*1 nо fundamen and raised innocence guilt or of this trial court. Claims
tal error 27.26. contemplated by Rule are not
nature (Mo. State, 491 v. S.W.2d
Robinson
1973).
Judgment affirmed.
MORGAN, BARDGETT, J., C. SEILER, JJ.,
FINCH, DONNELLY
concur. J.,
SIMEONE, participating because not the Court when cause a member of
submitted. S., ex rel. J. D. of Missouri
STATE litem, guardian ad
minor M., Relators, D.
and J. EDWARDS, M.
The Honorable Ninian
Judge of the Juvenile Court of St. Louis Missouri,
County, Respondent.
No. 60634. Missouri,
Supreme Court
En Banc.
Dec. 1978.
The relator-child was born out of wedlock 19, 1976, May and almost immediately K.L.S., minor, the mother then executed parental her consent the termination of rights and a waiver the necessity of to her adoption. consent son’s future of Family placed Division Services the child 24,1976, May in a foster home about where he has remained respondent under order of throughout proceedings. these The father states since that the birth of child, he repeatedly the demanded cus- that tody and “visits between the father continuously child have and been arranged the the through Agency since child’s birth.” Respondent his brief concedes the cor- Dodson, Festus, (Fa- Robert C. for relator rectness these statements. ther). 22,1977, juvenile On March the officer of Levine, Clayton, Elizabeth R. Michael Bas- Missouri, County, petitioned St. Louis tían, (of counsel), (Atty. St. Louis for relator Juvenile Division of the Circuit Court of St. Guardian). and County, naming Louis K.L.S. as the mother father, and J.D.M. as the praying that Schiff, Jr., Clayton, respon- Martin parental rights of the court terminate all dent. mother and transfer legal custody of the RENDLEN, Judge. child to the Division Family Services. J.D.M., and of the proceedings, Relators father Notified the father filed J.D.S., son, prohibi- sought request his for an that admission he was the child, Appeals, tion in Louis the Court St. natural and thе mother District, Juve- prevent Judge juvenile and officer admitted the relation- nile Louis trans- County ship. Court of from St. custody of the
ferring
guardianship
and
April
conducted,
On
6 a
but
child to the
Division of
Serv-
State
testimony
was taken the father
terminating
rights of
parental
ices after
(1)
52.12(a)
moved
to intervene under Rule
only the
unwed mother. The Court
child’s
(2)
to dismiss for failure to stаte a
prohibiting
its
re-
Appeals
issued
writ
action, contending
cause of
termina-
spondent
making
such custodial
parental
his
rights
tion of
without his con-
change. The cause was transferred here
of due process
sent constituted a denial
though
such transfer was ordered fol-
equal
violation
the fifth and
lowing opinion
Appeals,
the Court of
“we
fourteenth
amendments
United
that had
consider the case
same
one
I,
States Constitution and art.
2 and
§§
original
as an
proceeding
been commenced
of the Missouri
Respondent
Constitution.
Bank v.
ex rel. Adrian
State
in this court.”
both
whereupon
overruled
motions
evidence
Luten,
(Mo.
1973).
488 S.W.2d
banc
was taken and at the close of the hearing,
questiоns presented
judgment
the father moved for
principal
against
same
may
constitutionally
terminate
officer for the
reasons he
State
puta-
previously
Respondent
providing
without
had
advanced.
also
motion, stating
opportunity
protect
his
overruled this
tive father an
211.501,
particularly
if he is entitled
parent,
status as a
against
only
standаrd
of an
opportunity,
illegiti-
to such
what
mother
be measured in mate child has
and unless
shall his substantive
jurisdic-
prohibited
competent
a court of
proceedings?
”
1, 1977,
tion,
court,
he would on June
enter
tion of the
.
.
.
211.441.
It
terminating
judgment
seeking
include
shall
the reasons
termi-
mother, declaring
and,
as a matter of law nation
the case of an
have
natural
fаther “does not
the name and address of the mother
child,”
rights in the
and of
if
and transfer-
the father
he has been adjudged
ring custody
acknowledged
paterni-
the child to
Division of
the father or has
*3
Services,
Family
pursuant
ty
writing.
211.451(3)
(5).
all
to
211.-
§§
and
A
§
441-.511,
1969,
453,
hearing
and ch.
the
by
required.
RSMo
RSMo
court
is
Supp.1975.
1969 and
211.461.1. Among
persons
the
to be
§
sum-
moned
to
copy
petition
and
recеive a
of the
Appeals,
subsequent
The Court of
in the
child; also,
the parents
are
of the
summons
action,
prohibition
ruled that
the termina-
any persons
shall issue to
presence
whose
statute,
parental
tion of
211.-
§§
necessary
the court deems
or
pres-
whose
441-.511,
1969,
and the
ence is requested by
parent,
the
guardian or
code,
ch.
RSMo 1969
Supp.1975,
and
are
Id.
petitioner.
In order to
pa-
terminate
they deny puta-
unconstitutional
“insofar as
rental
rights,
the court under
211.501.1
§
rights”
according-
tive fathers
and
must find that such termination is in the
ly prohibited respondent
entering
from
the
best interest of the child and that any one
placing
order
the child with the Division of
of
prescribed
several conditions
211.-
§
Family Services.
4412 must exist.
controlling
The then
statute on termina-
key
The
statutory
section
at
here
rights1
tion of
established the fol-
211.50R2,
is
provides:
issue
which
procedures:
petition
§
A
lowing
termina-
may
“as provided
tion
be filed
in other
If the court
the
terminate[s]
coming
of
jurisdie-
cases
children
under the
of the mother
of both parents,
[or]
Assembly
1. The
a
2. The
General
enаcted
new
conditions listed in 211.441 are:
§
parental rights
of
termination
statute effective
parents
have consented
the
When
September,
Mo.Legis.
1978. H.B.
writing
of their
termination
to the
(Vernon)
(codified
Serv. 270
as
211.-
rights.
492, RSMo).
442-
211.442 of
new
the
statute
clear, cogent
by
appears
and
When it
putative
of
addresses
father as
year
convincing
or
for one
еvidence
follows:
filing
prior
immediately
to
more
petition
biolog-
‘parent’
a
act
means
As
in this
used
child;
(a)
parents
have abandoned
The
parent
parents
a
as well as
or
ical
willfully,
(b)
parents
substantial-
have
The
at the time
of a natural mother
the husband
neglected
continuously
repeatedly
ly
or
conceived,
par-
and
рarent or
or a
child was
give
child neces-
adoption,
to
by
and refused
and includes both
the child
ents of child
illegiti-
sary
protection;
an
father of
and
mother and
care
able,
financially
being
(c)
parents,
of an
The father
mate child.
The
relationship
legal
unless
willfully neglected
provide
have no
child shall
he,
to
have
entry
prior
undеr this
a decree
subsistence,
to the
necessary
or
education
with the
by
acknowledged
his own
the child as
health,
act has
necessary
or
his
morals
other care
provid-
affirmatively asserting
paternity;
neglected
pay
to
for such
or have
welfare
however,
identity
ed,
parent
is
a
whose
subsistence,
care when
or other
education
served,
personally
can
who
be
known and
custody
lodged
legal
oth-
is
with
of the child
by process
provided in
as
be served
shall
ers;
this
Chapter
the Revised Statutes
506 of
by
(d)
of de-
unfit
reason
are
any
party
action under
to
and made
state
intoxicating liquor
bauchery,
habitual use
this act.
drugs
repeated
and las-
or
lewd
or narcotic
behavior,
conduct
found
which
civious
provides,
§ 211.487.2
“In
action for ter-
seriously
detrimental
to be
the court
parental rights pending prior
mination of
child;
health, morals,
well-being of the
or
act,
effective date
this
the law in effect at
incompe-
(e)
been found
have
filing
petition
time of the
termination
475, RSMo,
incap-
chapter
parental rights
govern
tent under
shall
grounds
able,
petition
any appeal
there are reasonable
such
cordingly,
therefrom.” Ac-
incapa-
they
subsequent
to be
will continue
our decision here and
prior
necessary
giving
case
law
care and
this
concern the
the child
ble of
application.
and its
protection.
is illegitimate,
if the child
...
it
at
S.Ct. at 1212. The Court
may
guardianship
legal
transfer
concluded,
id. at
ality of an Illinois statute
We now
proper
dеtermine the
stan
rendering minor
children wards
application
dard
proceedings
con
mother.
upon
death of their
State
vened to determine the
substantive
Stanley
father in
had lived
The unmarried
of
fathers relative to their chil
eighteen
intermittently
with the mother
provides
dren.
221.441
that
Section
mar
born
years and three children had been
ried
rights may
fathers’
be termi
them.
determined
The Court
that
only
“clear,
showing by
nated
on a
co
the due
clause of the fourteenth
process
gent
convincing
that
evidence”
one of
father,
having
manifested
amendment
prescribed
(e.
statutory
g.,
conditions
custody
in the control and
strong interest
neglect)
abandonment
exists and
that
children,
entitled to a
on
tеrmination “is in the best interest of the
parent
fitness as a
the issue of his
legislative
child.” See also
211.501. A
be taken
the children could
from him.
recognition of
presumption
married fathers’
pointed out that under the Illinois
Court
is
high
fitness manifest
in the
level law,
proof required
by
support
the statute
State,
showing that the father was
However,
finding
unfitness as to them.
mother,
not
nоt married
need
we
that an
initially
unwed
fact,
pre-
prove
because
unfitness
strong
has no
presumption
such
father’s
sumed at law. Thus the unwed
fitness.
State is
constitutionally
is avoided
parental qualification
claim of
required to accord
presumption.
as
such
In-
‘irrelevant.’
is free to
an unwed
require
determining
stead
State
child” standard for
the fa-
prove
seasonably
father first to
that he has
rights, apparently
ther’s
without regard to
meaningful
demonstrated a
intent and a
presumption
fatherly
fitness. This
continuing capacity to
responsibility
assume
presents
standard
difficulty
an
respect
with
to the supervision, protection
father, though may
unwed
he
have shown
and the trial court in
and care
cоncern,
great parental
compete
must
with
these
should at the outset ex-
adoptive parents
only
establish not
the extent of such parental
amine
concern
e.,
parent (/.
meeting
he is a suitable
capacity may
have been demonstrat-
charge
unfitness),
but also that he is the
by
finding
ed
father. On a
of most suitable
seeking custody
of those
capacity,
such concern and
the father is
the children. For those unwed fathers who
pre-
then cloaked with the benefit of the
fit,
and who have demonstrated such
sumption
essentially
of fitness
the same as
concern,
approved
the standard
by
enjoyed by
other
and the bur-
Supreme
Quilloin
Court in
U.S.
seems to
petitioner’s
by
den becomes the
to show
represent a
diminution of the
“clear,
evidence,”
cogent
convincing
un-
process
afforded
due
equal pro-
fitness,
other disqualification
waiver or
tection clauses of the United States Consti-
211.441,
the sort described in
RSMo 1969.
tution set
in Stanley.
forth
We are disin-
Following its
in Stanley, supra,
decision
clined
to so dilute these
rights.
Quilloin Walcott,
Supreme
Court
Constitution,
We hold that the Missouri
art.
S.Ct.
3. See n. 1 above. BARDGETT, Though respondent anticipated Judge, concurring the eventual part adoption of the child at such time as the dissenting part. satisfied, of ch. 453 were it is
requirements
I concur in the holding of the principal
apparent
that sections 453.030 and 453.040 opinion that section 211.501.2 is unconstitu-
provisions
required
contain
relative to the
Illinois,
Stanley
tional under
405 U.S.
which suffer
consent of
(1972),
92 S.Ct.
statutory validity
might from a failure to comment be drawn
as we have done. rel., STATE of Missouri ex G. B. the trial court proposed action of R., Relator, constitutionally-in- taken in reliance on provisions of firm jurisdiсtion. There- is in excess of its The Honorable EDWARDS, Ninian M. fore, prohibition writ of preliminary Judge of the Juvenile Court of St. Louis made absolute. County, Missouri, Respondent. No. 60633. J., FINCH,
MORGAN, DONNELLY C. SOMERVILLE, JJ., SEILER, Spe- Supreme Court Missouri, Judge, cial concur. En Banc. BARDGETT, J., part and dis- concurs Dec. 1978. filed. separate opinion part sents in Johnson, Ann, Harold G. St. for relator.
SIMEONE, J., because participating Schiff, Jr., Martin Clayton, Court when cause respon- not a member of the dent. submitted.