In re

561 S.W.3d 817

In the MATTER OF: A.R.V. and D.M.V.

No. ED 105969

Missouri Court of Appeals, Eastern District, DIVISION FIVE.

Filed: August 21, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 2018

Application for Transfer Denied December 18, 2018

FOR APPELLANTS: John Richard Bird, 906 Olive Street, Suite 1115, St. Louis, Missouri 63101, Cynthia Mary Smith, P.O. Box 190288, St. Louis, Missouri 63119.

FOR RESPONDENT: Kathleen Collins Dubois, 105 South Central Avenue, Suite 555, Clayton, Missouri 63105, Sarah Elise Schwartz, 4232 Forest Park Avenue, St. Louis, Missouri 63108.

OPINION

James M. Dowd, Presiding JudgeThis adoption case took a tortuous route to reach us. The trial court struggled to dispose of appellants A.R.V. (Mother) and D.M.V.’s (Stepfather) petition to adopt G.W.J. (Child) through no fewer than five separate rulings entered in the matter over a two-and-a-half year period. In February 2015, the court entered a default judgment granting the adoption which resulted in the termination of respondent Father’s parental rights. In its October 2015 judgment, the court granted Father’s motion to set aside the default judgment. In May 2016, the court held a trial on the petition and entered a new judgment again granting the adoption. After Father timely filed his motion for new trial or to amend the judgment, the court granted Father’s motion in part. And, finally, the court’s September 2017 judgment denied the petition for adoption leaving intact Father’s parental rights.

On appeal, Appellants raise five points which challenge two of the court’s judgments: (1) the October 2015 judgment that set aside the February 2015 default judgment, and (2) the September 2017 judgment denying Appellants' petition for adoption.¹ In their first point, Appellants claim that the court erred in setting aside the February 2015 default judgment because Father failed under Rule 74.05² to state facts constituting a meritorious defense and failed to show good cause to excuse the default. In their second point, Appellants contend the trial court lacked jurisdiction to enter the September 2017 judgment because the court lost jurisdiction over the case when by operation of Rule 78.06³ the May 18, 2016 judgment became final on September 13, 2016 after the court failed to rule within 90 days on Father’s June 15, 2016 motion for new trial. Finally, in their remaining three points, Appellants argue that the court erred in failing to find that Father willfully abandoned and willfully, substantially, and continuously neglected Child, and that the adoption was in Child’s best interests.

For the reasons explained in detail below, we dismiss the appeal of the October 2015 judgment that set aside the February 2015 default judgment and we affirm the court’s September 2017 judgment.

Factual and Procedural Background

Child was born August 11, 2008, to Mother and Father, who at the time were an unmarried couple residing together at a residence on Turf Court in St. Louis County. Two years earlier, the Social Security Administration had declared Father totally disabled due to a spinal injury and granted him Social Security Disability Insurance (SSDI) benefits pursuant to Title 42 of the Social Security Act. Upon Child’s birth, the Social Security Administration also began paying benefits to Child as a dependent of a disabled wage earner, which benefits at all relevant times Child has continued to receive.

In November 2008, after Mother obtained an ex parte order of protection against Father, they separated and Father relocated to a residence on Indiana Avenue in the City of St. Louis. The order prohibited Father from contacting Mother until May 2009.

In April 2009, Mother obtained a paternity judgment that awarded her full legal and physical custody of Child; stated that in lieu of paying child support, Father could continue to provide Child with SSDI dependent benefits so long as they amounted to at least $488.00 per month; required that Mother and Father keep one another apprised at all times of their addresses and telephone numbers; and ordered that Father was entitled to limited supervised visitation with Child, so long as he scheduled those visits through Mother’s attorney.

In August 2009, Father moved to Colorado. He exercised visitation with Child "once or twice" before leaving, but he has not had visitation with Child since. For her part, in July 2010, Mother married Stepfather and he began to live with her and Child at the Turf Court residence. Child has lived with both Appellants since then. Since Father did not provide Mother with his address in Colorado and Mother testified she did not know how to contact him, Father did not learn of these developments at the time.

In February 2010, Father suffered a stroke that paralyzed the left side of his body and rendered him unable to speak for six months. Then, in February 2012, Father suffered a brain aneurysm and was institutionalized at a state mental hospital. Father said that when he was first admitted, he did not know his identity, his location, the date, or "anything." When Father was released in late 2012, he moved back to the St. Louis area, where in 2013 he underwent a surgical procedure to treat complications of his aneurysm.

In January 2012, Mother, Stepfather, and Child moved from the Turf Court residence without informing Father. As late as January 2015, Father still had not learned that they had moved—evidenced by a letter he sent at that time to the Turf Court residence requesting visitation with Child.

In September 2014, Appellants filed their petition to adopt Child which would have the effect of terminating Father’s parental rights. Appellants claimed that Father’s consent was not required because he had willfully abandoned and willfully, substantially, and continuously neglected Child. At the time the petition was filed, Father had been living in a residence in Granite City, Illinois for at least the previous six months. Nevertheless, a special process server attested that serving Father was impossible because he had moved from his last known address. On that basis, the court issued on November 17, 2014 an order allowing service by publication.⁴

On February 4, 2015, after Father failed to appear or to answer the petition, the court entered judgment by default granting the adoption. Father, unaware of the adoption litigation, had for several weeks prior to the entry of the default judgment attempted to contact Mother to request visitation. In January 2015, he sought the assistance of a non-profit agency known as March Mediation to locate Mother, but March Mediation was unable to find her. Father also contacted Mother’s former attorney, the Social Security Administration, and mutual acquaintances, none of whom was able to assist him in locating Mother.

On January 20, 2015, Father sent the letter mentioned above to Mother at the Turf Court residence, but it was returned undelivered because she and Stepfather had moved. Father then turned to the St. Louis County Police Department which helped him locate Mother’s new address. He hand-delivered the letter to that address at some point after February 4, 2015, but received no response. On February 19, 2015, Father filed a family access motion in the trial court. At the hearing on that motion, Father learned that weeks earlier his parental rights had been terminated and his son adopted.

In September 2015, Father filed a motion to set aside the default judgment, asserting good cause and a meritorious defense including the assertion that Appellants had not properly served or attempted to serve him and that he had thus been unjustly denied an opportunity to appear and contest the adoption. Father’s motion was heard and granted in October 2015. The court set the matter for trial on the merits which took place in May 2016, after which the court entered a new judgment granting the petition for adoption.

On Father’s motion the court stayed the adoption, and in June 2016 Father filed a motion for new trial or to amend the judgment, contending that there was inadequate proof of abandonment or neglect before the court. Father argued, inter alia , that he had attempted to contact Child and had supported him by continuously providing him with no less than $488 per month in SSDI benefits.

The court in a June 2016 order declared that Father’s motion for new trial or to amend the judgment was "granted in part," and that the "[r]elevant issues [were] abandonment and Respondent’s ability to care." A year later, in May 2017, Father filed a motion for summary judgment to which Appellants did not respond. And in August 2017, the court entered its judgment denying Appellants' petition for adoption. Appellants filed a motion to amend the judgment or for a new trial and after a hearing on the motion, the court on September 21, 2017 entered its amended judgment again denying the petition for adoption.

This appeal follows.

Standard of Review

Our standard of review of a bench-tried case is derived from Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). We sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We exercise our power to set aside the judgment on the ground that it is against the weight of the evidence with particular caution and not without a firm belief that the judgment is wrong. Id. We view the facts and the reasonable inferences therefrom in the light most favorable to the trial court’s order. In re T.S.D. , 419 S.W.3d 887, 891 (Mo.App.E.D. 2014). And we accept as true the evidence and permissible inferences favorable to the judgment and disregard all contrary evidence and inferences. Id.

Discussion

I. Appeal of the October 14, 2015 judgment was untimely.

In their first point on appeal, Appellants challenge the October 2015 judgment that set aside the February 2015 default judgment of adoption, claiming...