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In re DeBrodie

Court of Appeals of Missouri, Western District, First Division

October 28, 2014

IN RE: THE ADOPTION OF CARL LEE DEBRODIE, Respondent, BRYAN KEITH MARTIN AND MARY ELIZABETH MARTIN, Appellants
v.
KAREN DIGH ALLEN, Respondent

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Jon Edward Beetem, Judge.

Daniel Ray Dunham, Columbia, MO, Counsel for Appellants.

Mary Wehrheim, Columbia, MO, Attorney and Guardian for Respondent.

Elizabeth K. Magee, Columbia MO, Counsel for Respondent.

Before Division One: Thomas H. Newton, P.J., Lisa White Hardwick, Anthony Rex Gabbert, JJ. All concur.

OPINION

Anthony Rex Gabbert, Judge

Page 645

Bryan Keith Martin and Mary Elizabeth Martin (the Martins) appeal the circuit court's judgment denying their petition to adopt Carl Lee DeBrodie, an incapacitated and disabled adult. The Martins' petition to adopt Carl was first before us in In re DeBrodie, 400 S.W.3d 881 (Mo. App. 2013). Therein, we reversed the circuit court's judgment which we determined erroneously concluded that, because Carl was not capable of consenting to the adoption and his legal guardian refused to provide consent, the court could not consider the fitness and propriety of the adoption. We remanded the matter back to the circuit court to consider the fitness and propriety of the adoption. On remand, the circuit court heard additional evidence and, thereafter, denied the Martins' petition for adoption on the grounds that they failed to establish by clear and convincing evidence the fitness or propriety of the adoption or that the welfare of Carl demanded that the adoption be granted. The Martins appeal.[1]

Page 646

We will affirm the circuit court's judgment in an adoption proceeding unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We review questions of law de novo. March v. Midwest St. Louis, 417 S.W.3d 248, 256 (Mo. banc 2014).

The Martins assert two points on appeal. First, they contend that the circuit court erred in requiring a clear and convincing standard of proof. They argue that, because grounds for termination of parental rights are not issues in an adult adoption, which requires neither parental consent nor joinder of any parent as a party, the applicable standard of proof is preponderance of the evidence. Second, the Martins contend that the court erred in denying Carl the benefit of adoption because in determining that the Martins did not prove that Carl's welfare demands that they be allowed to adopt, the court misapplied the adoption law to the evidence and to its own findings. We affirm.

The United States Supreme Court has stated that " the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In cases involving individual rights, the standard of proof is deemed a reflection of the societal value placed on individual liberty. Id. at 756. The High Court considers the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), when determining whether a particular standard of proof in a particular proceeding satisfies due process. Id. at 754. The factors to be considered are: the private interests affected by the proceeding; the risk of error created by the standard; and the countervailing governmental interest supporting use of the standard. Id.

In Santosky v. Kramer, the United States Supreme Court applied the Eldgridge factors to determine the minimum standard of proof necessary for the State to terminate parental rights. Id. at 758. Santosky discussed that the Court historically mandates " an intermediate standard of proof -- 'clear and convincing evidence' -- when the individual interests at stake in a State proceeding are both 'particularly important' and 'more substantial than mere loss of money.'" Id. at 756 ( quoting Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). In evaluating the three Eldridge factors, the Court concluded that use of a preponderance of the evidence standard was inconsistent with due process in termination of parental rights proceedings because " the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight." Id. at 758. The court noted the " historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment" and determined

Page 647

that only clear and convincing evidence, or something higher, can satisfy the Due Process Clause when parental rights are terminated by the State. Id. at 753, 769. The Fourteenth Amendment provides that no State shall " deprive any person of life, liberty, or property, without due process of law."

Consistent with Santosky, for minors sought to be adopted in Missouri pursuant to Chapter 453, where there is no consent there must first be termination of parental rights by clear and convincing evidence that grounds exist to terminate parental rights. § 453.030, RSMo Cum. Supp. 2013; § 453.040, RSMo 2000; Adoption of C.M.B.R., 332 S.W.3d 793, 819 (Mo. banc 2011).[2] We presume that, " until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." Santosky, 455 U.S. at 760. We recognize that, " termination of parental rights does not merely sever the rights of the parent to the child, but also severs the child's right to the parent." In Interest of R.A.S., 826 S.W.2d 397, 401 (Mo. App. 1992). Therefore, we presume at the fact-finding stage of the termination of parental rights proceeding that '" the interests of the child and his natural parents coincide to favor use of error-reducing procedures." ' In re B.H., 348 S.W.3d 770, 776 (Mo. banc 2011) (quoting Santosky, 455 U.S. at 760-761.) Thus, as the parent's and child's liberty interests coincide at this stage, the clear and convincing standard of proof simultaneously protects the parent's and child's liberty interest in preserving familial bonds. After a parent is proven unfit and the presumption for family preservation has thereby been rebutted, we then engage in a second inquiry as to whether permanent severance of that bond is in the best interest of the child. B.H., 348 S.W.3d at 776. This determination need only be supported by a preponderance of the evidence. Id.

Here, the Martins argue that, because Carl is an adult and termination of parental rights is unnecessary, there should be no presumptions in favor of preserving the legal relationship with the biological parent which is rebuttable only by clear and convincing evidence. They argue that the adoption of a mentally incapacitated adult need only be supported by a preponderance of the evidence that the adoption is in the adult's best interest.

This, however, makes an unacceptable presumption. It presumes that the mentally incapacitated adult adoptee has less of a liberty interest in preserving biological bonds than minor adoptees, the parents of minor adoptees, or adult adoptees with the capacity to consent. We cannot agree with this presumption and find that, because the court's inquiry into the fitness and propriety of the adoption of a mentally incapacitated adult requires simultaneous consideration and protection of that adult's liberty interest in preserving biological ties, clear and convincing proof of the propriety of the adoption is necessary to protect that interest. Consideration of the factors delineated in Eldridge support this conclusion.

Page 648

Eldridge first instructs that we consider the private interests affected by the proceeding when determining the appropriate standard of proof for that type of proceeding. Here, the State is not a party seeking to sever Carl's familial ties, a third party has petitioned to do so.[3] Although we recognize that standard of proof determinations are based on the generality of cases and not the rare exceptions, a glimpse into Carl's relationship with his birth mother evidences that ...


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