In re B. J. K.

CLEMENS, Presiding Judge. Petitioning maternal grandparents appeal from denial of their petition for transfer of custody and adoption. We affirm. In August, 1977 petitioners filed a two-count petition seeking transfer of custody and adoption of their twin five-year old maternal grandchildren. Incorporated by reference were certified copies of the court's prior orders terminating the parental rights of the children’s father and their mother, petitioners’ daughter, now divorced from the father. In July, 1977 the court had found the father and mother had wilfully neglected the twins for one year, terminated parental rights, and ordered custody transferred to an agency “for foster care and placement in the best available adoptive home.” In December, 1977 a hearing was held on the petitioners’ motion to transfer custody. Evidence showed the children had been placed in foster care in October, 1975 by their mother. She had acted on the advice of her psychiatrist, who recommended foster care for the children’s safety. At the mother’s request the agency allowed petitioners to visit their grandchildren at the foster parents’ home. When the parental rights were terminated the following year these visits were discontinued. Further evidence on petitioners’ motion for custody showed: They have been married 32 years. In addition to their 31-year-old daughter they have a 26-year-old married son. The grandmother is 54 years old, has an eighth-grade education, and earns $250 a week as an office supervisor; she was eligible for retirement in eighteen months. She had a two-week annual vacation which she would take if the children were placed with her and the grandfather. She had obtained the names of prospective baby sitters available to care for the children. The grandfather is 57 years old, has a tenth-grade education and earns $327 weekly as a warehouseman. He has family medical insurance. Both petitioners have recently had physical examinations and are in good health. They actively enjoy bowling, dancing, camping and fishing. The testimony and favorable home investigation study of a social worker was in evidence. Evidence was introduced by the director and a caseworker of the agency which for two years had supervised the children’s foster home. It was their opinion the children were emotionally ready for adoption and that other suitable adoptive family homes were available. The court opined that the children’s best interests would be served by placement in an adoptive home other than that of the petitioners. At the conclusion of the hearing, the court found it was “not in the best interests of [the children] that the petitioners be granted custody for the purpose of adoption,” and continued in effect its 1977 order of custody. Petitioners contend on appeal the court’s finding that transfer of custody to them was not in the best interests of the children was not supported by substantial evidence. The trial court had to decide what was in the children’s best interests and in this crucial decision it had a broad discretion. In Re Neusche, 398 S.W.2d 453 [4] (Mo.App.1965). We indulge in the presumption that in an adoption proceeding the lower court’s decision was motivated by what it believed was best for the children. In The Adoption of Ann, 461 S.W.2d 338 [1, 2] (Mo.App.1970). The judge of a juvenile court has an advantage over this court because he can assess the demeanor and character of parties, traits not discernible to us from a printed record. Because of the lower court’s superior vantage point, a reviewing court grants greater deference to his determination when the custody of minor children is involved than in other cases. In Re Neusche, supra. We have reviewed the evidence and find the court’s decision was supported by the evidence. While the evidence establishes that petitioners could give the children a good home, the court’s duty is to provide the best available home. The mere fact petitioners were financially able, morally fit, physically capable, and able to furnish a [384] home for the children “is not the end of the matter.” State ex rel. St. Louis Children’s Aid Soc. v. Hughes, 352 Mo. 384, 177 S.W.2d 474 [5, 6] (1944); In Re Neusche, supra, at 458. The lower court expressed concern about the relationship between the petitioners and their daughter and about possible confrontation between her and the children. The grandfather testified the daughter did not frequently visit petitioners and their relationship was not close, but he admitted she was still part of their family and would “get what she asked” from petitioners. His statements pinpoint the realities. Petitioners are not estranged from their daughter. At the time of the hearing she was seeking to regain custody of an older child. Because the termination of the mother’s parental rights was involuntary and occurred during a period of her emotional upheaval, it is not unlikely that she may seek contact with the twins or to regain their custody at a time when she believes stability has returned to her life. “The future welfare of the children is extremely important,” Brooks v. Division of Children’s Services, 411 S.W.2d 276 [1-5] (Mo.App.1967), and the likelihood of confrontation between the mother and the children is not mere speculation. The court must “peer into the future, to make a projection based upon the facts then before it.” See In Re K. W. S., 370 S.W.2d 698 [6] (Mo.App.1963) where the petitioners seeking to adopt merely knew identities of natural parents and paternal grandparents. Here, the evidence justifies the lower court’s concern about prospective confrontation. Another problem here appears from the testimony of two social workers. One stated the children would accept anyone with whom they were placed as their mother and father. One testified the twins continually asked who their mother and father were and, at one time, the children considered anyone with whom they stayed as mother and father. Here, the problem of role identity is acute. The twins respond to petitioners as grandchildren do to grandparents. By the legal device of adoption, petitioners would become their parents. It is difficult to imagine that children nearly six years old would understand the role change of petitioners from grandparents to parents. A further complication arises from the looming shadow of their mother contacting them. The confusion that might result for the children as to the petitioners’ dual role as grandparents and parents was noted in In Re D _, 408 S.W.2d 361 [7, 8] (Mo.App.1966). Finally, our courts have repeatedly said that “young children should, when possible, be cared for by individuals who are in good health and of such age as those who normally bear children.” In The Adoption of Ann, supra, citing In Re Adoption of K, 417 S.W.2d 702 [16, 17] (Mo.App.1967). While petitioners’ middle-age does not automatically disqualify them, the court could well consider the effect of petitioners’ ages on their ability to provide the best home for the twins during the remaining years of their infancy. We conclude the trial court did not err. As their second point, petitioners challenge denial of a new trial based on newly discovered evidence, an affidavit by petitioners’ counsel showing the twins’ satisfactory school performance. The grant of a new trial on the basis of newly discovered evidence under V.A.M.R. 78.01 rests largely in the sound discretion of the trial court. The “new evidence” is not so material that it would likely produce a different result. The court did not abuse its discretion in denying a new trial. Judgment affirmed. SMITH, J., concurs. McMILLIAN, J., dissents in separate opinion.