Matter of Williams

KAROHL, Judge,

dissenting.

I respectfully dissent. In my view the trial judge was authorized by statute to make the difficult decision of granting or denying a transfer of custody of Baby Girl B to petitioners as a preliminary step to a request for adoption. In denying the transfer of custody the court determined that the welfare of the child did not demand the transfer. Section 453.030.1, RSMo 1978 provides that approval of the court is required “as the welfare of the person sought to be adopted, in the opinion of the court, demand.” The majority opinion adds to that section words that are not there, to wit, the trial court must give reasons for withholding consent even where no findings or conclusions were requested.

It was for the petitioners and not the trial court to bear the burden of justifying a decree of transfer of custody. In Matter of Neusche, 398 S.W.2d 453, 458 (Mo.App.1965). On appeal the petitioners must demonstrate that the trial court abused its broad discretion in denying the transfer of custody. Id. at 457. The majority does not hold that the trial court abused its discretion. It merely holds that the record is insufficient to make any decision on possible abuse. Reversal and remand is not justified on this basis. Rule 84.14.

The majority opinion ignores the provisions of Rule 73.01(a)(2) which provides, inter alia:

All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.

The trial court therefore found as a fact that the transfer of custody was not in the best interests of the infant.

The majority opinion disregards our decision in Nuesche. We there said:

The reason we must accord the trial judge this broad discretion in the matter of the transfer of custody of the child is that he has an extreme advantage over a reviewing court, in that he can observe the participants before him, can observe their demeanor and conduct and intelligence and any other characteristics, which in no way can ever be reflected in the cold printed record which we review and certainly he knows more about the case in all of its aspects than we do. Because of the trial judge’s better position to observe these qualities and characteristics, we deem it our duty as the reviewing court to grant greater deference to his determination in these matters involving the custody of a minor child than perhaps we would in cases that involve mere material possessions.
*398We also indulge the presumption that his decision was motivated by what he believed was best for the child, (citations omitted).
In the case of In re Hyman's Adoption, Mo.App., 297 S.W.2d 1 the court quoting from another case, said:
The court held that the court of appeals is required to arrive at its own conclusion as to what disposition of the child’s custody will be for its best interest, but due regard must be given to the opportunity of the trial court to judge the credibility of witnesses, and his judgment will not be set aside unless clearly erroneous and in conflict with the clear preponderance of the evidence disclosing manifest abuse of judicial discretion.

398 S.W.2d 453 at 457.

The majority opinion overlooks the principle that it is for the trial court to believe or disbelieve all of the evidence offered by the petitioners. As the licensed adoption agency was hired by petitioners it was not independent in its determination of “... the physical and mental conditions and antecedents of such child for the purpose of ascertaining whether the child is suitable for adoption by ... petitioners and of the suitability of the ... petitioners as parents for the child.” § 453.070, RSMo 1978. (emphasis added). The agency report makes no mention of the possible effect of the antecedent fact that the petitioners and the natural mother were linked by a common friend.

Further, the majority opinion abrogates the presumption that the decision of the lower court judge was motivated by a concern for the best interest of the child, In Matter of Neusche, 398 S.W.2d 453, 457 (Mo.App.1965), and was based on a careful review of all the evidence. Brooks v. Division of Children’s Services, 411 S.W.2d 276, 281 (Mo.App.1967).

Finally, without passing judgment on the merits of the trial court judgment, there are reasons discernible from the record to support that decision. This was a private placement. The petitioners learned of the future birth from a friend who knew the natural mother. There was some evidence that the petitioners in good faith advanced money for the payment of medical expenses and to protect the natural mother from being hassled by the provider of such care. The testimony at trial on this issue is confusing. The one individual who the parties agreed knew the details of the payment of expenses, the director of the adoption agency, did not testify.

Private placements are discouraged to insure that the child and potential adoptive parents are suitable to each other prior to adoption. See § 453.110, RSMo 1978; Joan M. Krauskoppf, Missouri Adoption Law and the Proposed Uniform Adoption Law, 26 Journal of the Missouri Bar 172, 179 (1970).

The relationship between the natural mother and the petitioners through a friend of each leaves open the question of further contact or future confrontation. We have held that this possibility may not be in the best interests of an adoptive child. In Matter of Neusche, 398 S.W.2d 453, 459 (Mo.App.1965), citing In re K. W.S., 370 S.W.2d 698, 703 (Mo.App.1963). This possibility is a factor that the court may consider as an antecedent circumstance.

In terms of deciding what is in the best interests of the child the nature of a private placement is such that it may be discouraged for another reason. It would appear that the petitioners are fine people, good parents of two children, and that they offer a fine home and family. But where there is no evidence by which to compare their home with any other that may also be available there is no basis to confidently declare them to offer the best available home and family for the child. The trial court cannot be held to have abused its broad discretion in denying a transfer of custody to a good home if, in its opinion, it is not shown to be the placement the welfare of the child demands. § 453.030.1., RSMo 1978.

I find it significant that the Missouri Division of Family Services (D.F.S.) was not called upon to contribute evidence. In *399terminating the natural parent’s rights in accordance with § 211.091 and § 211.452, RSMo 1978 the court transferred custody to D.F.S. and requested a recommendation concerning transfer of lawful custody to the best available adoptive home. No such recommendation was received.

I would affirm the opinion of the trial court. Although it is not before us, my view of the law of this case would not require reversal of an order approving a transfer of custody based on the same evidence.