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
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,