Zh v. Gh

5 S.W.3d 567, 1999 WL 710102
CourtMissouri Court of Appeals
DecidedSeptember 14, 1999
DocketWD 56238
StatusPublished

This text of 5 S.W.3d 567 (Zh v. Gh) 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
Zh v. Gh, 5 S.W.3d 567, 1999 WL 710102 (Mo. Ct. App. 1999).

Opinion

5 S.W.3d 567 (1999)

In the Interest of Z.H. and Juvenile Officer, Respondents,
v.
G.H. (Natural Father), Appellant.

No. WD 56238.

Missouri Court of Appeals, Western District.

September 14, 1999.
Motion for Rehearing and/or Transfer Denied November 2, 1999.
Application to Transfer Denied December 21, 1999.

*568 Mark Lee Richardson, Jefferson City, for respondent.

Maureen M. Monaghan, Jefferson City, for Juvenile Officer.

Before Presiding Judge LAURA DENVIR STITH, Judge HAROLD L. LOWENSTEIN and Judge JAMES M. SMART, Jr.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 2, 1999.

LAURA DENVIR STITH, Presiding Judge.

G.H. (Father) appeals the termination of his parental rights to his son, Z.H., based on abandonment. Father claims the trial court erred: (1) in finding the statutory grounds for termination of his parental rights were met because, he asserts, he did not abandon Z.H., and (2) in finding that termination of Father's parental rights was in the best interest of Z.H., because the court's ruling left the child without a father or other male role model. Father asks this Court to reverse the termination of his parental rights, and to remand the case to the lower court with instructions to implement an order providing for specific visitation and child support. Finding the evidence fails to support an intent to abandon, we reverse and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 1992, Z.H. was born to Father and Mother, who were never married. Z.H. lived with Mother until February 27, 1995, when Mother was killed in an automobile accident. Z.H. was taken into protective custody and placed in a foster home in Jefferson City, Missouri. Although Father was living in Kansas City, Missouri, he arranged to visit Z.H. in Jefferson City approximately seven times in the eight months during which Z.H. was in foster care, and provided Z.H. with toys and, on occasion, clothing.[1] Pamela Gilkey, Z.H.'s maternal great-aunt, also came from her residence in the State of Texas to Jefferson City to visit Z.H. on one occasion while he was in protective custody. Both Father and Ms. Gilkey applied for custody of Z.H.

On November 3, 1995, the trial court held a hearing to determine with whom to place Z.H. The court found Father unfit to have care and custody of Z.H. based on his lack of financial support for the child, his periods of incarceration in the Missouri Department of Corrections, and his return to the Department of Corrections for a parole violation. The court gave legal care and custody of Z.H. to his great-aunt, Ms. Gilkey. Although Ms. Gilkey lived in Texas and would be moving Z.H. there to live with her, the order made no provision for visitation by Father with Z.H., nor did it order Father to pay child support. Father *569 was instead instructed to contact the social worker in Dallas, Texas, in order to arrange for supervised visitation with Z.H.

For the first six months after Z.H. moved to Texas to live with Ms. Gilkey, Father was prevented from visiting him because the conditions of his parole prohibited him from leaving the state of Kansas. He called the social worker in Texas to try to get permission for his son to visit him in Kansas, but the Texas worker said he had to arrange such a visit through Missouri authorities (although, as noted, Missouri had told him to arrange visitation through Texas authorities). Although he was thus unable to see his son in person, he stayed in frequent telephone contact with his son, making some 30 calls over that six-month period and over the three months after his parole conditions were removed. Then, in August or September of 1996, Father came to Texas and met Z.H. for a visit at a toy store.

Father then went back to his home and did not visit with his son in person in Texas for some 15 or 16 months. He did, however, continue to talk with his son by telephone on a regular basis, and to talk with Mrs. Gilkey about his son. The records show that he called and either talked with his son or left a message, generally asking Mrs. Gilkey to have his son call him back, on approximately 46 occasions during this period. He also sent occasional gifts and checks, but did not send regular support.

The next in-person visit occurred a little over one year later, on December 25, 1997. Three days earlier, Father had sent his son a check which he could use to buy presents, but then decided at the last minute that he wanted to visit his son too. He called Ms. Gilkey and arranged to see Z.H. on Christmas morning. He arrived at Ms. Gilkey's home around 10 a.m. Having already sent the check, and finding the stores all closed on Christmas morning, he had no gifts to present to his son to open that morning.[2] When Father learned that Z.H. had already opened his other Christmas gifts, and that Ms. Gilkey would soon be leaving to visit her son so that his visit would be cut short, he became upset and left in less than an hour.

Telephone records confirm that Father continued to have telephone contact with his son over the next six months, talking with him on at least one occasion every month and leaving numerous messages. In April 1998, a Petition to terminate parental rights was filed. In May 1998, Father made travel plans to fly to Texas to visit Z.H. in June 1998, but these plans were changed because Ms. Gilkey's mother passed away and she and Z.H. were going to be in Lamar, Missouri for the funeral. New arrangements were made for Father to meet with Ms. Gilkey and Z.H. at a Dairy Queen in Lamar, Missouri, for a visit before the funeral. Father was able to visit with Z.H. for approximately forty minutes on this occasion.

Following a hearing on June 28, 1998, the court entered an order terminating Father's parental rights based on a finding of abandonment. Father appeals, claiming he has not abandoned his son and has always attempted to maintain a relationship with him to the extent possible.

II. STANDARD OF REVIEW

We will affirm the trial court's order terminating a parent's rights unless it is not supported by substantial evidence, it is against the evidence, or it erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In Interest of D.T.B., 944 S.W.2d 321, 322 (Mo.App.1997). We review the facts and all reasonable inferences therefrom in the light most favorable to the trial court's order. D.T.B., 944 S.W.2d at 322; In Interest *570 of J.M.L., 917 S.W.2d 193, 195 (Mo. App.1996).

III. ABANDONMENT

Section 211.447.2(1) provides for the termination of the rights of a parent to a child if the termination is in the child's best interest and if clear, cogent and convincing evidence shows that the child has been abandoned. A child over one year of age has been abandoned if, for a period of six months or longer, "[t]he parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so." § 211.447.2(1)(b).[3]

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Bluebook (online)
5 S.W.3d 567, 1999 WL 710102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zh-v-gh-moctapp-1999.