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Missouri Supreme Court Remands Child Custody Case

A divided Supreme Court for the State of Missouri reversed in January 2011 a judgment in the termination of parental rights of E.M.B.R. (Mother) and the subsequent granting of the petition for adoption of C.M.B.R. (Child) into the care of M.M. and S.M. (Adoptive Parents) by reason of Mother’s abandonment of Child. Failure to provide pre-trial reports required by statute mandated reversal and remanded for new trial. At issue was Mother’s claim that she did not abandon Child and thus the proceeding was null, plus many other points contended by Mother.

Mother, a Guatemalan citizen who entered the U.S. in 2006, was arrested in May 2007 on a charge of identity theft. Child was 7 months old. Child remained with Mother’s siblings, but the brother, followed by the sister of Mother, passed Child along because they could not care for him. Child was informally placed in the care of a local clergy couple. They found a couple (Adoptive Parents) who wanted to adopt. In September 2007 an agent from social services asked Mother if she would allow adoption. She refused.

In October 2007, Adoptive Parents filed in circuit for transfer of custody, termination of Mother’s parental rights and adoption, based on Mother’s willful abandonment of Child. Legal custody of Child was granted Adoptive Parents. Mother was serving a two-year federal sentence and was not present at that hearing. Mother contacted Adoptive Parents’ attorney and told him she would accept foster care for Child, but not adoption.

Trial court for termination of Mother’s parental rights and adoption determined that Mother made no attempts to contact Child for sufficiently long periods of time to declare abandonment and grant adoption to Adoptive Parents. Mother appealed, introducing at that time new evidence that the appellate court could not by law review because the opposition (Adoptive Parents and their lawyers) had no chance to examine it and respond. The new evidence was outside the record.

The issue of the lack of statutorily mandated pretrial reports, mostly concerning the suitability of all parties concerned for the adoption, was sufficient to reverse the case and remand for new trial. The court made the point in the opinion that the new evidence, which the court saw but could not comment upon, or make an element in the decision, would be viable as part of the legal record if introduced at retrial.

The dissenting members of the minority opined that the new evidence had relevance to warrant reversal and direct restoration of Child to Mother. See: In re the Adoption of C.M.B.R., 332 S.W.3d 793 (Mo. 2011) (en banc).

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Related legal case

In re the Adoption of C.M.B.R.