C.M.B.R v. E.M.B.R., Case No. SD30342 (Mo. App. S.D., July 21, 2010)

August 8th, 2011

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.

On May 22, 2007 Mother, a citizen of Guate­mala, was employed at a poultry plant raided by Immigration and Customs Enforcement (ICE), and subsequently taken into custody. Mother was prosecuted for aggravated identity theft by the ICE, pled guilty, and was sentenced to deportation from the United States after serving a mandatory two years in prison. At the time of Mother’s arrest, her child was staying with Mother’s brother. A few days after her arrest, the child began staying with Mother’s sister. The sister was unable to care for the child and enlisted babysitting services of the Velazco family. After a few weeks, the child began living with the Velazco family during the week and returned to the sister on the weekends. On September 24, 2007, the Velazco family contacted Respondents about adopting the child. On October 5, 2007, after 10 days of visitation and one overnight, the child came to live with Respondents. The Respondents simultaneously filed their petition to adopt the child and termi­nate Mother’s parental rights. The Mother was in prison at the time and did not consent to the adoption. The court granted Respondent’s petition to adopt and terminated Mother’s parental rights. On appeal, Mother argues the trial court failed to adhere to the statutorily mandated placement requirements in § 453.014, which set forth who may place a child for adoption. Mother argues that the Velazcos did not have the authority to place the child with Respondents under 453.014 and, therefore, the private adoption should not have occurred. The Court of Appeals agreed that neither the Velazcos nor Mother’s family members were intermediaries authorized to “place” the child with Respondents. Placement of the child is one of the first steps in any adoption proceeding, and § 453.014 de­fines the parties who may place a minor as: 1) the Division of Family Services; 2) a child plac­ing agency; 3) the child’s parents, without the direct or indirect assistance of an intermediary, in the home of a relative of the child within the third degree; and 4) an intermediary, which shall include an attorney, a physician or a clergyman of the parents. The appellate court did not agree with Respondents’ argument that any party can place a child for adoption so long as it is in the best interest of the child. The court stated that “we have never allowed courts to choose between competing parents on the simple standard of ‘best interests’ of the child. By allowing this type of transfer, we would not only contradict the statu­tory requirements, but would also open the door to the black-marketing of children.” The judgment ordering adoption of the child and termination of Mother’s parental rights was reversed and the trial court directed to dismiss the petition.

Reprinted from the Family Law Section Newsletter of the Missouri Bar Association (Winter 2011).