L.M. v. K.K.

336 S.W.3d 516
CourtMissouri Court of Appeals
DecidedMarch 29, 2011
DocketNo. WD 72885
StatusPublished
Cited by2 cases

This text of 336 S.W.3d 516 (L.M. v. K.K.) 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
L.M. v. K.K., 336 S.W.3d 516 (Mo. Ct. App. 2011).

Opinion

MARK D. PFEIFFER, Presiding Judge.

K.K. (“Mother”) appeals the judgment from the Circuit Court of Macon County (“trial court”) terminating her parental rights to her child, H.D.J.K1 (“Child”), and granting L.M.’s petition to adopt Child. We affirm.

Background2

Viewing the evidence in the light most favorable to the judgment, the evidence adduced at trial was that while Mother was still pregnant with Child, she used, thereby exposing Child to, marijuana, Vicodin, alcohol, tobacco, and amphetamines. Mother gave birth to Child on December 27, 2004. Child was immediately placed under the jurisdiction of the juvenile court of Macon County. Child left the hospital two days later under the care of a foster mother. On January 5, 2005, Mother was arrested for possession of a controlled substance. At the time of this arrest, Mother had pending charges for possession of a controlled substance and unlawful use of drug paraphernalia, stemming from an arrest on September 15, 2004. Mother entered a plea of guilty to all,three charges and was incarcerated in the Missouri Department of Corrections (“DOC”) on February 1, 2005.

Shortly after Mother’s incarceration on February 1, Child was placed in the custody of M.P., Mother’s sister (“Aunt”). However, on March 20, 2005, L.M. began babysitting Child, and by April 20, 2005, L.M. had become Child’s informal full-time care provider. On October 26, 2005, L.M. became Child’s formal care provider. She was recognized as his kinship provider and completed training to be a licensed foster parent. L.M. provided for Child until October 2007, when Mother was released from incarceration and completed all of the tasks that were required of her by the Children’s Division. Child was placed in Mother’s custody for a trial home place-[518]*518meat, and after success with the trial home placement, Mother regained legal custody of Child in January 2008.

Shortly after Mother regained custody, Child was found wandering, alone, at a mini-mart store some distance from Mother’s home. On March 16, 2008, Mother was arrested for driving while intoxicated, charged as a persistent offender, and eventually convicted of the alcohol offense. Parole was revoked on Mother’s earlier convictions and, on April 11, 2008, she was re-incarcerated. Following Mother’s incarceration, the probate division held a contested hearing for guardianship of Child between L.M. and Child’s maternal grandparents. On August 11, 2008, L.M. was awarded guardianship of Child.

On August 20, 2009, a year after being awarded guardianship, L.M. filed a Petition for Termination of Parental Rights and Adoption (the “Petition”). The trial court held a hearing on the Petition on June 21, 2010, and on July 15, 2010, the trial court entered a Judgment and Decree of Adoption in favor of L.M. The trial court determined, inter alia, that Mother had, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully abandoned Child and willfully, substantially, and continuously neglected to provide Child with necessary care and protection. The trial court also found that the termination of Mother’s parental rights was in the best interest of Child. Mother timely appealed.

Standard of Review

This court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re C.M.B.R., 332 S.W.3d at 815-16 (citing In the Interest of P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004)). Accordingly, we will sustain the trial court’s judgment in an adoption/termination case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32; M.R.N. v. D.L.N. (In re S.L.N.), 167 S.W.3d 736, 738 (Mo.App. W.D.2005). We give great deference to the trial court’s determinations in an adoption proceeding — including assessment of the evidence presented and credibility of that evidence. In re C.M.B.R., 332 S.W.3d at 815-16. We will reverse “ ‘only if we are left with a firm belief that the order is wrong.’” Id. (quoting Mo. Dept of Soc. Servs., Div. of Family Servs. v. T.H., Jr. (In the Interest of S.M.H.), 160 S.W.3d 355, 362 (Mo. banc 2005)).

Discussion

Chapters 211 and 4533 provide two separate means by which parental rights may be involuntarily terminated. In re S.L.N., 167 S.W.3d at 738. Chapter 4534 governs adoption proceedings in Missouri. Id. Pursuant to chapter 453, prospective adoptive parents may request termination of [519]*519parental rights incident to the adoption action. Id.; see also In re C.M.B.R., 332 S.W.3d at 806 (“Chapter 453 does not speak to termination of parental rights; rather, it authorizes adoption without consent or with consent that has the effect of terminating parental rights.”). Chapter 2115 is primarily used by the Division of Children’s Services or the juvenile courts, but can be used by prospective adoptive parents, to take children into protective custody and terminate parental rights. In re C.M.B.R., 332 S.W.3d at 806-07. Furthermore, “[ujnlike chapter 453, which only discusses the best interest of the child in the construction of its provisions, chapter 211 requires a court to consider and protect both the best interest of the child and the constitutional rights of all the parties when construing its termination of parental rights provisions.” Id. at 807.

The Missouri Supreme Court has recently explained the interaction of chapter 211 and chapter 453 in the context of adoption proceedings:

When a person alleges that consent of the parent is not required for the adoption under section 453.040, the statutory mandates of chapter 211 are irrelevant to the chapter 453 proceeding unless specifically cross-referenced and mandated by chapter 453. However, if the prospective parents plead termination of parental rights under chapter 211 in a chapter 453 petition, all statutory requirements for chapter 211 must be met for each chapter 211 claim.

Id. at 807 (internal citations omitted). Clearly, the findings requirements of section 211.447 do not apply to section 453.040(7) adoptions when section 211.447 is not pleaded:

Many cases confirm that a court may grant an adoption without parental consent simply based upon a finding either of “willful abandonment” or “willful, substantial and continuous neglect” by the natural parent, as provided in section 453.040(7). None of those cases indicates that such a finding also triggers application of the required findings provisions found in section 211.447.

In re S.L.N., 167 S.W.3d at 741 (internal citations omitted).

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Bluebook (online)
336 S.W.3d 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lm-v-kk-moctapp-2011.