Sln v. Dln

167 S.W.3d 736, 2005 Mo. App. LEXIS 976
CourtMissouri Court of Appeals
DecidedJune 28, 2005
DocketWD 64632
StatusPublished

This text of 167 S.W.3d 736 (Sln v. Dln) 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
Sln v. Dln, 167 S.W.3d 736, 2005 Mo. App. LEXIS 976 (Mo. Ct. App. 2005).

Opinion

167 S.W.3d 736 (2005)

In the Matter of S.L.N., Plaintiff; M.R.N. and L.N., Respondents,
v.
D.L.N. (Mother), Appellant.

No. WD 64632.

Missouri Court of Appeals, Western District.

June 28, 2005.
Motion for Rehearing and/or Transfer Denied August 2, 2005.

*737 Hugh D. Kranitz, St. Joseph, MO, for Appellant, DLN.

Zel Martin Fischer, Rock Port, MO, for Respondents.

Robert Edward Sundell, Attorney and Guardian for minor.

Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 2, 2005.

PER CURIAM.

D.L.N. (Mother) appeals the judgment terminating her parental rights to her child, S.L.N. She contends that the court erred as a matter of law in failing to consider, evaluate, and make the appropriate statutory findings. The judgment is affirmed.

Statement of Facts

S.L.N. (Child) was born in 1998 to Mother and M.R.N. (Father). Mother and Father divorced less than a year later. The dissolution decree granted joint physical custody, with Mother having the larger share of residential time with Child. In October 2001, after Mother was charged with a felony, Father obtained a judgment that granted him temporary custody. The judgment permitted Mother limited periods of unsupervised visitation with Child. Child, who was then approximately three years old, has lived continuously with Father and his wife (Stepmother) since that time.

Mother pleaded guilty to the felony of "conspiracy to facilitate arson." Mother admitted that she had conspired with her uncle to burn down the home of a man (L.B.) who is the father of Mother's other child, H.B. Mother, Child, H.B., and L.B. previously lived together at the house that was burned. Mother began serving a five-year prison sentence in January 2002, when Child was approximately four years old.

Father filed a motion to modify custody. The court sustained the motion and granted Father sole physical and legal custody. The court ordered Mother to pay $250 per month in child support, effective retroactively. The judgment contained no provision for mandatory visitation while Mother is incarcerated. Visitation with Mother was to be at Father's discretion based on Child's best interests. Mother was permitted restricted telephone access with Child.

In November 2003, Father and Stepmother filed a Petition for Transfer of Custody and Adoption. The petition alleged, in part, that Mother had abandoned and neglected Child and that adoption by Stepmother would be in Child's best interest.

The court held a hearing, at which all parties were present with their respective counsel. In its judgment, the court declared that it had jurisdiction pursuant to Chapter 453. The court found, inter alia, that Mother had "willfully abandoned" Child and had "willfully, substantially, and continuously neglected" to provide Child with necessary care and protection. The court determined that Father and Stepmother are suitable parents and that Child is suitable for adoption. The court concluded that Mother's parental rights should be terminated and that adoption is in Child's best interest.

The judgment terminated Mother's parental rights and granted the stepparent adoption. Mother appeals.

Failure to Make Required Findings

All three of Mother's points relate to the same issue and can be summarized as follows: The trial court misapplied the law in terminating Mother's parental *738 rights in connection with the adoption proceeding by failing to comply with various provisions of section 211.447.[1]

We will sustain the trial court's judgment in an adoption case unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law. In re K.N.H., 118 S.W.3d 317, 319 (Mo.App.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). We defer to the trial court's factual findings and credibility determinations. Id. Whether the court erred in failing to comply with section 211.447 is a question of law, which we examine de novo. See Obermeyer v. Bank of Am., N.A., 140 S.W.3d 18, 22 (Mo. banc 2004).

Chapters 211 and 453 provide two separate means by which a parent's rights may be involuntarily terminated. See Matter of J.F.K., 853 S.W.2d 932, 934 (Mo. banc 1993). Chapter 211 provides for a direct proceeding that usually is brought by the juvenile officer. See id.; but see § 211.447.5 (permitting the court to terminate parental rights based on a Chapter 211 petition brought by a prospective parent in an adoption case). Chapter 453 governs adoptions in Missouri. See In re Adoption of R, 31 S.W.3d 551, 552 (Mo.App.2000). Pursuant to that chapter, prospective adoptive parents may request termination of parental rights incident to an adoption action. See J.F.K., 853 S.W.2d at 934; § 453.040.

Section 211.447 is the provision of Chapter 211 under which a parent's rights may be terminated. Here, Mother specifically argues that the court erred in terminating her parental rights without considering, evaluating, and making findings on the factors set forth in section 211.447.4 as to abandonment and neglect.[2] She makes the same argument with regard to the additional factors set forth in subsections 4-6 of section 211.447.6.[3]

*739 The court made the following relevant findings:

IV. The natural mother of the child ..., immediately prior to the filing of the petition for adoption has for a period of at least six months, willfully abandoned the child.
V. The natural mother of the child ..., immediately prior to the filing of this petition for adoption for a period of at least six months, willfully, substantially and continuously neglected to provide the minor child with necessary care and protection.
VI. In support of terminating the parental rights of [Mother], the Court considered all relevant factors allowed by law and finds as follows:
A. [Child] has no emotional ties to her natural mother....
B. [Mother] has not maintained regular visitation and contact with [Child]. Further, [Mother] had the opportunity to have regular telephone visitation and contact but failed to do so. In fact, [Mother] never called [Child] after April of 2003.
C. [Mother] has not expended any funds nor provided any support for maintenance of [Child] since prior to October 26, 2001. [Mother] is in arrears in child support in the amount of $8,000.00. There was evidence she had a prison job. [Mother] sent [Child] a total of $7.00 as gifts the entire time she has been in prison.
D. [Mother] was convicted of conspiring with her uncle [] to commit an arson that resulted in the former residence of [Child] being totally destroyed.
* * * *
[The court made additional factual findings concerning the specifics of the crime, which we have omitted.]
* * * *
E.

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Murphy v. Carron
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140 S.W.3d 18 (Supreme Court of Missouri, 2004)
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In the Interest of K.A.W.
133 S.W.3d 1 (Supreme Court of Missouri, 2004)
S.L.N. v. D.L.N.
167 S.W.3d 736 (Missouri Court of Appeals, 2005)

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Bluebook (online)
167 S.W.3d 736, 2005 Mo. App. LEXIS 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sln-v-dln-moctapp-2005.