dissenting.
I respectfully dissent. The circuit court’s judgment finding C.V.S. (Father) willfully abandoned and neglected S.S.S. (Child) is against the weight of the evidence and results in a significant departure from pri- or case law establishing grounds for involuntary termination of parental rights pursuant to section 453.040(7).1
- As the principal opinion acknowledges, the “clear, cogent, and convincing standard of proof applies in chapter 453 termination cases and adoptions.” In re Adoption of C.M.B.R, 332 S.W.3d 793, 819 (Mo. banc 2011). This standard “is met when the evidence instantly tilt[s] 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 Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984) (internal quotation omitted) (alteration in original).
The burden, therefore, was on M.T.S-V. (Mother) and L.W.Y. (Stepfather) to prove by clear, cogent, and convincing evidence that Father willfully abandoned Child or willfully, substantially, and continuously neglected to provide Child with necessary care and protection. The clear, cogent, and convincing evidence standard required Mother and Stepfather to present evidence that instantly tilted the scales in the affirmative. They failed to meet their burden.
Abandonment
The principal opinion reasons the circuit court’s finding of abandonment cannot be said to be against the weight of the evidence because Father’s relationship with Child was merely superficial and tenuous. For purposes of section 453.040(7), abandonment means “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. 2013) (internal quotation omitted). Abandonment is further “defined as the intentional withholding by the parent of his or her care, love, protection and presence, without just cause or excuse.” Id. (internal quotation omitted).
The circuit court concluded Father abandoned Child because:
Despite having ample opportunities for visitation and communication with [Child], the evidence adduced at trial and the [guardian ad litem’s] Report demonstrate a long term lack of interest in [Child] by [Father]. Despite having occasional contact with [Child], [Father] does not have meaningful interactions with [Child] and often arrives late or completely fails to appear for scheduled visits. As such, [Father]’s relationship with [Child] is superficial and tenuous and is insufficient to establish that he has not willfully abandoned [Child].
First, the circuit court’s finding that Father’s contact with Child is insufficient to establish he has not willfully abandoned Child improperly shifts the burden to Father. Father does not bear the burden of establishing he has not willfully abandoned Child. It is Mother and Stepfather who have the burden to prove by clear, cogent, and convincing evidence that Father has willfully abandoned Child.
Second, there is no evidence Father “demonstrate^ a long term lack of interest” in Child or had only “occasional contact” with Child. Instead, the record reflects Mother and Child lived with Father for the first eight months of Child’s life. When Mother moved to St. Louis with Child, Father made trips from the state of California to St. Louis to visit Child. His visits to St. Louis increased in frequency following Mother’s marriage to Stepfather. More importantly, the evidence showed, in the six months before the adoption petition was filed, Father maintained continuous contact with Child. Father called Child at least three times a week and visited Child in St. Louis on at least three or four occasions. During these visits, Father would spend three to five hours each day with Child. Father, therefore, remained in constant contact with Child during the statutory period.
Likewise, the circuit court’s determination that Father “does not have meaningful interactions with [Child]” and that Father’s relationship with Child is “superficial and tenuous” is not supported by the record and misapplies the law. (Emphasis added). In determining whether a parent has abandoned a child, case law supports consideration of whether the parent has a “meaningful relationship” with the child and whether the parental relationship is “superficial and tenuous.” But these considerations focus primarily on the frequency and amount of contact between the parent and the child and never entirely on the quality of the parent-child interactions during those contacts. See J.M.J., 404 S.W.3d at 433 (finding mother’s efforts to be token when she made increasingly sporadic visits during which she showed little interest in the child); In re C.M.B., 55 S.W.3d 889, 895 (Mo. App. 2001) (finding father’s efforts were token when he made no effort to establish visitation with the child and sent gifts and cards through mother, who was exercising her rights to ■visitation); In re B.S.R., 965 S.W.2d 444, 450 (Mo. App. 1998) (finding father made token efforts to maintain contact when he visited the child only once despite opportunities for supervised visits); In re C.W., 753 S.W.2d 933, 939-40 (Mo. App. 1988) (finding mother made only token efforts when she called the child only twice during a six-month period). Neither Mother and Stepfather nor the principal opinion have cited cases, and I have found none, that hold abandonment is proven with contacts of the magnitude shown in this case simply because the parent did not show sufficient interest in the child during visits or did not take the child places the child enjoys.
Rather, Mother, whom the circuit court found to be a credible witness, testified Father calls and speaks with Child an average of three times a week. For a time, he was calling every day, and Mother directed him not to call so often. She also testified Father visits Child three to four times per year by traveling from California to Missouri. When Father is in Missouri, he sees Child multiple times per trip. These contacts and visits have occurred despite the fact Father has missed 10 scheduled visits and has been late 20 times during the five years since Mother moved to Missouri. In light of this evidence, I would conclude the circuit court’s finding of abandonment is against the weight of the evidence because the record does not establish Father voluntarily and intentionally relinquished custody of Child with the intent to never again claim his parental rights or duties.
Neglect
The principal opinion further concludes the circuit court’s finding of neglect is not against the weight of the evidence. This Court has construed neglect under section 453.040(7) to mean “intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego parental duties over the period of time which the statute prescribed.” In re Adoption of R.A.B., 562 S.W.2d 356, 358 (Mo. banc 1978) (internal quotation omitted). Neglect “focuses on physical deprivation or harm, and has been characterized as a failure to perform the duty with which the parent is charged by the law and by conscience.” J.M.J., 404 S.W.3d at 432 (internal quotation omitted).
I agree the record supports the circuit court’s finding that Father failed to provide financial support to Child despite having the ability to do so. But failure to provide financial support alone is not sufficient to prove willful, substantial, and continuous neglect. C.B.L. v. K.E.L., 937 S.W.2d 734, 738 (Mo. App. 1996); see also B.S.R., 965 S.W.2d at 450; S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo. App. 1979). Rather, Missouri courts have consistently held there must be evidence of a lack of financial support combined with other evidence of lack of contact to sustain a finding of willful, substantial and continuous neglect. In re R.M., 234 S.W.3d 619, 622 (Mo. App. 2007); In re Adoption of B.D.W., 185 S.W.3d 727, 738 (Mo. App. 2006); In re S.J.S., 134 S.W.3d 673, 678 (Mo. App. 2004); C.B.L., 937 S.W.2d at 738; In re Marriage of A.S.A., 931 S.W.2d 218, 222 (Mo. App. 1996); S.C.H., 587 S.W.2d at 948.
The principal opinion recognizes such case law exists but concludes this Court has never expressly held failure to provide financial support alone is insufficient to establish neglect. This Court, however, has reversed a finding of neglect when the father failed to provide any financial support for his three children during the statutory period. See R.A.B., 562 S.W.2d at 361.
In R.A.B., the father and mother divorced, and the three children lived with the mother in Pennsylvania. Id. at 358. The father visited the children whenever he was in town but provided no financial support for the children. Id. When the father subsequently remarried, the children spent two weeks with him at his new home in New York. Id. When the mother moved to Missouri, the father paid $2,000 to cover her unpaid bills. Id. at 359. The father also made two trips to see the children in Missouri and brought gifts and clothing on at least one occasion. Id. at 360. In reversing the circuit court’s finding of willful neglect, this Court acknowledged the father “paid little or no money to the natural mother” during the statutory period and stated it did “not condone his failure to pay monies for support within the limits of his abilities.” Id. at 361. Nevertheless, this Court found: “The manifestation of [the fatherj’s interest in his children ... and his efforts to maintain his relationship with them during the statutory year prior to the filing of the adoption petition do not evince a settled , purpose to forego his parental rights and duties.” Id.
Similar to -the father in R.A.B., Father showed an interest in- and made an effort to maintain a relationship with Child by calling her three times a week and regu-. larly visiting her in St. Louis. While I cannot condone Father’s failure to provide financial support to Child, the record establishes there was substantial contact between Father and Child in the six months prior to . the adoption petition being filed. Father’s efforts, to maintain continuous contact with Child does not evince a settled purpose to forego his parental rights and duties..
The principal opinion concludes, even if evidence of lack of contact with the child is necessary, there is clear, cogent, and convincing evidence Father did not maintain “meaningful contact” with Child as shown by Child’s lack of emotional ties to Father, Father’s lack of long-term interest in and commitment to Child’s interests and needs, and Father’s neglect of Child’s health and safety. In support of this conclusion, the principal opinion relies on J.M.J., 404 S.W.3d at 432, But J.M.J. is vastly different from the fact's and circumstances of this case.
In J.M.J., the court of appeals concluded there was clear, cogent, and convincing evidence to support the circuit court’s determination that the mother willfully abandoned and neglected the child not only because she failed to provide financial support and showed little interest in the.child but also because the .mother failed to provide a safe environment for the child in that the mother allowed individuals — including registered sex offenders, drug addicts, and a man with criminal history and mental health issues — into her home. Id. at 433. One of these individuals sexually abused the child’s half-sibling. Id. The record further established the mother’s resources were spent to help and care for these individuals living in her home instead of the child. Id. at 432.
In this case, the circuit court’s finding that Father neglected Child’s health and safety resulted from Mother’s testimony about an incident occurring more than a year and half before the filing of the adoption petition in which Father did not have Child properly restrained by a seat belt. Such conduct does not amount to the health and safety risks posed to' the child in J.M.J, and certainly does not amount to grounds for terminating Father’s parental rights.2
Likewise, the circuit court’s findings regarding Child’s lack of emotional ties to Father and Father’s lack of interest in Child were based on eonclusory testimony from Mother and Stepfather about Child’s relationship with Father as well as a report by the 'guardian ad litem. The guardian ad litem, however, based .her conclusions on one 40-minute interaction she observed between Father and Child the day before trial in which she noted no eye contact between Father and Child. One visit during which both Child and Father know they are being observed should not outweigh Father’s continuous efforts to make contact with and visit Child.
I acknowledge, the “lack of contact” principle has been stated in terms of failing to maintain “meaningful contact.” See, e.g., In re T.S.D., 419 S.W.3d 887, 895 (Mo. App. 2014); 404 S.W.3d at 432; B.S.R., 965 S.W.2d at 449. But none of these cases has found a lack of contact sufficient for purposes of neglect primarily because the parent arrived late or missed a visit or because the parent does not show sufficient interest in the child during visits. Rather, such cases entailed minimal or sporadic contact or no actual visitation with the child combined with other evidence of disinterest in the child. Accordingly, I would find the circuit court’s finding of willful neglect to be an unprecedented departure from Missouri case law regarding involuntary termination of parental rights pursuant to section 453.040(7).
Conclusion
From the record, it is evident Father is not a model parent. But natural parents have a fundamental liberty interest “in raising their children [that] does not evaporate simply because they have not been model parents.” In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). The fact Child has established a relationship with Stepfather does not negate Father’s constitutional right to parent his Child.3 To find Father’s consent is not necessary for Stepfather to adopt Child, there must be clear, cogent, and convincing evidence in the record that Father willfully abandoned Child — that he voluntarily and intentionally relinquished custody of Child with the intent to never again claim the rights or duties of a parent — or there must be clear, cogent, and convincing evidence that Father willfully, substantially, and continuously neglected Child — that he intentionally, deliberately, and without just cause evinced a settled purpose to forego parental duties. Because there is not sufficient evidence to support a finding that Father abandoned or neglected .Child for purposes of section 453.040(7), I would reverse the circuit court’s judgment as against the weight of the evidence.
. Unless otherwise noted, all statutory citations are to RSMo 2000.
. Such concerns could easily be resolved through supervised visitation as evidenced by Mother’s own testimony that she insisted on supervised visits — which Father never contested — following the incident and thereby alleviated any health or safety concerns during Father’s visits with Child.
. The circuit court made many extraneous findings of fact and conclusions of law that were irrelevant to the determination of abandonment or neglect pursuant to section 453.040(7), including nearly all of its findings regarding the home study and especially its findings that, if the adoption is granted, Mother and Stepfather intend to allow Father to visit and communicate with Child and will not prevent Father from having a similar level of involvement in Child's life.