S.L.N. v. D.L.N.

• Citation: 167 S.W.3d 736
• Decision Date: 02 August 2005
• Docket Number: No. WD 64632.,WD 64632.
• Parties: In the Matter of S.L.N., Plaintiff; M.R.N. and L.N., Respondents, v. D.L.N. (Mother), Appellant.
• Court: United States State Supreme Court of Missouri

167 S.W.3d 736

In the Matter of S.L.N., Plaintiff; M.R.N. and L.N., Respondents, v. D.L.N. (Mother), Appellant.

No. WD 64632.

Missouri Court of Appeals, Western District.

June 28, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2005.

Hugh D. Kranitz, St. Joseph, MO, for Appellant, DLN.

Zel Martin Fischer, Rock Port, MO, for Respondents.

Robert Edward Sundell, Attorney and Guardian for minor.

Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.

PER CURIAM.

D.L.N. (Mother) appeals the judgment terminating her parental rights to her child, S.L.N. She contends that the court erred as a matter of law in failing to consider, evaluate, and make the appropriate statutory findings. The judgment is affirmed.

Statement of Facts

S.L.N. (Child) was born in 1998 to Mother and M.R.N. (Father). Mother and Father divorced less than a year later. The dissolution decree granted joint physical custody, with Mother having the larger share of residential time with Child. In October 2001, after Mother was charged with a felony, Father obtained a judgment that granted him temporary custody. The judgment permitted Mother limited periods of unsupervised visitation with Child. Child, who was then approximately three years old, has lived continuously with Father and his wife (Stepmother) since that time.

Mother pleaded guilty to the felony of "conspiracy to facilitate arson." Mother admitted that she had conspired with her uncle to burn down the home of a man (L.B.) who is the father of Mother's other child, H.B. Mother, Child, H.B., and L.B. previously lived together at the house that was burned. Mother began serving a five-year prison sentence in January 2002, when Child was approximately four years old.

Father filed a motion to modify custody. The court sustained the motion and granted Father sole physical and legal custody. The court ordered Mother to pay $250 per month in child support, effective retroactively. The judgment contained no provision for mandatory visitation while Mother is incarcerated. Visitation with Mother was to be at Father's discretion based on Child's best interests. Mother was permitted restricted telephone access with Child.

In November 2003, Father and Stepmother filed a Petition for Transfer of Custody and Adoption. The petition alleged, in part, that Mother had abandoned and neglected Child and that adoption by Stepmother would be in Child's best interest.

The court held a hearing, at which all parties were present with their respective counsel. In its judgment, the court declared that it had jurisdiction pursuant to Chapter 453. The court found, inter alia, that Mother had "willfully abandoned" Child and had "willfully, substantially, and continuously neglected" to provide Child with necessary care and protection. The court determined that Father and Stepmother are suitable parents and that Child is suitable for adoption. The court concluded that Mother's parental rights should be terminated and that adoption is in Child's best interest.

The judgment terminated Mother's parental rights and granted the stepparent adoption. Mother appeals.

Failure to Make Required Findings

All three of Mother's points relate to the same issue and can be summarized as follows: The trial court misapplied the law in terminating Mother's parental rights in connection with the adoption proceeding by failing to comply with various provisions of section 211.447.¹

We will sustain the trial court's judgment in an adoption case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. In re K.N.H., 118 S.W.3d 317, 319 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court's factual findings and credibility determinations. Id. Whether the court erred in failing to comply with section 211.447 is a question of law, which we examine de novo. See Obermeyer v. Bank of Am., N.A., 140 S.W.3d 18, 22 (Mo. banc 2004).

Chapters 211 and 453 provide two separate means by which a parent's rights may be involuntarily terminated. See Matter of J.F.K., 853 S.W.2d 932, 934 (Mo. banc 1993). Chapter 211 provides for a direct proceeding that usually is brought by the juvenile officer. See id.; but see § 211.447.5 (permitting the court to terminate parental rights based on a Chapter 211 petition brought by a prospective parent in an adoption case). Chapter 453 governs adoptions in Missouri. See In re Adoption of R, 31 S.W.3d 551, 552 (Mo.App.2000). Pursuant to that chapter, prospective adoptive parents may request termination of parental rights incident to an adoption action. See J.F.K., 853 S.W.2d at 934; § 453.040.

Section 211.447 is the provision of Chapter 211 under which a parent's rights may be terminated. Here, Mother specifically argues that the court erred in terminating her parental rights without considering, evaluating, and making findings on the factors set forth in section 211.447.4 as to abandonment and neglect.² She makes the same argument with regard to the additional factors set forth in subsections 4-6 of section 211.447.6.³

The court made the following relevant findings:

IV. The natural mother of the child ..., immediately prior to the filing of the petition for adoption has for a period of at least six months, willfully abandoned the child.

V. The natural mother of the child ..., immediately prior to the filing of this petition for adoption for a period of at least six months, willfully, substantially and continuously neglected to provide the minor child with necessary care and protection.

VI. In support of terminating the parental rights of [Mother], the Court considered all relevant factors allowed by law and finds as follows:

A. [Child] has no emotional ties to her natural mother....

B. [Mother] has not maintained regular visitation and contact with [Child]. Further, [Mother] had the opportunity to have regular telephone visitation and contact but failed to do so. In fact, [Mother] never called [Child] after April of 2003.

C. [Mother] has not expended any funds nor provided any support for maintenance of [Child] since prior to October 26, 2001. [Mother] is in arrears in child support in the amount of $8,000.00. There was evidence she had a prison job. [Mother] sent [Child] a total of $7.00 as gifts the entire time she has been in prison.

D. [Mother] was convicted of conspiring with her uncle [] to commit an arson that resulted in the former residence of [Child] being totally destroyed.

* * * *

[The court made additional factual findings concerning the specifics of the crime, which we have omitted.]

* * * *

E. The fact is that [Mother] committed substantial steps towards the planning and commission of the arson in the presence of the child and, therefore, [Mother] knew or should have known that doing so created a substantial risk of mental harm to [Child].

F. The Court recognizes but gives little weight to the calls prior to May, 2003, or cards sent during her imprisonment by [Mother] to [Child]. In fact, some of the phone conversations [Mother] had with [Child] after being imprisoned were emotionally abusive to [Child].

The court also made findings regarding the home study and determined that Father and Stepmother would be suitable parents for Child. The court concluded that Mother's parental rights should be terminated and that adoption is in Child's best interest.

Father and Stepmother argue that Chapter 453 governs this adoption case. They say that this is not a termination case filed pursuant to Chapter 211; thus, the court did not misapply the law by not making findings on the factors in section 211.447. Father and Stepmother contend that this case was adjudicated pursuant to section 453.040(7). Under that statute, consent to adopt a child is not required of

[a] parent who has for a period of at least six months ... 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[.] (Emphasis added.)

The adoption petition pleaded the language of section 453.040(7). It alleged that Mother had for a period of at least six months immediately prior to the filing of the petition "willfully abandoned the child" and for the same period had "willfully, substantially, and continuously neglected to provide the minor child with necessary care and protection." Likewise, the court made similar findings using the same language.⁴ The court also specifically found that it had jurisdiction pursuant to Chapter 453 and cited another provision of that chapter in its judgment. Neither the petition nor the judgment refers to any provision of Chapter 211. Thus, we conclude that the trial court terminated Mother's parental rights and granted this adoption on the basis of section 453.040(7).

Subsection (7) of section 453.040 contains no reference to section 211.447 or to any other provision of Chapter 211. Nor does section 211.447 specifically refer to section 453.040(7). The statutes do contain some cross-references. For example, sections 453.040(1) and 453.040(8) were amended in 1998 to include specific references to provisions of Chapter 211.⁵ And sections 211.447.5 and 211.447.8 refer, in a general way, to Chapter 453 and adoption petitions.⁶ However, none of those cross-references indicates that the findings requirements of section 211.447 apply to section 453.040(7) adoptions.⁷

Mother cites no authority that supports her contention that the court committed reversible error by failing to make every section 211.447 finding. The case that Mother primarily relies upon for support, In the Interest of K.A.W., 133 S.W.3d 1 (Mo. banc 2004), is inapposite. There, the State was seeking a...