T.C.M., Matter of

Decision Date15 March 1983
Docket NumberNo. 43191,43191
Citation651 S.W.2d 525
PartiesIn the Matter of T.C.M. and B.J.M., Petitioners-Respondents, and J.M.M., Respondent-Appellant.
CourtMissouri Court of Appeals

Murphy & Associates, P.C. by Edward E. Murphy, Jr., Clayton, for respondent-appellant.

Lashly, Caruthers, Thies, Rava & Hamel, P.C. by Rexford H. Caruthers, William E. Buckley and Amy Rehm Hinderer, St. Louis, for petitioners-respondents.

SATZ, Judge.

This cause arises from the trial court's decree of adoption for two children which terminated the parental rights of the children's divorced natural mother. The petition for adoption was filed by the natural father and his present wife on July 18, 1978. The petitioners alleged that the natural mother had willfully abandoned the minor children for a period of at least one year immediately prior to the filing of the petition. The natural mother now appeals the trial court's decree of adoption. This Court, in Division, reversed the decree of adoption, with a dissent. A motion for rehearing was granted. With additional briefs and oral argument, the cause was submitted to the Court en banc. We again reverse.

Appellant M, the natural mother, and Respondent C, the natural father, were married in California in September of 1966. 1 Two children were born of this marriage, A.M., a girl, born October 27, 1969 and M.M., a boy, born January 16, 1972. In June of 1972, the family moved to Durham, North Carolina where C found employment. C and M separated in July of 1973 while they still resided in Durham, North Carolina. At the time of separation A.M., the oldest child, was four years old and M.M. was one and one-half years old. By order of the court in North Carolina, M was awarded custody of the children in October, 1973. In January of 1974, M voluntarily committed herself to a local hospital for psychiatric care and, in February, 1974, during a temporary release from the hospital, she tried to kill herself by taking an overdose of medicine. She was rehospitalized until April, 1974 and remained under the care and treatment of a psychiatrist for 2 more years until June 1976. Because of M's sickness, the award of the children's custody to her was changed by court order, and, in February of 1974, C was awarded custody of the two children. The award of custody to C was made permanent in a divorce decree entered by the North Carolina Court on February 21, 1975. M retained reasonable rights of visitation. Soon after his divorce from M, C married his present wife J. In June of 1975, C and J, along with the two children, moved from Durham, North Carolina to Lynchburg, Virginia. In July, 1976, C moved the family to Missouri, and they have resided in St. Louis County ever since. M, the natural mother of the children, continues to reside in North Carolina.

In July, 1978, C and J filed a petition to adopt the children A.M. and M.M. in St. Louis County. M refused to consent to the adoption. In its findings of fact, the trial court specifically found that M had made no request to see either of the children and had made no attempt to talk to either of them through 1976 and 1977, until May 1978, when the adoption proceedings were first discussed. The court concluded that M, at best, had token contact with her children in the two years prior to the filing of the adoption petition and had, therefore, willfully abandoned the children. Under the adoption statute, § 453.040 RSMo 1978, 2 the finding of willful abandonment by a parent eliminates the necessity of obtaining the parent's consent to the adoption. Thus, the trial court approved the adoption of the two children after finding it was in their best interests to do so. § 453.030.1. 3

Appellant first argues that the trial court lacked jurisdiction over the subject matter in this case. She contends that the Uniform Child Custody Jurisdiction Act (UCCJA), § 452.440 et seq., prohibited the trial court from taking jurisdiction of the adoption proceeding because the adoption decree affects the prior custody decree made in North Carolina. We disagree.

Prior to the adoption of the UCCJA in 1978, an extant custody decree from another state would not affect a Missouri court's jurisdiction in an adoption proceeding. In re Adoption of Rule, 435 S.W.2d 35, 39-40 (Mo.App.1968); In re Adoption of P.J.K., 359 S.W.2d 360, 362 (Mo.App.1962). Apparently, it is a matter of first impression whether the UCCJA changes this jurisdictional rule. The UCCJA is designed to "assure the litigation concerning the custody of a child take[s] place ordinarily in the state with which the child and his family have the closest connection ..., and that courts of [one] state decline the exercise of jurisdiction when the child and his family have a closer connection with another state." 9 Uniform Laws Annotated, Master Ed., § 1(a)(3), p. 117. Thus, the UCCJA limits our courts to acting in those custody proceedings defined in § 452.445, under circumstances set out in § 452.450. Appellant sets out the various statutory definitions of "custody determination," "custody proceedings," "custody decree," and "modification decree" and, although adoptions are not explicitly included in these definitions, appellant argues adoptions must be included because an adoption decree terminates "any prior custody rights in a living parent." Then, appellant reasons, since adoptions are contemplated by the UCCJA, the trial court lacked jurisdiction to proceed with the adoption and could do nothing more, under the UCCJA, but "recognize and enforce" § 452.500 the North Carolina decree awarding visitation rights to M.

Appellant does not demonstrate which of the defined categories implicitly includes adoptions. However, even if adoption proceedings do come within the UCCJA, the trial court did have jurisdiction here to modify the North Carolina custody decree. § 452.505 provides that:

"If a court of another state has made a custody decree, a court of this state shall not modify that decree unless it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 452.440 to 452.550 or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction."

Thus, whether a Missouri court has jurisdiction to modify a court decree of another state under the UCCJA, turns first on whether the latter court has lost or declined its jurisdiction, and second on whether Missouri has jurisdiction under the Act. See Slidell v. Valentine, 298 N.W.2d 599, 602 (Iowa 1980); Pierce v. Pierce, 287 N.W.2d 879, 882 (Iowa 1980).

The second question is easily answered here. Because the children here had lived with a parent in this state for at least six consecutive months, Missouri was the "home state" of the children, § 452.445(4). As the home state, Missouri could assume jurisdiction to make a child custody determination, § 452.450.1(1)(a), unless North Carolina still retained jurisdiction. § 452.505. There is no evidence that North Carolina has at any time declined to assume jurisdiction to modify its decree. Thus, the ultimate question is whether North Carolina retained or, in the statutory language, would "now have jurisdiction under the jurisdictional prerequisites ... [of] § 452.440 to 452.550." § 452.505.

There are four possible bases of North Carolina's jurisdiction under the UCCJA. § 452.450.1(1), (4):

"(1) This state:

(a) Is the home state of the child at the time of commencement of the proceeding; or

(b) Had been the child's home state within six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because:

(a) The child and his parents, or the child and at least one litigant, have a significant connection with this state; and

(b) There is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and:

(a) The child has been abandoned; or

(b) It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or

(4) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction."

North Carolina would not have jurisdiction as the home state since at the time the adoption petition was filed, the children had been absent from North Carolina for over two years. See § 452.445(4); Slidell v. Valentine, supra at 602-604. We also find North Carolina would not have jurisdiction under the "best interest" arm of § 452.450.1(2). At the time the adoption petition was filed, the children had not lived in North Carolina for over two years and were not likely to return there. While the natural mother still lived in North Carolina, the statute requires both the child and the parent to have a significant connection with the state, and there must be available in that state "substantial evidence concerning the child's present or future care, protection [and] training." § 452.450.1(2)(a) and (b). Here the nexus between the children and the state of North Carolina falls short of the "significant connection" required to assume jurisdiction under this alternative. See Slidell v. Valentine, supra, at 604. The other...

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