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.
'Santa Mom'
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."
Involuntary Termination
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.
'Relinquish Status'
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.
