Family Law

Editor:
John W. Dennis, Jr., Esquire

Statutory requirements for termination of parental rights and adoption. In re: The adoption of CMBR, No. 91141 (Mo. banc, January 25, 2011), Breckenridge, J.
The Mother herein is a citizen of Guatemala. She was pregnant when she entered this country. To date she has not disclosed the identity of the father. Difficult times and poor living conditions for mother and child ensued. Mother was ensnared by authorities for using a fake identity and was incarcerated. During that time the Mother thought the child was being cared for by her sister.
A person working for Parents as Teachers had been advising Mother. She visited Mother in prison at one point and asked if she would allow the child to be adopted. Throughout this process the Mother had always opposed adoption. The Mother's sister had enlisted the aid of friends to care for the child. In turn, the friends knew of a couple wishing to adopt a child. While the Mother was incarcerated they filed for termination of parental rights and adoption. The Mother was served with the petition, but not given notice of the hearing date. Statutorily-required investigations and reposts of all concerned were not done. The petition was granted and the Mother appealed.      
Held: Reversed. Reason:  "This case is a private action for termination of parental rights and adoption." It was an action for adoption without consent. The termination of parental rights is governed by Chapter 211 of the Missouri Revised Statutes. Adoptions are governed by Chapter 453 thereof.
"The legislature has created different rules for construing the provisions of chapter 211 and chapter 453. Chapter 453, which governs the procedures for the adoption and foster care of Missouri children, has an express rule of statutory construction. Section 453.005 states that the chapter is to be construed `to promote the best interests and welfare of the child in recognition of the entitlement of the child to a permanent and stable home.'"
"Provisions in chapter 211 govern the termination of parental rights. In Section 211.443, the legislature explicitly stated how the termination of parental rights provisions of chapter 211 should be construed:
The provisions of Sections 211.442 and 211.487 shall be construed so as to promote the best interests and welfare of the child as determined by the juvenile court in consideration of the following:
(1) The recognition and protection of the constitutional rights of all parties in the proceedings;
(2) The recognition and protection of the birth family relationship when possible and appropriate; and
(3) The entitlement of every child to a permanent and stable home.
Unlike chapter 453, which only discusses the best interest of the child in the construction of its provisions, chapter 211 requires a court to consider and protect both the best interest of the child and the constitutional rights of all the parties when construing its termination of parental rights provisions."
Sections 211.455, 453.070 and 453.076 require in-vestigation and reporting to be made prior to a hearing for either termination of parental rights or adoption. These deficiencies compel a remand for completion of same before any disposition of the claims for relief.

Post-dissolution action in equity for claim to business loss tax deduction. May v. O'Roark, No. 72254 (Mo. App. W.D., January 18, 2011), Howard, J.
Ex-Wife brought a post-dissolution action in equity to allocate a deductible income tax loss for a defunct LLC owned by the parties and for the damages she incurred on her tax liability. The parties owned a used car sales business. After the dissolution action was filed,ex-Husband excluded ex-Wife from the daily operations of the business and began liquidating it. In Husband's deposition he testified that the LLC was "gone" except for $17,000 used to buy ex-Wife a car and $6,000, which he kept. The parties settled the case. Their settlement agreement did not list the LLC as an asset or mention the tax deduction. The pertinent tax return of the Ex-Husband after divorce claimed $125,751 in business losses.
During the trial of this action in equity it was shown that ex-Wife would have owed $18,050 less in tax consequences if she had been able to use half of the deduction. The trial court awarded that amount to her in damages. The ex-Husband appealed.
Held: Affirmed. Reason:  The ex-Husband had crossed out the LLC from his marital property and debt form during discovery, and he did not list the projected tax deduction as an asset. It follows that as the sole operator of the business, he knew or should have known that it would generate the tax deduction for loss. He either intentionally or mistakenly failed to disclose it to ex-Wife, although he was thoroughly questioned about the business in deposition. Moreover, the ex-Wife did not have the means to discover the loss deduction on her own because she had been cut out of the daily operations of the business.

The Missouri Bar Courts Bulletin, 11-Mar