v. C.V.S., SC 96307.

• Citation: 529 S.W.3d 811
• Decision Date: 05 October 2017
• Docket Number: No. SC 96307.,SC 96307.
• Parties: S.S.S., L.W.V. & M.T.S-V., Respondents, v. C.V.S., Appellant.
• Court: United States State Supreme Court of Missouri

529 S.W.3d 811

S.S.S., L.W.V. & M.T.S-V., Respondents,

v.C.V.S., Appellant.

No. SC 96307.

Supreme Court of Missouri, en banc.

Opinion issued October 5, 2017

The father was represented by Aaron M. Staebell of Lohmar & Staebell LLC in St. Peters, (636) 441-5400.

The mother and stepfather were represented by Jonathan K. Glassman of the Stange Law Firm PC in St. Louis, (314) 963-4700.

W. Brent Powell, Judge

M.T.S-V. ("Mother") and L.W.V. ("Stepfather") filed a petition for the adoption of S.S.S. ("Child") and termination of the parental rights of C.V.S. ("Father"). The circuit court concluded Father's consent to the adoption was not required pursuant to § 453.040(7), RSMo 2000¹ , because Father willfully abandoned Child and willfully, substantially, and continuously neglected to provide Child with necessary care and protection. The circuit court terminated Father's parental rights and granted the adoption. Father appeals from the circuit court's judgment, arguing its conclusions regarding abandonment and neglect are against the weight of the evidence. The circuit court's judgment is affirmed.

I. Factual and Procedural History

In 2007, Mother and Father began a romantic relationship. In 2009, Mother gave birth to a daughter, Child, in the state of California. Father's name appears on the birth certificate. Mother and Child lived with Father in California for approximately eight months following Child's birth. Mother and Father never married.

In 2010, Mother and Father's relationship ended, and Mother and Child moved to St. Louis, Missouri. Father made trips from California to St. Louis to visit Child. Mother also returned to California with Child on at least three occasions to allow Paternal Grandmother to see Child. During these visits, Father would occasionally be present. In 2013, Mother married Stepfather. Following the marriage, Father increased the frequency of his visits to St. Louis and his telephone calls to Child. Father called Child at least three times a week. Mother always supervised Father's visits with Child in St. Louis.

On December 23, 2014, Mother and Stepfather filed a petition for adoption of Child and termination of Father's parental rights. The petition alleged Father willfully abandoned and neglected Child in the six months immediately prior to the filing of the petition. Father contested the termination and adoption.

In 2015, the case proceeded to trial. Mother testified Father does not have a close, personal relationship with Child. She explained Child does not talk about Father between calls and visits, Child struggles to interact with Father during visits, and there were occasions when Father was late or failed to show up for scheduled visits with Child. Mother also testified Father does not make Child's interests a priority during visits, does not interact appropriately with Child, encourages Child to break rules, shows no concerns for social norms, and talks at "cross purposes" with Child. Mother further testified she does not trust Father to keep Child safe as he has shown a lack of concern for Child's health and safety, e.g., by placing Child in a vehicle without the appropriate seat belt or child seat.

In addition, the appointed guardian ad litem reported Child does not consider herself to be close to Father, does not request visits with Father, feels Father ignores her much of the time during visits, and Father was unable to tell the guardian ad litem much about Child. The guardian ad litem also reported Father was 20 minutes late to an arranged one-hour visitation with Child, there was no eye contact between Child and Father during the visit, and Child never looked at Father's face during the visit.

Mother also testified Father provided no financial support for Child. Mother explained, in the six months prior to filing the petition, she received monthly electronic transfers in the amount of $400 from Paternal Grandmother. She further explained it was Paternal Grandmother's idea to send the money, it was always Paternal Grandmother who talked to her about sending the money, and Paternal Grandmother provided financial support to maintain a relationship with Child. Mother also testified Father occasionally provided birthday gifts for Child and one Christmas gift.

Father testified although the $400 was electronically transferred by Paternal Grandmother, the money came from his trust fund. Father testified he has approximately $33,000 in a trust fund he received as an inheritance and he would take out $400 each month and give it to Paternal Grandmother to send to Mother. Father explained Paternal Grandmother transferred the money because he was unfamiliar with the online banking system. Father further testified he and Child have fun together and she tells him she loves him in person and over the telephone. He admitted he was late to a scheduled visit with Child but claimed he had not missed a planned visit in the six months prior to Mother and Stepfather filing the petition. Father also testified he would like to have a better relationship with Child, but Mother's supervision and control were interfering.

In February, 2016, the circuit court entered its judgment terminating Father's parental rights and ordering Child to be considered Mother and Stepfather's child "for all legal intents and purposes." The circuit court concluded Father willfully abandoned Child for purposes of § 453.040(7) because, despite having occasional contact with Child, he does not have meaningful interactions with her. The circuit court further concluded Father willfully, substantially, and continuously neglected to provide Child with necessary care and protection for purposes of § 453.040(7) because the evidence established that Paternal Grandmother, not Father, was the source of the $400 monthly payments. In reaching its conclusions, the circuit court found Mother's testimony credible but concluded Father was not a credible witness. Father appealed, and after an opinion by the court of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

II. Standard of Review

This Court reviews whether there was clear, cogent, and convincing evidence to support a statutory ground for terminating parental rights or to support a finding that a parent's consent is not necessary for adoption pursuant to § 453.040 under the standard of review set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) :

[T]he trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.

See also In the Interest of J.P.B. , 509 S.W.3d 84, 90 (Mo. banc 2017) ; In re Adoption of C.M.B.R. , 332 S.W.3d 793, 815 (Mo. banc 2011).

On appeal, Father contends the circuit court's conclusions regarding abandonment and neglect for purposes of § 453.040(7)² are against the weight of the evidence. "Appellate courts act with caution in exercising the power to set aside a decree or judgment on the ground that it is against the weight of the evidence." Ivie v. Smith , 439 S.W.3d 189, 205 (Mo. banc 2014). "[A] claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment." Id. (internal quotations omitted). "The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong." Id. at 206. "When reviewing the record in an against-the-weight-of-the-evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations." Id. "A circuit court's judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment." Id. "When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence." J.A.R. v. D.G.R. , 426 S.W.3d 624, 626 (Mo. banc 2014). "This Court rarely has reversed a trial judgment as against the weight of the evidence...." Pearson v. Koster , 367 S.W.3d 36, 52 (Mo. banc 2012).³

III. Abandonment

Father first argues the circuit court's conclusion he abandoned Child is against the weight of the evidence. Abandonment means "a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of parent or perform the duties of a parent." C.M.B.R. , 332 S.W.3d at 816 (internal quotations omitted). "Abandonment is largely a matter of intent." Id. "Parents are not allowed to maintain only a superficial or tenuous relationship with their children in order to avoid a determination of abandonment." In re J.M.J. , 404 S.W.3d 423, 433 (Mo. App. 2013) (internal quotations omitted). Here, the circuit court concluded Father abandoned Child because his relationship with Child was merely superficial or tenuous.

Father, as well as the dissent, rely on the fact that Father has had frequent contacts and visits with Child. This focus on the frequency of contacts and visits with Child, however, does not account for the quality of contacts and visits. The question of abandonment "requires an examination of the parent's intent, an inferred fact, determined by considering all the evidence of the parent's conduct." In re Adoption of W.B.L. , 681 S.W.2d 452, 455 (Mo. banc 1984) (emphasis added). A full consideration of...