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In re Adoption of E.N.C.

Court of Appeals of Missouri, Eastern District, Fourth Division

December 9, 2014


Page 388

Appeal from the Circuit Court of St. Louis County. Honorable John D. Warner, Jr.

For Appellant: Michael D. Quinlan, St. Louis, Missouri.

For Respondent: Alan E. Freed, Susan E. Block, Lisa G. Moore, St. Louis, Missouri.

ROY L. RICHTER, Judge. Patricia L. Cohen, P.J., concurs. Robert M. Clayton III, J., concurs.



Page 389

S.M.C.Q. (" Mother" ) and her husband, M.P.Q. (" Adoptive Father" ), appeal from the trial court's judgment allowing a biological paternal grandmother, C.L. (" Grandmother" ), to intervene in the case of 10-year-old E.N.C.'s (" Child" ) adoption and be granted legal visitation with Child on approximately 19 days during the year. Because the law does not allow for third-party intervention in an uncontested step-parent adoption case with no visitation or custody at issue, the judgment erroneously declares and applies the law. We reverse and remand with instructions to dismiss the GAL's cross-petition and Grandmother's motions for visitation.

I. Background

Child was born out of wedlock to 19-year-old Mother and 20-year-old C.D.W. (" Biological Father" ) on July 31, 2003. The parties have not provided this Court with a copy of Child's birth certificate; therefore, the record does not reflect whether a father was listed on the birth certificate. Evidence was presented that Biological Father abandoned Mother during her pregnancy and Mother felt that he also had abandoned and neglected Child since the time Child was born. Mother had full custody of Child and Child spent every other weekend visiting Biological Father and members of his family, including Grandmother.

In August 2012, sealed paternity actions were filed in the City of St. Louis by Biological Father against Mother, addressing paternity and issues involving the establishment of custody between Biological Father and Mother. See Case No. 1222-FC02535. Nothing in this Court's record indicates that paternity testing was conducted to prove or disprove Biological Father is Child's biological father. Meanwhile Mother married Adoptive Father on September 28, 2012. Soon after, Biological Father voluntarily dismissed his case with prejudice in connection with his consent to terminate his parental rights and allow for Child's adoption.[1] Hearing testimony

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indicates that Biological Father was tired of putting Child through " an inquisition" every time she left him to go back home. Child was told that her Biological Father decided it would be better if Child had just one family.

Mother and Adoptive Father (collectively, " Petitioners" ) filed a petition for Adoptive Father's adoption of Child pursuant to Chapter 453, " Adoption and Foster Care," RSMo Supp. 2012[2], in St. Louis County on December 27, 2012. The consent to the adoption was signed by Biological Father, filed on January 8, 2013, and approved by the court.

On January 23, 2013, attorneys entered their appearance on behalf of paternal grandmother and " prospective Intervenor," Grandmother, who is Biological Father's mother. It was approved by the court that day. A guardian ad litem (" GAL" ) was then appointed by the court. On March 12, 2013, Mother and Adoptive Father filed an Amended Petition for Adoption, alleging that all of the parents required to give consent to the adoption by Chapter 453 had given such consent, and that Petitioners believe the adoption promotes the best interest of the child. On March 29, 2013, Grandmother filed her motion to intervene as a third party, motion for visitation and motion for further investigation regarding third party visitation, pursuant to Section 211.177.[3] Grandmother alleged that since birth, Child had enjoyed a close and bonded relationship with Biological Father and his family, including a permitted and encouraged relationship with Grandmother, and that the settlement agreement consenting to termination of Biological Father's parental rights and the step-child adoption was not in Child's best interest. Because Mother and Adoptive Father have refused to allow Child any contact with Grandmother since the consent agreement, Grandmother asked for reasonable visitation with Child pursuant to Section 452.402.[4] Petitioners filed a memorandum in opposition to Grandmother's motion to intervene, for visitation, and for further investigation. Petitioners' memorandum included arguments that the motion to intervene was untimely since the paternity action already was dismissed, there was no statutory right to intervene, no legally cognizable interest supports intervention " as of right," and ordering grandparent visitation would constitute unreasonable interference with the parents' constitutional rights. Evidence was heard on April 11, 2013; afterward, the court entered its order permitting Grandmother's intervention and ordering mediation.[5]

On May 20, 2013, a cross-petition for declaration of paternity, custody and visitation was filed by the GAL, invoking Section 210.826(2).[6]

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Three days later, Grandmother filed a Motion to Intervene as a third party and for third-party visitation and grandparent visitation in the GAL's cross-petition for declaration of paternity and custody. Objections were filed by Petitioners, as was a motion to strike the cross-petition. However, Petitioners then consented to Grandmother's intervention in the cross-petition on June 4, 2013, " without waiving Motion to Strike Cross Petition." The cross-petition was not called up for a separate hearing. Petitioners also filed a motion to dismiss the cross-petition for declaration of paternity for failure to state a claim, arguing that neither cross-petitioner nor the intervenor has standing to seek a declaration of paternity in an uncontested step-parent adoption case wherein the biological father has voluntarily relinquished parental rights and consented to the adoption; therefore, the court lacks jurisdiction.

The final adoption hearing, along with a hearing on Grandmother's motion and the GAL's petition for determination of paternity, took place on September 27, 2013, and November 4, 2013. Child was 10 years old at the time the case was heard.

During the presentation of evidence, all parties agreed that Mother is a fit parent, and there was no dispute that Adoptive Father is a fit parent as well. It was clear that Biological Father was detached from Child; however, the parties stipulated that Child had a positive relationship with Grandmother and that together, they had " plenty of good times" and " did a lot of fun stuff." The trial court made findings from the evidence that Grandmother spent substantial periods of time caring for Child and Grandmother had visitation with Child during the times when Child was visiting with Biological Father. Grandmother and Child engaged in a variety of activities together, including Halloween parties, trips to the Magic House, making crafts, buying presents, and frequently, Child spending the night. Grandmother presented compelling evidence of the significant bonding relationship between her and Child, including but not limited to a 2012 Christmas present from Child to Grandmother, which was a necklace with both of their birthstones and on which Child wrote " I [hearts] you; " photographs of Grandmother, Child, and family members together spanning over eight years, during which time Child celebrated her First Communion, Grandmother recovered from cancer, they shared time in Grandmother's home, attended movie previews, celebrated Christmas, took a Disney cruise, went to museums and amusement parks as well as Child's sporting events. The trial court noted that " photographs and other exhibits admitted into evidence reflect a happy and warm relationship between Grandmother and Child and demonstrate the Child having fun." Further, Grandmother also welcomed Mother and Mother's other daughter (Child's half-sister) to join them, including welcoming them in holiday celebrations and taking Mother on two Disney vacations with Child. Petitioners stipulated that Grandmother and Mother had a cordial relationship with each other. Grandmother also made efforts to welcome Adoptive Father and encourage a warm relationship with him, too, when he and Mother began dating.

The trial court found from the evidence that the last time Grandmother saw Child was December 2, 2012. Prior to that time,

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Mother had never suggested to Grandmother that Grandmother stop seeing Child or even reduce the frequency of their visits. The evidence shows that Grandmother requested that Mother permit her to resume seeing Child under whatever terms and conditions Mother would deem appropriate. Grandmother testified at trial that she would not prefer supervised visits, but " [i]f it meant getting to see [Child], [s]he would do that." Mother sent Grandmother an e-mail on January 11, 2013, directing Grandmother to " refrain from any contact with Child," and remove all pictures of her from her Facebook page. Grandmother has been denied time with Child repeatedly since then. Mother testified that a relationship with Grandmother was not in Child's best interest because Child is " ready to move on with her life" and that Child would be upset if she spent time with her former younger half-brother, who was Biological Father's son and whom Child loved. The trial court found Mother's testimony lacked credibility with regard to her concerns over the relationship between Grandmother and Child, and that Child's testimony may have been influenced by Mother and Adoptive Father.

Adoptive Father testified that Grandmother was not someone he wanted any of " his" children around. He based this opinion on an experience where Grandmother bought a car from him, Grandmother's surprise presence at Child's school picnic, and Grandmother's unscheduled attendance at Child's basketball game when he and Mother were out of town.[7] The trial court also found Adoptive Father's testimony lacked credibility and that none of his stated reasons bore upon the best interest of Child or any alleged detriment that Child would suffer if she visited with Grandmother.

Additionally, Child testified that Mother and Adoptive Father told her they were objecting to her seeing Grandmother because it might confuse her little brother (Mother's newest baby, born after Mother married Adoptive Father, half-brother to Child). Child provided details regarding the baby's confusion about where Child might be and who Grandmother was, which confirmed to the trial court Child's in-depth conversations with Mother and Adoptive Father about the issues. Child conceded that her half-sister spends time with her father and is gone at times, but they were still a family. Child testified that she enjoyed the activities she did with Grandmother, had good times with her, and she loved her and missed her. Child testified, " I would just say I like her because, well, I've seen her for years, and how can you not like somebody that you've seen for that many years." In contrast, the trial court found that Child's statement that she would not miss her Grandmother was a reflection of Child's discomfort with being disloyal to Mother and Adoptive Father rather than a detriment to Child in continuing the relationship with Grandmother, which " clearly has historically

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been an important and positive one for Child."

The trial court found that the overriding factors militating against Child's relationship with Grandmother are Mother and Adoptive Father's desires to make a clean break from Mother's past,[8] which the court did not find to be a reason to deny Child or Grandmother the right to continue their special relationship.[9] The court found no evidence demonstrating Grandmother's detrimental impact on Child. The GAL recommended that visitation between Grandmother and Child would be in Child's best interests and would not be detrimental to her, as it was clearly in the child's best interest to have as many people as possible who love her and care about her and who will see to her best interest in her life. She believed Mother and Adoptive Father wished to limit Child's world to just their new family and believed they told Child she would be sad if she had visitation with Grandmother. The court found the GAL is an experienced professional with more than 30 years of working in the juvenile court and gave her opinion great credibility. No evidence was presented that Child would suffer harm if she did not have visitation with Grandmother.

On January 31, 2014, the trial court issued its Order and Judgment, finding Biological Father the natural and biological father of Child and Grandmother the paternal grandmother of Child. Additionally, finding that Child's welfare and best interest requires establishing a schedule of visitation, the court granted Grandmother visitation with Child for one day each month and one week during the summer.

Mother and Adoptive Father filed a petition for writ of prohibition and suggestions in support thereof on March 4, 2014, and this Court issued a preliminary order in prohibition, staying the trial court's order of visitation while parties filed suggestions in opposition as well as full briefs on the issue. Meanwhile the adoption decree was entered on March 10, 2014. Ultimately, this Court quashed the preliminary order and extraordinary writ on May 15, 2014. This appeal follows. Mother and Adoptive Father filed a motion to stay enforcement of the visitation order, which was granted on June 3, 2014.

II. Discussion

Petitioners raise two points on appeal. First, they allege the trial court erred in granting third-party visitation to Grandmother in that an award of visitation must be authorized by statute and no statute gives Grandmother a right, or the trial court authority, to make an award of visitation in this case. Petitioners support this argument by contending that Section 452.375.5(5) did not supply the necessary statutory authority for an award of visitation because it applies only in custody proceedings, there is no custody issue involved in this case, and Grandmother has no standing to initiate a custody proceeding.[10] Further, Petitioners claim the trial court erroneously declared and misapplied

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the law in holding that Section 452.375.5(5) allows a grant of third-party visitation in this adoption case in that Grandmother failed to present any evidence of essential elements of a claim, including the existence of a prior custodial relationship with Child and " special or extraordinary circumstances" showing that " the welfare of the child require[d]" the award of visitation.

In their second point, Petitioners allege the trial court unconstitutionally applied Section 452.375.5 in that the trial court ignored Petitioners' assertion of their constitutional rights as parents to direct the associations of their child, and: the trial court improperly failed to give any deference whatsoever to Petitioners' determination of Child's best interest, despite the trial court's finding Petitioners to be fit parents; the trial court improperly presumed that visitation with Grandmother was in Child's best interest without regard to any facts in this case; the trial court improperly placed on Petitioners the burden to prove that visitation would be harmful to Child. Petitioners further argue the trial court's order of visitation far exceeds the ...

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