In re T.C.M.

PUDLOWSKI, Judge,

dissenting.

I concur with the majority that the trial court had jurisdiction over the subject matter but I respectfully dissent from the second point of the majority’s opinion for I feel that the record reflects sufficient evidence for the trial court to find clearly and convincingly that “M” wilfully abandoned the children. I would affirm the trial court’s decision.

This court opined by Judge Gunn in the Matter of Adoption of Shelly _, 625 S.W.2d 183, 184 (Mo.App.1981) that, “Our review of these court-tried proceedings is bound by the fundamental precepts that we are to affirm the judgment unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares the law or applies it. Conflicts in evidence are for resolution by the trial court, which may believe all, part or none of the testimony of any witness, and our statement of facts will treat the evidence in the light most favorable to the judgment of the trial court. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 (Mo. banc 1980). With these principles serving as guideposts, the facts clearly support the trial court’s judgment.”

The standard of review on appeal is not identical to the burden of proof which must be met in the trial court. At trial, the “clear, cogent and convincing” evidence standard requires that as a trier of fact, the “court should be clearly convinced of the affirmative of the proposition to be proved.” Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974). (emphasis added). The “fact finder’s mind” must be “left with an abiding conviction that the evidence is true.” Matter of O'Brien, 600 S.W.2d 695, 697 (Mo.App.1980). On appellate review under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we do not consider the evidence de novo. In an equitable review of what is clear and convincing all that is required is that substantial evidence exist whereby this court can say that the trial judge acted as a reasonable man in finding that the proof of the fact asserted is greater than a mere preponderance of the evidence. Naisbitt v. Hodges, 307 P.2d 620, 624, 6 Utah 2d 116 (1957). I believe that the experienced juvenile judge could rea*-sonably have been convinced that M.M. had wilfully abandoned her children. In a case where credibility and intent are such critical factors, this court should be especially reluctant to reverse based on a reading of the cold record, without any opportunity to observe the demeanor of the witnesses. The trial judge specifically found that M.M. “had but token contact with her two minor children in the two years prior to the filing of the Petition for Adoption even though she had the financial, physical and mental ability to maintain a viable relationship with said children.... ” The majority concedes that the trial judge could have reasonably inferred from M’s letters “that M wanted to permanently terminate her relations with the children” and that her conduct during the statutory period was arguably consistent with an intent to abandon them. I concur with the trial court’s conclusion and further believe that we should not substitute our own judgment for that of the trial court.

In finding that M.M. did not intend to abandon her children during the statutory period, the majority puts great weight on her strenuous legal efforts to prevent this adoption and regain some rights of temporary custody. These legal efforts, initiated only after M.M. had received notice of the adoption proceedings, do not necessarily indicate that M.M. intended to maintain a parental relationship with her children.

“More to the point ... is the matter of communication — communication of love and affection by a parent to a child; the parent’s expression of interest in the child and his world; the communicated desire to be in the child’s company whenever possible; the development of a commonality of interest and an empathy with him. These are the things that count heavily in a situation where by force of circumstances personal visitation is impossible.”

Lambertus v. Santino, 608 S.W.2d 502, 506 (Mo.App.1980). Indications of this sort of interest and empathy are strikingly absent from the record before us. Tragic as it may be, the trial judge was clearly convinced that the heart of the parental relationship was missing here. The parental duties of care and formation are inseparable from parental claims to custody and control. In re Adoption of S, 581 S.W.2d 113, 116 (Mo.App.1979). Parents do not have a property right in their children. Matter of Adoption of R.P.R., 291 N.W.2d 591, 596, 95 Wis.2d 573 (App.1980), rev’d on other grounds, 297 N.W.2d 833, 98 Wis.2d 613 (1980). “A parent should not be able to treat a child as a plaything to pick up for sporadic enjoyment at his whim, while at the same time disclaiming the burdens, sacrifices, and oft times pains of nurturing and caring for the child.” In re Adoption of S, 581 S.W.2d at 116. Based upon the record before us, the trial judge could reasonably have concluded that M.M. was in fact capable of maintaining a relationship with her children, but failed to do so without just cause or excuse.

The majority opinion properly recognizes the “fundamental liberty interest of natural parents in the care, custody, and management of their child[ren] .... ” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982). These parental rights, however, are not absolute, and are not the only factor to be considered in an adoption proceeding. “The general rule that natural parents have a primary right to the custody of their children is controlling when it is consistent with the welfare of those children .... When in conflict, however, the rule favoring parental custody is superceded by the concerns of the state for the child’s welfare.” In the Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981). See generally Note, “Developments in the Law: The Constitution and the Family,” 93 Harv.L.Rev. 1156, 1313 et seq. Section 453.030.1 RSMo (1978) directs that the approval of the court for an adoption “shall be given or withheld as the welfare of the person sought to be adopted may, in the opinion of the court, demand.” The trial court, like Solomon¹ (see majority opinion, p. 532), after examining all the evidence, was convinced that it would be in the best interest of the children to grant this adoption. I believe that this conclusion was reasonable and supported by substantial evidence, and should therefore be affirmed.

In conclusion, I would note that it is difficult to see as a practical matter how denying this adoption would be beneficial to the interests of A.M. and M.M. Attempts to reconcile the children to their natural mother by judicial decree are not likely to succeed. The record discloses that the children are adamantly opposed to having any contact whatsoever with their natural mother. This distressing fact is confirmed not only by the testimony of the custodial parents and the children themselves, but also by the unequivocal testimony of neutral parties, a social worker and a psychologist-psychoanalyst, each of whom had dealt with the children in relation to the “tumultuous” court-enforced visitation in 1978. Continuing litigation concerning visitation rights is likely to lead not to reconciliation, but only to increased resentment and bitterness between the children and their natural mother.

Further, an acceptance of the majority’s second point will have a “chilling effect” upon the juvenile judges. I believe the trial judges, in this type of action, will be reluctant to make any fact finding determination because they will be suspect that we will substitute our fact finding determination for theirs. Secondly, I can forsee a multitude of appeals based upon the trial court’s error of “finding of fact” and seek our interpretation of the facts.

I would affirm the decision of the trial court.

1 . It should be noted that Solomon had the opportunity to 1) view and listen to the witnesses, 2) their demeanor and 3) judge their credibility. “And all Israel heard of the judgment which the king had judged, , for they saw that the wisdom of God was in him, to do judgment.” 1 Kings 3:28.