G.S.M. v. T.H.B.

786 S.W.2d 898, 1990 Mo. App. LEXIS 457
CourtMissouri Court of Appeals
DecidedMarch 20, 1990
DocketNo. 55671
StatusPublished
Cited by21 cases

This text of 786 S.W.2d 898 (G.S.M. v. T.H.B.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.S.M. v. T.H.B., 786 S.W.2d 898, 1990 Mo. App. LEXIS 457 (Mo. Ct. App. 1990).

Opinion

SATZ, Presiding Judge.

This is a stepparent adoption. The natural mother, stepfather and guardian ad li-tem appeal the trial court’s denial of the petition for adoption. We reverse and remand with directions.

Petitioners are the natural mother and the stepfather of R.M.B., a girl, bom August 27, 1982. The natural father is the respondent. On September 1, 1983, the natural parents were divorced and the mother was awarded custody of the child. The father was granted reasonable visitation rights and required to pay $30.00 per week as child support.

Petitioners were married on August 8, 1984. The child has lived with petitioners continuously since the date of their marriage.

On March 8, 1987, petitioners filed their petition for adoption, alleging that the nat[900]*900ural father had willfully abandoned and willfully neglected the child for a period of at least six months immediately prior to the filing of the petition. In his answer, the natural father denied these allegations.

In a stepparent adoption, either willful abandonment or willful neglect of the child by the non-petitioning natural parent obviates the need for that parent’s consent to the adoption. § 453.040(5) RSMo 1986; e.g., In re Adoption of H, 712 S.W.2d 726, 727 (Mo.App.1986). The critical period is the six month period immediately prior to the date the petition for adoption is filed. § 453.040(5) RSMo 1986.1

Abandonment and neglect are different, but not mutually exclusive, concepts. See, In re Adoption of Baby Boy W., 701 S.W.2d 534, 543 (Mo.App.1985). Abandonment has been defined as the “voluntary and intentional relinquishment of custody of the child with the intent to never again claim the rights or duties of a parent,” Id. at 543, or, as the intentional withholding by the parent of his or her care, love, protection and presence, without just cause or excuse. In re E.C.N., 517 S.W.2d 709, 715 (Mo.App.1974); In re Watson’s Adoption, 195 S.W.2d 331, 336 (Mo.App.1946).

Neglect, on the other hand, normally focuses on physical deprivation or harm. It is primarily a failure to perform the duty imposed upon the parent by law and by conscience. Adoption of Mike and Russ, 553 S.W.2d 706, 708 (Mo.App.1977). In stepparent adoptions, it quite often is shown by a failure to provide support, without just cause or excuse, whether ordered by judicial decree or not. See, e.g. Baby Boy W, 701 S.W.2d at 544, and cases cited therein.

The issue of abandonment or neglect turns on intent, which, more often than not, is an inferred fact, determined by conduct within the statutory period, Matter of T.C.M., 651 S.W.2d 525, 529 (Mo.App.1983), along with relevant conduct both before and after this period. Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356, 358 (Mo. banc 1978). The proof of this intent must be shown by clear, cogent and convincing evidence. T.C.M., 651 S.W.2d at 530-31. To determine whether the proof was shown in a court-tried case, we defer to the trial court’s determination of credibility, Rule 73.01, and we accept as true the evidence and permissible inferences favorable to the judgment and disregard all contrary evidence and inferences. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986). Moreover, we affirm the judgment “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.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In establishing this standard of review in Murphy v. Carron, the Court expressly rejected both a review “de novo” and a review based upon a “clearly erroneous” standard. Id. In doing so, the Court admonished “[ajppellate courts” to “exercise the power to set aside a decree or judgment on the ground it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Id. The precise differences between appellate review by “weighing the evidence” and appellate review “de novo”, however, are not easily determined, and it would be idle to try to define those differences here.

Suffice it to say, we follow the stated guidelines as we understand them. To do so requires us to presume the trial court chose to believe the respondent natural father and to disbelieve both of the petition[901]*901ers. We have done so. Nevertheless, we find the trial court’s judgment to be against the weight of the evidence, and we have the firm belief that judgment is wrong.

Our findings and belief turn on the evidentiary burdens of the parties. In a stepparent adoption, like the present one, the petitioners have the burden of proving the existence vel non of a condition obviating parental consent by clear, cogent and convincing evidence. Tomlinson v. O’Briant, 634 S.W.2d 546, 551 (Mo.App.1982). However, no Missouri case we have found discusses what the petitioners must do to meet their burden. A sensible allocation, we believe, permits the petitioners to establish a prima facie case of willful neglect by showing, with clear and convincing evidence, that the natural father had a duty to pay child support and failed to do so. Once a prima facie case is made, the burden of going forward with the evidence shifts to the natural father who must show why his failure to pay support was not willful. If he does so, the petitioners must still prove by clear and convincing evidence that the natural father’s explanatory evidence was pretextual or not reasonable and, thus, his failure to pay support was willful.

This allocation of the evidentiary burdens in stepparent adoption is not unusual. See, Annotation, Natural Parent's Indigence as Precluding a Finding That Failure to Support Child Waived Requirement of Consent to Adoption, 71 ALR 4th 305, 321 (1989). Moreover, it is a sensible allocation of the evidentiary burden for several reasons. First, the reason a natural parent fails to make a support payment is information that is peculiarly available to the natural parent. See In re Marriage of Vanet, 544 S.W.2d 236, 245-46 (Mo.App.1976). In such a circumstance, requiring petitioners to prove the absence of justification places an unfair burden on them. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). In addition, requiring the petitioners to prove the natural parent was without justification would be akin to requiring them to prove a negative. In re Adoption of Masa, 23 Ohio St.3d 163, 492 N.E.2d 140, 143 (1986).

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Bluebook (online)
786 S.W.2d 898, 1990 Mo. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gsm-v-thb-moctapp-1990.