From — Missouri Lawyers Weekly
December 9, 1996
By Stephanie Skinner
A mother could not have her parental rights involuntarily terminated for neglect even though she didn’t pay child support after her 1991 divorce despite having the means to do so, according to the Missouri “Court o Appeals’ Eastern District.
This is because the intentional failure to provide so support does not alone establish an intent to relinquish the status of parent, the court said.
The court noted the mother had maintained a relationship with her son since birth and that the custodial father and stepmother never discussed with the mother her failure to pay.
The record does not support a finding that [the mother] neglected her son as the courts have defined that term for purposed of termination of parental rights.” Wrote Judge Gerald M. Smith for the court.
The trial court terminated the mother’s parental rights as a prerequisite to granting a petition for adoption filed by the father and stepmother. The case is L,C.B., et al. V. L, K.E., MLW No. 18257, handed down December 3.
Looking For Intent
Springfield attorney F. Richard Van Pelt said that until this case many practitioners believed the Court of Appeals was “loosening the standard” on what is required to find neglect and abandonment. He noted the court clearly implied in G.S.M. & L.M.M. v. T.H.B.,786 S.W.2d 898 (Mo. App. 1990) that failure to pay was enough to show neglect. “You could reconcile the two cases by saying if contact is very limited then coupled with the failure to pay, that may be enough,” said Van Pelt.
“The [instant] decision is helpful because it further defines in specific situations what actions by natural parents will remove them from intentional neglect or abandonment,” he said.
Evidence of repeated contact was the key here, Van Pelt concluded. Clayton attorney Leigh Joy Carson agreed that evidence of the mother’s efforts was skillfully presented. She pointed out that the court even noted the mother’s offer to loan money to the father.
“A lot of times when dealing with this statute, it seems the court would consider such evidence irrelevant, but here the court takes a wider view,” she said.
“The decision seems to be part of a trend reemphasizing that the status of parent and the rights of the natural parent are worth protection,” said Carson.
Failure To Pay
The child was born in 1988, and the couple divorced in 1991. The decree provided that the father would have custody and the mother would pay $200 per month in child support. The mother never made any payments. ‘The father remarried. The father and stepmother filed a petition for adoption out of concern over custody if something should happen to the father.
The father testified that he never discussed the lack of payments with the mother and never asked her to pay. He said this is because the family got along fine without the money.
The mother visited her son about once a month except for a one-year period in which the father moved his family out of state. That year she saw him five or six times. The mother also talked to the child on the phone and had overnight visits with him until she moved into a trailer. She said her living conditions and roommates there were not “acceptable” for such visits.
The father and stepmother agreed that the mother asked them what the child needed when she brought gifts, which she did often.
She also gave him allowance on their visits and once conditioned it on the improvement of his behavior at school.
The father testified that the mother took the child on outings and that while he called his stepmother “mom,” he thinks of his biological mother as “Santa Mom” because he has a ‘good day’ when they visit.
Both the father and the stepmother said the adoption petition would not change the arrangements with the mother because they felt it was important to keep the mother involved in the boy’s life.
The trial court terminated the mother’s parental rights and granted the petition for adoption. It found that the mother willfully neglected the child for the statutory period. The trial court explained that “[t]he credible evidence reflects that the mother has failed to provide any support for the minor person since the date of the dissolution … although she had the financial means to do so.”
Smith explained that consent of the natural parents or involuntary termination of parental rights is a prerequisite to any adoption.
However, under the statute consent is not required from “a parent who has for a period of at least six months, for a child one year of age or older,…willfully abandoned the child, or for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection.”
Substantial evidence of either abandonment or neglect, then, will support the termination of parental rights.
Smith noted neglect usually focuses on physical deprivation or harm. He said stepparent adoptions often emphasize the failure to provide support.
“In both neglect and abandonment the issue turns on intent, which generally is an inferred fact, determined by conduct within the statutory period, combined with relevant conduct both before and after this period,” Smith wrote.
He emphasized that adoption statutes are strictly construed in favor of natural parents because adoption ends the legal relationship and all rights of the natural parent. “We believe, therefore, that with the extreme penalty which is imposed upon the natural parent, the level of parental indifference necessary to warrant termination should be comparable under either an abandonment or neglect proceeding,” concluded Smith.
An intentional failure to provide support is not enough on its own to establish an intent to “relinquish the status of parent,” pointed out Smith. There must also be evidence as to the parent’s lack of contact with the child.
“In In the matter of S. C. H, v. C. W. H., 587 S.W.2d 945 (Mo. App. 1979), we defined willful neglect as required by the statute as neglect that is ‘intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego parental duties over the [statutory period], ” he wrote.
The Eastern District did not find any cases where failure to provide support alone was enough to terminate parental rights.
Smith noted that in the instant case the mother had maintained contact with the child since birth and that the father never questioned her failure to pay. He also said although the trial court characterized her gifts to the boy as “tokens,” she continuously provided clothing, toys and allowance.
“The record does not support a finding that [the mother] neglected her son as the courts have defined that term for purposes of termination of parental rights,” wrote Smith.
Best Interests Of The Child
Smith referred to the trial court’s finding that adoption was in the child’s best interests because the mother failed to pay support, but pointed out that such failure does not per se determine the best interests of the child.
He noted that the mother, father and stepmother all agreed continuation of the relationship between mother and child was in the beat interests of the child. He cautioned that adoption would allow the father and stepmother to end this relationship at any time and for no reason.
“Filial ties with the non-custodial parent have been considered an important element in this consideration and can defeat a petition for adoption,” Smith wrote. And, although the concern that something could happen to the father leaving the child’s status uncertain is a valid consideration, it does not outweigh the benefits of the child’s relationship with his mother.
Finally, Smith noted that the mother did not request custody so the evidence of her home environment was irrelevant. The Eastern District ordered the termination of the mother’s parental rights and grant of adoption reversed.