T.D.C. v. W.S.H.

GAITAN, Judge. This is a direct appeal from a judgment of termination of parental rights, pursuant to § 211.447, RSMo Supp.1984. Appellant, W.S.H. charges the juvenile court erred in ordering termination of her parental rights because (1) there was insufficient evidence of willful abandonment; and (2) that there was no evidence that she was mentally capable of forming an intent to abandon B.C.H. The judgment of the juvenile court is affirmed. The minor, B.C.H., is a male born on November 15, 1976. On January 21, 1984, under court order, he was removed from his mother’s custody. Under the jurisdiction of the juvenile court, B.C.H. was placed in the custody of the Division of Family Services (D.F.S.) for educational neglect. A petition for termination of parental rights was filed on March 26,1985. Termination was sought on the grounds of abandonment, neglect, W.S.H.’s mental condition, and the failure to rectify conditions. On October 17, 1985, a hearing was conducted. Three D.F.S. employees testified at the hearing. They stated that numerous attempts had been made to communicate with the mother, both in person and by mail. Attempts were made to advise the mother of various court dates, her right to visit B.C.H., and the need to develop a plan whereby she would seek the custody of B.C.H. The evidence revealed that the mother was living in a local motel. On one occasion, a D.F.S. employee went to the motel, heard the sound of the television inside, and knocked on the door. The mother responded, “Who’s there”, and when the employee identified herself, there was no further response. Registered mail was sent to the mother for which she refused to execute receipts. On one occasion, an employee of D.F.S. met with the mother at her sister’s home. The employee advised the mother of the need to formulate a plan to regain custody. He also asked the mother if she wished to visit with B.C.H. The mother replied that she never wanted to see B.C.H. again. The employee then informed the mother of the consequences, that her parental rights could be terminated, and the mother responded, “Go ahead and do it.” Again W.S.H. was advised that if the termination was ordered she would not have the right to see B.C.H. again, she again told that employee that she never wanted to see B.C.H. again and that the termination should proceed. No contact had occurred between B.C.H. and his mother between January 21, 1984 and the hearing date. The mother had not provided or made any offer to provide any financial assistance for B.C.H. during this period. Subsequent to the termination hearing, which neither parent attended,1 the juvenile [160] court found that B.C.H. had been abandoned by his parents for a period of six months or longer, without good cause, without any communication, visitation or any provision of support from either parent. No findings were made on the other alleged grounds for termination. This appeal follows. The termination of parental rights is purely statutory and is governed directly by §§ 211.442-211.467, RSMo Supp.1984. The gravity of parental termination requires strict and literal compliance with the applicable statutes. In the Interest of W.F.J., 648 S.W.2d 210, 214 (Mo.App.1983). A juvenile court may order parental termination if such termination is deemed to be in the best interest of the child and there is clear, cogent and convincing evidence that one or more of the conditions prescribed by § 211.447 is shown to exist. See § 211.-447.2, RSMo Supp.1984. The party invoking the statute, the juvenile officer herein, bears the burden of proof. W.F.J., supra. It has been held that this burden is met when the evidence “instantly tilts the scales in the affirmative when weighted against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984), citing In re O’Brien, 600 S.W.2d 695, 697 (Mo.App.1980). Review of a termination proceeding is upon the same standard as in all other civil court-tried cases. A judgment will be affirmed unless unsupported by the evidence, it is against the weight of the evidence or it erroneously declares or applies the law. W.B.L., supra. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The trial court is accorded deference regarding the resolution of fact issues and the credibility of witnesses. The presence of contrary evidence does not necessarily demonstrate that a judgment is against the weight of the evidence. W.B.L., supra. Only when a reviewing court is of the firm belief that a judgment is wrong will it reverse. Murphy v. Carron, supra. H.D. v. E.D., 629 S.W.2d 655, 657 (Mo.App.1982). When a reviewing court is asked to review the sufficiency of the evidence, the evidence and all reasonable inferences which may be drawn from that evidence are considered in a light most favorable to the juvenile court’s judgment. In re B.G.S., 636 S.W.2d 146, 148 (Mo.App.1982). With the foregoing as a background, attention is directed to the case in chief. Termination herein was based upon findings of abandonment under and pursuant to § 211.447.2(1), (2)(a) a. and b. That statute reads as follows: 2. The juvenile court may, upon a petition filed by the juvenile offer under this section, terminate the rights of parent to a child if it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist: (2) When it appears by clear, cogent and convincing evidence that one or more of the following conditions exist: (a) The parent has abandoned the child. The court may find that the parent has abandoned the child if, for a period of six months or longer for a child over one year old or a period of sixty days or longer for a child under one year of age at the time of the filing of the petition, either of the following has occurred ...: b. The parent has, without good cause, left the child without any provision for support and without any communication or visitation from the parent. Evidence that the parent has acted to support, to communicate with or to visit the child during the period may be disregarded if such acts of the parent appear to have been merely a token effort. ... [Emphasis added.] I. Appellant argues that evidence of abandonment is restricted to the six month peri [161] od immediately preceding the filing of the petition to terminate parental rights. She further relies upon In re Trapp, 528 S.W.2d 489, 495 (Mo.App.1975). She asserts in her argument that the parent’s conduct, in order to constitute willful abandonment, must have occurred during a six-month period immediately preceding the filing of the petition to terminate parental rights. She further asserts there was no such evidence in the case in chief. Trapp was a decision predicated upon the 1969 parental rights statute, which was repealed in 1978. That statute (§ 211.441, RSMo 1969) provided for termination if there was clear, cogent, and convincing evidence of abandonment “for one year or more immediately prior to the filing of the petition,” and said termination was in the best interest of the child. The successor statute, RSMo 1978, like the 1984 amended version applicable to the present case, omitted the above-quoted language. Linda Shipley was the D.F.S. employee in charge of the case at the time of the termination hearing. She testified that she was familiar with the case from the time B.C.H. was removed from parental custody. As a consequence, she testified regarding the attempted communication with appellant. Her testimony was supported by other D.F.S. employees. The facts are that appellant had no communication nor sought visitation with her son for approximately twenty to twenty-one months. There was no contrary evidence. This evidence clearly supports the juvenile court’s finding that there had been neither communication nor visitation. Although it appears the legislature may have had something in mind in deleting this wording from the ^¡re-Trapp statute, the mother’s point is nevertheless doomed. The evidence here clearly discloses the following chronology: the child was taken from the mother’s custody on January 21, 1984, and this was her last contact with the child — she did not even come to the hearing on October 17, 1985, from which she now appeals. Calls and visits were made by D.F.S. employees with the mother in February and March of 1984 and with letters in March; they talked through a door to her in May 1984. In January 1985 she told a worker she never wanted to see the child again, and said, “Go ahead and terminate.” In January 1985 she did not appear at a hearing, she had no contact with or support of the child through May 1985. Efforts through the date of the court hearing to make contact with the mother were fruitless. The mother mistakenly claims that since there was no evidence of “any activity” by D.F.S. for six months prior to filing the petition, she must prevail. She misses the mark. She ignores § 211.447.2(a)b of the statute which requires her to support, communicate and visit. The evidence here, which comports with the finding of abandonment, shows the mother did absolutely nothing toward her parental duties with regard to this child from January 1984 to date. The evidence of her total abdication of support, communication, etc. is even more telling with the testimony of her positive assent to termination of January 1985. Appellant extends her argument further by stating there was no showing of a willful abandonment because the same was contradicted by evidence that the child was taken from her custody involuntarily by court order. W.F.J., 648 S.W.2d at 215, discloses that generally a finding of abandonment is not compatible with a finding that custody has ended involuntarily. However, the court in W.F.J. also noted that abandonment is characterized by a settled purpose to forego all parental duties and relinquish all parental claims. Thus, evidence to forego all parental duties and to relinquish all parental claims after separation, or after the custody has been severed involuntarily by a proper court order, is certainly admissible upon the issue of termination. This is true even though the initial breach or severance of the parent-child relationship was not occasioned by an act of desertion. See W.F.J., supra. Here, appellant neither sought visitation [162] nor attempted to communicate with her son for a period of twenty to twenty-one months. She resisted all efforts to arrange contact to such an extent that in all but one instance, she even refused to discuss the matter. This evidence, standing alone, is sufficient to demonstrate a settled purpose of abandonment and to support the termination of her parental rights. Generally, the finding of a parent’s intent to abandon is an inferred fact to be determined by the consideration of all the evidence relative to the parent’s conduct. W.B.L., 681 S.W.2d at 435. Here, appellant repeatedly and without equivocation stated that she never again wanted to see B.C.H. and urged the juvenile authorities to proceed with the termination of her parental rights. Such evidence leaves no doubt that appellant displayed the requisite intent or settled purpose to abandon B.C.H. Consequently, the respondent proved by clear, cogent and convincing evidence that W.S.H. abandoned B.C.H. II. Finally, appellant argues a lack of evidence of her mental capacity to form an intent to abandon her child. It is unquestioned that it must be shown that a parent must have sufficient mental capacity to form the intent to abandon the child before termination can be ordered. In re Baby Girl A, 481 S.W.2d 602, 604 (Mo.App.1972). Appellant’s reliance upon Baby Girl A for the proposition that evidence of mental deficiency precludes a termination of parental rights on the ground of abandonment unless the same is established by clear, cogent, and convincing evidence that the parent has the capacity to form an intent to abandon is misplaced. The court in Baby Girl A actually held that evidence of a mental deficiency which established that the parent lacked sufficient mental capacity to form the intent to abandon the child precluded termination on that ground. There is no evidence of a mental deficiency here. At best we have a comment(s) about the dress of B.C.H. (W.S.H. requiring him to wear winter coats in the summer) and a non-expert conclusion drawn therefrom (D.F.S. employee’s comment that that behavior is bizarre). Appellant also cites In Interest of M.N.M., 681 S.W.2d 457, 460 (Mo.App.1984). There the court found that the mother did not have the requisite intent to abandon her child. However, in In Interest of M.N.M., the mother had been adjudged to be incompetent by the Probate Division of the Circuit Court of Clay County and was undergoing treatment at St. Joseph State Hospital at the time of the termination of parental rights trial. Id. at 459. In both these cases there was clear, cogent and convincing evidence on the record that the parent did not have sufficient mental capacity to intentionally abandon her child. There is no evidence in the record to support appellant’s conclusion that W.S.H. was in some way mentally deficient to the extent that she could not form the intent to abandon her child. The parent must have sufficient evidence to raise any defense. The mother here has not, by alluding to an instance of her putting a heavy coat on the child many months prior to termination, injected the defense of mental incapacity. Termination statutes are to be strictly construed and the burden of proof rests with the party seeking to invoke the statute throughout the proceedings. Nevertheless, the law favors the construction of statutes which is in harmony with reason and common sense and which tends to avoid unreasonable and absurd results. In Interest of Ray, 602 S.W.2d 955, 958 (Mo.App.1980). Therefore, it is ruled herein that the petitioning party is not required in the first instance to negate every possible excuse or reason for a parent’s failure to support and to maintain contact with his or her child. In the case in chief, the evidence was totally insufficient to place the mother’s ability to form an intent in issue. Neither the reference to her bizarre behavior nor the lay opinion that she suffered from [163] an unspecified mental or behavioral problem was sufficient. For the reasons set forth, the judgment herein is in all respects affirmed. LOWEINSTEIN, P.J., concurs. MANFORD, J., concurs in concurring opinion. Footnotes [1] The natural father, though identified, was never located and service was had upon him by [160] publication. His parental rights were also terminated and no appeal from that ruling has been presented.