Section 2.29 Abandonment and Neglect

• Library: Adoption Law and Practice 2014 Supp

6. (§2.29) Abandonment and Neglect

Two categories of willful abandonment are created under this exception: one for a child of at least 1 year of age and the other for a child under 1 year of age. In the first instance the duration of abandonment is required to be for a period of at least 6 months immediately before the filing of the petition for adoption; for a child under the age of 1 year the duration of abandonment only needs to be 60 days immediately before the filing of the petition. The specified statutory period of abandonment is critical and jurisdictional, and it must be pleaded and proved when relying on statutory abandonment or neglect. In re Adoption of K.A.S., 933 S.W.2d 942 (Mo. App. W.D. 1996). Notwithstanding that § 453.040(7) specifies that the controlling period of abandonment immediately precede the date of the filing of the petition for adoption, decisional law has established that parental conduct both before and after the statutory period is relevant and admissible on the issue of the intentions of the parent. In re Adoption of LeGrande, 581 S.W.2d 414 (Mo. App. W.D. 1979); R.F.N. v. G.R., 546 S.W.2d 510 (Mo. App. E.D. 1976); In re T.C.M., 651 S.W.2d 525 (Mo. App. E.D. 1983).

Section 453.040(7) further recognizes a distinction between willful abandonment and willful neglect. Willful abandonment has been defined as:

a willful, positive act such as deserting the child; a willful delivery of the child with intention that the severance be permanent; a voluntary and intentional relinquishment of custody of the child to another with the intent to never again claim the rights or duties of a parent. It can also occur if a parent intentionally withholds from the child without just cause or excuse the [parental] care, love, protection, and presence of a parent.

In re Adoption of Baby Boy W., 701 S.W.2d 534, 543 (Mo. App. W.D. 1985) (citation omitted); In re...