Requisite Intent for Abandonment

Abandonment is a question of the intent of a parent, to be discovered by examining all evidence of the conduct of the parent. In Interest of B.L.B., 834 S.W.2d 795 (Mo.App.E.D. 1992).  Impediments to visitation do not, in and of themselves, excuse the obligation of a parent to provide the child with a continuing relationship. Id. Sufficient evidence of intent to abandon is shown where the mother has only ten visits in two years with the children, makes approximately six incomplete attempts at drug treatment, successfully completes one drug treatment program, is incarcerated twice while the children are in alternative care and otherwise maintains only token contact and provides little or no support.  In Interest of J.W., 11 S.W.3d 699 (Mo.App.W.D. 1999).  Sufficient evidence to find willful  abandonment is also shown where mother permits the child to live with the future adoptive parents, consents to future adoptive parents being appointed as guardians/conservators, after which mother moves out of state, makes only token efforts to contact the child including a few phone calls and two letters and fails to otherwise communicate with or support the child.  In such a case, termination was affirmed and an adoption granted in absence of consent despite the fact that mother did not know the telephone number of the adoptive parents or their address.  In Re Adoption of H.M.C., 11 S.W.3d 81 (Mo.App.W.D. 2000).

TPR for abandonment has been affirmed where a father was aware of mother’s pregnancy, but believed that mother either had an abortion or had miscarried.  Father did not know of the child’s existence until about one week after the child was born.  Mother initiated proceedings for adoption without father’s knowledge or consent.  After being contacted by DFS, father allowed five months to pass without taking any action.  At the time, the statutory period of abandonment was sixty days.  Accordingly, termination was affirmed because father did nothing to exercise any parental rights or to fulfill any parental responsibilities.  In Interest of B.B.B., 905 S.W.2d 118 (Mo.App.W.D. 1995).

Transportation and employment problems did not excuse the obligations of a mother, and the court found sufficient evidence of her intent to abandon the child where mother stopped visiting the child and stopped attending counseling sessions.  Mother did not see the child for over a year.  In Interest of C.S., 910 S.W.2d 811 (Mo.App.E.D. 1995).

Even a denial of visitation after the filing of a TPR petition pursuant to an alleged ”court policy” was not sufficient to overcome abandonment.  Evidence showed the parent had abandoned the children prior to filing the TPR petition.  A short term improvement after the filing of the TPR petition did not constitute compelling evidence.  The termination was affirmed.  In Interest of T.T., 954 S.W.2d 429 (Mo.App.W.D. 1997).  On the other hand, where a mother concealed the location of a child from the father, father asserted parental responsibilities upon finding the child and further did not consent, the termination of father’s parental rights was reversed.  In Interest of G.M.T., 965 S.W.2d 200 (Mo.App.E.D. 1998).

A termination for abandonment was reversed where a father had seven visits in one year, made seven phone calls while the children lived out of state and where father suffered from a medical condition which interfered with his ability to work, however, after being approved for disability, the children received social security.  In Interest of B.S.B., 76 S.W.3d 318 (Mo.App.W.D. 2002).  A TPR was also reversed where father quit his job in Mississippi, moved to Missouri, attended therapy, visited, bought gifts for the child and attended some school activities.  In Interest of A.R., 52 S.W.3d 625 (Mo.App.W.D. 2001).

A TPR for abandonment in an adoption case was reversed where the putative father made consistent efforts to preserve his paternity interests and to gain access to the child where father’s efforts were frustrated by mother’s non-cooperation and elusiveness.  Father’s efforts were further frustrated by the failure of juvenile authorities to promptly notify father of the filing of the juvenile case or to provide meaningful responses to the father’s requests for assistance.  In Interest of C.J.G., 75 S.W.3d 794 (Mo.App.W.D. 2002).

A TPR for abandonment was reversed where a father sent regular correspondence to the child, the grandparents and DFS.  In the case, father elected not to require the child to come to prison to visit with father.  The court held that father’s failure to pay minimal child support from his limited prison income was a de minimis failure in light of father’s extensive correspondence with the child.  In Interest of J.M.S., 83 S.W.3d 76 (Mo.App.W.D. 2002).

A TPR for abandonment was affirmed where the mother had only eighteen hours together with the child during the two years the child was in foster care.  Mother had failed to notify DFS of a change of address and had failed to comply with a service plan.  Mother also failed to support the child despite ability to support.  Recent efforts to reestablish a relationship with the child were held to be ”token efforts.”  In Interest of E.L.B., SC84903 (MO. en banc 4-22-2003).

A TPR for abandonment of an infant under Section 211.447.2(2), R.S.Mo. was affirmed where the child was involuntarily removed from the parents, but the parents thereafter failed to visit, communicate or provide support.  In Interest of N.R.W., WD62176 (Mo.App.W.D. 8-19-2003).

A father’s parental rights were terminated for abandonment, and an adoption was granted despite father’s actions in seeking a paternity test, intervening in the case and exercising visitation, where these actions were after the filing of the petition.  Matter of K.N.H., SD25259 (Mo.App.S.D. 10-30- 2003).  The court gave greater weight to father’s actions prior to filing.  Prior to filing, father had sex with mother at the time of conception, and thought the relationship was monogamous, but later denied having sex with mother, denied paternity, failed to promptly assert paternity when he became aware that paternity was at issue and had no justification for his belief that he was not the father.  Id.

Failure to visit by a mother does not preclude a termination for abandonment where the mother was not to be permitted contact until her therapist approved, and where mother failed to enroll in or participate in therapy.  In Interest of E.T.C., ED83716 (Mo.App.E.D. 6-15-2004).  Likewise, where father is an over the road trucker, lives out of his truck, fails to provide a home for the child, visits only every two or three months and fails to pay support, termination for abandonment is appropriate.  Id.  See also In Interest of E.D.H., ED84003 (Mo.App.E.D. 7-6-2004)(TPR affirmed where father fails to visit, support and follow terms of service agreement).

The requisite intent to abandon was shown by a combination of father’s actions and his statement that he would consent if he could choose the parent.  In Interest of P.G.M., SD26083 (Mo.App.S.D. 10-12-2004)(father, in prison, was aware of the pregnancy and plan to place the child for adoption, and made no more than token efforts to maintain a relationship with the child).

Where an incarcerated father had no visits or communication from February 2002 until April 2003 (TPR petition filed in November 2002), father’s actions after filing, consisting of consistent communication with child and completion of programs while incarcerated, do not prevent TPR for abandonment.  In Interest of J.B.D., SD26031 (Mo.App.S.D. 11-18-2004).