Introduction

With the enactment of House Bill 343 by the Missouri Legislature in 1997, and its subsequent signature by Governor Carnahan, adoption practice in Missouri changed significantly effective August 28, 1997. This article will discuss the law of adoption in Missouri and, where appropriate, will incorporate the changes in adoption law as a result of House Bill 343.

Adoption was unknown at common law.¹ Present adoption law is codified in Chapter 453, RSMo; however, it is impossible to have a complete understanding of adoptions in Missouri without also being familiar with the provisions of Chapter 211, RSMo, which deals with termination of parental rights proceedings.

Previously, Missouri law provided that only a juvenile officer could file a petition for termination of parental rights under the procedures set forth in §§ 211.442, et seq. Private practitioners in adoptions were unable to file Chapter 211 Termination of Parental Rights proceedings. This was unnecessary because a decree of adoption under Chapter 453, RSMo, served to simultaneously terminate the parent-child relationship and create in its place a new parent-child relationship between the petitioners and the person being adopted. In fact, an adopted child is deemed to be the child of the adoptive parents as fully as if the child was born to the adoptive parents in lawful wedlock.²

Recent changes to §§ 211.444 and 211.447, RSMo, make it clear that petitioners in a Chapter 453 adoption may seek a Chapter 211 termination of parental rights.³

The practitioner must carefully comply with all provisions of applicable laws because adoption laws, like termination of parental rights laws, are construed strictly in favor of the rights of the natural parents.⁴

Definitions

The adoption practitioner must understand the definition of terms in order to accomplish the desired result. The way certain terms are defined determines who must be served, who must consent or who must have rights terminated involuntarily. The term "minor" includes any person who has not reached 18 years of age, or any person in the custody of the Division of Family Services who has not reached 21 years of age.⁵ "Parent" is defined to include the following: (1) birth parent, (2) putative father, (3) legal father (husband of the birth mother at the time the child was conceived), and (4) parent by adoption.⁶ House Bill 343 added the term "putative father" as a defined term. Putative father now means the following: (1) alleged father, (2) presumed father,⁷ and (3) any person who has filed a notice of intent to claim paternity or a voluntary acknowledgment of paternity with the Missouri Putative Father Registry.⁸

The practitioner must name as parties in the adoption petition all persons who fit any component of the definition of the term "parent" or the term "putative father."⁹

Pleadings/Venue

Once counsel has identified all persons to be named as parties, counsel should prepare a petition for adoption. Before the changes to Chapter 211 permitting the court in an adoption to also grant a Chapter 211 termination of parental rights, adoption cases were typically filed in two count petitions. The first count was for transfer of lawful and actual custody, and the second count was to finalize the adoption. Subsequent to previous changes to Chapter 211, however, many practitioners now file three count petitions. In such cases, the first count is frequently for a Chapter 211 termination of parental rights, the second count for a transfer of lawful and actual custody, and the third count to finalize the adoption.

Venue choices have been expanded under House Bill 343. Counsel must first determineif the child to be adopted is under the jurisdiction of any juvenile court. If the child is under the jurisdiction of the juvenile court, the adoption petition must be filed in the juvenile division of the circuit court of the county which has jurisdiction over the child.¹⁰ If the child is not under the jurisdiction of a juvenile court, petitioners may file the adoption where: "(1) The person seeking to adopt resides; (2) The child sought to be adopted was born; (3) The child is located at the time of the filing of the petition; or (4) Either birth person resides."¹¹

The petition must include: the name, sex and place of birth of the person sought to be adopted; the name of the parents, if known to petitioner; the fact that petitioner has the ability to properly care for, maintain and educate the person sought to be adopted (if the person sought to be adopted is a minor); and, if petitioner desires to change the name of the person, the new name.¹²

Grounds

A careful reading of Chapter 453, RSMo, reveals that adoption is generally accomplished by the consent of all persons who have any rights to the child (see definitions of "parent" and "putative father," supra). Each and every parent or putative father named must either consent or fall into a category delineated by statute for which an adoption may be granted in absence of consent. Because of the overlay of Chapter 211 on Chapter 453 adoption proceedings, it is possible, in a Chapter 453 adoption, to involuntarily, or by consent, terminate parental rights of a parent or putative father for the grounds set forth in Chapter 211. In addition, Chapter 453 also sets forth the categories of cases for which an adoption may be granted in absence of consent.¹³

Prior to House Bill 343, a Chapter 211 termination of parental rights could be accomplished by consent¹⁴ or on one of three contested grounds. The first contested ground was abandonment.¹⁵ The second contested ground was adjudication of abuse or neglect.¹⁶ The third contested ground is failure to rectify.¹⁷

House Bill 343 modifies one of the three previous grounds and adds three new grounds for termination of parental rights under Chapter 211, RSMo. The previous ground known as adjudication of abuse/neglect has been changed such that an adjudication in juvenile court is no longer required. Now a termination of parental rights may be granted under that ground where a child has been abused or neglected (no requirement of an adjudicatory hearing in the juvenile division).¹⁸ The three new grounds for termination of parental rights under Chapter 211 are felony convictions,¹⁹ forcible rape,²⁰ and parental unfitness.²¹

When drafting a petition for adoption which includes a count for a Chapter 211 termination of parental rights, counsel must, as to each parent or putative father, plead and prove each and every element of either a consent termination or each and every element of at least one ground for a contested termination. As to adoption count(s), counsel must allege consent or each and every element of at least one ground under § 453.040, RSMo, as to each party.

Consent Chapter 211 TPR

A consent termination of parental rights under Chapter 211 requires that termination be in the best interests of the child and that the parent has knowingly, voluntarily and intelligently consented in writing to the termination of parental rights where the consent was executed in compliance with the formalities set forth in §§ 211.444 and 453.030, RSMo. The requirement that a Chapter 211 consent form comply with the formalities of a Chapter 453 consent form is an additional requirement imposed by House Bill 343. It is suggested that the practitioner develop a consent form which complies with all of the requirements of both a consent termination under Chapter 211 and a consent to adoption under Chapter 453.

Contested Chapter 211 TPR

A non-consensual or contested Chapter 21 termination of parental rights requires a finding that the termination is in the best interests of the child, proof of each and every element of at least one of the contested grounds, and consideration of applicable factors set forth in § 211.447.3, RSMo. Thus, for a contested termination under Chapter 211, the practitioner must plead and prove, as to each parent or putative father, best interests, each and every element of at least one ground for contested termination, and each of the applicable factors set forth in § 211.447.3, RSMo.²²

Adoption by Consent

Consent to adoption is governed by § 453.030, RSMo. As stated previously, a careful reading of the statute reveals that Missouris statutory scheme for adoption presumes that the parents giving up their parental rights will consent, and, in the event they do not consent, adoption may be granted in absence of consent in certain circumstances set forth in § 453.040, RSMo. Consent must be obtained from: (1) the mother, (2) a presumed father under the Uniform Parentage Act,²³ (3) a person who has filed a notice of intent to claim paternity or an acknowledgment of paternity with the Putative Father Registry, (4) a person who has filed an action to establish paternity no later than 15 days after the birth of the child,²⁴ and (5) the childs current adoptive parents or "other legally recognized mother and father."

Adoption Without Consent

An adoption may be granted in absence of consent for persons who fall into at least one of the following categories: (1) a parent whose rights have been terminated pursuant to law, (2) a parent who has waived the necessity of consent to a future adoption, (3) a parent whose identity is unknown and cannot be ascertained at the time of the filing of the petition,²⁵ (4) a man who has not been established to be the father and who is not presumed by law to be the father and who executes a verified statement denying paternity, disclaiming any interest in the child and acknowledging that the statement is irrevocable, and provided the statement follows the formalities of a Chapter 453 consent, (5) a parent or other person who has not executed a consent and who, after proper service of process fails to file an answer to make an appearance in a proceeding for adoption or for termination of parental rights at the time such cause is heard,²⁶ (6) a parent who has a mental condition shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed, and which renders the parent unable to knowingly provide the child with the necessary care, custody and control, (7) a parent who has, for a period of time immediately prior to the filing of the adoption petition, willfully abandoned the child (at least six months if the child is one year of age or older, at least 60 days for a child under one year of age), or (8) for a period of at least six months immediately prior to the filing of the adoption petition, a parent who has willfully, substantially and continuously neglected to provide the child with necessary care and protection.²⁷

Consent Forms

The requirements of a Chapter 211 consent to termination of parental rights form are set forth in § 211.444, RSMo. A consent form under Chapter 211 must be (1) written, (2) signed before or after institution of the proceedings, (3) acknowledged by a notary public, (4) in lieu of acknowledgment by a notary, be witnessed by two adult witnesses who are not the adoptive parents, provided the witnesses are present when the form is signed, the signatures, names and addresses of the witnesses are written plainly on the form, and the witnesses "determine and certify" that the consent is knowingly and freely given, (5) a notary or witnesses must "verify the identity" of the person consenting, (6) the consent is valid and effective only after the child is at least 48 hours old, and (7) the consent must comply with the "oter requirements of Section 453.030."

Under Chapter 453, different requirements apply to a mothers consent form and a consent form for any other person. The requirements of the mothers consent are set forth in § 453.030.5, RSMo. The mothers consent must (1) be written, (2) not be executed before the child is 48 hours old, (3) be signed in front of a judge or notary public, (4) in lieu of execution before a judge or notary, must be witnessed by two adult witnesses who are not the adoptive parents, who are present at execution, whose signatures, names and addresses are plainly written on the form, and who "determine and certify" that the consent was knowingly and freely given, (5) the notary or witnesses must "verify the identity" of the person signing the form, and (6) contain additional requirements as set forth in § 453.030.9, RSMo.²⁸

All other consent forms under Chapter 453 are governed by § 453.030.4, RSMo. Consent forms for all persons except the mother must be (1) written, (2) signed before or after commencement of the proceedings, (3) acknowledged by a notary, (4) in lieu of acknowledgment by a notary, witnessed by two adult persons who are not the adoptive parents whose signatures, names and addresses are plainly written on the form, (5) notary and witnesses shall verify the identity of the person signing the form, and (6) the form must contain statements as set forth in § 453.030.9, RSMo.

The statements required by § 453.030.9, RSMo, are that the birth parent understands the importance of identifying all possible fathers of the child, that all available information has been supplied concerning possible birth fathers, and that in the event of a denial of paternity but a consent to the adoption, the person signing the consent waives any future interest in the child.

It is suggested that the consent form be set forth as an affidavit and that, in addition to all of the foregoing, it include waiver of counsel provisions and provisions showing compliance with the Interstate Compact on the Placement of Children, the Indian Child Welfare Act, the Uniform Child Custody Jurisdiction Act and the Soldiers and Sailors Civil Relief Act. In addition, for the purpose of verification of identity, it is suggested that a paragraph or certificate be included showing how identity was verified. In the event witnesses are used as opposed to a notary, the witnesses should sign an attached certificate containing the "determine and certify" language of the statute.

Appointment of Counsel

Section 453.025, RSMo, requires that a guardian ad litem be appointed for the child if the child is under 18 years of age, and that a guardian ad litem be appointed for a parent if the parent is a minor or incompetent. House Bill 343 imposes two additional requirements for appointment of counsel in adoption cases.

First, if the adoption petition alleges grounds for termination of parental rights under § 211.447, RSMo, a birth parent who cannot afford an attorney may provide the court with proof of income and request appointment of counsel. The court may order the costs of the attorneys fees incurred to be paid by the prospective adoptive parents.²⁹

Secondly, in connection with consent forms, the court may appoint an attorney to represent a birth parent if the birth parent requests representation and the court finds that hiring an attorney to represent the birth parent would cause an "undue financial hardship."³⁰ Attorneys fees incurred for appointment of counsel in connection with a consent form may be ordered by the court to be paid by the adoptive parents or the adoption agency.³¹

Review and Approval of Consent

House Bill 343 adds a review and approval proceeding in connection with Chapter 453 consent forms. A written consent to adoption shall be presented to the court for review and approval as soon as practicable and the consent may be withdrawn any time until it has been reviewed and accepted by a judge.³²

Service

A summons and copy of the petition shall be served on (1) any person, agency, organization or institution whose consent is required unless such consent is filed in court, (2) any person whose consent is not required pursuant to § 453.040(5), (6) or (7), RSMo, (3) any person, agency, organization or institution having custody of the child even though its consent is not required by law, (4) the legally appointed guardian of the child, (5) any person adjudicated by a court of this or any other state or any territory of the United States or any other country to be the father of the child,³³ (6) any person who has timely filed a notice of intent to claim paternity or an acknowledgment of paternity with the Putative Father Registry.

Where "service of summons cannot be made [pursuant] to § 506.150, RSMo, then service shall be made by mail or publication [pursuant] to § 506.160, RSMo." In all cases where the putative father is unknown, petitioner must serve "John Doe" by publication as provided in § 506.160, RSMo.

"Upon request, the court may order that the writ of summons and petition . . . be served without the names and addresses of petitioners when the court deems it to be in the best interests of the child."³⁴

Waiving Necessity of Consent

The juvenile court may, upon application, permit a parent to waive the necessity of consent to a future adoption. Approval cannot, however, be granted until the child is at least two days old.³⁵ The waiver of consent may be executed before or after the institution of the adoption proceedings and must be acknowledged before a notary public, or in lieu thereof, must be witnessed by two adult persons whose names and addresses shall be plainly written on the form.³⁶ A waiver of necessity of consent to a future adoption is valid and effective even though the parent waiving consent is under 18 years of age at the time of the execution of the form.

Full Investigation

Except in step parent adoptions,³⁷ a decree of adoption may not be granted unless and until a full investigation has been made. Section 453.070, RSMo, now contains a specific list of requirements for what must be contained in the full investigation and also mandates the Department of Social Services to develop rules and regulations regarding the content of the report. Counsel should note that a full investigation includes an investigation of the adoptive parents and a history of the birth parents and grandparents as well as information about the child. Information about the child may be as simple as the physical examination for a new born or may be the initial physical examination plus medical and other records compiled as the child gets older. The history of the birth parents and background of the parents and grandparents is necessary to advise the court and the adoptive parents of any potential health or other problems that could be genetically passed to the child. Such information is necessary so that the court may make its determination as to whether the adoption should be granted.

In connection with the full investigation, House Bill 343 has added § 453.026, RSMo. This section provides that as early as practical before an adoptive parent accepts physical custody of the child, the person placing the child as authorized by § 453.014, RSMo, must furnish to the court, the guardian ad litem and the adoptive parents a written report regarding the child. The person placing the child is not held liable for incorrect information as provided by others or unintentional errors when making the written report. The full investigation, assessment and written report regarding the child pursuant to §§ 453.070 and 453.026 must be submitted to and reviewed by the court prior to a transfer of custody, and must be updated prior to finalization of the adoption.³⁸

Although the statute gives no guidance as to the information required to be in the report mandated by § 453.026, RSM, § 453.070 specifically requires that the full investigation include "an assessment of the adoptive parents, an appropriate post-placement assessment and a summary of written reports as provided in section 453.026 and any other pertinent information relevant to whether the child is suitable for adoption by the petitioner and whether the petitioner is suitable as a parent for the child."

The Department of Social Services is mandated to develop rules and regulations regarding the content of the assessment mentioned in §§ 453.026 and 453.070, RSMo.³⁹

Financial Affidavit

The petitioner in any adoption proceeding must file, at the time of the filing of the petition, "a signed and verified full accounting of any money, anything of value or other consideration paid or transferred by or on behalf of the petitioner in connection with the placement or adoption." Consideration to be listed includes hospital, medical and physician expenses, counseling services, expenses incurred in obtaining a preplacement assessment or an assessment during the adoption proceeding, "reasonable legal expenses, court costs and travel or other administrative expenses connected with the adoption [and] any other services the court finds is reasonably necessary."

If any of the payments, transfers or consideration are either unreasonable or other than those permitted by § 568.175, RSMo, or if the petitioner has failed to report all payments, transfers or consideration given, then "[t]he court may decline to issue a decree of adoption and, . . . [if] one of the petitioners is not a biological or adoptive parent, [the court] may order transfer of lawful custody from petitioners to a licensed adoption agency."⁴⁰

Transfer of Custody

It is unlawful to surrender custody of a minor child without having first filed an adoption petition and obtained an order of transfer of custody.⁴¹ This section does not, however, "prohibit any parent, agency, organization or institution from placing a child in a family home for care if the right to supervise the care of the child and to resume custody thereof is retained, or from placing a child with a licensed foster home within the state through a child placing agency licensed by this state as part of a preadoption placement."⁴² After the filing of a petition, the court may grant the count involving the transfer of custody provided that the court finds each of the following: (1) the full investigation as required by § 453.070, RSMo, has been reviewed and received by the court, (2) a recommendation has been made by the guardian ad litem, (3) a petition for transfer of custody has been filed or an order terminating parental rights has been filed, (4) the financial affidavit required by § 453.075, RSMo, has been filed, (5) the written report regarding the child required by § 453.026, RSMo, has been filed, (6) there has been compliance with the Indian Child Welfare Act, if applicable, and (7) there has been compliance with the Interstate Compact on the Placement of Children pursuant to § 210.620, RSMo.

House Bill 343 now provides that a hearing on the transfer of custody for the purpose of adoption is not required if all of the foregoing conditions have been met, the parties agree, the court grants leave, and parental rights have been terminated pursuant to Chapter 211, RSMo.

Finalization of the Adoption

The court shall conduct a hearing to determine if the adoption shall be finalized. The court may finalize the adoption if it finds all of the following:

(1) The allegations of the petition are true; (2) The person sought to be adopted, if a child, has been in the lawful and actual custody of petitioner for . . . at least six months prior to entry ofthe adoption decree . . .; ⁴³ (3) The court has received and reviewed a post-placement assessment on the monthly contacts with the adoptive family; (4) The court has received and reviewed an updated financial affidavit; (5) The court has received the recommendations of the guardian ad litem, . . . the person placing the child, the person making the assessment and the person making the post-placement assessment; (6) There is compliance with the uniform child custody jurisdiction act; (7) There is compliance with the Indian Child Welfare Act, . . . (8) There is compliance with the Interstate Compact on the Placement of Children, . . . and (9) It is fit and proper that the adoption should be made.

Certificate of Decree of Adoption

House Bill 343 makes the filing and preparation of a certificate of decree of adoption by petitioner or petitioners attorney a prerequisite to the issuance of a final decree of adoption.⁴⁴ After entry of the decree of adoption, the clerk of the court shall immediately send the certificate to the Department of Health.⁴⁵

Conclusion

The General Assembly apparently had several goals in mind in this revision of the adoption and termination of parental rights laws. Those stated publicly by supporters of the bill included permanence for children, finality, speed, and making decrees less subject to collateral attack. Revisions to the definitions make it more clear to the practitioners who must be served, who must consent, or against whom there must be grounds for termination or grounds for the granting of an adoption without consent. By inclusion of all necessary parties, the decree should be less subject to attack.

The addition of new venue options makes the process more accomodating for those seeking to adopt. Because so many adoptions and terminations are accomplished by consent, it would have been better if the formal requirements for consents in both Chapters 211 and 453 could have been more consistent.

Additional grounds for contested termination or for the granting of an adoption without consent demonstrate the legislatures position that more children will achieve permanence through adoption. The shorter period of lawful and actual custody which is required before finalization of an adoption demonstrates legislative intent that the process should occur more quickly.

The full effect of House Bill 343 on termination of parental rights and adoption in Missouri will not be fully determined until appellate decisions have been rendered interpreting some of the more troublesome provisions. Until those decisions have been rendered, however, and because of the relative importance of obtaining adoption decrees which are not subject to attack on appeal, counsel is cautioned to make every effort to comply with the spirit and intent, as well as the letter, of the law. Counsel must give careful consideration to who must be named as a party (which, in turn, determines who must either consent or against whom there must be grounds authorizing a termination of parental rights or adoption granted in absence of consent), counsel must be careful to choose the correct venue, and to draft a petition which states a cause of action under applicable provisions of Chapter 211 and/or Chapter 453. Counsel must be extremely careful to ensure that consent forms contain all of the statutory requirements and are executed in compliance with the statutory formalities. Counsel must also ensure that the financial affidavit and certificate of decree of adoption have been filed, that compliance has been made with the Interstate Compact on the Placement of Children and the Indian Child Welfare Act, and that all of the prerequisites for granting a transfer of custody or for finalization of the adoption have been carefully complied with and findings made in the court order. By following all of theforegoing, counsel should be able to litigate an adoption in Missouri after House Bill 343 which will withstand an attack on appeal.

Endnotes

1 Lamb v. Feehan, 276 S.W. 71 (Mo. 1925). See also Hockaday v. Lynn, 98 S.W. 585 (Mo. 1906). Previously, a trial courts order terminating parental rights in an adoption proceeding was held to be unnecessary, although appropriate under a proceeding in a Chapter 211 termination of parental rights, because the granting of an adoption has been held to terminate the parental rights of the natural parents automatically. Marsch v. Williams, 575 S.W.2d 897 (Mo. App. E.D. 1978).
2 Section 453.090, RSMo. This section provides that when a child is adopted in accordance with Chapter 453, RSMo, all legal relationships, rights and duties between the child and the natural parents shall cease (except for a natural parent who joins in the petition for adoption by a step parent). This section further provides that an adopted child may inherit from the adoptive parents and is entitled to support, nurture and care from the adoptive parents. This section also provides that the adoptive parents may inherit from the child and are entitled to services, wages, control and custody of the child.
This legal fiction is so strong that it has been held that the trial court, in a dissolution of marriage proceeding, is correct to find that a child who has been adopted by the mothers husband after the marriage is, in fact, a child "born" of the marriage. D.L.C. v. L.C.C., 559 S.W.2d 623 (Mo. App. E.D. 1977). It is public policy in Missouri that adopted children have the same legal property rights as natural children. First Natl Bank of Kansas City v. Waldron, 406 S.W.2d 56 (Mo. 1966). But see Wailes v. Curators of Central College, 254 S.W.2d 645 (Mo. banc 1953) (it is also public policy of this state that dual inheritance from both the natural and adoptive parents shall not be possible).
The doctrine of "equitable adoption" is different in effect. An equitably adopted child does not have the same legal status as a legally adopted child. See Holt v. Burlington Northern R.R., 685 S.W.2d 851 (Mo. App. W.D. 1984); Rumans v. Lighthizer, 249 S.W.2d 397 (Mo. 1952).
3 Section 211.444, RSMo, was previously amended to provide that the juvenile court may, upon petition of the juvenile officer or the court before which a petition for adoption has been filed, terminate parental rights provided there is consent. Section 211.447, RSMo, was previously amended to provide that a termination of parental rights may be granted upon contested grounds where a petition is filed either by the juvenile officer or by the petitioners in a Chapter 453 adoption.
A more thorough explanation of this concept was recently provided by the Eastern District of the Missouri Court of Appeals. In In Interest of D.S.G., 947 S.W.2d 516 (Mo. App. E.D. 1997), the court explained that although "adoption and termination of parental rights are two separate and distinct actions with different parties and issues," the two may be forced together into one proceeding by the operation of § 211.447.2, RSMo. Id. at 518. When such a petition is filed by a prospective adoptive parent, the termination issue and the adoption issue proceed "in tandem." Id.
4 In re Adoption of J.M.K., 363 S.W.2d 67 (Mo. App. W.D. 1962); Adoption of R.A.B. v. R.A.B., 562 S.W.2d 356 (Mo. banc 1978). See also, however, § 453.005, RSMo, which provides that the adoption law of Missouri "shall be construed so as to promote the best interests and welfare of the child in recognition of the entitlement of the child to a permanent and stable home." This seems to create a legislative preference and state policy that permanency is to be desired as a goal for the child.
Although actions for termination of parental rights and adoption are statutory actions at law, they involve equitable principles and the adoption law and its application to cases are to "be construed so as to promote the best interests and welfare of the child in recognition of the entitlement ofthe child to a permanent and stable home." Section 453.005, RSMo, and In the Interest of D.S.G., 947 S.W.2d 516, 518 (Mo. App. E.D. 1997). Thus, it has been held that forcing a parent whose rights have been terminated pursuant to a Chapter 211 termination in the context of an adoption to wait until the adoption is finalized after the waiting period results in an unjust delay in the adjudication of fathers claims of errors and also denies recognition of the entitlement of the child to a permanent and stable home. See In the Interest of D.S.G., 947 S.W.2d at 518.
5 Section 453.015(1), RSMo.
6 Section 453.015(2), RSMo. This section also provides that a putative father shall have no legal relationship unless he has acknowledged the child as his own by affirmatively asserting his paternity. Note that the term "putative father" is also defined. See § 453.015(3), RSMo.
7 See § 210.822, RSMo, the Uniform Parentage Act, for a definition of presumed father. Generally, a presumed father is a person who: is or has been married, or has attempted to marry or cohabited with the natural mother where the child is born during the marriage; attempted marriage or cohabitation or within 300 days after the termination thereof; or a person who has acknowledged his paternity in an affidavit filed with the Department of Health; or a person who is not excluded by a blood test and the probability of paternity is 98% or higher, using a prior probability of 0.5%.
8 See §§ 192.016 and 193.087, RSMo.
9 Petitioners attorney should request from the Putative Father Registry of the Missouri Department of Health the name and address of any person adjudicated by a Missouri court or the court of any other state or territory of the United States to be the father of the child in question or any person who has filed a notice of intent to claim paternity of the child in question or any person who has filed an acknowledgment of paternity of the child in question. See § 192.016, RSMo, which provides that the Department of Health shall, upon request, provide names and addresses of persons listed with the Putative Father Registry to any court or authorized agency, or entity or person named in § 453.014, RSMo. Note that § 453.014, RSMo, includes only the Division of Family Services, licensed adoption agencies, relatives within the third degree and intermediaries. Thus, petitioners attorney will usually be required to file a motion and obtain a court order to require the Department of Health to release the foregoing information. Section 192.016.6, RSMo.
10 Section 453.010.2, RSMo. It has been held that a juvenile court that has assumed jurisdiction over children in a child neglect proceeding under Chapter 211, RSMo, preempts an adoption proceeding involving the same children. Matter of J.F.K., 853 S.W.2d 932 (Mo. banc 1993).
11 Section 453.010.1(1)-(4), RSMo. The phrase "birth person" is not defined and counsel is cautioned against attempting to manipulate venue to a county where a putative father resides since it is not clear whether a putative father is a "birth person."
12 Section 453.020, RSMo. Counsel must remember that the petition designates the parties, and an entry of appearance or testimony as a witness by a biological parent does not make that person a party to the case where that person is not designated as a party in the petition. State ex rel. L.L.B. v. Eiffert, 775 S.W.2d 216 (Mo. App. S.D. 1989). The sufficiency of the petition may be attacked for the first time on appeal. State v. Schilb, 285 S.W. 748 (Mo. App. E.D. 1926). For example, it has been held that an adoption petition should have been dismissed for insufficiency where it did not name the parents of the child, stated that the mother was a resident of a certain county, and that the father was unknown. Adoption of McKinzie, 275 S.W.2d 365 (Mo. App. S.D. 1955). Further, a petition which fails to allege that the petitioners have the ability to properly care for, maintain and educate the child, or that the childs welfare will be promoted, or properly describing the child or giving the sex of the child is insufficient. State v. Schild, 285 S.W. 748 (Mo. App. E.D. 1926). But see Adoption of Mik and Russ, 553 S.W.2d 706 (Mo. App. S.D. 1977), which held that an "adoption petition was not fatally defective . . . [nor] insufficient to give the court jurisdiction because it merely alleged that natural father had abandoned children for a period of over one year" but did not allege that the abandonment was willful since the pleadings could be considered to have been amended to conform to the proof adduced. The petition is required to contain allegations likely to inform the persons involved of the charges so that objections and defenses may be prepared. In Interest of H.R.R., 945 S.W.2d 85 (Mo. App. W.D. 1997). The petition must contain allegations as to each party. The allegations may be to the effect that the party has consented or to the effect that parental rights should be terminated on one or more of the statutory contested grounds. In addition, allegations should be made pursuant to the adoption statute as to each party. Those allegations may be to the effect that the party has consented or that the adoption may be granted in absence of consent. It is suggested that the allegations be specific and that each and every element as to each and every party be alleged.
13 Sections 453.030, 453.040, 211.444 and 211.447, RSMo.
14 Section 211.444, RSMo.
15 Section 211.447.2 (1), RSMo. The elements of abandonment are: (1) that the child (2) has been abandoned (3) for the statutory period. The statutory period is six months or longer for a child over one year of age; 60 days or longer for a child under one year of age. The determinative age is the age of the child at the time of the filing of the petition. Abandonment can be shown two ways. The first is that the parent has left the child under such circumstances that the identity of the child was unknown and could not be ascertained despite diligent searching and the parent has not come forward to claim the child. The second, and more common method of showing abandonment, is that the parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so. Of course, in addition to showing all of the specific grounds for termination of parental rights, it must be shown that termination is in the best interests of the child. The court must also consider the factors set forth in § 211.447.3, RSMo.
16 Section 211.447.2(2), RSMo. Termination of parental rights for abuse and neglect merely requires a showing that the child has been abused or neglected (not a formal Chapter 211 adjudication) plus at least one of four listed aggravating factors. The aggravating factors are: (1) that the parent has a mental condition shown by competent evidence to either be "permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;" (2) that the parent suffers from "chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control;" (3) that a severe or recurrent act of physical, emotional or sexual abuse has been committed toward "the child or any child in the family by the parent" or by another under circumstances indicating the "parent knew or should have known that such acts were being committed toward the child or any child in the family;" (4) that there has been "repeated or continuous failure by the parent, although physically or financially able, to provide the child with adequate food, clothing, shelter, or education . . . or other care and control necessary for the childs physical, mental, or emotional health and development."
The court must make a finding on each aggravating factor even if no evidence was adduced. In such case, the finding should so state. See In re Interest of E.K., 860 S.W.2d 797 (Mo. App. E.D. 1993). Of course, in addition to showing all of the specific grounds for termination of parental rights, it must be shown that termination is in the best interests of the child. See also In re C.L.A., 899 .W.2d 566 (Mo. App. S.D. 1995). The court must also consider the factors set forth in § 211.447.3, RSMo. As to sufficiency of the evidence, see In Interest of T.S., 925 S.W.2d 486 (Mo. App. E.D. 1996); In Interest of P.J.M., 926 S.W.2d 223 (Mo. App. E.D. 1996). See also In Interest of K.D.C.R.C.B-T, 928 S.W.2d 905 (Mo. App. E.D. 1996).
17 Section 211.447.2(3), RSMo. To prove failure to rectify, it must be shown that "[t]he child has been under the jurisdiction of the juvenile court for a period of one year and . . . that the conditions lead[ing] to the assumption of jurisdiction still persist or [that] conditions of a potentially harmful nature continue to exist, that there is little likelihood that [the] conditions will be remedied" so that the child can be returned to the parent in the near future, or that continuation of the parent-child relationship greatly diminishes the childs prospects for early integration into a stable and permanent home." Under this ground, the court must make findings on four aggravating factors as follows: (1) the terms of any social service plans entered into between the parent and DFS and "the extent to which the parties have made progress in complying with those terms"; (2) "[t]he success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;" (3) whether the parent suffers from a "mental condition shown by competent evidence to be permanent or such that there is no reasonable likelihood that it can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;" (4) that the parent suffers from "[c]hemical dependency which prevents the parent from consistently providing the necessary care, custody and control . . . and which cannot be treated so as to enable the parent to consistently provide such care, custody and control."
See In the Interest of D.A.H. v. M.A., 921 S.W.2d 618 (Mo. App. W.D. 1996). The court must also consider the factors set forth in § 211.447.3, RSMo. Unlike the aggravating factors set forth in §§ 211.447.2(2) and (3), RSMo, it is not necessary that the court make findings on each and every factor listed in § 211.447.3, RSMo. See In Interest of B.R.S., 937 S.W.2d 773 (Mo. App. W.D. 1997).
18 Section 211.447.2(2), RSMo.
19 Section 211.447.2(4), RSMo. TPR may be granted under this ground where "[t]he parent has been found guilty or pled guilty to [either] a felony violation of Chapter 566, RSMo, . . . or a violation of § 568.020, RSMo, when the child or any child in the family was a victim." As used in this ground, "child" means a person under 18 "at the time of the crime and who either resided with such parent or was related within the third degree of consanguinity or affinity."
20 Section 211.447.2(5), RSMo. TPR may be granted under this ground where "[t]he child was conceived and born as a result of an act of forcible rape." A plea to or conviction of the forcible rape of the mother is conclusive evidence supporting termination of the fathers rights.
21 Section 211.447.2(6), RSMo. TPR may be granted under this ground where "[t]he parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse," or because of specific conditions directly related to the parent-child relationship, either of which is determined to be of a "duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child." A parent is presumed unfit under this ground where it is shown that within three years prior to the termination adjudication, the parents rights have been involuntarily terminated to one or more other children under § 211.447.2(1), (2), (3) or (4), RSMo, or the similar laws of any other state.
22 Note that House Bill 343 does not require a consideration of the § 211.447.3 factors where termination of parental rights is based upon the ground known as "parental unfitness" under § 21.447.2(6), RSMo. It is unclear whether this was an unintentional omission in the statute. Accordingly, it is suggested that counsel plead and prove all applicable factors from § 211.447.3 when doing a TPR on the ground of parental unfitness. Unlike the aggravating factors set forth in §§ 211.447.2(2) and (3), RSMo, it is not necessary that the court make findings on each and every factor listed in § 211.447.3, RSMo. It is sufficient if the court simply makes findings on those that are applicable to the case. See In Interest of K.O., 933 S.W.2d 930 (Mo. App. E.D. 1996).
23 Section 210.822.1(1), (2), (3) or (5), RSMo.
24 The effect of the failure of a person to file a paternity action within 15 days after the birth of the child is unclear; however, it is suggested that the failure to file an action to establish paternity is not in and of itself a ground to permit the adoption in absence of consent because the exclusive grounds upon which an adoption may be granted in absence of consent are set forth in § 453.040, RSMo. See State ex rel. J.D.S. v. Edwards, 574 S.W.2d 405 (Mo. banc 1978).
25 The phrase "at the time of the filing of the petition" was added by House Bill 343. It is suggested that counsel serve any unknown father by publication and it is further suggested that if identity is unknown when the petition is filed, but later becomes known, that counsel not rely upon this because of potential due process problems. Counsel should amend the petition to name a person whose identity becomes known after the filing of the petition and either obtain consent or allege grounds for termination of parental rights or grounds upon which the adoption may be granted in absence of a Chapter 453 consent.
26 The meaning of this section is somewhat unclear. Presumably, when counsel files a petition, a person named in the petition will either be alleged to have consented or grounds for termination of parental rights or grounds for granting the adoption in absence of a Chapter 453 consent will be alleged. This section, however, seems to create a stand alone ground to grant an adoption in absence of a consent for a party who is merely in default. It does not seem possible to name a person and allege in the initial filing that the person has failed to file an answer or make an appearance at the time the cause is heard since, at the point of filing, these factors are not known. The probable intended application is for those not infrequent situations where a parent refuses to sign a consent, but at the same time indicates he or she will not contest the adoption.
27 It should be noted that the time period in an abandonment case is dependent upon the age of the child, whereas the time period for neglect is the same regardless of the age of the child.
28 Section 453.030.5, RSMo. Note that the verification of identity provision does not apply to a judge.
29 Section 453.025.4, RSMo.
30 Section 453.030.12, RSMo. Note that the legislature did not use the term indigency. The careful practitioner should urge the court to err on the side of appointment of counsel so that potential error is not introduced into the proceedings.
31 Section 453.030.13, RSMo.
32 Sections 453.030.6 and 453.030.7, RSMo. Note that the consent form shall be developed through rules and regulations promulgated by the Department of Social Services as provided in § 453.030.8, RSMo. It is unclear whether use of a different consent form would create reversible error. As of August 15, 1997, such a form had not yet been developed by the Department of Social Services and practitioners should be prepared to use a form developed by counsel which complies with the requirements of the statute. In addition, counsel may have a consent form which contains greater detail and more facts than a form developed by the Department of Social Services. It is suggested that the Department of Social Services form be used when it is developed and, in addition, counsel may have the parents sign a custom drafted form as well. A procedure which is not recommended would be to use only a form drafted by counsel after the Department of Social Services promulgates a form.
Before House Bill 343, once a valid consent was knowingly, voluntarily and intelligently made, it was irrvocable. In Interest of D.C.C., 935 S.W.2d 657 (Mo. App. W.D. 1996). The consenting parent has the burden of proving good cause for allowing withdrawal of consent, and the court was required to consider the legal capacity of the parents to give consent, whether consent is induced by fraud or duress or any other elements rendering consent involuntary. Id. See also In re Adoption of R.V.H., 824 S.W.2d 28 (Mo. App. W.D. 1991). Literally, where there is sufficient evidence to establish that the natural parents were not under duress, carefully considered the decision to consent, and believed the adoption was in the best interests of the child at the time of the consent, the evidence will be insufficient to establish that the parents should be allowed to withdraw consent. In Interest of D.C.C., 935 S.W.2d 657 (Mo. App. W.D. 1996). A consenting party further has no right to intervene in the adoption after an adverse ruling on a motion to withdraw consent. In re Adoption of R.V.H., 824 S.W.2d 28 (Mo. App. W.D. 1991). But see In re D, 408 S.W.2d 361 (Mo. App. S.D. 1966) (if best interests of child are served by returning him to natural parent, mere lack of duress, fraud or coercion at time consent form is executed should not, alone, prevent return of child to natural parent). The question of allowing withdrawal of consent is vested in the courts sound discretion. In re G.K.D., 332 S.W.2d 62 (Mo. App. E.D. 1960). See also In re Adoption of A.D.A., 789 S.W.2d 842 (Mo. App. S.D. 1990). For discussion of "the principle of equitable estoppel and ties of affection, which inhibits the revocation of consent for adoption as against those who have taken a child in good faith with the intention of adopting and have expended love, energy, and time in attempting to fulfill that end," see In re G___, 389 S.W.2d 63 (Mo. App. S.D. 1965). It is unclear whether, under House Bill 343, consent may be withdrawn at any time and for any reason until the review and acceptance by a judge, or whether the old rules regarding withdrawal of consent apply prior to the review and acceptance of the consent by the court. It is, however, clear that after review and acceptance by the court, the consent may not be withdrawn for any reason.
33 It is unclear how counsel is supposed to determine whether a person has been adjudicated to be the father of the child by a court in another country, or, for that matter, in another state or territory of the United States unless the judgment is filed or registered in Missouri.
34 Section 453.060.6, RSMo.
35 Section 453.050.1, RSMo.
36 Section 453.050.2, RSMo. It is suggested that the additional language concerning verification of identity and the "determine and certify" language required in the new consent forms be utilized in a waiver of necessity of consent to a future adoption form as well.
37 Where the child is under 18, one of the petitioners is a natural parent, and all parents required to consent have consented, the juvenile court may waive the investigation and enter the decree of adoption or order transfer of custody without the investigation and report. Please note that § 453.070, RSMo, as amended by House Bill 343, contains an apparent typographical error in subsection 1. The opening phrase states "except as provided in Subsection 6. . . ." The intended meaning is probably "except as provided in Subsection 5. . . ."
38 Sections 453.110 and 453.080, RSMo.
39 Sections 453.026.3 and 453.070.3, RSMo.
40 Section 453.075, RSMo.
41 Section 453.110.1, RSMo.
42 Section 453.110.5, RSMo.
43 House Bill 343 shortened the period from nine months to six months. Lawful and actual custody is defined now to include a transfer of custody pursuant to the laws of this or any other state or a territory of the United States or another country.
44 Section 193.125, RSMo.
45 Section 453.100, RSMo.

-- Mr. McCarver received his J.D. from the University of Missouri-Columbia in 1984, where he was a member of the Missouri Law Review. He is a frequent author and lecturer for The Missouri Bar and the Judicial College. Mr. McCarver maintains a private law practice in Farmington.

© 1998, Shawn R. McCarver