope with reality. Foster care was recommended. The Division of Family Services arranged for a family visit on December 30, 1980, which the parents failed to keep. Seven different case workers attempted to assist this family and C.B.M. during this period. R.E.M. was born in Kansas City on November 11, 1980, and was immediately detained in foster care.

A court approved treatment plan was entered into in February, 1982. The plan provided for the parents to maintain stable housing, since they had heretofore moved many times. They were to receive psychological evaluation, attend counseling, if recommended, and to visit R.J.M. on a regular basis as they had little contact with him after he was placed in foster care. Progress was made and R.E.M. was returned to the parents. R.J.M. remained in foster care. The family progressed and in December of 1982 their social workers recommended the return of R.J.M. to his parents.

In January 1983, the parents went to the Division of Family Services for funds the agency was holding. After the visit the appellant apparently felt that the Division of Family Services would again take R.E.M. and R.J.M. so they moved to Florida. Appellant became ill in Florida and the children were taken into custody by a state agency and returned to Jackson County, Missouri. The parents returned to Kansas City, Missouri, in February 1983, and the father was employed. They did not progress sufficiently to have the children returned.

By August 1983, Rosylin Washington, a social worker, had determined that the parents could not adequately function and from October to December 1983, the family situation substantially deteriorated. The parents were referred to Dr. Innis for evaluation and she recommended the Division of Family Services pursue adoption or the children be placed in long term foster care.

On December 23, 1983, pursuant to the Division of Family Services planning by Valerie Riffert, both parents visited with their children. This is the last time the father saw the children. A subsequent visit was scheduled for February 7, 1984, but the appellant failed to attend. In April 1984, appellant wrote a letter to Ms. Riffert from a hospital in Washington, D.C., and in August 1984, C.B.M. again contacted Ms. Riffert, this time from a hospital in West Virginia.

Appellant did not inform the agency of her plans for the children or if she was coming back to Missouri. During this time she did not visit her children, send them letters, gifts, or furnish them with monetary support. Appellant took up with a Charles E. Lake in Washington, D.C., and subsequently established a home in West Virginia. She did not move back to Kansas City because she felt things were going good for her and that she had the right to live in West Virginia. She did not work with the Division of Family Services for the return of her children. Division of Family Services did receive a West Virginia evaluation regarding appellant's home and based on that, Sheryl Potter, a Division of Family Services social worker, recommended against returning the children to appellant. At the time of trial appellant and Charles Lake shared a trailer on 2 1/2 acres of ground in Mathias, West Virginia. They relied on her social security benefits and his cabinet making ability to provide their financial requirements. During the boys' stay in foster care the appellant felt that the Division of Family Services and foster parents would see to their supervision.

Appellant complains the employees of the Division of Family Services were "frequently too busy to make arrangements" for her to visit her children but the evidence is that appellant did not keep her appointments after the Division of Family Services had arranged visitation.

The appellant first alleges the trial court erred in finding she abandoned her children because the Division of Family Services had involuntarily removed them from her custody. Appellant incorrectly cites, In the Interest of W.F.J., 648 S.W.2d 210 (Mo.App.1983), as support for this contention. In the Interest of W.F.J., supra, at 216, the findings by the court as well as the petition filed by the Division of Family Services failed to allege abandonment. The petition only alleged there was failure of the appellant to visit the children and provide for their support. The petition in the instant case, however, does allege abandonment.

In the Interest of Gowen, 610 S.W.2d 319 (Mo.App.1980), the court sustained a termination of parental rights after an adjudication of neglect and abandonment. The mother visited the child for several months and then her visits ceased. From July of 1978 until February 1979, the mother did not visit the child; however, when she learned the Division of Family Services was recommending termination of parental rights she visited her son five times. Subsequently, in May 1979, the mother left the area and had no contact with her son until the termination hearing in December 1979. During this interval she did mail him a few cards and letters and telephoned him several times. The Gowen court found these efforts were merely token.

A case must be judged on its own unique set of facts. In re the Adoption of M.D.L., 682 S.W.2d 886 (Mo.App.1984). The facts in the instant case are clear, cogent, and convincing that the mother wilfully abandoned her children for more than six months.

The appellant has raised severa1 issues concerning abandonment of her children. She claims the decision is based on an erroneous interpretation of facts and contrary to the law because (1) she had no requisite intent; (2) she was hospitalized; (3) lived in different cities; (4) had limited financial resources; and (5) she repented her abandonment. The allegations in Points II, III and IV of appellant's brief are now addressed.

The mother's intent to abandon her children may be inferred by thorough consideration of all of the evidence of the parents' conduct. In the Matter of the Adoption of Fuller, 544 S.W.2d 345, 349-50 (Mo.App.1976). The appellant's cited case, In the Matter of T.C.M., 651 S.W.2d 525, 529 (Mo.App.1983), is not dispositive. There the natural parents were litigating the children's adoption following the father's remarriage. The father had actively sought to discourage the mother's visitation. The father brought the children to Missouri from their home on the east coast and away from their natural mother. In the instant case, the natural mother removed herself to Washington, D.C. sometime in January or February 1984, then West Virginia, and did not visit them from December 1983, until the hearing in 1985. This follows a pattern of long absences from her children. From December 1980 until September 1981, she had no contact with them but did state, "Well, I wrote them a letter."

In January 1983, she and R.J.M., Sr. went to Florida and took the children. They sought meals at the Salvation Army and she acknowledged the children were "fairly dirty" and she had run out of diapers. She became ill at this time and the children were removed from their custody in Florida and returned to Missouri.

Next, appellant alleges S.K.L. v. Smith, 480 S.W.2d 119 (Mo.App.1972), should govern. Again, the facts therein are different than in the instant case. There the mother did not understand she could visit her children and was discouraged from doing so by the Division of Family Services. In the instant case, the mother had regained custody after following the court approved plan, then left the state with the children who were subsequently returned. The mother herein stayed away for over a year and wrote four letters to D.F.S. She would argue that these letters should defeat a finding of wilful abandonment. She also alleges that because she contested the termination of parental rights she has somehow "r...