State ex rel. T.W.N. v. Kehm

• Decision Date: 31 October 1989
• Docket Number: No. 57267,57267
• Citation: 787 S.W.2d 728
• Parties: STATE ex rel. T.W.N. and K.A.N., Relators, v. The Honorable Dennis J. KEHM, Respondent.
• Court: Missouri Court of Appeals

Page 728

787 S.W.2d 728

58 USLW 2316

STATE ex rel. T.W.N. and K.A.N., Relators, v. The Honorable Dennis J. KEHM, Respondent.

No. 57267.

Missouri Court of Appeals,

Eastern District,

Writ Division Six.

Oct. 31, 1989.

Allan F. Stewart, Catherine W. Keefe, Clayton, for relators.

Kathleen Nuzzo, Hillsboro, for respondent.

SIMEONE, Senior Judge.

This is an original proceeding in prohibition seeking to prohibit the Honorable Dennis J. Kehm, Judge, from entering an order in an adoption proceeding which would require S.G.J., the mother of J.P.J. born on May 16, 1989, to inform her parents of the pending adoption by T.W.N. and K.A.N. We issued our preliminary order on September 13, 1989, and we now make our preliminary order permanent.

S.G.J., a single woman, age sixteen, gave birth to a son, J.P.J. on May 16, 1989. The parents of S.G.J. reside in California. S.G.J. left her parents, J.J. and C.J., and moved to Missouri to attend school. Since August, 1988, she has resided with her grandmother, M.J., in St. Louis County. On or about March 7, 1989, and prior to the birth of her child, S.G.J. contacted Family Adoption and Counseling Services, Inc., a duly licensed child placement agency, authorized by §§ 210.481 and 210.486, RSMo 1986, to make arrangements for the placement of her child for purposes of adoption. Since March, 1989, S.G.J. has been counseled by a social worker and her grandmother, M.J. On May 16, the child was born. On May 18, 1989, the mother, S.G.J., formally gave her consent to Family Adoption to remove the child from the hospital and temporarily place him with the agency for purposes of foster care. On the same date, May 18, 1989, S.G.J. signed an "adoption placement agreement," agreeing to place the child with Family Adoption of adoption, and, in the presence of her grandmother, signed a "Consent of Parent to Adoption." § 453.030.3. The "Consent of Parent to Adoption" stated that S.G.J. understood that a decree of adoption would terminate her parental rights. On May 22, 1989, the child was placed in foster home in Jefferson County by Family Adoption pending a court hearing on relators' petition for transfer of custody for subsequent adoption. The child remains in the foster home.

On May 25, 1989, the relators, T.W.N. and his wife, K.A.N., filed their petition in two counts--Count I for transfer of custody and Count II for adoption. The petition alleged that the relators were married in 1983 and are living as husband and wife in St. Louis. They sought an order to transfer custody of J.P.J. for the purposes of future adoption, and alleged that the adoption would be in the best interests of the child. In Count II of the petition, they prayed for a decree of adoption. A guardian ad litem was appointed for the minor child, J.P.J. and a separate guardian was appointed for the mother, S.G.J.

On June 21, 1989, a hearing was held before respondent on the first count of the relators' petition, but no order was entered. At the hearing, respondent expressed his desire that S.G.J. inform her parents J.J. and C.J. (the maternal grandparents of the child) of the adoption and advised relators to return to court when there was a verification that the grandparents had been notified of the birth of the child and of the adoption proceedings. The court reviewed the social history of S.G.J. and found that she was not living with her parents, and that she refused to tell her parents of her pregnancy, the birth, or the placement of her son for adoption. At the June 21 hearing, S.G.J. testified that she had been addicted to drugs, was removed from school for failure to attend, and that she moved to Missouri to live with her grandmother to avoid friends. At that hearing, respondent said he would not approve the consent to adopt until she discussed the matter with her parents. At the June hearing, the guardian ad litem for the mother, S.G.J. concurred with S.G.J.'s belief that placement of the child was in the best interests of the child and it was what S.G.J. desired. Her guardian ad litem further stated that, in his opinion, S.G.J. was mature enough to consent to the adoption. The guardian ad litem also concurred in her decision not to inform her parents. In August, 1989, S.G.J. informed Family Adoption that her parents were still not aware of the birth of her child and that she did not want to inform them of the child's birth.

At the close of the June 21 hearing, the court stated:

Let the record reflect this matter came on for hearing. Appearances are those previously noted by the Court. The Court at this time finds that the natural that [sic] the parents of the juvenile mother of this child are the natural guardians of this child. That is clearly stated in Missouri Probate law and is clearly the law. The Court believes that until such time as this child has discussed this matter with her parents that the child cannot make a knowing and voluntary and mature decision to consent to this adoption. Therefore, until such time as this Court is satisfied that that discussion has occurred the Court will not approve the consent. That is the finding of the Court. Pending that, the child will remain in the legal custody of Family Counseling and Adoption Services. If there are any other transfers that need to be done, the Court will be notified of that.

On September 1, 1989, respondent convened a conference with all counsel and advised counsel that on September 14, he would issue an order requiring notice be given to S.G.J.'s parents of the proceeding for adoption by serving them with a copy of the petition to transfer custody and adoption filed by relators. He further advised counsel that the child would be placed with the Division of Family Services for placement in a foster home. The proposed order, dated September 6, 1989, stated:

MEMORANDUM

Comes now the Court on its own motion and advises counsel for the parties and C.R.T. of Family Adoption Counseling Services, Inc. herein that on September 14th, 1989 the Court intends to enter the following order:

1. That Family Adoption and Counseling Services is Ordered to provide to Linda K. Schilly, Clerk of the Court not later than September 21, 1989 the addresses of [J. & C.J.], maternal grandparents of [J.P.J.].

2. In the event that the addresses of said maternal grandparents are not within the control of FACS, Inc. the Court shall set this matter for hearing and the mother [S.J.] shall be ordered to provide the addresses to the Clerk.

3. That upon receipt of the information referred to in paragraphs 1 & 2 above, all pleadings in this matter are to be mailed by Certified Mail, Return Receipt Requested to [J. & C.J.], after adoptive parents name and any other information in said pleadings which would identify said petitioners shall be deleted from said pleadings.

4. That pending further order of the Court the child is to be placed in the legal custody of the Missouri Division of Family Services for placement in a foster home.

Throughout the pregnancy, birth and placing the child for adoption, S.G.J. decided not to inform her parents of either the pregnancy, birth, or adoption proceedings. She counseled with both her grandmother and Family Adoption and has remained firm in her decision not to inform her parents.

On September 13, 1989, relators petitioned this court for a writ of prohibition seeking to prohibit respondent from enforcing his proposed order.

The primary issue which must be resolved, upon the record, is whether the court can condition the consent of S.G.J. upon informing her parents that she gave birth and that she has consented to an adoption of her child. The issue is a sensitive one.

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