Consent not required: Missouri's adoption laws for incapacitated adults.

AuthorCollins, Kelly

DeBrodie v. Martin, 400 S.W.3d 881 (Mo. Ct. App. 2013).

  1. INTRODUCTION

    In 2013, approximately 640,000 children spent time in foster care. (1) Mentally incapacitated children in foster care are considered "hard to place" and are often placed in an institutional setting. (2) When families petition for the adoption of these children, the court has to have permission from certain parties to the adoption, one of whom is the adoptee. (3) The adoptee's consent to the adoption is generally easily obtained, and courts, upon deciding the adoption is in the child's best interests, will grant the adoption without issue. (4)

    But what if the adoptee has been found to be legally incapable of giving consent? Does that mean that an incompetent adoptee cannot be adopted? That is the issue in a recent case from the Missouri Court of Appeals, Western District: DeBrodie v. Martin. The court held that mentally incapacitated adults are not required to give consent to their adoption. (5) Since consent is not a necessary prerequisite, the circuit court can evaluate the fitness and propriety of the petitioning adoptive parents and determine whether the adoption is in the child's best interests. (6)

    This Note discusses Missouri's adoption statutes, specifically adult adoptions and adoptions of mentally incapacitated adults, then explains the best interests of the child determination that courts perform when granting (or denying) a petition for adoption. Part II gives a brief background of the facts and circumstances surrounding DeBrodie v. Martin, (7) Part III discusses the history of Missouri's adoption statutes, focusing on adult adoptions, and explains the best interests of the child analysis in custody proceedings. (8) Part IV delves into the initial Missouri Court of Appeals' decision. (9) Finally, Part V comments on the outcome upon remand and re-appeal of the case, and why both the circuit court and appellate court ultimately reached the incorrect decision and deprived DeBrodie of the chance to be a member of a loving, adopted family. (10)

  2. FACTS AND HOLDING

    In August 2011, Bryan and Mary Martin (hereinafter "the Martins") filed a petition to adopt twenty-five-year-old Carl Lee DeBrodie (hereinafter "DeBrodie"). (11) DeBrodie was an incapacitated and disabled adult, and Mary Martin was formerly his legal guardian. (12) The Martins filed their petition in the Circuit Court of Cole County, Juvenile Division. (13)

    In September 1999, Mary Martin had been appointed by the Circuit Court of Cole County to be the legal guardian of DeBrodie. (14) DeBrodie was thirteen years old at the time and was considered to be a special needs child. (15) In the guardianship judgment, the Cole County Circuit Court found that DeBrodie's biological mother and biological father were "unable or unfit to assume the duties of guardianship." (16) The court determined that DeBrodie's biological mother was "severely, intellectually, psychologically, socially and occupationally impaired." (17) In the guardianship judgment, the court found that there were sufficient grounds to terminate DeBrodie's mother's parental rights, but the court did not terminate her parental rights. (18) The court determined that termination of parental rights was "not ... in the child[]'s best interest." (19)

    Until DeBrodie was eighteen years old, (20) Mary Martin continued to serve as his legal guardian. (21) After DeBrodie turned eighteen, the Callaway County Circuit Court adjudged him as an incapacitated and disabled adult. (22) With this status, DeBrodie became a ward of the Public Administrator of Callaway County, Karen Digh Allen. (23) Ms. Allen (hereinafter the "Legal Guardian") was appointed by the court to be DeBrodie's legal guardian and conservator. (24) Beginning in 2010, and at the time of both proceedings detailed in this Note, DeBrodie lived at Second Chance, an institutionalized group home. (25)

    In the Martins' 2011 adoption petition, they alleged that after they were no longer DeBrodie's guardians they continued to provide DeBrodie with care and support. (26) The Martins' petition also stated that "they had developed a 'close familial relationship' with DeBrodie that was important to his welfare and [that] they wanted to establish a legal familial relationship by adopting him." (27) The Legal Guardian filed an objection to the Martins' adoption petition." (28)

    Because DeBrodie was found to be an incapacitated and disabled adult, he was presumed to be incompetent to consent to the adoption. (29) Section 453.030 of the Missouri Revised Statutes requires the adoptee to consent to his or her adoption. (30) This section provides an exception to the consent requirement if the court determines the child does not have the mental capacity to consent. (31) The Martins claimed that if the court were to determine that DeBrodie was competent to consent, DeBrodie would consent to the adoption of himself by the Martins. (32) The Martins alleged that, if the court found DeBrodie was incompetent to consent, neither his consent nor the Legal Guardian's consent was necessary for the court to grant the adoption. (33)

    The Legal Guardian requested the court appoint a guardian ad litem to represent DeBrodie's interests in the adoption proceeding and the court granted that request. (34) The guardian ad litem, after performing an investigation, recommended that the court grant the Martins' adoption petition. (35)

    The court held an evidentiary hearing and then entered its judgment. (36) The court stated that it did not doubt that the Martins loved DeBrodie and wanted what was best for him, but nevertheless, the court denied the Martins' adult adoption petition. (37) The court found that DeBrodie's consent to adoption was required by Section 453.030.2 because DeBrodie was twenty-five at the time the adoption petition was filed and was therefore over the fourteen years of age requirement in the statute. (38) The exception to the consent requirement did not apply to DeBrodie because he was not a "child" within the statute's definition. (39) Because DeBrodie was legally incapacitated, he could not give his own consent, and the court found insufficient evidence to support a finding that DeBrodie could understand the legal significance of consenting to the adoption. (40)

    The Legal Guardian could not consent to DeBrodie's adoption either. (41) The probate court had not authorized her to consent to the adoption and she did not try to get the authority from the probate court to do so. (42) The court did take the guardian ad litem's recommendation of granting the adoption into account, but found that the court did not have the authority to disregard the Legal Guardian's decision. (43) Ultimately, the court stated that because "there was no consent from DeBrodie or [the] Legal Guardian," it could not "consider the fitness and propriety of the proposed adult adoption." (44)

    The Martins filed a post-trial motion and alleged that the court erred in finding that the adoption required consent from either DeBrodie or the Legal Guardian. (45) The court denied the Martins' post-trial motion, (46) and the Martins appealed. (47)

  3. LEGAL BACKGROUND

    1. Missouri's Adoption Code

      Like adoptions of minors, adult adoptions create a legally recognized familial relationship. (48) In Missouri, Section 453.030 states that written consent of the person to be adopted is required if the adoptee is fourteen years of age or older. (49) The section further states that the consent of the adoptee is not required if the court finds that such child does not have sufficient mental capacity to give his or her consent. (50) The statute does not clarify whether an adult who is mentally incapable of giving consent can be included in the exception to the consent requirement for an adoption.

      The adoption code sets forth two definitions for the term "child." Section 453.015(1) defines "child" (51) as "any person who has not attained the age of eighteen years or any person in the custody of the division of family services who has not attained the age of twenty-one." (52) The definition from this section applies to Sections 453.010 to 453.400. (53) Section 453.015 does not state whether it includes mentally incapacitated adults in its definition of "child."

      The second definition for the term "child" appears in Section 453.090, which describes the legal inheritance rights of those adopted. In this section, "child" means "either a person under or over the age of eighteen years." (54) Section 453.090 expressly limits its definition of "child" to this section. (55) Section 453.090 focuses on the relationship between the parents and the adoptee when defining "child," rather than focusing on the age of the adoptee.

      The exception to the consent requirement was added to Section 453.030.2 in 1947. (56) Before 1947, a general definitions statute had not yet been included in the adoption code, so Section 453.030.2's use of "child" was not defined statutorily. (57) The only definition of "child" in the adoption code was found in Section 453.090 and was limited to just that section. (58)

      While there is limited case law about this subject, the cases that have opined on the matter clarify that a mentally incapacitated adult can be included in the definition of "child" within the adoption code. (59) Missouri's case law has defined "child" by focusing on the familial relationship between parent and child, not the age of the adoptee. (60)

      In 1932, State ex rel. Buerk v. Calhoun became the first case in Missouri to determine that the adoption code permitted an adult person to be adopted as the child of another person. (61) In Buerk, the juvenile court dismissed the petition of a man trying to adopt an adult woman because the court held it lacked jurisdiction to hear the case. (62) On appeal, the Supreme Court of Missouri looked to the then-current adoption statute to make its determination. (63) Section 14073 included the phrase "desiring to adopt...

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