A.R.M., In Interest of

• Decision Date: 15 March 1988
• Docket Number: No. 52457,52457
• Citation: 750 S.W.2d 86
• Parties: In the Interest of A.R.M.
• Court: Missouri Court of Appeals

Page 86

750 S.W.2d 86

In the Interest of A.R.M.

No. 52457.

Missouri Court of Appeals,

Eastern District,

En Banc.

March 15, 1988.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

April 20, 1988.

Application to Transfer Denied June 14, 1988.

James L. Rohlfing, St. Louis, for appellant.

Dewey S. Godfrey, Jr., St. Louis, for respondent.

CRANDALL, Judge.

The general issue to be decided in this appeal is whether the trial court erred in granting the adoption of A.R.M., a nine year old female, by her maternal grandmother (petitioner) over the objection of the natural father (father). The specific questions presented are whether father abandoned A.R.M. and whether the adoption is in the best interests of the child. Finding no abuse of discretion, we affirm.

Preliminarily, we note that it is the prerogative of the trial court to determine the credibility of witnesses and to resolve conflicts in the evidence. We, as an appellate court, review the facts and the reasonable inferences therefrom, in the light most favorable to the trial court's order. In the Interest of R.H.S., 737 S.W.2d 227, 236 (Mo.App.1987). With those precepts firmly in mind, we now review the record.

A.R.M. was born on June 4, 1978. She lived with her father and mother in an apartment which was located above the apartment in which her paternal grandparents lived. Her paternal grandmother frequently baby-sat with her.

A.R.M. was approximately three and one half years of age when her father murdered her mother. Father was tried and convicted of murder in the second degree and sentenced to 40 years' imprisonment. This court reversed that conviction and remanded for a new trial. After a second trial, father was again convicted of murder in the second degree and sentenced to 20 years' imprisonment. This court affirmed the second conviction and we adopt the following facts from the opinion rendered in that case: ¹

[Father] and the victim, [mother], were married in February, 1977. On Friday, August 21, 1981, [mother] left the apartment she shared with [father], taking their daughter with her, and moved in with her mother, [petitioner].

[Father] was extremely upset that [mother] had moved out of their apartment. He spent the weekend outside [petitioner's] house trying to persuade [mother] to return. On Saturday, at 3:30 a.m., [mother's] sister noticed [father] waiting outside the house and, at his insistence, took him upstairs to see [mother]. [Mother] refused to see him and told him to get out. [Father], at first, refused to leave but finally left at [petitioner's] insistence. On Sunday morning, [father] appeared again and began shouting for his daughter. After a period of time, [petitioner] came out, and [father] told her 'everyone was against him' and, if [mother] didn't come back to him, he would blow up [petitioner's] house.

On Monday, August 24, [mother] filed for an order of protection, and, while in the courtroom, [father] followed [mother] as she repeatedly changed her seating. After the order of protection was issued, [mother], afraid to return to her car alone, was accompanied by a deputy sheriff. When they reached her car, they discovered the spark plugs had been disconnected; a deed [father] admitted he committed.

[Father] also repeatedly threatened to kill [mother]. On the same Monday, [father] told a friend of his he could not stand losing [mother] and he would kill her, then take an 'overdose' to avoid the consequences. Also, on that Monday and on the next day, [father's sister] overheard [father] tell [mother] by phone that if she did not come back to him, he would kill her and himself. Then, on Wednesday morning, August 26, 1981, the day of [mother's] death, [father] and [mother] were seen and heard arguing in front of [mother's] place of work. [Father] was overheard to say, 'if I can't have you, nobody else will. You will be one dead m____ f____.'

Around noon, on Wednesday, [father's sister] saw [mother] leaving work. [Father] followed [mother] in his car. At that time, [father's sister] was leaving work with a [co-worker] to eat lunch. She felt ill, however, and [a co-worker] drove [father's sister] to her apartment, which is in the same building and directly below [father's] apartment. When they reached [father's sister's] apartment, [a co-worker] and [father's sister] saw the cars of [father] and [mother] parked outside.

After entering her apartment, [father's sister] went to lie down. When she reached her bedroom, she heard some moaning and the sound of [mother's] voice saying, 'I love you,' coming from the upstairs apartment. [Father's sister] sensed something was wrong and called [father] on the phone. [Father] answered and told [father's sister] to come up and see what was wrong for herself.

[Father's sister] and [a co-worker] went upstairs. They proceeded to the back bedroom and discovered [mother] lying across the bed with a stab wound in her stomach. [Mother's] brassiere and blouse were pulled up over her breasts and her pants were pulled down to her ankles. [Father] stood near the bed with two knives in his hands, a large kitchen knife and a smaller steak knife. [Father] said he was not going to jail for murder and he was going to kill himself. He then fled with the knives. [Mother] died enroute to the hospital. Subsequently, [father] was apprehended by police in Greenville, Indiana.

At the second trial, father testified that mother unexpectedly appeared at his apartment to get baby clothes. He said that mother went into the child's bedroom, pulled a large kitchen knife from her purse and assaulted him. A struggle ensued and mother fell on top of the knife. He picked mother up, placed her on the bed and pulled her blouse up and pants down to see where she was injured.

In considering father's testimony at his second criminal trial, this court opined:

[Father's] urged theory is not only unreasonable, it borders on the bizarre. After [father's] consistently repeated threats to kill [mother], [father] would have a reasonable person believe [mother] came to his apartment, alone, proceeded to assault him with a knife and then conveniently fell on the knife.

More important, the operative facts, if viewed rationally, are inconsistent with [father's] proffered theory of innocence.

Father also pleaded guilty to the crime of possession of a controlled substance and was sentenced to a concurrent two year term. That possession conviction resulted from a crime he had committed while on bond between the two murder trials. He admitted using illegal drugs both in and out of the penitentiary.

Father sired twins while on bond between the murder convictions. Later, during his incarceration, he married the twins' mother. She is currently unemployed and supports the twins, along with another son, from ADC (Aid to Dependent Children) payments. The father has expressed a desire that either his current wife or his mother (the paternal grandmother) adopt A.R.M.

Petitioner is a married woman in her late forties. She has had custody of A.R.M. since the murder. On November 17, 1981, the trial court granted petitioner legal and actual custody of A.R.M. Petitioner filed a petition for transfer of custody and adoption on January 6, 1983, alleging that father had willfully abandoned A.R.M. for at least one year prior to the filing of the petition. At two adoption hearings, one held in October 1983 and another in May 1986, there was evidence that, since November 1981, father had sent only a few letters and cards to A.R.M. He had sent no gifts, with the exception of a Christmas gift furnished to him by a charitable organization. He had sent no money, despite the fact that he was presently earning a minimal income while incarcerated and had previously earned an income while out on bond.

Section 453.040(5) RSMo (1986), which took effect after August 13, 1982, requires a period of at least six months' abandonment for a child one year of age or older. That statute provides that consent for adoption by a natural parent is not required where a parent abandons a child for six months or willfully, substantially and continuously neglects a child for that period of time. In the present case, the trial court found abandonment, not neglect. We first focus on the issue of whether there was substantial evidence to support the trial court's finding that father abandoned A.R.M.

Adoption proceedings are statutory. See Sections 453.055--.503 RSMo (1986). Adoption statutes are strictly construed in favor of the natural parents. In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984). A court may grant an adoption without parental consent upon finding willful abandonment by a parent for the six months immediately preceding the filing of the petition. Section 453.040(5) RSMo (1986).

Abandonment is the voluntary and intentional relinquishment of custody with the intent to never again claim any rights or duties of a parent. In re Adoption of Baby Boy W., 701 S.W.2d 534, 543 (Mo.App.1985). Abandonment must be established by clear, cogent and convincing evidence that instantly tilts the scales in the affirmative when weighed against opposing evidence. In the Interest of J.A.J., 652 S.W.2d 745, 748 (Mo.App.1983).

Each adoption must be judged on its own unique set of facts. In re the Adoption of M.D.L., 682 S.W.2d 886, 888 (Mo.App.1984). Imprisonment of a parent does not per se constitute abandonment. In re Adoption of K.L.G., 639 S.W.2d 619, 626 (Mo.App.1982). "On the other hand, a majority of the decisions hold that under appropriate circumstances imprisonment may constitute abandonment." Id.; see also Adoption of M.D.L., 682 S.W.2d at 889. ²

In the instant case, father intentionally murdered his wife, A.R.M.'s mother, and fled from the state immediately thereafter. He was subsequently convicted of that murder and of possession of a controlled substance. He admitted his use of drugs both in and out of the penitentiary. He is presently...