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Harold K. v. Ryan B.

May 12, 2000

HAROLD K. AND DAWN K., PETITIONERS-APPELLEES,
v.
RYAN B., DARRYL B., TERESA BY., GEOFFREY C., LINDA C., AND ALL WHOM IT MAY CONCERN, RESPONDENTS-APPELLANTS. WILLIAM B. AND KATHY B., COUNTERPETITIONERS-APPELLANTS,
v.
RYAN B., DARRYL B., TERESA BY., GEOFFREY C., LINDA C., HAROLD K., DAWN K., AND ALL WHOM IT MAY CONCERN, COUNTERRESPONDENTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 96-AD-189 consolidated with No. 97-AD-84 Honorable Daniel J. Stack, Judge, presiding.

The opinion of the court was delivered by: Justice Kuehn

Eight-year-old Ryan B. was the subject of two competing petitions for adoption. William B. and Kathy B., Ryan B.'s biological paternal uncle and aunt, appeal the trial court's December 9, 1998, judgment of adoption in favor of Harold K. and Dawn K. We vacate the visitation portion of the judgment and otherwise affirm.

CHRONOLOGICAL FACTS

Teresa By. and Darryl B. never married but had four children-Jessica, now 12, Nicole, now 10, Ryan B., now 8, and Miranda, now 6. There is a fifth child, named Jennifer, but the record does not contain much information about her. We believe that Teresa By. is Jennifer's mother, but even that detail may not be correct, and we know nothing about her biological father. We are also unclear as to Jennifer's living arrangements but believe that she resides with a grandparent. In this order, when we refer to the girls, we are referring to Jessica, Nicole, and Miranda only.

Not much is contained within the record regarding Darryl B. except that he has a long history of drug and alcohol abuse. The briefs indicate that the last time he saw any of his children was in May 1995. There is a July 1995 Missouri child abuse/neglect report indicating that Teresa By. dropped Ryan B. and the three girls off at Darryl B.'s motel room without his knowledge while Darryl B. was out drinking. Whether or not Darryl B. saw the children before the Missouri Division of Family Services stepped in on that occasion is not known. All parties involved unanimously agree that he was not much of a father.

Teresa By. does have some interest in her children but seems to simply have been overwhelmed by her situation. She also has a long history of drug and alcohol abuse. She lived with her children in Missouri, where there were several child abuse/neglect investigations. Teresa By.'s typical pattern involved leaving her children in the care of a babysitter or landlord and then not returning for days. Oftentimes she left without informing anyone that she was leaving, and in those cases, the landlord was not immediately aware that she had been placed in charge of Teresa By.'s children. Not all of the reports were substantiated, and some involved only Nicole and Miranda.

Ryan B. and the three girls remained together until late in 1995. In November of that year, Teresa By. left all four children at a babysitter's home and then disappeared. When she resurfaced four days later, she admitted having spent the time "drinking and partying." The following month, she disappeared for a week. When interviewed by the Missouri Division of Family Services representative, Teresa By. indicated that she had just lost her job and that it was time to place the children in foster care as she simply could not take care of them. Teresa By. stated that her father would not allow Teresa By. and the children to live with him, and Teresa By. was not interested in moving into a shelter until alternate arrangements could be made. Later, Teresa By. confessed to the babysitter that she had a new boyfriend and that she did not want to "sabotage" this new relationship.

Teresa By.'s brother and his wife, Dennis By. and Lisa By., offered to take the four children into their home. They did so in December 1995 without financial assistance. In February 1996, Lisa By. needed to return to work and could not afford the day care needed for Teresa By.'s children in addition to her own two. Therefore, she asked Teresa By. to come and take her children back. She came and got the children. In March 1996, the problems began again, and Teresa By. brought two of the children back to Dennis By. and Lisa By.-Jessica and Ryan B. Ryan B. never actually stayed with the Bys. this time but went to stay with Lisa By.'s brother and his wife, Geoffrey C. and Linda C. Although Teresa By. had never met the Cs. and while they were not blood relatives, she had no problem with Ryan B. going to live with them. Teresa By. kept Nicole and Miranda. In April 1996, Teresa By. began leaving Nicole and Miranda in the care of her landlord and disappearing. Although the date is difficult to read, it appears that on April 30, 1996, with Teresa By.'s full consent, the Madison County Circuit Court granted guardianship of Jessica to Dennis By. and Lisa By. and granted guardianship of Ryan B. to Geoffrey C. and Linda C. On May 3, 1996, Nicole and Miranda were taken into Missouri protective custody and placed in a foster home. By May 10, 1996, William B. and Kathy B. expressed an interest in taking their nieces, Nicole and Miranda, into their home as foster parents. On June 10, 1996, a Missouri court granted William B. and Kathy B. physical custody of Nicole and Miranda. In August 1996, Linda C. contacted the Missouri Division of Family Services to advise that they could no longer care for Ryan B. due to his extreme misbehavior. In late August 1996, Ryan B. was taken in by Linda C.'s cousin and her husband, Dawn K. and Harold K. Later that year, in September, Lisa By. began experiencing some health problems and called Darryl B.'s brother and his wife, William B. and Kathy B., about taking over the care of Jessica. In early September 1996, Jessica joined her two younger sisters and began living at the home of her uncle and aunt, William B. and Kathy B. On September 16, 1996, the trial court terminated the Bys.' guardianship of Jessica.

The Cs. and the Ks. did not contact Teresa By. or Darryl B. to inform them that Ryan B. had come to live with the Ks. at their Glen Carbon home. At that time, the Ks. did not know how to contact either parent. On November 2, 1996, after William B. and Kathy B. contacted the Cs. regarding Ryan B.'s whereabouts, the Cs. contacted the Ks., and the Ks. called the Bs. back that same night. More phone calls took place that month, and the Ks. attended the girls' baptisms over in Missouri.

The Ks. claim that during this family gathering, they laid out their plans to adopt Ryan B. and that the Bs. advised that their plate was simply "too full" with respect to children. The Bs. claim that they arrived at an absolute agreement with the Ks. that the Ks. would turn Ryan B. over to them by the beginning of 1997. A November 1996 letter from Kathy B. to Dawn K. details that the truth was somewhere in the middle. In the letter, the Bs. clearly ask the Ks. to contemplate Ryan B.'s best interests-not the Ks.' own best interests. In other words, it could definitely be inferred that the Bs. were aware of the Ks.' plans to adopt Ryan B. but were asking them to really consider Ryan B.'s welfare before acting upon their desires. The letter makes no mention of an agreement to turn Ryan B. over on a date certain.

The Ks. filed their petition to adopt Ryan B. on December 5, 1996, and amended it on December 10, 1996. The petition specifically listed Ryan B., his biological mother and father, and the Cs. (who still were his legal guardians) as respondents. On February 26, 1997, William B. and Kathy B. intervened. The Bs. filed their own petition to adopt Ryan B. on May 6, 1997 and the two matters were consolidated. On May 20, 1997, Darryl B. consented to Ryan B.'s adoption by his brother and sister-in-law only (William B. and Kathy B.).

Beginning in November 1996, Ryan B. began visiting with his three sisters over at the Bs. or at more neutral locations. Visitation was unstructured and sporadic. At some point, the Ks. were told by their attorney and/or by Ryan B.'s court-appointed guardian ad litem that due to jurisdictional concerns, Ryan B. should not engage in subsequent out-of-state visitation. Ultimately, on November 20, 1997, the court intervened and ordered regular visitation.

The case was tried on May 5 and 7, 1998, June 2, 1998, and August 18, 1998. On June 3, 1998, Teresa By. filed her irrevocable consent for Ryan B.'s adoption by the Bs. only. At trial, Ryan B.'s counselor, Dr. Linda Cassens, testified that Ryan B. was extremely bonded with the Ks. and considered them his family. She also testified that based upon her observations and communication with Ryan B., Ryan B.'s best interests would be served by granting the Ks.' adoption petition. Ryan B.'s guardian ad litem filed her report, in which she expressed similar opinions. She recommended that the Ks. be allowed to adopt Ryan B. She believed that Ryan B. should still see his three sisters on a regular basis. Because of the animosity that the Bs.-especially William B.-displayed towards the Ks., the guardian felt that Ryan B. stood a far greater chance of continued visitation with his three sisters if he was adopted by the Ks. than any chance of continued visitation with the Ks. and his older "brother" Joey (the Ks.' natural son), should the Bs.' petition be granted. On September 24, 1998, the trial court granted the Ks.' petition for adoption, thereby denying the Bs.' petition. This order also contained an order for visitation so that Ryan B. would still see his three sisters and other biological relatives. Several orders were entered on December 9, 1998, specifically, an order denying the Bs.' motion for relief from the order of adoption, one terminating the parental rights of Darryl B. and Teresa By., and one entering the court's judgment of adoption.

Ks.' BACKGROUND

The Ks. live in Glen Carbon. One child was born during their marriage-Joey. Joey was 12 when the trial court entered the order of adoption. They reside in a three-bedroom home, along with a dog and a cat. Harold K. is a truck dispatcher and Dawn K. works in various educational capacities for a school district, and so her schedule mirrors that of her children. Annual household income at the time of the adoption was $46,000. Ryan B. ...


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