IN RE THE ADOPTION OF:                    )
H.D.D, R.N.D., AND S.F.D., minors,        )
                                          )
W.H.D. and S.G.D.,                        )
                                          )
              Petitioners-Respondents,    )
                                          )
      vs.                                 )
                                          )
S.M.D.,                                   )
                                          )
              Respondent-Appellant.       )
                                                        No. SD36035
      and
                                                        Filed: November 13, 2019
IN RE THE MATTER OF:                      )
R.N.D. and S.F.D.                         )
                                          )
W.H.D.                                    )
                                          )
              Petitioner-Respondent,      )
                                          )
      vs.                                 )
                                          )
S.M.D.,                                   )
                                          )
              Respondent-Appellant.       )

            APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                Honorable Joseph L. Hensley, Associate Circuit Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED



                                         1
         S.M.D. (“Mother”) and W.H.D. (“Father’) are the parents of three children:

H.H.D., a male child who was born in May 2000; R.N.D., a female minor child who was

born in December 2001; and S.F.D., a female minor child who was born in April 2003

(collectively “the Children”). Mother and Father divorced on November 9, 2007. At that

time, the trial court granted the parties joint legal and joint physical custody of the

Children, with Father’s residence designated for mailing and educational purposes. The

trial court ordered Mother to pay $672.00 per month in child support beginning April 2,

2008. On February 21, 2008, Father filed a Motion to Modify and Mother filed a

Counter-Motion to Modify on October 10, 2008. The modification was heard on

November 6, 2009. Mother did not appear, was unrepresented, and she had moved to the

state of Ohio. The court, on January 27, 2010, entered judgment and modified the

custodial order granting Father, who was married to “Amanda” at the time of the hearing,

sole legal and sole physical custody of the Children, “subject to the right of reasonable

visitation by Mother in accordance with Father’s Parenting Plan.” The parenting plan in

the modified judgment was set up for a significant geographical distance between Mother

and Father.

         Father and Amanda divorced in 2013. Father married the Petitioner, S.G.D.

(“Step-Mother”), in March of 2015. Step-Mother brought three children into the

marriage. The court denied the termination of Mother’s rights to S.F.D., but terminated

Mother’s parental rights to R.N.D. and granted the step-parent adoption for R.N.D. on the

grounds that Mother had abandoned R.N.D. 1 We affirm the judgment in part and reverse

and remand in part.


1
 H.H.D. was dismissed from the termination of parental rights and step-parent adoption on the date of trial
because he was no longer a minor.


                                                     2
           Mother is a registered nurse and Father is a medical doctor. All three children

have autism spectrum diagnoses, 2 though H.H.D. and S.F.D. are extremely high

functioning. R.N.D., on the other hand, suffers a severe form of autism and will likely

never be able to live independently. R.N.D. is on a “Sarah Lopez Waiver,” 3 which

allows R.N.D. to be placed on Missouri Medicaid. R.N.D. is unable to be at home by

herself, prepare her own food, and eat without oversight. She “perseverates” over things,

such as food. Further, R.N.D. needs prompts and reminders for safety with cleaning,

bathing, showering. She has a personal care assistant who works in the home of Father

and Step-Mother. In addition, she has a service dog to help keep her calm.

           Mother moved back to the Carl Junction area in October of 2010. At that time,

the parties, without a court modification, began practicing an every-other weekend

visitation schedule with the Children. In September 2015, this practice ended and Mother

ceased visitation with R.N.D. Mother claimed Father told her “[i]t’s very apparent you

cannot handle [R.N.D.], and you will not be seeing her for some time.” Father claims

that Mother called him during one of R.N.D.’s meltdowns, and that Mother told him to


2
    Autism Spectrum Disorder includes:

           A. Persistent deficits in social communication and social interaction across multiple
           contexts . . . [.]
           B. Restricted, repetitive patterns of behavior, interests, or activities . . . [.]
           C. Symptoms must be present in the early developmental period (but may not become
           fully manifest until social demands exceed limited capacities or may be masked by learned
           strategies in later life).
           D. Symptoms cause clinically significant impairment in social, occupational, or other
           important areas of current functioning.
           E. These disturbances are not better explained by intellectual disability (intellectual
           developmental disorder) or global developmental delay. . . .

See https://www.cdc.gov/ncbddd/autism/hcp-dsm.html (page last reviewed Aug. 27, 2019) for complete
criteria for 299.00 Autism Spectrum Disorder according to the American Psychiatric Association’s fifth
edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
3
  This particular waiver exists for families who are over the typical income guidelines for Medicaid making
a person ineligible for any other type of waiver.


                                                      3
“never bring her back and that [Step-Mother] and [Father] needed to pay for the damage

that our daughter caused to [Mother’s] home.” Mother did not make any further attempts

to see R.N.D. until March 1, 2018. 4

        In 2017, Mother sent the Children Easter cards. On January 23, 2018, Mother

sent a text message to S.F.D., which read: “i have been tryi[n]g to get in touch with you.

Please let me know you & [H.H.D.] & [R.N.D.] are doing ok. i love u & miss you

terribly! love, mom[.]” Beginning March 1, 2018, Mother initiated contact with Father

via text messaging requesting visitation with all of the Children. The dialogue between

Mother and Father, from March 1, 2018 through March 31, 2018, was as follows:

        On Thursday, March 1, 2018, Mother sent Father the following text
        message:
        “i would really like the opportunity to see the kids . . . your thoughts?”

        On Friday, March 2, 2018, Father replied:
        “I’ve had a chance now to speak with both kids. [S.F.D.] is not happy you
        involved her friends. Their parents are also not happy. The kids have
        received your messages. They do not want to respond at this time.”

        On Wednesday, March 7, 2018, Mother sent Father the following text
        message:
        “I want to star[t] visits in therapeutic setting with [H.H.D.] [R.N.D.] &
        [S.F.D.]…what are ur thoughts?”

         On Monday, March 19, 2018, Mother sent Father the following text
        message:
        “i want to star[t] visits in therapeutic setting with [H.H.D., R.N.D. & S.F.D.]
        . . . what are ur thoughts?”

        On Monday, March 19, 2018, Father replied:
        “It’s an unrealistic expectation for [R.N.D.]. I spoke with the other two, they
        do not wish to do it.”

        On Thursday, March 29, 2018, Mother sent Father the following text
        message:


4
 Mother told the court she did not challenge Father on him withholding R.N.D. in fear that Father would
withhold the other two children.


                                                    4
       “[Father,] i’d really like to see the kids. will you please encourage [H.H.D.
       & S.F.D.] to participate in a therapeutic setting visit? also, i want to see
       [R.N.D.] in a therapeutic setting which i don’t feel is an unrealistic
       expectation. can we discuss this? thanks!”

       On Saturday, March 31, 2018, Mother sent Father the following text
       message:
       “please can we talk about visitation with HRS [sic] in a therapeutic setting?
       i’d love to see them!”

Father refused all visitation, stating that H.H.D. and S.F.D. did not want to visit Mother.

       Mother filed a Motion to Modify on April 9, 2018, and alleged that Father has

repeatedly denied her visitation with the Children. On April 17th, Father and Step-Mother

filed a three-count Petition for Termination of Parental Rights and Step-Parent Adoption

on behalf of the Children, asking the court to transfer legal custody of the Children to

Father and Step-Mother. On April 23, 2018, Father and Step-Mother filed a Petition for

Appointment of Guardian and Conservator for R.N.D. and a Petition for Emergency

Appointment of Guardian and Conservator for R.N.D. Mother, between May 8, 2018 and

May 30, 2018, again initiated contact with Father via text messaging requesting visitation

with the Children. The dialogue between Mother and Father, from May 8, 2018 through

May 30, 2018, is as follows:

       On Tuesday, May 8, 2018, Mother sent Father the following text message:
       “i’d like to see all the kids sometime on mother’s day . . . can we talk about
       this?”

       On Friday, May 11, 2018, Mother sent Father the following text message:
       “i’d really like to settle all the issues between us without having to go
       through court . . . i’d prefer not to put the kids through it . . . and would like
       for them to see us amicably coming to a resolution . . . are u willing to talk
       to me about it?”

       On Thursday, May 17, 2018, Mother sent Father the following text
       message:
       “when can i see all the kids for visitation?”




                                               5
       On Sunday, May 20, 2018, Mother sent Father the following text message:
       “i’m sorry to learn of your cancer diagnosis. i am praying for you and our
       children.”

       On Saturday, May 26, 2018, Mother sent Father the following text message:
       “can we discuss therapeutic setting visitation with all 3 kids?”

       On Wednesday, May 30, 2018, Mother sent Father the following text
       message:
       “[Father,] i’d like to see all the kids”

       On June 7, 2018, Mother filed a Motion for Therapeutic Visitations regarding all

the Children. Twelve days later, on June 19, 2018, Mother filed a Motion for Family

Access Order requesting visitation with the Children and for compensatory visitation

with the Children. In between and after the filing of her motions, Mother again sent text

messages to Father in June requesting visitation in June and for visitation on the Fourth

of July. Step-Mother acknowledged she and Father received Thanksgiving cards from

Mother addressed to the Children in 2018. Step-Mother testified she did not read R.N.D.

her card. Furthermore, Step-Mother acknowledged receiving Christmas cards from

Mother addressed to the Children. Step-Mother admitted she did not read R.N.D. her

card, and that she (Step-Mother) threw it away.

       On September 20, 2018, the trial court consolidated all cases, and scheduled

Mother’s Motion for Family Access to be heard on November 14, 2018, and all other

matters were scheduled for trial on January 14, 15 and 16, 2019. On November 14, 2018,

the trial court heard evidence on Mother’s Motion for Family Access. After taking the

matter under advisement, the trial court entered an Order on November 21, 2018, wherein

the trial court stated “on an interim basis, [Mother’s] request for relief by way of the

family access and for therapeutic visits are denied, pending further order from the [trial




                                              6
    court] following the January hearing.” On January 14, 15 and 16, 2019, the trial court

    heard evidence on the following cases:

•   The juvenile/step-parent adoption (18AO-JU00131) involving the termination of
    Mother’s parental rights and the adoption of R.N.D. and S.F.D. by Step-Mother;

•   Two guardianship cases (18AP-PR00165 and 18AP-PR00166), which requested the trial
    court to appoint Step-Mother as legal guardian for R.N.D. and S.F.D.; and

•   Mother’s Motion to Modify (05AO-FC00723-02) requesting a modification of the current
    custody order.

           The trial court found no clear and convincing evidence of neglect and noted that

    Mother has continued to pay child support for the Children for a total amount of $87,360

    in total support and kept health insurance on the children. The court then found that prior

    to 2015 Mother’s conduct would favor a finding that she did not intend to abandon

    R.N.D. The court found no in-person contact between Mother and R.N.D. for three years

    other than a chance encounter at a Target parking lot in 2016. Mother did not attempt to

    call or send text messages to Father to set up a visit with R.N.D. until March of 2018.

    The trial court further found that Mother “may have been correct that her cards, letters,

    gifts, or phone calls would not have got through to [R.N.D.], or that [Father] would not

    have allowed her custodial time, but with regard to [R.N.D.], she never tried.” The trial

    court further found that “[t]he evidence is undisputed that [R.N.D’s] autism is extreme,

    and the Court has taken her condition into account. [Mother] did not have the option of

    simply sending an e-mail or text message to [R.N.D].” The court stated, “[i]t appeared

    [Mother] had her fill of [R.N.D.’s] behaviors in September of 2015 and never tried

    again.” The trial court noted the close proximity of the residences between Mother and

    Father, and “[n]evertheless, there was no evidence of any request to see [R.N.D.] until

    well into 2018.” The trial court found that


                                                  7
         after litigation commenced, [Mother] requested [Father] allow therapeutic
         visits with all of the [C]hildren, [R.N.D.] included. She also filed a motion
         to modify as well as a family access motion, but in truth, she did not need
         one to see [R.N.D.] at school or check in on her from time to time.[ 5]

The trial court noted that “[v]isiting [R.N.D.] at school likewise could have been

problematic, but it was not impossible.” Additionally, “[t]here was no evidence Mother

had any idea who assisted with [R.N.D.’s] care, the names of her doctors and how she

was doing physically, how she was doing at school, etc.”

         Missouri law requires that courts approach termination of parental rights in a two-

step analysis. In re J.L.M., 64 S.W.3d 923, 924 (Mo.App. S.D. 2002). The first step

requires the court to determine whether evidence exists under the law to terminate

parental rights. Id. The focus here is not on the petitioners or the children, but on the

biological parent whose rights could be terminated. This is a very high standard of proof,

requiring “clear, cogent and convincing” evidence. In re K.M.W., 342 S.W.3d 353, 359

(Mo.App. S.D. 2011). “The clear, cogent, and convincing standard of proof is met when

evidence instantly tilts the scales in the affirmative when weighed against the evidence in

opposition and the fact finder’s mind is left with an abiding conviction that the evidence

is true.” In re C.M.B.R., 332 S.W.3d 793, 815 (Mo. banc 2011) (internal quotations and

citation omitted), abrogated on other grounds by S.S.S. v. C.V.S., 529 S.W.3d 811 (Mo.

banc 2017). 6



5
 As noted previously in this opinion, Mother requested therapeutic visits with the Children via texts with
Father in March 2018, which was prior to the commencement of litigation in April 2018.
6
 If the court determines legal grounds for termination of parental rights exist, the second step of the
analysis is whether the best interests of the children would be served by terminating the biological parent’s
parental rights. In re J.L.M., 64 S.W.3d at 924. In this second step the court’s focus expands to the
children and the petitioners’ burden of persuasion is less onerous, requiring only a preponderance of the
evidence showing. In re D.M.B., 178 S.W.3d 683, 689 (Mo.App. S.D. 2005). We do not address the
second step.


                                                      8
       Termination of parental rights “is an exercise of awesome power and strict and

literal compliance with the statutory language is demanded. The party seeking to invoke

the statute must carry the full burden of proof.” In Interest of Baby Girl W., 728 S.W.2d

545, 547 (Mo.App. W.D. 1987). Furthermore, statutes providing for the termination of

parental rights “are strictly construed in favor of the parent and preservation of the natural

parent-child relationship.” In re A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004).

       The bond between parent and child is a fundamental societal relationship.
       In re Parental Rights to Q.L.R., 118 Nev. 602, 54 P.3d 56, 58 (Nev.2002);
       see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599
       (1982); see also Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31
       L.Ed.2d 551 (1972). A parent’s right to raise her children is a fundamental
       liberty interest protected by the constitutional guarantee of due process. It
       is one of the oldest fundamental liberty interests recognized by the United
       States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054,
       147 L.Ed.2d 49 (2000). . . . The termination of parental rights has been
       characterized as tantamount to a “civil death penalty.” In re N.R.C., 94
       S.W.3d 799, 811 (Tex.App.-Houston [14th Dist.] 2002); In re Parental
       Rights as to K.D.L., 118 Nev. 737, 58 P.3d 181, 186 (2002). “It is a drastic
       intrusion into the sacred parent-child relationship.” In the Interest of P.C.,
       B.M., and C.M., 62 S.W.3d [600,] 603 [Mo.App. W.D. 2001)].

In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004).

       The first hurdle the law mandates that the court address is whether there are

grounds to terminate the biological mother’s parental rights, and so that is where the

court focuses its attention first. Petitioners rely on section 453.040(7), RSMo 2016.

       Prospective parents . . . may request a termination of parental rights incident
       to an adoption action under chapter 453. Chapter 453 does not speak to
       termination of parental rights; rather, it authorizes adoption without consent
       or with consent that has the effect of terminating parental rights.

C.M.B.R., 332 S.W.3d at 806 (internal citation omitted). Section 453.040(7) provides, in

pertinent part, that a parent’s consent to an adoption is not required where, for a period of

at least six months immediately prior to the filing of an adoption petition, a parent




                                              9
willfully abandoned the child or willfully, substantially, and continuously neglected to

provide the child with necessary care and protection.

       Abandonment, however, “‘is defined as the voluntary and intentional

relinquishment of the custody of a child with the intent to never again claim the rights or

duties of a parent.’” In re J.M.J., 404 S.W.3d 423, 432 (Mo.App. W.D. 2013) (quoting

In re K.L.C., 9 S.W.3d 768, 772-73 (Mo.App. S.D. 2000)). “Abandonment is also

defined as ‘the intentional withholding by the parent of his or her care, love, protection

and presence, without just cause or excuse.’” Id.

       The petition for the termination of Mother’s parental rights was filed on April 17,

2018. The court recognized that “[t]he intent to abandon, more often than not, is an

inferred fact, determined by conduct not only within the statutory period, but also

relevant conduct both before and after this period.” The court stated it looked to “an

objective consideration of [Mother’s] behavior as a course of conduct.”

       Mother claims the judgment terminating her rights was against the weight of the

evidence. Using the four-step process described in Houston v. Crider, Mother identified

a challenged factual proposition (i.e., that Mother intended to abandon her children),

identified all favorable evidence in the record supporting the existence of that

proposition, identified the evidence in the record contrary to the belief of that proposition,

and demonstrated why the favorable evidence failed to induce belief in that proposition.

317 S.W.3d 178, 187 (Mo.App. S.D. 2010). We agree that “the favorable evidence,

along with the reasonable inferences drawn from that evidence, is so lacking in probative

value, when considered in the context of the totality of the evidence, that it fails to induce

belief in that proposition.” Id. The evidence supporting the finding of abandonment of




                                             10
R.N.D. is the confrontation between Mother and Father in 2015 and Mother’s failure to

visit after that time. The evidence does not support any finding that Mother intended to

abandon her children. Looking at Mother’s conduct concerning visitation with her

children in the six months prior to the petition for termination being filed does not

indicate an attempt to abandon any of her children. There was no question, as the court

found in its rejection of the termination of Mother’s parental rights to S.F.D., that the

divorce was acrimonious and that Father allowed the children to dictate whether

visitation would occur between H.H.D. and S.F.D. and Mother. Because of the severity

of R.N.D.’s autism, there was no way to contact R.N.D. without Father’s input and

consent. Mother attempted to communicate with H.H.D. and S.F.D. through friends, 7

through Facebook, through texts, and prior to school. She was met with rejection.

Whether it was as Mother testified that Father found out and the Children got in trouble

or that she simply stopped trying to convince her children to see her, it does not change

the fact that Mother tried to visit with the Children and was prevented constantly by

Father from doing so. On February 15, 2018, even after previously being told by her son

H.H.D. to “leave [him] alone,” Mother texted several messages, including, “i love you

with all my heart . . . I will NEVER give up on you or your sisters.” She asked H.H.D. to

pass along her love to R.N.D. and S.F.D. She sent multiple text messages from March of

2018 into September of 2018.

        When S.F.D. quit responding to Mother’s texts in 2016, Mother asked her what

was wrong, what had happened, was she being threatened or punished. She specifically


7
  The court faulted Mother for trying to contact S.F.D. via texts to S.F.D.’s friends: “in a breach of
etiquette, [Mother] sent text messages to some of [S.F.D.’s] friends, inquiring how [S.F.D.] was doing and
requesting the friends have [S.F.D.] get in contact with her. Understandably, [S.F.D.] testified this
embarrassed her.”


                                                    11
asked S.F.D. if she was upset with Mother and asked her to tell her. She ended with “I

love you, mom xo.” When Mother heard nothing, she threatened to call the police for a

“well check” which prompted Father to respond, “I told [S.F.D.] she can call if she wants

to. She hasn’t wanted to.” Mother continued to try to get Father to have S.F.D. call.

Mother requested her Thanksgiving visitation in 2016 but was told that S.F.D. did not

want to visit her and Mother was denied visitation. After repeated texts from April

through September 2017, S.F.D. responded, in September 2017, “Please don’t text me.”

In 2018, after Mother tried to email S.F.D., Step-Mother accompanied S.F.D. to high

school to effectuate a change of email address. Mother kept up with S.F.D.’s progress on

the school web page and sent congratulatory comments and birthday wishes through text

messages. On May 14, 2018, Mother found out that S.F.D. had a new phone and was not

getting her messages. As the court noted, Father inappropriately relinquished the

decision of whether to visit with Mother to S.F.D.

       In March of 2018, Mother attempted to open up a dialogue with Father about

seeing the Children. As the court noted:

       [Mother] requested visits with all three kids again in late March of 2018.
       She asked again in May, trying to set up something for Mother’s Day. She
       received no replies. In May she sent [Father] another text message stating
       she wanted to settle their issues without going to court and putting the kids
       through that, and that she wanted the kids to see them come to an amicable
       resolution. She received no reply to that text or the next one asking for visits.
       She continued to request visits into June and July, but received no reply
       from [Father].
               Finally, [Father] and [S.F.D.] acknowledged receiving
       Thanksgiving and Christmas cards from [Mother] in 2018. [S.F.D.] said she
       threw them away and did not read them. [Mother] testified she also sent
       Easter Cards in 2017.

The trial court was puzzled by what Mother did not do. For instance, the court thought

Mother could have gone to the school to see S.F.D.’s records. There is no evidence that



                                              12
Mother would have been permitted to see those records. Father had full legal custody.

Father was allowed to change S.F.D.’s email so that her own mother could not contact

her. The court acknowledged that when Mother attended an event for H.H.D., Father and

Step-Mother grabbed the son and “shielded” him by turning their backs on her in a

protective manner. Mother did not want to ruin her son’s special day. Mother was told

by S.F.D. that she would get in trouble when Mother appeared at school events. There

was no question to the trial court that Mother’s presence put the Children in the difficult

position of “being caught in the middle, having to negotiate her parents’ feelings about

who to sit with, who to say ‘hello’ to first, etc.”

        The court noted that some of Mother’s concerns had merit:

        [Mother] constantly feared retaliation by [Father] withholding her visitation
        if she did not go along with his plans or request more time. Arguably, [t]his
        did happen in late 2015 when [Father] told [Mother] that they would go
        back to the 2010 parenting plan when 1) [Mother] lived only a few minutes
        away, not several hundred miles, and 2) they had been exercising every
        other weekend visitation for five years. Further, when [Mother] later
        requested Memorial Day visitation in 2016, [Father] denied it based on a
        technical notice violation. [Father] correctly pointed out that he was simply
        following the 2010 Court order then in effect, but in light of the parties’
        practice the previous five years, it lends some credibility to [Mother’s]
        perceived fears. In September of 2016, [Mother] told [Father] she intended
        to pick [up] [H.H.D.] and [S.F.D.] at 5:00 p.m. [Father] replied, “I have sole
        custody. He is staying. Feel free to take it to court. They will be there
        Monday evening [Mother’s birthday] for dinner.”[ 8]

The court properly noted:

        A long line of cases in Missouri and other states hold that when a custodian
        parent hinders communication with the other parent, then an abandonment
        cannot occur. “A finding of abandonment is not normally compatible with
        a finding that custody has ended involuntarily.” In re L.M., 322 S.W.3d 564,
        570[11-12] (Mo. App. S.D. 2010). In this case the evidence was not in
        dispute that [Step-Mother] assisted [S.F.D.] in changing her e-mail and
        changed her cell phone number, notably the two ways at the time [Mother]

8
 The court noted this was a two-way street as Mother labeled Father “evil” in her phone contacts and had
used terms describing Father that are “beyond decency or excuse” during the marriage.


                                                   13
       was attempting to contact [S.F.D.]. Under questioning from [Mother’s]
       attorney, [S.F.D.] testified that she was not aware that [Mother] was trying
       to set up visits with [Father] in 2018. [Mother] also claims the back-to-back
       similarly curt text message replies on September 24, 2017 were both
       “obviously” from [Father]. Though this is possible, it is hardly the only
       explanation, and [Mother] ignores that after nearly a year of sending texts
       with no response, perhaps she might have thought “outside the box” and
       initiated another method to attempt to talk to the children -- one that did not
       involve sending text messages to [S.F.D.’s] friends at school.

The court concluded:

       Though [Mother] has not filled the role of a model parent, no point would
       be served by terminating her parental rights to [S.F.D.] other than to punish
       her, and the Court heard no evidence this would outweigh any perceived
       benefit to [S.F.D.] at this point in her life that could not also be served by a
       less permanent and restrictive option such as guardianship.

The court denied the termination of Mother’s parental rights to S.F.D.

       As noted, Mother appeals the termination of her parental rights to the middle

child, R.N.D., on the basis that the judgment was against the weight of the evidence in

that, prior to the filing of a petition for termination of Mother’s parental rights, Mother

(1) requested visitation with R.N.D., (2) paid child support throughout the entire period

that she did not have custody, (3) carried health insurance on R.N.D., (4) filed a motion

to modify requesting joint legal and joint physical custody and requesting an increase in

visitation, and (5) continued to request visits that were ignored by Father. Shortly after

the petition for termination was filed, Mother filed a formal motion for therapeutic

visitation and a family access motion. As did the trial court, we note that the lack of

physical visitation is not the sole issue. Mother continuously attempted visitation during

the six months prior to the filing of the motion for step-parent adoption. She paid child

support and had health insurance for the Children. Although it was a double hurdle for

Mother to attempt to contact R.N.D., who could not be texted and could not visit without




                                             14
Father’s assistance, Mother tried to send messages through the other children. She was

also undermined by the admitted conduct of Step-Mother who tore up letters and cards to

R.N.D. Father and Step-Mother did more than discourage Mother from visiting the

children. All the evidence which supports the judgment denying termination of Mother’s

parental rights to S.F.D. supports the reversal of the termination to R.N.D.

       We believe the trial court was influenced by Father’s health. In March 2018,

Father received a diagnosis that he suffers from neuroendocrine pancreatic cancer.

Mother was not told of the diagnosis until April 3, 2018. Although the trial court was

duly concerned about the health diagnosis of Father, the law does not change to allow

Mother’s rights to be terminated because Father wishes that his current wife care for their

child. Therefore, the court must stringently follow the law regarding whether Mother

intentionally abandoned her children.

       Abandonment has been defined as either “a voluntary and intentional
       relinquishment of the custody of the child to another, with the intent to never
       again claim the rights of a parent or perform the duties of a parent; or . . . an
       intentional withholding from the child, without just cause or excuse, by the
       parent, of his presence, his care, his love, and his protection, maintenance,
       and the opportunity for the display of filial affection.” In re Watson’s
       Adoption, [] 195 S.W.2d 331, 336 (1946); In re E.F.B.D., 245 S.W.3d 316,
       324 (Mo.App.2008). “This largely presents an issue of intent, which is
       inferred from the parent’s conduct.” E.F.B.D., 245 S.W.3d at 324; In re
       Z.L.R., 306 S.W.3d 632, 635 (Mo.App.2010); see In re P.L.O., 131 S.W.3d
       782, 789 (Mo. banc 2004). Evidence of the parent’s conduct, both before
       and after the requisite six-month period, may be considered. In re J.B.D.,
       151 S.W.3d 885, 888 (Mo.App.2004). However, “[o]nly the parent’s
       conduct prior to the filing of the petition for termination may be considered
       to establish the six-month period.” Id. (emphasis added). The greatest
       weight must be given to conduct during the statutory period. In re Adoption
       of C.M.B.R., 332 S.W.3d 793, 819 (Mo. banc 2011).

In re G.T.M., 360 S.W.3d 318, 322-23 (Mo.App. S.D. 2012). An against-the-weight-of-

the-evidence claim “denotes an appellate test of how much persuasive value evidence




                                              15
has, not just whether sufficient evidence exists that tends to prove a necessary fact.” Ivie

v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014). This standard “serves only as a check

on a circuit court’s potential abuse of power in weighing the evidence, and an appellate

court will reverse only in rare cases, when it has a firm belief that the decree or judgment

is wrong.” Id. This is a rare case where Mother has presented evidence, such as texts,

the motions, the attempts at visitation, the difficulty of communication with a child who

is at a severe level on the autism spectrum, which counters Father’s evidence and that has

not been rebutted by Father.

       The judgment granting the step-parent adoption of R.N.D. and terminating

Mother’s parental rights to R.N.D. is reversed. The cause is remanded for further

proceedings on the petition for guardianship of R.N.D. In all other respects, the judgment

is affirmed.

NANCY STEFFEN RAHMEYER, J. – OPINION AUTHOR

JEFFREY W. BATES, C.J. – CONCURS

GARY W. LYNCH, J. – DISSENTS IN SEPARATE OPINION

DANIEL E. SCOTT, J. – DUBITANTE, WITH OPINION

DON E. BURRELL, J. – CONCURS IN J. LYNCH’S DISSENTING OPINION

WILLIAM W. FRANCIS, JR., J. – CONCURS

MARY W. SHEFFIELD, J. – CONCURS




                                             16
IN RE THE ADOPTION OF:               )
H.D.D, R.N.D., AND S.F.D., minors,   )
                                     )
W.H.D. and S.G.D.,                   )
                                     )
            Petitioners-Respondents, )
                                     )
      vs.                            )
                                     )
S.M.D.,                              )
                                     )
            Respondent-Appellant.    )
                                                        No. SD36035
       and

IN RE THE MATTER OF:                      )
R.N.D. and S.F.D.                         )
                                          )
W.H.D.                                    )
                                          )
              Petitioner-Respondent,      )
                                          )
       vs.                                )
                                          )
S.M.D.,                                   )
                                          )
              Respondent-Appellant.       )

                            DUBITANTE OPINION
       Citing Mother’s history of financial support, the trial court flatly rejected
both charges of neglect, then looked to non-financial factors in granting one of two
abandonment claims. Whether that “neglect-financial/abandonment-relational”



                                         1
view was proper determines what evidence is relevant to our against-the-weight
review. A divided supreme court recently failed to settle that issue. 1
       If the trial court’s rubric was proper, controlling principles of review dictate
affirmance. 2 On the other hand, if the court should have factored financial support
into its abandonment analysis, we should reverse and remand so that court can do
so. It is far better suited and positioned for that task than we are.
       DUBITANTE.

DANIEL E. SCOTT, J. – SEPARATE OPINION AUTHOR




1 See S.S.S. v. C.V.S., 529 S.W.3d 811 (Mo. banc 2017), which rejected against-
the-weight challenges to abandonment and neglect findings reflecting a similar
trial-court rubric (see id. at 815). In doing so, the majority and dissenters
discussed, but did not resolve, whether § 453.040(7) neglect has financial and non-
financial aspects (the flip side of our issue as to § 453.040(7) abandonment). See
id. at 818; id. at 821 (Breckenridge, J. dissenting).
2 I’ve not read a more thoughtful, sensitive, and considered judicial decision, trial

or appellate.


                                          2
                               Missouri Court of Appeals
                                         Southern District
                                                en banc

In Re the Adoption of H.H.D. R.N.D.,            )
and S.F.D.                                      )
                                                )
W.H.D. and S.G.D.,                              )
                                                )
         Petitioners-Respondents,               )
                                                )
vs.                                             )
                                                )
S.M.D.                                          )
                                                )
         Respondent-Appellant.                  )

and                                                             No. SD36035

In re the Matter of R.N.D. and S.F.D.           )
                                                )
W.H.D.,                                         )
                                                )
         Petitioner-Respondent,                 )
                                                )
vs.                                             )
                                                )
S.M.D.,                                         )
                                                )
         Respondent-Appellant.                  )

                 APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                                     Honorable Joseph L. Hensley
DISSENTING OPINION

         I respectfully dissent.

         This is not a rare case. Every day, all across our state, trial courts, especially in family


                                                    1
law cases, are called upon to hear evidence about hundreds or even thousands of events and

interactions affecting or occurring between family members over the course of multi-year,

sometimes decades-long, relationships. Many of these events involve the conduct of one, some,

or all of the family members taken within the perceived privacy of the family unit where filters

constraining public conduct are lowered or non-existent. Almost every event or action generates

conflicting evidence drawn from at least two, and, depending upon family size, three, four, or

more different perspectives both as to the actual conduct that occurred and the intent or

motivation of the actor or actors engaging in that conduct. From the totality of the contested and

conflicting evidence before it, the trial court is then called upon to ascertain the facts as to not

only which events actually happened, but also as to the intent and motivation of the various

actors in those events. In ascertaining those facts, the trial court must make innumerable

credibility determinations related to that contested and conflicting evidence both as to each

individual item of evidence and how each of those individual items contribute to the totality of

the evidence giving rise to making a factual finding. These credibility determinations, however,

are not necessarily limited to the binary task of determining whether a particular piece of

evidence is true or false. Rather, more often than not, they implicate the third dimension of

assigning relative weights to numerous discrete pieces of evidence in order to draw reasonable

inferences from the evidence as to the existence of the ultimate elemental facts giving rise to the

trial court’s application of the law.

        Here, Mother does not raise a substantial-evidence challenge to the trial court’s factual

finding that she intended to abandon R.N.D. during the requisite statutory period. Rather, in her

sole point on appeal, Mother challenges that finding only as being against the weight of the

evidence. In the absence of a substantial-evidence challenge, Mother concedes there was




                                                   2
sufficient evidence to support this finding. See Ivie v. Smith, 439 S.W.3d 189, 205–06 (Mo.

banc 2014).

        Appellate courts act with caution in exercising the power to set aside a decree or
        judgment on the ground that it is against the weight of the evidence. . . .
        “[W]eight of the evidence” denotes an appellate test of how much persuasive
        value evidence has, not just whether sufficient evidence exists that tends to prove
        a necessary fact. . . . The against-the-weight-of-the-evidence standard serves only
        as a check on a circuit court’s potential abuse of power in weighing the evidence,
        and an appellate court will reverse only in rare cases, when it has a firm belief that
        the decree or judgment is wrong.

Id. at 205–06 (internal citations omitted).

        When reviewing an against-the-weight-of-the-evidence challenge, this court,

nevertheless, defers to the trial court on credibility determinations “because the circuit court is in

a better position to weigh the contested and conflicting evidence in the context of the whole

case.” Id. at 206. An “appellate court will not re-find facts based on credibility determinations

through its own perspective. . . . This includes facts expressly found in the written judgment or

necessarily deemed found in accordance with the result reached.” Id. (internal citations omitted).

        The factual determination of Mother’s intent to abandon R.N.D. during the requisite

statutory period was a contested issue in this case. 1 “When the facts relevant to an issue are

contested, the reviewing court defers to the trial court’s assessment of the evidence.” White v.

Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). In its judgment, as related to this

contested factual issue, the trial court found as follows:

        Following an incident in the home in September of 2015, [Mother] told [Father]
        to come and get [R.N.D.] because she was “out of control,” and [Mother] could
        no longer handle her. . . .

        ****


1
 Abandonment, as relevant here, has long been recognized as the “intentional withholding by the parent of his or
her care, love, protection and presence, without just cause or excuse.” G.S.M. v. T.H.B., 786 S.W.2d 898, 900
(Mo.App. 1990).


                                                         3
        [Father and Step-Mother]] filed their petition for adoption on April 17th,
2018. They argue that counting back six months, [Mother] did nothing in the way
of trying to see [R.N.D.] from October 17th, 2017 until April 17th, 2018, a period
of six months. Further, they argue [Mother] did nothing for well over a year
before that and an additional nine months after being served in the present case,
and therefore her rights should be terminated based on abandonment.
        The law is not so formulaic that abandonment can be determined simply
with a calendar and a calculator. Abandonment is a question of the intent of the
parent which is “discovered by examining all evidence of the parent’s conduct,
including the conduct before and after the statutory period.” In re B.L.B., 834
S.W.2d 795, 799 (Mo. App. E.D. 1992). Therefore a trial court is obliged to look
to a biological parent’s conduct both before and after a petition for termination of
parental rights has been filed. In re K.A.C., 246 S.W.3d 537, 546[13] (Mo. App.
S.D. 2008). The intent to abandon, more often than not, is an inferred fact,
determined by conduct not only within the statutory period, but also relevant
conduct both before and after this period. In re P.G.M., 149 S.W.3d 507, 514[11-
12] (Mo. App. S.D. 2004). [Mother] testified at trial that she has not abandoned
any of the children. However, it is essential to determine whether she abandoned
[R.N.D.] . . . based on her conduct, judged by what she did rather than by what
she says. In re Adoption of K, 417 S.W.2d 702, 705 (Mo. App. S.D. 1967).
Otherwise put, her intention must be gathered from an objective consideration of
her behavior as a course of conduct. Id. at 709.
        [Mother]’s conduct prior to September of 2015 would favor a finding that
she did not intend to abandon [R.N.D.]. As [Father] admitted, [Mother] exercised
nearly all of her parenting time and contributed to [R.N.D.]’s care financially.
But this conduct stands in stark contrast to her conduct after September of 2015.
From that time period through January of 2019, [Mother] had no contact with
[R.N.D.] other than sending a card or two through [S.F.D.] in September of 2016
and a Thanksgiving and Christmas card in 2018.
        In fact, there was no in-person contact between [Mother] and [R.N.D.] for
over three years. [Mother] had a chance encounter with [Father] and the girls in
late November or early December of 2016 in the Target parking lot. The
evidence conflicted on [R.N.D.]’s behavior that day, and whether [Mother] had
contact with [R.N.D.] or only [S.F.D.], but either way, it is important to note this
was a chance encounter. [Mother] had no idea [Father] and the girls were at
Target. She was not actively seeking them out.
        [Mother] defended her lack of effort by explaining she believed [Father]
would have denied her contact with [S.F.D.] [and [H.H.D.]] if she pushed the
issue of resuming visitation with [R.N.D.]. When questioned by the Guardian ad
Litem as to why she waited until after March of 2018 to start specifically
requesting visits, [Mother] stated she wanted to hire an attorney first and get legal
advice, and could not afford to do so prior to March. These excuses are
unconvincing. The Court has sympathy for single parents who, despite gainful
employment, have difficulty affording legal counsel while paying child support.
However, the simple things [Mother] needed to do to prevent a finding of
abandonment of [R.N.D.] were things caring parents should not need professional



                                         4
legal advice to figure out, but rather see to purely voluntarily out of love and
concern for their child. Many parents denied access to their child go to extreme
and Herculean efforts to see them and spend time with them. While [Mother]
continued to try to maintain contact with [S.F.D.] and [H.H.D.] (discussed in
more detail below), she put forth no effort at all regarding [R.N.D.], under the
weak pretext of anticipated denial of visitation with the other children. But she
did not attempt to see [R.N.D.] at school. She did not attempt to call or send text
messages to [Father] to set up a visit with [R.N.D.] until March of 2018. She sent
no birthday cards, letters3 or gifts. There were no Christmas gifts from [Mother].
[Mother]’s excuses for not trying to see [R.N.D.] were therefore attributed to what
she thought might happen if she tried to visit her. She may have been correct that
her cards, letters, gifts, or phone calls would not have got through to [R.N.D.], or
that [Father] would not have allowed her custodial time, but with regard to
[R.N.D.], she never tried. She did not check in at [R.N.D.]’s school to see that
she was attending. She did not talk to her teachers to see if she was succeeding or
struggling or whether she could have lunch or spend time with [R.N.D.].
[Mother] did not check with [R.N.D.]’s doctor to ensure that she was healthy.
Though [Mother] may have been afraid of the repercussions of reaching out to
[Father] to see [R.N.D.], the Court questions what repercussions could have been
worse than not seeing her child?
         Perhaps more problematic is Mother’s inaction after becoming aware of
the Petition to terminate her parental rights and alleging abandonment. [Mother]
was aware of the allegations of abandonment in this case no later than April 25th,
2018, when her attorney entered his appearance, but up through the date of trial
she still had not seen [R.N.D.], nor checked on her at school or with her
physicians, letting another nine months pass without seeing [R.N.D.] and with the
shadow of the possible termination of her parental rights now looming. To be
fair, after litigation commenced she requested [Father] allow therapeutic visits
with all of the children, [R.N.D.] included. She also filed a motion to modify as
well as a family access motion, but in truth, she did not need one to see [R.N.D.]
at school or check in on her from time to time. Kelly Blackford, [R.N.D.]’s
special education teacher at [her school], testified she had never seen [Mother].
In short, she did not do what one might expect a parent to do in her situation who
does not intend to abandon her child.
         The evidence is undisputed that [R.N.D.]’s autism is extreme, and the
Court has taken her condition into account. [Mother] did not have the option of
simply sending an e-mail or text message to [R.N.D.]. Visiting [R.N.D.] at school
likewise could have been problematic, but it was not impossible. [Mother]
testified that the worst thing you can do for a child with [R.N.D.]’s autism is
avoid problem issues (“extinction”) but rather deal with the problem behavior
head on so that it does not prevent her from functioning in public where triggers
such as food or new people are pervasive. But she did not exercise her own
philosophy when it came to visitation with [R.N.D.]. It appeared she had her fill
of [R.N.D.]’s behaviors in September of 2015 and never tried again. This was not
a case where [Mother] lived hundreds of miles away from [R.N.D.] these two and
half years. She literally lived minutes away in the same town. Nevertheless,



                                         5
         there was no evidence of any request to see [R.N.D.] until well into 2018. There
         was no evidence [Mother] had any idea who assisted with [R.N.D.]’s care, the
         names of her doctors and how she was doing physically, how she was doing at
         school, etc.
                 The Court will not belabor this point, as it will become more apparent
         when viewed in the contrast to [Mother]’s efforts to contact [H.H.D.] and
         [S.F.D.]. [Mother] simply made no effort to see [R.N.D.] or stay in touch with
         her. “Adults may set aside their books, hobbies, or other interests, and ignore
         them for months without consequence. Not so with their young children.” R.P.C.
         v. Wright County Juvenile Office, 220 S.W.3d 390, 394 (Mo. App. 2007).
                 By word and by deed, she expressed an intent to abandon [R.N.D.] in
         September of 2015 and did not repent of that abandonment.

         ****
         3
          It is undisputed that [R.N.D.] could not read these cards, but that excuse is unavailing. First,
         [Mother] testified she did provide cards to [R.N.D.] through [S.F.D.] in September of 2016, until
         those visits at [S.N.D.’s school] stopped. Also, [Mother] resumed sending [R.N.D.] cards in 2018
         for Thanksgiving and Christmas. The court noted in In re H.M., 770 S.W.2d 442, 445 (E.D.
         1989), “[the parent] attempts to excuse this failure on the ground that [the child] cannot read;
         however, we do not find this argument persuasive.” The court reasoned “even small children
         appreciate hearing a parent’s letter read to them by another adult.” Id.

         As the trial court noted in its judgment, citing In re P.G.M., 149 S.W.3d 507, 514

(Mo.App. 2004), the intent to abandon, more often than not, is an inferred fact, determined by

conduct not only within the statutory period, but also relevant conduct both before and after this

period. “The greatest weight is given to conduct within the statutory period, and the least weight

is given to conduct after the petition for adoption is filed.” I.D. v. B.C.D., 12 S.W.3d 375, 377

(Mo.App. S.D. 2000).

         From the gratuitous factual findings in its judgment alone, without any consideration of

additional evidence in the record favorable to the judgment, it is apparent that the trial court

considered and weighed both its recited evidence supporting an inference that Mother intended

to abandon R.N.D. during the requisite statutory period and the mitigating and contrary evidence

Mother now urges on appeal supporting a contrary inference of her lack of such intent. 2 It is also


2
 “When reviewing the record in an against-the-weight-of-the-evidence challenge, this Court defers to the circuit
court’s findings of fact when the factual issues are contested and when the facts as found by the circuit court depend


                                                          6
apparent that, as part of that careful consideration and weighing process, the trial court applied

its unique opportunity to observe each of the witnesses to the relevant events and to make

credibility determinations as to their respective intents and motivations in engaging in such

actions. The trial court assigned relative weights to each of those various facts, intents, and

motivations and was persuaded based upon the totality of the evidence in the case that Mother

intended to abandon R.N.D. during the relevant statutory period.

         Could another trial court confronted with this same evidence draw a reasonable inference

that Mother did not intend to abandon R.N.D.? Perhaps. However, “[w]hen the evidence poses

two reasonable but different conclusions, appellate courts must defer to the circuit court’s

assessment of that evidence.” Ivie, 439 S.W.3d at 206; S.S.S. v. C.V.S., 529 S.W.3d 811, 816

(Mo. banc 2017). That is precisely what should be done here. As counseled by our Supreme

Court in Ivie, this court should defer “to the circuit court’s determinations that the

[Respondents’] witnesses and evidence were persuasive and that [Mother’s] witnesses and

evidence were not. Therefore, the circuit court’s judgment was not against the weight of the

evidence.” Ivie, 439 S.W.3d at 207.

         The extensive and detailed 39-page judgment entered by the trial court here demonstrates

that the trial court carefully, thoughtfully, and reasonably considered the mountain of conflicting

and contested evidence before it, made credibility determinations in order to ascertain the

relevant facts and assign relative weights to those facts, and then drew a reasonable inference


on credibility determinations. Ivie, 439 S.W.3d at 206 (emphasis added). Mother implicitly acknowledges the latter
limitation upon her against-the-weight-of-the-evidence challenge by purporting to identify eight items of evidence as
“[t]he contrary evidence in accordance with the trial court’s credibility determinations[.]” However, Mother fails to
explain or demonstrate in any manner, with citation to applicable supporting legal authority, how or why any of her
purported items of contrary evidence are not dependent upon the trial court’s credibility determinations. As with all
other relevant evidence on the contested issue of Mother’s intent, these eight items of evidence were all dependent
upon the trial court’s credibility determinations in making its assessment of the evidence. See White, 321 S.W.3d at
308 (“When the facts relevant to an issue are contested, the reviewing court defers to the trial court’s assessment of
the evidence.”).


                                                          7
from those facts as to Mother’s intent with regard to R.N.D. during the requisite statutory period.

The trial court took the same deliberate, careful, and reasoned approach in considering the very

different factual circumstances related to S.N.D. and its finding that Mother lacked the requisite

intent to abandon her. These actions are the very essence of the proper exercise of the judicial

power by a trial court to resolve highly contested, extremely difficult, and heart-wrenching

family situations. This is not a rare case. Trial courts do this every day all across our state.

         The trial court’s judgment is not against the weight of the evidence and should be

affirmed. 3



GARY W. LYNCH, P.J. – DISSENTING OPINION AUTHOR




3
  In any event, Mother’s against-the-weight-of-the-evidence claim on appeal should be denied in the first instance
because it was not presented to the trial court and, therefore, was not preserved for appellate review. “[N]o
allegations of error shall be considered in any civil appeal except such as have been presented to or expressly
decided by the trial court.” Section 512.160.1; see Suffian v. Usher, 19 S.W.3d 130, 135 n.14 (Mo. banc 2000)
(section 512.160.1 prohibits appellate review of issue “never considered or ruled on” by trial court); Horwitz v.
Horwitz, 16 S.W.3d 599, 602 (Mo.App. E.D. 2000) (citing section 512.160 to support holding that issue for which
record fails to disclose evidence of an express ruling upon it by the trial court was not preserved for appellate
review). “‘An issue that was never presented to or decided by the trial court is not preserved for appellate review.’”
Brown v. Brown, 423 S.W.3d 784, 788 (Mo. banc 2014) (quoting State ex rel. Nixon v. Am. Tobacco Co., Inc., 34
S.W.3d 122, 129 (Mo. banc 2000)); In Interest of B.L.L.S., 557 S.W.3d 486, 492–93 (Mo.App. S.D. 2018). As
required by Rule 78.09, the trial court must be given the opportunity to rule on a question. Brown, 423 S.W.3d at
787. Adherence to this rule assists in resolving any alleged error at the earliest possible opportunity by “allowing
the trial court to rule intelligently.” Id. at 787–88. It is a critical component in the efficient and timely resolution of
disputes and the conservation of the parties’ and the courts’ limited resources. Id. at 788.


                                                             8
