J.R.M. v. J.E.B.

186 S.W.3d 767, 2006 Mo. App. LEXIS 27
CourtMissouri Court of Appeals
DecidedJanuary 10, 2006
DocketNo. WD 65734
StatusPublished
Cited by4 cases

This text of 186 S.W.3d 767 (J.R.M. v. J.E.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
J.R.M. v. J.E.B., 186 S.W.3d 767, 2006 Mo. App. LEXIS 27 (Mo. Ct. App. 2006).

Opinion

LISA WHITE HARDWICK,

Judge.

This appeal arises from the circuit court’s decision to set aside a default judgment on the adoption of two minor children, J.P.B. and A.R.B. The children’s foster/adoptive parents, J.R.M. and K.A.M., contend the court erred in setting aside the adoption pursuant to Rule 74.05(d). We reverse and remand.

Factual and PROCEDURAL History

On September 18, 2004, J.R.M. and K.A.M. (Foster Parents) filed a Petition for Adoption of J.P.B. (a male child born January 15, 2000) and A.R.B. (a female child born August 22, 2001). Both children had been in protective custody with Foster Parents since February 2003, when they were removed from the home of their natural father, J.E.B. (Father), based on allegations of child abuse and other domestic violence. Father sought to be reunited with his children by participating extensively in Chapter 211 juvenile proceedings. When the efforts to reunite proved unsuccessful, the Division of Family Services recommended the termination of Father’s parental rights. Foster Parents thereafter filed the Petition for Adoption, in which they alleged, pursuant to Section 453.040(7), RSMo.2000, that Father’s consent to the adoption was unnecessary because he had willfully abandoned and neglected the children.1

The Jackson County Circuit Court issued a summons on the petition and forwarded it to the Cass County Sheriffs Department for service. The Sheriff made three attempts — on October 5, October 25, and November 2 — to serve the summons on Father at his last known address on South Shimel Road in Kingsville, Missouri. The summons was returned non-est on November 2, 2004.

The circuit court granted Foster Parents’ request to serve process on Father by publication. Father failed to respond [769]*769to the published notices. The court held a default judgment hearing and entered a final decree of adoption on December 23, 2004.

On May 3, 2005, Father filed a motion to set aside the default judgment pursuant to Rule 74.05(d). Following an evidentiary hearing, the circuit court granted the motion, finding that Father had presented good cause and a meritorious defense sufficient to set aside the adoption decree. As a part of its findings under Rule 74.05(d), the court determined Father was deprived of due process because Foster Parents “did not make an honest and reasonable effort to locate [Father]” before using substituted service by publication.2 Foster Parents appeal from the court’s “Order and Judgment.”

Analysis

Foster Parents contend the circuit court erred in setting aside the default judgment because Father failed to make a showing of good cause and a meritorious defense, as required by Rule 74.05(d). Foster Parents also contend the record does not support the court’s finding that Father was deprived of due process because no reasonable attempt was made to notify him of the adoption proceeding. We need only address the element of meritorious defense, as that point is dispositive of the appeal.

Because the motion to set aside the default judgment was a separate proceeding filed after the adoption decree became final, our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). See McElroy v. Eagle Star Group, Inc., 156 S.W.3d 392, 401 (Mo.App.2005). We must affirm the circuit court’s decision to set aside the default judgment unless it is unsupported by the evidence, against the weight of the evidence, or erroneously declares or applies the law. Murphy, 536 S.W.2d at 32.

Rule 74.05(d) provides that a default judgment can be set aside “[u]pon motion stating a meritorious defense and for good cause shown.” Foster Parents contend Father failed to make a prima facie showing of a meritorious defense to the allegations in the adoption petition that he willfully neglected his children. Although it was not necessary to present extensive evidence or a full-blown defense, Father was required to demonstrate an arguable theory that would defeat the claim of neglect. Snelling v. Reliance Auto., Inc., 144 S.W.3d 915, 918 (Mo.App.2004). Where, as here, the defense is of a factual rather than legal nature, Father must offer particular facts, which, if proven, would constitute a meritorious defense. McClelland v. Progressive Cas. Ins. Co., 790 S.W.2d 490, 494 (Mo.App.1990).

Section 453.040(7) permits the adoption of a child without parental consent if the parent has “willfully, substantially and continuously neglected to provide ... [the] necessary care and protection” for a period of at least six months preceding the filing of the adoption petition. Neglect is typically demonstrated by a parent’s failure to provide financial support, without just cause or excuse, whether or not ordered by judicial decree. In re Adoption of Z.T.H., 910 S.W.2d 830, 835 (Mo.App.[770]*7701995). If the natural parent fails to provide support, he or she must demonstrate why such neglect is not willful, in order to defend against the adoption petition. Id. at 835-36.

Foster Parents’ adoption petition alleged that Father’s consent was not required because he had willfully abandoned and neglected his children. In his motion to set aside the default judgment, Father asserted the following facts as his defense to the petition:

[Father’s] children were taken away from him after his former girlfriend abused his children. [Father] contacted state authorities to turn in the abuse allegation. [Father] never abused his children. The person who did abuse his children has been arrested, convicted, and for a long period of time had no part in [Father’s] life. [Father] has and is able to provide a safe, stable and loving home for his children and wishes to do so. He has consistently fought to re-obtain custody of his children and deserves to have normal parental rights with them. He presently is and has been for a significant period of time in a stable, loving and committed monogamous relationship. He could provide a mother and father nuclear family for his children. Because of the above facts, [Father] is entitled to have the default judgment set aside under Rule 74.05(d).

Father’s pleading only recited facts to dispute the allegations of abandonment. However, Foster Parents alleged both abandonment and neglect and were entitled to relief upon proof of either allegation.3 Father’s motion failed to assert any facts to defend against the allegations of willful neglect. Father made no effort to show that he provided financial or other' support for children in the six months preceding the filing of the adoption petition.

Although Father testified at the hearing on his motion to set aside the default judgment, he again failed to offer any facts to dispute the neglect allegations. Father admitted that he had the financial means to support his children in the six months preceding the adoption filing.

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Cite This Page — Counsel Stack

Bluebook (online)
186 S.W.3d 767, 2006 Mo. App. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jrm-v-jeb-moctapp-2006.