Communication between father, son defies abandonment finding

A father's letters to his young son while he was incarcerated provided evidence disproving he had abandoned the child.

A circuit court terminated the man's rights not long after his release from prison, finding he had failed to provide financial support for the child, and that he refused visitation.

The child was taken from his mother and placed in custody of the Division of Family Services while the father was serving a sentence for drug charges. The father contacted his son's social worker from prison to find out about his son's situation. He was told his son had been placed in the child's maternal grandparents' custody.

Visitation with the father while he was serving his sentence was possible, but he did not request visitation, explaining he did not want his son to visit him in prison.

Throughout the rest of his sentence, however, the father sent letters on a regular basis, which were delivered to the grandparents and read to the child. The father also sent his son Christmas presents, birthday cards, poems and pictures for his son to color.

Once the father was released from prison in June 2001, he attempted to visit his son, and continued sending gifts, including two $25 money orders. He requested visitation, but instead received a court order to cease communication with his son.

The father also completed numerous programs while in prison, and worked, earning $7.50 per month. The circuit court noted in its decision that the father did not send any of the $7.50 to his son. The court also found that he refused visitation with his son, when it was available. However, the circuit court also said it would not criticize the father for choosing to spare his young son a visit to the prison to see his father.

The circuit court terminated the father's parental rights, finding he had abandoned his son. The Missouri Court of Appeals for the Western District reversed this decision, finding the evidence presented in the case was not sufficient to terminate the man's rights.

Section 211.447.4(1)(b) RSMo. 2000 finds a child is abandoned "if, for a period of six months or longer ... [t]he parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so ..."

The appellate court, in In re R.K. (Mo. App. 1998), stated, "Abandonment is defined as the voluntary and intentional relinquishment of custody of a child with the intention that the severance be of a permanent nature or as the intentional withholding by a parent of his care, love, protection and presence without just cause or excuse. "

According to Section 211.447.6, incarceration alone is not grounds to terminate a person's parental rights, but according to In re R.K., incarceration does not exempt a parent from their obligations to their child.

While the circuit court found the father did not send any portion of his monthly income from the prison, the appellate court found he did bear a financial burden maintaining communication with his son, and by sending him gifts.

"The trial court stated in its oral findings that Father should have at least sent a quarter in cash to [his son] each month as an indication that it was costing him to maintain a relationship with [him]," Judge Patricia Breckenridge wrote. "But the undisputed evidence showed that Father spent more than a quarter each month to correspond with [his son], and to [his son's] maternal grandparents and DFS about [his son]. Father's frequent correspondence, and the cost he incurred in maintaining this correspondence, demonstrated his intent to continue the parent/child relationship."

The appellate court also found the circuit court's finding that Father did not visit his son following his release from prison also could not prove he had abandoned the child.

"The undisputed evidence was, however, that the court denied Father's request for visits with [his son] during this period and entered a no-contact order forbidding Father from communicating with [him]," Judge Breckenridge wrote. Citing In re A.R. (Mo. App. 2001), she continued, "'To prove abandonment, there must be evidence which shows accessibility of the child for the purposes of visitation and communication.'"

The appellate court found the juvenile court did not meet its burden to prove the father had abandoned his son, and reinstated his parental rights.

In the Interest of J.M.S., plaintiff, Juvenile Officer, respondent, v. A.S. (Father), appellant, and B.I.S. (Mother), defendant; case number WD60968; handed down August 27.

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