Section 28 Abandonment

• Library: Juvenile Law 2011

Abandonment may be the predicate for a neglect finding or for an order terminating parental rights. “Abandonment” is:

· the parent’s intentional relinquishment of custody of a child with the intent never again to claim parental rights or to perform parental duties with respect to the child; or

· the parent’s intentional withholding from the child, without just cause or excuse, of the parent’s presence, care, love, protection, and maintenance, and the opportunity for display of filial affection.

See, e.g.:

· In re L.M., 322 S.W.3d 564 (Mo. App. S.D. 2010)

· In re Z.L.R., 306 S.W.3d 632, 635 (Mo. App. S.D. 2010)

· In re E.F.B.D., 245 S.W.3d 316, 324 (Mo. App. S.D. 2008)

· In re I.Q.S., 200 S.W.3d 599, 604 (Mo. App. W.D. 2006)

· In re Adoption of B.D.W., 185 S.W.3d 727, 738 (Mo. App. S.D. 2006)

· In re J.B.D., 151 S.W.3d 885, 888 (Mo. App. S.D. 2004)

Abandonment requires proof of parental intent to abandon the child, which may be inferred from the parent’s conduct. See, e.g.:

· L.M., 322 S.W.3d 564 (after his two children were placed in foster care, the father abandoned them because, for about a year, he made no attempts to see or communicate with them even though he knew their whereabouts, made no attempt to provide financial or other support, and apparently did not ask that they be placed with him or ask during a phone conversation with a caseworker whether he could visit them)

· Z.L.R., 306 S.W.3d at 635

· E.F.B.D., 245 S.W.3d at 324

· In re E.T.C., 141 S.W.3d 39, 50 (Mo. App. E.D. 2004) (the father abandoned his child because, while gainfully employed, he did not provide the foster parents or the DFS (now the CD) any support for the child)

Compare:

· In re P.L.O., 131 S.W.3d 782, 789–90 (Mo. banc 2004) (intent to abandon inferred from the mother’s failure, without good cause, to schedule visits with her children while they were in foster care or to pay court‑ordered child support); and

· In re E.D.H., 138 S.W.3d 761, 764–65 (Mo. App. E.D. 2004) (intent to abandon inferred from the father’s failure, without good cause, to maintain routine visits or communication with his child while he was in foster care or to pay court‑ordered child support),

with Z.H. v. G.H., 5 S.W.3d 567 (Mo. App. W.D. 1999) (reversing order terminating the father’s parental rights because, although his personal visits with the child were minimal and he did not provide regular child support, he was denied custody of the child by court order after vigorous litigation, the child was removed out of state, and the father had visited the child extensively when the child lived in Missouri).

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In In re L.N.D., 219 S.W.3d 820 (Mo. App. S.D. 2007), the court of appeals rejected as “meritless” the father’s claim that his failure to support his child should be excused because he was unaware of the one-dollar-per-month administrative-support order. The court concluded that the father “had a continuing obligation to support [the child] without being ordered to do so.” Id. at 828 n.7.

To prove that a parent intended to abandon a child, the evidence must show that the child was accessible to the parent for visitation and communication. Juvenile authorities may be unable to prove the parent’s intent to abandon when the parent was denied access to the child
by deception, concealment, or refusal by authorities to respond to
the parent’s reasonable requests for information and assistance. See In re C.J.G., 75 S.W.3d 794, 801 (Mo. App. W.D. 2002) (abandonment allegations insufficient because a father “had no access to [the child] initially because of the mother’s concealment and then because the child was taken into DFS custody”); see also, e.g., C.S. v. Smith, 483 S.W.2d 790 (Mo. App. E.D. 1972) (mother did not abandon her child in foster care because the juvenile officer did not inform her that she had a right to visit the child and an obligation to support him).

“Normally, ‘a finding of abandonment is not compatible with a finding that custody has ended involuntarily.’” In re N.R.W., 112 S.W.3d 465, 469 (Mo. App. W.D. 2003) (quoting In re B.C.H., 718 S.W.2d 158, 166 (Mo. App. W.D. 1986)). One reason for this...