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In re Adoption of H.D.D

Court of Appeals of Missouri, Southern District

November 13, 2019

IN RE THE ADOPTION OF: H.D.D, R.N.D., AND S.F.D., minors,
v.
S.M.D., Respondent-Appellant. W.H.D. and S.G.D., Petitioners-Respondents, And IN RE THE MATTER OF: R.N.D. and S.F.D. W.H.D. Petitioner-Respondent,
v.
S.M.D., Respondent-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Joseph L. Hensley, Associate Circuit Judge

         En Banc

          OPINION

          NANCY STEFFEN RAHMEYER, J.

         S.M.D. ("Mother") and W.H.D. ("Father') are the parents of three children: H.H.D., a male child who was born in May 2000; R.N.D., a female minor child who was born in December 2001; and S.F.D., a female minor child who was born in April 2003 (collectively "the Children"). Mother and Father divorced on November 9, 2007. At that time, the trial court granted the parties joint legal and joint physical custody of the Children, with Father's residence designated for mailing and educational purposes. The trial court ordered Mother to pay $672.00 per month in child support beginning April 2, 2008. On February 21, 2008, Father filed a Motion to Modify and Mother filed a Counter-Motion to Modify on October 10, 2008. The modification was heard on November 6, 2009. Mother did not appear, was unrepresented, and she had moved to the state of Ohio. The court, on January 27, 2010, entered judgment and modified the custodial order granting Father, who was married to "Amanda" at the time of the hearing, sole legal and sole physical custody of the Children, "subject to the right of reasonable visitation by Mother in accordance with Father's Parenting Plan." The parenting plan in the modified judgment was set up for a significant geographical distance between Mother and Father.

         Father and Amanda divorced in 2013. Father married the Petitioner, S.G.D. ("Step-Mother"), in March of 2015. Step-Mother brought three children into the marriage. The court denied the termination of Mother's rights to S.F.D., but terminated Mother's parental rights to R.N.D. and granted the step-parent adoption for R.N.D. on the grounds that Mother had abandoned R.N.D.[1] We affirm the judgment in part and reverse and remand in part.

         Mother is a registered nurse and Father is a medical doctor. All three children have autism spectrum diagnoses, [2] though H.H.D. and S.F.D. are extremely high functioning. R.N.D., on the other hand, suffers a severe form of autism and will likely never be able to live independently. R.N.D. is on a "Sarah Lopez Waiver, "[3] which allows R.N.D. to be placed on Missouri Medicaid. R.N.D. is unable to be at home by herself, prepare her own food, and eat without oversight. She "perseverates" over things, such as food. Further, R.N.D. needs prompts and reminders for safety with cleaning, bathing, showering. She has a personal care assistant who works in the home of Father and Step-Mother. In addition, she has a service dog to help keep her calm.

         Mother moved back to the Carl Junction area in October of 2010. At that time, the parties, without a court modification, began practicing an every-other weekend visitation schedule with the Children. In September 2015, this practice ended and Mother ceased visitation with R.N.D. Mother claimed Father told her "[i]t's very apparent you cannot handle [R.N.D.], and you will not be seeing her for some time." Father claims that Mother called him during one of R.N.D.'s meltdowns, and that Mother told him to "never bring her back and that [Step-Mother] and [Father] needed to pay for the damage that our daughter caused to [Mother's] home." Mother did not make any further attempts to see R.N.D. until March 1, 2018.[4]

         In 2017, Mother sent the Children Easter cards. On January 23, 2018, Mother sent a text message to S.F.D., which read: "i have been tryi[n]g to get in touch with you. Please let me know you & [H.H.D.] & [R.N.D.] are doing ok. i love u & miss you terribly! love, mom[.]" Beginning March 1, 2018, Mother initiated contact with Father via text messaging requesting visitation with all of the Children. The dialogue between Mother and Father, from March 1, 2018 through March 31, 2018, was as follows:

On Thursday, March 1, 2018, Mother sent Father the following text message:
"i would really like the opportunity to see the kids . . . your thoughts?"
On Friday, March 2, 2018, Father replied:
"I've had a chance now to speak with both kids. [S.F.D.] is not happy you involved her friends. Their parents are also not happy. The kids have received your messages. They do not want to respond at this time."
On Wednesday, March 7, 2018, Mother sent Father the following text message:
"I want to star[t] visits in therapeutic setting with [H.H.D.] [R.N.D.] & [S.F.D.]…what are ur thoughts?"
On Monday, March 19, 2018, Mother sent Father the following text message:
"i want to star[t] visits in therapeutic setting with [H.H.D., R.N.D. & S.F.D.] . . . what are ur thoughts?"
On Monday, March 19, 2018, Father replied:
"It's an unrealistic expectation for [R.N.D.]. I spoke with the other two, they do not wish to do it."
On Thursday, March 29, 2018, Mother sent Father the following text message:
"[Father, ] i'd really like to see the kids. will you please encourage [H.H.D. & S.F.D.] to participate in a therapeutic setting visit? also, i want to see [R.N.D.] in a therapeutic setting which i don't feel is an unrealistic expectation. can we discuss this? thanks!"
On Saturday, March 31, 2018, Mother sent Father the following text message:
"please can we talk about visitation with HRS [sic] in a therapeutic setting? i'd love to see them!"

         Father refused all visitation, stating that H.H.D. and S.F.D. did not want to visit Mother.

         Mother filed a Motion to Modify on April 9, 2018, and alleged that Father has repeatedly denied her visitation with the Children. On April 17th, Father and Step-Mother filed a three-count Petition for Termination of Parental Rights and Step-Parent Adoption on behalf of the Children, asking the court to transfer legal custody of the Children to Father and Step-Mother. On April 23, 2018, Father and Step-Mother filed a Petition for Appointment of Guardian and Conservator for R.N.D. and a Petition for Emergency Appointment of Guardian and Conservator for R.N.D. Mother, between May 8, 2018 and May 30, 2018, again initiated contact with Father via text messaging requesting visitation with the Children. The dialogue between Mother and Father, from May 8, 2018 through May 30, 2018, is as follows:

On Tuesday, May 8, 2018, Mother sent Father the following text message: "i'd like to see all the kids sometime on mother's day . . . can we talk about this?"
On Friday, May 11, 2018, Mother sent Father the following text message: "i'd really like to settle all the issues between us without having to go through court . . . i'd prefer not to put the kids through it . . . and would like for them to see us amicably coming to a resolution . . . are u willing to talk to me about it?"
On Thursday, May 17, 2018, Mother sent Father the following text message:
"when can i see all the kids for visitation?"
On Sunday, May 20, 2018, Mother sent Father the following text message: "i'm sorry to learn of your cancer diagnosis. i am praying for you and our children."
On Saturday, May 26, 2018, Mother sent Father the following text message: "can we discuss therapeutic setting visitation with all 3 kids?"
On Wednesday, May 30, 2018, Mother sent Father the following text message:
"[Father, ] i'd like to see all the kids"

         On June 7, 2018, Mother filed a Motion for Therapeutic Visitations regarding all the Children. Twelve days later, on June 19, 2018, Mother filed a Motion for Family Access Order requesting visitation with the Children and for compensatory visitation with the Children. In between and after the filing of her motions, Mother again sent text messages to Father in June requesting visitation in June and for visitation on the Fourth of July. Step-Mother acknowledged she and Father received Thanksgiving cards from Mother addressed to the Children in 2018. Step-Mother testified she did not read R.N.D. her card. Furthermore, Step-Mother acknowledged receiving Christmas cards from Mother addressed to the Children. Step-Mother admitted she did not read R.N.D. her card, and that she (Step-Mother) threw it away.

         On September 20, 2018, the trial court consolidated all cases, and scheduled Mother's Motion for Family Access to be heard on November 14, 2018, and all other matters were scheduled for trial on January 14, 15 and 16, 2019. On November 14, 2018, the trial court heard evidence on Mother's Motion for Family Access. After taking the matter under advisement, the trial court entered an Order on November 21, 2018, wherein the trial court stated "on an interim basis, [Mother's] request for relief by way of the family access and for therapeutic visits are denied, pending further order from the [trial court] following the January hearing." On January 14, 15 and 16, 2019, the trial court heard evidence on the following cases:

• The juvenile/step-parent adoption (18AO-JU00131) involving the termination of Mother's parental rights and the adoption of R.N.D. and S.F.D. by Step-Mother;
• Two guardianship cases (18AP-PR00165 and 18AP-PR00166), which requested the trial court to appoint Step-Mother as legal ...

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