Juvenile Law

Shawn McCarver

Consolidation of two competing adoptions is not a right, and the decision is left to the discretion of the trial court. Suitability of petitioners is merely a preliminary step in determining the best interests of the children in an adoption.  Adoption was properly denied where Petitioners did not produce evidence about the children, their physical or emotional needs, their past or present homes, their adaptation to the current home or the effect that changing their homes would have on the children. In the Matter of the Adoption of I.R.C. and A.R.C., No. 32349 (Mo. App. S.D., April 19, 2013), Lynch, P.J.

The children were taken into protective custody. Mother passed away and Father’s parental rights were terminated. Both children were placed in the same foster home. Prior to learning about the placement, Petitioners had seen one of the children only one time. Petitioners did not take any action until eight months later, at which time they sought visitation. From August 2011 to February 2012, Petitioners had four visits totaling approximately 8 hours. The Children’s Division stopped the visitation because Petitioners were not approved as an adoption placement. Despite this, Petitioners obtained a favorable home study of their home in Oklahoma and thereafter filed a petition to adopt both children. Petitioners knew that the foster parents had also filed a petition to adopt the children. Petitioners did not file a motion to intervene or a motion to consolidate the competing adoptions.

Petitioners’ evidence focused on their suitability, financial stability, desire to adopt, their willingness to allow the children to have continued communication with the foster parents, and the fact that they had a large extended family.

The trial court found that Petitioners had impeccable character, an excellent work record and were capable of being appropriate parents. Nevertheless, the trial court denied the petition. The decision was based upon the recommendations of the guardian ad litem and the Children’s Division, as well as the preference for foster parents who have cared for a child for at least twelve continuous months as set forth in § 453.070, RSMo.

Petitioners assert that the trial court erred by failing to consolidate the two competing adoption petitions. Petitioners did not request consolidation. The court held there is no right to consolidation and that while Rule 66.01 allows for consolidation, such action is left to the discretion of the trial court.

Petitioners also alleged the judgment was not supported by substantial evidence because the only evidence at trial demonstrated they would be suitable parents for the children. Petitioners have the burden of proof and the primary concern is the best interests of the children. The fact that Petitioners are suitable is not the end of the inquiry. The suitability of Petitioners is merely a preliminary step in reaching the ultimate decision as to what is best for the children. Petitioners failed in their burden of proof because they did not produce evidence about the children, their physical or emotional needs, their past or current living situation, their adaptation to the current living situation or the possible impact upon the children if that living situation were changed.


Termination of Parental Rights (TPR) for neglect affirmed where Father failed to support children before and during incarceration, had only letters and phone calls with one of the children, but no visitation, continued his criminal conduct after knowing the children were incarcerated, was serving a twelve-year sentence in the DOC, and where his plans for early release were speculative as were his plans to support the children with proceeds from a pending federal lawsuit. TPR was in the best interests of the children where there were no additional services that could be offered and the children would be deprived of a stable home for a period of years. In Interest of M.J.H. and L.M.J., Nos. 32353 & 32354 (Mo. App. S.D., March  28, 2013).

Father’s parental rights were terminated for neglect and failure to rectify. Father appeals. The children were taken into protective custody in May 2010 because Mother tested positive for drugs after the birth of the youngest child. Allegations of the petition were established and the court assumed jurisdiction. Father was located and was aware that his children were in protective custody. Father attended the Family Support Team meeting. Two weeks later, as a result of his new criminal activity, Father was incarcerated. Father remained incarcerated for the remainder of the case. The Division set up a treatment plan for incarcerated parents. In June 2011, the TPR petition was filed. The court found that the only aggravating factor applicable to the case was the factor for “repeated and continuous neglect.”

Father has been absent for all of L.M.J.’s life and most of M.J.H.’s life. At least one and a half years prior to his incarceration, Father failed to provide financial or in-kind support. Father said he provided care by visiting M.J.H. every day (M.J.H. lived with maternal great-grandmother). Father failed to provide for the children once incarcerated. He wrote letters, but provided no support. Father continued his criminal activity even after he knew the children were in care, resulting in his incarceration. Father was serving, at the time of trial, a twelve-year sentence in DOC. Father said his plan was to provide for the children upon his release with proceeds from a federal lawsuit he had filed. Father’s testimony about early release from DOC is speculative as is his testimony that he will be “heavily compensated” through his federal suit.

Termination was in the best interests of the children because he did not visit, although he did send letters and make calls to M.J.H., he has never met L.M.J., he provided no support, there were no additional services that could be offered, he showed a lack of commitment by continuing his criminal conduct after the children came into care, and he is serving a twelve-year sentence which will deprive the children of a stable home for a period of years.

Held: Termination affirmed.