In the Interest of A.R.M.

KAROHL, Judge,

dissenting.

In essence the majority opinion holds that petitioner, maternal grandmother, who by her own evidence entirely foreclosed any contact by the natural father can invoke the jurisdiction of the Juvenile Court to obtain an adoption by claiming the natural father abandoned the child as that term is used in Section 453.040 RSMo 1986. That section requires a preliminary finding that the father expressly consented, neglected or abandoned the child. Such finding is jurisdictional and must be proved before reaching a question of the child’s welfare. Matter of Adoption of Richards, 624 S.W.2d 483, 485 (Mo.App.1981). All of the evidence in the present case indicates that petitioner willfully and intentionally prevented any contact between the natural father and his family with the child after November 17, 1981. Accordingly, no question of credibility of any witness is involved. By her actions petitioner is not qualified to invoke the jurisdiction of the adoption court on the claim of abandonment and that issue is determinative that the trial court erred as a matter of law in permitting this petitioner to adopt A.R.M.

We first dispose of the underlying legislative decision that the natural father abandoned his child solely by the act of taking the life of the natural mother. The legislature has not seen fit to make that an absolute ground of abandonment. It is inappropriate for a judicial opinion to do so. First, adoption exists as a creature of statute and such statutes are strictly construed in favor of the natural parents. In re Adoption of W.B.L., 681 S.W.2d 452, 455 (Mo. banc 1984). A court should not legislate but the majority opinion does precisely that. The majority opinion substitutes a single-act theory for a willful estrangement over a period of time, six months by the present statute. Second, abandonment must be willful. Section 453.040 RSMo 1986. Where this petitioner, by all of the evidence presented to the juvenile court, willfully and intentionally foreclosed any contact between the natural father and the child his intent cannot become willful abandonment for this petitioner. The central focus is on the intent of the parent to be gleaned from the surrounding circumstances. Matter of Adoption of Richards, 624 S.W.2d 483, 485 (Mo.App.1981). Further, abandonment is the voluntary and intentional relinquishment of custody with the intent to never again claim any rights or duties of a parent, and may occur when a parent intentionally and without just cause withholds love and affection from his child. In re Adoption of Baby Boy W., 701 S.W.*922d 534, 543 (Mo.App.1985). Third, this petitioner did not plead that the act of killing the natural mother was abandonment and the opinion of the majority determines an issue that was not pleaded or tried by the parties. Fourth, the decree of adoption found willful abandonment during the critical six month period when this petitioner, by her own testimony and all of the evidence, affirmatively foreclosed and prevented any contact between the natural father and his daughter. The trial court also found the natural father killed the natural mother “and by such willful act the natural father has willfully abandoned the child to be cared for by persons other than himself or the child’s other natural parent.” We repeat, this finding is not authorized by Section 453.040 RSMo 1986. Neither of these findings directly address the intent of the natural father to relinquish custody and never again claim any rights or duties of a parent.

The circumstances in the present case do not indicate willful abandonment by appellant. Petitioner’s action in attempting to shelter A.R.M. from appellant’s family must be considered. This court has indicated, and other states have held, that acts of a custodian to hinder communication must be taken into consideration in adoption cases where abandonment is the issue. See, e.g., In re Adoption of S.E.F., 634 S.W.2d 265, 267 (Mo.App.1982); In the Matter of Cedo Pavolovic, 124 A.D.2d 732, 508 N.Y.S.2d 234, 236 (N.Y.App.1986); In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613, 619-621 (Ohio 1985).

A custodian who denies an incarcerated parent access to his child should not then be allowed to claim abandonment by the parent to support an adoption. The single-act theory finds no support in the grounds provided for termination under Chapter 211. For that additional reason it should be rejected.

We find the reasoning in S.M.K. v. R.G.G., 702 P.2d 620 (Alaska 1985) persuasive. In that case that court said, “We are astonished that the Kayes could plea to this court the ‘unjustified’ action of Stuart’s mother, when it was the Kayes and other members of Dennis’s family who collaborated to wrongfully deny Stuart access to his mother during Stuart’s first few years of life.” Id. at 625. The present appeal involves the same condition. Petitioner adopted a restrictive attitude that the Chapter 211 custody order of the juvenile court ratified denying access to A.R.M. by any of the father’s relatives. There was no evidence to support a finding that this attitude was justified by any event other than the acts of father involving the death of petitioner’s daughter, the mother of A.R.M. If father had been free this attitude would have prevented any communication. But he was not free; he was in prison. Surprisingly, the social worker recommended adoption without ever talking to appellant-father about any of the issues and particularly about his interest in his daughter.

In making the recommendation for adoption the social worker was aware and the court learned in regard to the issue of abandonment that father did attempt to maintain communication with his daughter while imprisoned and in the face of the conduct of petitioner. At the adoption hearing father testified that he sent A.R.M. a 1982 Easter card, a June 1982 birthday card, and a 1982 Christmas card with a gift supplied by the Salvation Army. Petitioner did not rebut this evidence. It was also during this time that father requested his mother and current wife to visit A.R.M. In letters sent to his wife he requested that she contact an attorney concerning his daughter and indicated that he planned to assume his role as parent when released from prison. Other letters written within the six month period expressed similar intent. The issue was voluntary, intentional and permanent relinquishment, but the social worker did not investigate or consider any of these acts of petitioner or any acts of father. Her testimony, therefore, was of little or no probative value.

Each adoption must be judged on its own unique set of facts. In re Adoption of M.D.L., 682 S.W.2d 886, 888 (Mo.App.1984). The facts in the present case indicate that petitioner affirmatively prevented representatives of father from communicating with his daughter on his behalf and used the November 1981 juvenile court custody *93order, which granted no visitation rights to anyone, to her own advantage. Also surprisingly, a social worker agreed with petitioner that the order did not require her to permit temporary custody or visitation. The order was used as a license to “steal” the child if petitioner is permitted to thereafter claim abandonment. We do not believe that the juvenile court in 1981 intended by awarding temporary custody to petitioner to deny A.R.M. direct access to her paternal grandparents who were faultless or to deny them access to her and indirect access to father. We repeat, there was no indication of any disqualifying acts by the paternal grandparents. Further, there was no evidence that any social worker or representative of the Juvenile Court ever made an effort to establish a means of communication between father and daughter. We recently observed in a termination of parental rights proceeding with a similar factual situation and said, “there never was any recognition of even an ultimate prospect to reconcile father and daughter, only a studied purpose to consummate the adoption.” In Interest of Baby Girl W., 728 S.W.2d 545, 549 (Mo.App.1987).

This adoption proceeding may be similar on the common issue of abandonment but it is not the same as a termination proceeding under Chapter 211. It is unlikely that the trial court in a termination proceeding would proceed without an interview with the father who was incarcerated. Under the circumstances and facts presented to the trial court by all of the witnesses, including the testimony of petitioner, it is astonishing that father was not interviewed. He was incarcerated in Pacific, Missouri, which lies near to St. Louis.

The court considered evidence on the best interest of A.R.M. We do not reach and the trial court erred in reaching that issue on the petition of the maternal grandmother who was the moving force in separating A.R.M. from father and his family. It is only after making a determination that one of the statutory grounds for dispensing with parental consent has been met that a court may reach this issue. Adoption of Richards, 624 S.W.2d at 485; B.J.D.B. v. J.B.G., 698 S.W.2d 328, 330 (Mo.App.1985).

On evidence not disputed by petitioner she was not entitled to a finding of abandonment. “Where, as here, the evidence indicates that a parent’s efforts to visit, contact or communicate with his child have been thwarted or interfered with, a finding of abandonment as a matter of law is improper and unjustified since there is no showing of a ‘purposeful ridding of parental obligations * * * [nor] a withholding of interest, presence, affection, care and support.’ ” In the Matter of Cedo Pavolovic, 124 A.D.2d 732, 508 N.Y.S.2d 234, 236 (N.Y.App.1986). The court erred as a matter of law in finding abandonment on behalf of this petitioner because of her undisputed acts which foreclose a finding that father abandoned A.R.M. within the meaning of Section 453.040(5) RSMo 1986. It is not possible on her petition and for her benefit to determine that the father evidenced “an intent or mental attitude to forsake the status of a parent — at least for the period of time declared in the statute.” In re Adoption of S.E.F., 634 S.W.2d 265, 267 (Mo.App.1982), citing In re Adoption of Rule, 435 S.W.2d 35, 40 (Mo.App.1968). In S.E.F., the father was unable to write or send cards to a child who could not read and his efforts to communicate by telephone were terminated by the mother. The court affirmed a denial of abandonment on similar facts.

In the present case father opposed the adoption and filed a motion to intervene and contest the transfer of custody and adoption. In March of 1984, while on release pending retrial, he filed a motion for custody of A.R.M. This motion was never tried, but was before the court when the adoption proceeding was heard. This significant fact is proven by documents in the court file. It is powerful evidence opposing the claim of willful and permanent abandonment which the trial court and majority opinion do not consider.

The record indicates that after being imprisoned appellant maintained an interest in his daughter and did not intend to relinquish all parental claims to A.R.M. See, Matter of T.C.M., 651 S.W.2d 525, 529 (Mo.App.1983). He expressed a continued in*94terest in A.R.M. personally and by numerous letters addressed to his mother and his current wife in addition to the motion to modify the placement order. He inquired about his daughter and requested his mother and his wife to visit A.R.M. Both testified at the adoption hearing that they at-1 tempted visitation, but petitioner refused to permit visitation. Petitioner did not deny the truth of this evidence.

The following incidents exemplify petitioner’s uncooperative attitude toward father and his family. After the juvenile court placed A.R.M. with petitioner she requested the paternal grandmother to provide baby furniture for A.R.M. When paternal grandmother attempted to deliver the bedroom furniture petitioner’s husband told her to leave the furniture outside because “we don’t want you around here.” Paternal grandmother attempted visitation two or three times a week at petitioner’s home, but no one would answer the door. On the occasion of one visit, she saw A.R.M. in the window. A.R.M. called out to her, but then disappeared from the window and no one would answer the door. She attempted phone calls to arrange a visit with A.R.M., but petitioner changed her telephone to an unlisted number. Father was informed of these roadblocks.

Father’s new wife testified that she too attempted to visit A.R.M. at father’s request, but petitioner refused to permit any communication with A.R.M. She testified that during one visit petitioner forced her to leave upon discovering the visit was at father’s request. On another occasion the new wife saw A.R.M. and petitioner at the St. Louis Zoo. She wanted to photograph A.R.M., but petitioner refused to permit any pictures and told the new wife to relay all contact with A.R.M. “through the court.” Father’s wife also communicated petitioner’s uncooperative attitude and disposition to father.

Father was imprisoned during the time immediately preceding the filing of the adoption petition. His incarceration rendered him unable to visit the child, and his only means of contact with A.R.M. was through others. A.R.M. was four years old at the time and unable to read letters appellant sent. Petitioner's attitude toward father’s family gave him reason to believe that petitioner would not read any letters he might send. All communication with A.R.M. must therefore be considered in the context of his imprisonment. See, Lewis v. Roberts, 495 N.E.2d 810, 813 (Ind.App.1986). Incarceration alone does not constitute per se abandonment, In re Adoption of K.L.G., 639 S.W 2d 619, 626 (Mo.App.1982), and it unquestionably alters means for significant communication. Lewis, 495 N.E.2d at 813.

Unfortunately, the decision in this case stands for the proposition that a petitioner for adoption solely on the basis of abandonment may make that claim in the face of undisputed evidence that the petitioner wholly foreclosed any communication between the natural parent and the child. We hold the view that that evidence renders the requirement that this petitioner prove willful abandonment an impossible burden which could not be and was not met. The law will not require a useless act and any efforts of this father to communicate with his child would have been useless. This holding will imperil the rights of noncustodial parents following dissolution proceedings. It will encourage the custodial parent to discourage or hinder the relationship between the non-custodial parent and the child. This is not an unusual situation. The attendant risk is that the non-custodial parent will be found to have abandoned his child for a petitioner who has done no more than the present petitioner which diminished the required pleading and proof of willful abandonment. For this reason a decision on the disqualification of such petitioner who claims abandonment is a matter of general interest and importance not previously decided by our Supreme Court.

We find that the view of the majority opinion adopts a rule of law that is properly a matter for decision either of the legislature or the Supreme Court. In addition, the decision of the majority fails to deal with the jurisdictional question of petitioner’s qualifications to rely on abandonment to replace consent.

We believe the majority opinion is in conflict with previous opinions of the Supreme Court and other courts of appeal in the following respects.

First, the opinion of the majority is in conflict with prior appellate opinions of this *95state which required strict construction in favor of natural parents of adoptions statutes. The majority opinion conflicts with In re Adoption of W.B.L., 681 S.W.2d 452 (Mo. banc 1984). The Supreme Court there affirmed as a rule of law “that adoption statutes are to be strictly construed in favor of the natural parent.” Id. at 455. The opinion of the majority in the present case allows a single act of homicide as a ground for adoption. The adoption statute contains no such provision. It requires abandonment over a period of six months which indicates a legislative intent that a single act is insufficient to support a finding of abandonment. Nor does Chapter 211 authorize a single act of homicide by one parent against another as a ground for termination of parental rights. The majority opinion ignores and conflicts with the rule. It does not follow the controlling opinion of the Supreme Court.

Second, the opinion of the majority conflicts with a previous decision of the Kansas City District, In the Matter of the Adoption of Rule, 435 S.W.2d 35 (Mo.App.1968). That court also recognized, “[a]s a matter of simple justice the adoption statutes are to be strictly construed in favor of the natural parent.” Id. at 40. With reference to the question of willful abandonment the court observed, “the conduct of the parent must evidence an intent or mental attitude to forsake the status of a parent — at least for the period of time declared in the statute.” Id. at 40. The court there reversed an adoption by the natural mother and stepfather which served to terminate the parental rights of the natural father. The court recognized that in considering the issue of adoption the courts have consistently recognized and sought to preserve the rights of the natural parents. Id. at 41. The court distinguished previous cases which went to show a complete lack of interest on the part of the natural parent whose rights were terminated by adoption. Except for the act of homicide there are no facts available to the trial court in the present case from which the court could find anything derogatory of appellant in terms of his intent to abandon, or lack thereof.

We respectfully dissent.