S. C. H. v. C. W. H.
| Decision Date | 18 September 1979 |
| Docket Number | No. 40592,40592 |
| Citation | 587 S.W.2d 945 |
| Parties | In the Matter of S. C. H. et al., Petitioners-Respondents, v. C. W. H., Defendant-Appellant. |
| Court | Missouri Court of Appeals |
J. Martin Hadican, St. Louis, for defendant-appellant.
Ellsworth Cundiff, Jr., Frederick W. Drakesmith, St. Charles, for petitioners-respondents.
The natural father appeals from a decree of adoption. The petitioners are the children's mother and her present husband. The natural father did not consent to the adoption. However, consent is not required of a parent "who has for a period of one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance". (Section 453.040(4) RSMo.1969.)
The marriage of the father C.W.H. and mother J.W.A. was dissolved on September 27, 1976. The decree of dissolution awarded custody of the two children to the mother, with visitation rights in the father; and ordered the father to make weekly child support payments of $17.50 per child. On October 21, 1976, the mother married J.G.A.; the children have been in the mother's custody and more recently the custody has been shared by the mother's new spouse. Since the dissolution, petitioners filed their petition for adoption on October 25, 1977 alleging abandonment and neglect by C.W.H. The children, a girl and a boy, were aged 6 and 4, respectively, at that time. After a hearing the court found that the natural father had both willfully abandoned and neglected the children. The court made the additional necessary findings and ordered adoption.
On appeal defendant contends that the evidence does not support the court's findings.
At the hearing the mother testified that, with the exception of a few telephone calls following the divorce and early in the one-year statutory period, defendant had attempted to have no contact with the children. She also claimed that although one such call took place on the son's birthday, defendant was apparently unaware of the birthday and failed to inquire about the children altogether. She stated that defendant had never sent any letters, cards, birthday or Christmas presents to the children and refused to visit them in her home. She also maintained that defendant was always either aware of her current address and telephone number, or able to contact her through her mother following a move to a new address. Defendant in turn claimed that his failure to visit the children at their home with petitioners was due to the fact that the same was too restrictive an arrangement. Petitioner, J.W.A. stated that her insistence on the in-home visitation policy was due to defendant's extensive history of drinking problems. While acknowledging this history, defendant claimed to have mastered the problem, not having consumed any alcohol since approximately a month before the divorce.
The record shows that defendant in early 1977 filed a motion to modify the dissolution decree seeking custody of the children on the ground that the mother was living with another without the benefit of marriage. Petitioners' response to this motion disclosed the fact of their marriage together with their current address, and defendant pursued the modification proceedings no further.
The standard of appellate review announced in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) is, of course, applicable to adoption proceedings, Adoption of Mike and Russ, 553 S.W.2d 706 (Mo.App.1977). Accordingly, we must sustain the action of the trial court unless there is no substantial evidence to support its finding that defendant willfully abandoned or neglected the children. Alternative definitions of the term "willfully abandoned" have been held to be:
. . . first, a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of a parent of perform the duties of a parent; or second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.
In re Watson's Adoption, 283 Mo.App. 1104, 195 S.W.2d 331, 336 (1936).
The term "willful neglect" has been construed to mean neglect that is:
. . ....
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In re M. N. V.
...this one where the non-custodial parent is incarcerated. A.S.A., 931 S.W.2d 218, 221 (Mo. App. S.D. 1996) (citing S.C.H. v. C.W.H. , 587 S.W.2d 945, 948 (Mo. App. E.D. 1979) ). See also S.R.H. , 589 S.W.3d at 71 ("We acknowledge that an incarcerated parent's contribution will not significan......
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v. C.V.S., SC 96307.
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