Adoption of RAB v. RAB

562 S.W.2d 356
CourtSupreme Court of Missouri
DecidedMarch 13, 1978
Docket59990
StatusPublished

This text of 562 S.W.2d 356 (Adoption of RAB v. RAB) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of RAB v. RAB, 562 S.W.2d 356 (Mo. 1978).

Opinion

562 S.W.2d 356 (1978)

In the Matter of the ADOPTION OF R. A. B., III, et al., J. A. H. and S. J. H., Petitioners-Respondents,
v.
R. A. B., Jr., Appellant.

No. 59990.

Supreme Court of Missouri, En Banc.

March 13, 1978.

*357 Karl W. Blanchard, Jr., Blanchard, VanFleet, Martin, Robertson & Dermott, Joplin, for appellant.

Dean S. Johnston, Joplin, for petitioners-respondents.

RENDLEN, Judge.

Transferred from the Springfield district of the Missouri Court of Appeals after opinion, this case is decided as though on original appeal. Mo.Const., Art. V, § 10. The natural father, R. A. B., Jr., appeals from the adoption decree terminating the parental rights to his three children, ages nine, eight and six at the time of trial, and awarding them by adoption to his divorced wife (the natural mother) and her present husband, petitioners in this action. We reverse.

Consent of a natural parent is required for adoption of children under twenty-one years of age, § 453.030(3), RSMo 1969, except for special cases enumerated by statute, § 453.040. One such exception applicable here is found in § 453.040(4):

"The consent of the adoption of a child is not required of . . . (4) A parent who has for a period of at least 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. . . ."

In their joint petition filed July 11, 1974, the natural mother and stepfather alleged the natural father willfully neglected to provide the minor children with proper care and maintenance for a period of at least one year immediately prior to the filing of the petition. No claim is made that he abandoned the children.

Adoption proceedings in Missouri are governed by statute, In the Matter of D. G. K. v. D. G. K., 545 S.W.2d 81, 82 (Mo.App. 1976), and while it is often said that the welfare of the child is the paramount consideration in an adoption proceeding, questions regarding the fitness of the petitioners and the child's welfare are not reached if willful abandonment (here neglect) is not proved, In re E. C. N., 517 S.W.2d 709, 712 (Mo.App.1974), because consent or the proper waiver of consent under § 453.040 is jurisdictional, In re D., 408 S.W.2d 361, 365 (Mo.App.1966). "Willful *358 neglect" as used in the statute has been construed to mean neglect that is " . . . intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes.. . ." In re E. C. N., supra at 712. The conduct of the parent constituting willful neglect or abandonment must have occurred during the year immediately preceding the filing of the adoption petition, In Matter of D. G. K. v. D. G. K., supra at 81-82, and as stated in In re Adoption of Rule, 435 S.W.2d 35, 40 (Mo. App.1968): ". . . the conduct of the parent must evidence an intent or mental attitude to forsake the status of a parent— at least for the period of time declared in the statute. . . ." However, abandonment and neglect are matters of intent and "evidence of a parent's conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent. . . ." In re Adoption of K., 417 S.W.2d 702, 709 (Mo. App.1967).

In this case, the natural father (hereinafter R.) and the natural mother (hereinafter S.) married in 1964 and the following year, while living in Pittsburgh, Pennsylvania had their first child. The second child was born in 1966 and the third in 1968. The family lived in Pittsburgh until March, 1971, when the parents separated. During that time they had serious financial difficulties and R. went to Ohio for about six months but returned to Pittsburgh where S. had continued to live in the family home with the children. During the summer of 1971, R. sold two small businesses which he had operated during his marriage and realized about $3,500 from the proceeds of that sale. He testified this money was given to S., but she maintained she had received nothing and the trial court in its findings accepted her version of those facts. After the businesses were sold, R. did not work for about one year and on November 22, 1972, a divorce was granted in Pennsylvania but the decree failed to mention the children, their custody or support. Between the time of separation in March, 1971, and the divorce in November of 1972, R. visited the children whenever he was in town though "it was not set up on a regular basis." While in Pittsburgh, S. continued to live in and occupy the furnished home which the couple had purchased and during that difficult financial period she received welfare payments in the amount of $235 a month. The monthly mortgage payments on the Pittsburgh home were $151.00 and S. "occasionally made those payments." On the other hand, the father of R. made some of the payments but according to S., "quite a few months they were not paid."

In May of 1973, R. married B., a registered nurse, and with his new wife moved to New York where he entered a school described as "a culinary institute." He attended classes regularly at the "institute" through December, 1974. During the latter part of the summer of 1973, S. visited in Missouri and apparently it was then she met her future husband (hereinafter J.). While she was there, the children spent two weeks with their father and his new wife at their home in Red Hook, New York. It was admitted that the children "seemed to enjoy the visit" and there is no dispute that while in New York the children's father provided their support and that this two week visit occurred within the statutory year referred to in § 453.040(4). The children's mother also admitted that during the period of separation, R. constantly expressed an interest in the children and would from time to time provide them with gifts and clothing. Further, S. testified that she was sure appellant loved the children. The following testimony elicited from the natural mother is pertinent to these matters:

"Q. Is it your opinion then that [R] loves these children.
A. Yes, I'm sure he does.
Q. Cares very much for them.
A. I'm sure he does."

Thereafter, testimony relative to R's failure to support the children was developed.

"Q. Have you ever asked [R] for any support?
A. No, I haven't.
*359 Q. You've never made any demand on him for the children.
A. I have told him we didn't have money, but I knew he didn't have any.
Q. How did you know he didn't have any?
A. He wasn't working.
Q. Did you know that during the last year and one-half he has been going to school?
A. Yes, he told me he was.
Q. In fact you acknowledged the fact in the August 14, 1973, letter.
A. Yes.
Q.

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Adoption of R. A. B. v. R. A. B.
562 S.W.2d 356 (Supreme Court of Missouri, 1978)

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562 S.W.2d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-rab-v-rab-mo-1978.