Matter of Williams

672 S.W.2d 394, 1984 Mo. App. LEXIS 3923

• Court: Missouri Court of Appeals
• Decided: June 13, 1984
• Docket: 47984
• Status: Published

Opinions

CRANDALL, Judge.

Appellants Terry and Janienne Williams appeal from a juvenile court order denying their petition for transfer of custody and adoption. After an opinion in this case was handed down by a division of this court, a rehearing was granted. Portions of this opinion are borrowed from the original opinion written by Judge Karohl. We reverse and remand.

The Williamses sought to adopt Baby Girl B who was born July 30, 1983. Prior to the birth Baby Girl B’s natural mother decided to give her child up for adoption. Appellants learned of the mother’s intentions from a friend and contacted an attorney concerning the procedure to adopt the child. Appellants never learned the identity of the natural parents. On September 1, 1983, in accordance with a pre-arranged plan, the Williamses filed a petition for transfer of custody of Baby Girl B to them and for her subsequent adoption. The court appointed a Guardian Ad Litem for the child and directed that a study be made on the suitability of the child and appellants for adoption. The natural parents’ rights were voluntarily terminated on October 27, 1983. Since birth Baby Girl B has lived with a foster family under the supervision of the Missouri Division of Family Services. A social worker employed by a licensed adoption agency who performed a home study testified favorably for the appellants. The juvenile court denied appellants’ transfer of custody petition without setting forth any reasons for the decision. There was no request for findings of fact and not one was made. Appellants contend that the denial of their petition was an abuse of discretion as there was no evidence to support the court’s decision and that the decision was against the weight of the evidence presented.

Before reaching the merits of this case we first consider whether the juvenile court order denying the transfer of custody is an appealable order. The court denied only the transfer of custody and did not mention the subsequent adoption. The order is a final judgment because it disposes of all the parties and issues in the case. § 512.020, RSMo (1978). As noted in Matter of M.D.H., 595 S.W.2d 448, 449 (Mo.App.1980), denial of transfer of custody, which is a prerequisite to this type of adoption, disposes of the adoption issue. Here the court order specifically denies the transfer of custody which has the effect of denying the petition for adoption. As all the issues are resolved, the order is appeal-able.

We turn now to the merits of this case. The record reflects that the Williamses have a stable and strong family relationship. They have been married twelve years. They have two children, a boy and a girl, whose ages at the time of the hearing were seven and three, respectively. Terry Williams testified that he thought “they’re kind of looking forward to [the adoption].” Terry and Janienne are both in their mid-30’s. All members of the family are in good health. Terry’s parents and Janienne’s mother, the prospective grandparents, are supportive of the adoption.

The family resides in Cape Girardeau, Missouri. They live in a four bedroom house which has ample room for another child. Terry Williams is employed by Southwestern Bell as manager of a Residential Service Center. His annual salary is clearly sufficient to provide for the family-

In a custody or adoption proceeding, the welfare of the child is the primary and paramount consideration. In re Drew, 637 S.W.2d 772, 778 (Mo.App.1982). Unlike other litigation where the judge is a neutral arbiter, in this type of proceeding the court has an interest in determining what is in the best interests of the child. Thus, a greater burden is imposed on the trial court than simply according all parties a fair trial. It is for that reason that we presume that the decision in such a proceeding was motivated by what the judge believed was best for the child, and we accord the judge’s determination greater deference than in other cases. In re Drew, 637 S.W.2d at 778. The fact that the petitioners in an adoption proceeding are financially stable, morally and physically fit, and able to furnish a home for the children “is not the end of the matter.” In Matter of 573 S.W.2d 382, 384 (Mo.App.1978). The suitability of the petitioners is merely a preliminary step in reaching the ultimate decision as to what is best for the child. Thus, the trial court is afforded wide discretion which must not, of course, be abused. In Matter of Neusche, 398 S.W.2d 453, 457 (Mo.App.1965).

While the trial court is accorded broad discretion and we must give great deference to its determination, its decision is still subject to appellate review. The ultimate question on appeal is whether the trial court’s decision was a proper exercise of its discretion in determining the best interests of the child. There is nothing in the record of this case to support the trial court’s denial of the transfer of custody. All of the evidence adduced was favorable to the request of the petitioners. When the discretion of the trial court is exercised without any discernible basis in the record, we, as an appellate court, are unable to conclude whether the decision was in fact in the best interests of the child. Even when we are limited, on review, to determining whether the trial court abused its discretion, the record must provide some basis for that determination. This record fails to do so.

Section 453.030.1, RSMo (Supp.1983) provides that approval for an adoption “shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand.” (Emphasis added.) Here we are not presented with an opinion of the court, but simply an order that is unsupported by the record.

We therefore reverse this case and remand it to the trial court. On remand, the court may grant the transfer of custody or, if necessary, reopen the case for a further hearing to amplify the record. The trial court shall then enter whatever order it deems appropriate, giving its opinion, as required by statute. Since the parties did not attempt to invoke Rule 73.01(a)(2), such an opinion may, but need not, take the form of findings of fact and conclusions of law.

STEWART, SIMON and GAERTNER, JJ., concur. SMITH, J., concurs in separate concurring opinion. SNYDER, J., concurs in separate concurring opinion by SMITH, J. KAROHL, J., dissents in a separate opinion. DOWD, C.J., and CRIST, J., dissent and concur in dissenting opinion by KAROHL, J.