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In re Adoption of I.M.W.

Court of Appeals of Missouri, Southern District, Second Division

January 31, 2017

In Re the Adoption of: I.M.W., a female minor child,
v.
B.A.T., Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY Honorable Larry G. Luna, Circuit Judge

         AFFIRMED

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         B.A.T. ("Father") appeals from a judgment entered by the Juvenile Division of the Circuit Court of Christian County ("trial court") on January 28, 2016, concluding Father abandoned Child, and granting a petition for adoption of his daughter, I.M.W. ("Child"), by V.L.R. ("Stepfather). In one point on appeal, Father claims the trial court erred in terminating his parental rights on the basis of abandonment and a mental condition. Finding no merit to Father's claims, we affirm the judgment of the trial court.

         Factual and Procedural Background

         On September 2, 1997, Father pled guilty, under Chapter 720 of the Illinois Revised Statute 5/12-14.l(a)(1), to two counts of committing a sexual act with a child under the age of 13. In addition, at the same hearing, Father was found to be a sexually dangerous person ("SDP") under Illinois' Sexually Dangerous Persons Act ("SDPA"), [1] after Father stipulated to the findings of two psychiatrist who found him to be a SDP. Following the hearing, the Illinois court appointed the Illinois Department of Corrections ("DOC") as Father's guardian and committed Father to the custody of the ("DOC").

         On August 2, 2002, the Illinois court, finding that Father was no longer sexually dangerous within the institutional confines of the DOC, entered an order conditionally releasing him.[2] The order placed numerous conditions on Father's release. Father was to live in a residential center until a determination was made that he could live independently; Father was to obey parole rules and regulations, and all laws; and Father could not be alone with children or young adolescents without the consent and/or supervision of treatment personnel.

         While on conditional release, Father married Mother in October 2004, in Romeoville, Illinois, where they resided. Child was born to Mother and Father in April 2007. Because of Father's SDP status, he had to remove himself from the marital home until the Department of Children's and Family Services ("DCFS") could investigate whether it was suitable for him to live in the home with Child. After DCFS's investigation, which included evaluations by two psychiatrists, Father was permitted to return to the home in June 2007, under a protection plan. The protection plan provided in part that Father could not be alone with Child.

         In October 2007, the state of Illinois filed a petition to revoke Father's conditional release asserting that: (1) Father failed to attend a mandatory counseling session on October 17, 2007; (2) on the same day, Father removed his tracking device and could not be located at his home; and (3) in July 2007, Father sexually assaulted or abused a 16-year-old girl while working at the girl's home. After a hearing, the Illinois court revoked Father's conditional release and he was remanded back to the custody of the DOC.

         Mother moved with Child to Missouri in August 2008, to live with family. Between October 1997 and August 2008, Mother took Child to visit Father on at least three occasions. When Mother decided to move to Missouri, she notified Father and provided him the address and phone number of where she and Child would be living. After arriving in Missouri, Mother accepted approximately two collect calls from Father, and Father sent a few cards and letters. Thereafter, Father stopped calling.

         Mother was not working at the time Father was arrested in October 2007. Mother sold Father's construction equipment to raise money for living expenses for her and Child. She eventually filed for bankruptcy, and was left with a vehicle, some furniture, and a small joint checking account with an approximate balance of $1, 000. She received no financial assistance from Father. After Father knew Mother was returning to Missouri with Child, he withdrew $500 from the joint checking account without notifying Mother. Mother was using the funds from that bank account to pay the marital bills and also to help pay for the move to Missouri. Father's removal of the $500 from the checking account caused several checks written by Mother to be returned insufficient funds, and the vehicle Mother depended on for transportation was almost lost due to nonpayment. Child depended upon Mother's income at the time, and very nearly became homeless.

         Mother divorced Father on January 7, 2009. Under the judgment of dissolution, Father was not required to pay any child support for Child. Father remained incarcerated, but received $200-$400 per month from relatives. Father spent the money on food, tennis shoes, boots, clothing and a television for himself. Father sent no money to Mother for Child, but only sent Child a Toys R Us gift card in a nominal amount.

         Child has had a relationship with Stepfather since August 2008. Mother and Stepfather began dating in October 2008, and were married in February 2011. Stepfather provided financial support to Mother and Child up to and continuing after their marriage.

         On July 26, 2013, Mother and Stepfather filed a "Petition for Step-Parent Adoption" claiming that Father had willfully abandoned Child in failing to provide the necessary care and protection for a period of at least six months prior to the filing of the petition, and Father suffered from a mental condition that rendered him unable to provide Child with the necessary care and protection.

         On December 2, 2013, Father filed a petition for visitation so as to allow contact between him and Child. However, Father failed to prosecute the cause resulting in the court's dismissal of the petition.

         A trial was held on the Petition for Step-Parent Adoption on November 19, 2015. Mother, Father, and Stepfather all testified. Father specifically testified that he believed the mental condition that caused him to be incarcerated was "reversible[, ]" but did not think the ...


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