G.G.B. v. M.W., ED 98879.

• Decision Date: 05 March 2013
• Docket Number: No. ED 98879.,ED 98879.
• Citation: 394 S.W.3d 457
• Parties: In the Interest of G.G.B., C.T.B., and T.J.B., minors. Juvenile Officer of St. Louis County, Missouri, Petitioner/Respondent, v. M.W., Respondent, and T.B., Respondent/Appellant.
• Court: Missouri Court of Appeals

394 S.W.3d 457

In the Interest of G.G.B., C.T.B., and T.J.B., minors.
Juvenile Officer of St. Louis County, Missouri, Petitioner/Respondent,
v.
M.W., Respondent,
and
T.B., Respondent/Appellant.

No. ED 98879.

Missouri Court of Appeals,
Eastern District,
Division Two.

March 5, 2013.

[394 S.W.3d 461]

Alli Wolff, Family Court of St. Louis County, Clayton, MO, for Juvenile Officer, respondent.

Janice M. Lauer, St. Louis, MO, for respondent/appellant.

John Bird, Clayton, MO, Guardian ad Litem.

KATHIANNE KNAUP CRANE, Presiding Judge.

The juvenile officer filed three petitions to terminate the parental rights of father and mother to their three minor children pursuant to section 211.447 RSMo (Cum.Supp.2007),¹ naming both parents in each petition. After a hearing limited to the issue of termination of father's parental rights, the trial court entered “Supplemental Findings/Recommendation, Order, Judgment and Decree of Court” terminating father's parental rights to the children. It did not adjudicate the termination of mother's parental rights, and no judgment has been entered with respect to mother. We hold that the judgment terminating father's parental rights is a final judgment, order, or decree from which an appeal is allowed under section 211.261.1, and we affirm the judgment.

Parties and Procedural Background

T.B., (father) is the natural father of the minor children G.G.B., C.T.B., and T.J.B. (collectively, the children). M.W., (mother), is the natural mother of the children. G.G.B., a female child, was born on September 25, 1999; C.T.B., a male child, was born on June 16, 2004; and T.J.B., a female child, was born on November 14, 2008. Father and mother have never been married. Father and mother were not residing together during the pendency of these proceedings, and they were not in a continuing relationship.

On January 25, 2010, because of concerns about father's violent behavior, the Children's Division assisted mother in obtaining a restraining order against father to prevent him from visiting the home where mother and the children resided and from being in close contact with the children. On February 8, 2010, the juvenile officer filed petitions alleging that the children were without proper care and custody because father had punched G.G.B. in the eye. Following a hearing on April 13, 2010, the court found the allegations in the petitions to be true, took jurisdiction over the children pursuant to section 211.031, placed legal custody of the children with the Children's Division, and continued physical custody of the children with mother. On October 19, 2010, the court ordered the children to be removed from mother's home and placed in foster care. On May 19, 2011, the juvenile officer moved to modify a previous order of disposition on the ground that father had sexually abused G.G.B. during a period from January 1, 2008 to December 31, 2009. On February 1, 2012, the juvenile officer filed petitions to terminate the parental rights of father and mother with respect to each of the children. Thereafter, after a hearing, the court found the allegation of sexual abuse to be true. On June 26, 2012, the court held a hearing on the petitions to terminate the parental rights of father only and on July 10, 2012, entered its judgment terminating father's parental rights.

Final Judgment under Section 211.261.1

Before we consider the merits of this appeal, we must sua sponte determine

[394 S.W.3d 462]

whether we have authority to do so. City of Portage Des Sioux v. Klaus Lambert, 323 S.W.3d 462, 464 (Mo.App.2010); In re C.A.D., 995 S.W.2d 21, 25 (Mo.App.1999). In this case, the issue is whether there is a “final judgment, order or decree that adversely affects” father under section 211.261.1. If there is no such judgment, we do not have the authority to decide the appeal on the merits.

In this case, although the petition sought to terminate the parental rights of both mother and father, the judgment terminated father's rights only. The termination of mother's parental rights had not been adjudicated at the time father's notice of appeal was filed, and it remained unadjudicated while this appeal was pending. As a result, there is no judgment adjudicating the rights and liabilities of all of the parties. In addition, the trial court did not enter its judgment terminating father's rights “upon an express determination that there is no just reason for delay” as specified in Rule 74.04(b).

In In re C.M.L., 165 S.W.3d 522 (Mo.App.2005), the southern district of this court dismissed a father's appeal from an order terminating his parental rights on the grounds that the order was not final in that it did not adjudicate the parental rights of the mother, who was also named a party in the termination of parental rights petition, and it did not determine that no just reason for delay existed for purposes of entering judgment. Id. at 523. We have examined C.M.L. in the context of the rules and statutes governing appeals in juvenile cases. For the reasons that follow, we have determined that Rule 74.04 does not apply to prevent father from appealing from the judgment terminating father's rights, even though the termination of mother's parental rights has not been adjudicated.

Appeals in juvenile cases are purely statutory. See In re T.G.O., 360 S.W.3d 355, 357 (Mo.App.2012); Rule 120.01. The underlying case was a termination of parental rights proceeding under section 211.447. Section 211.261.1 governs appeals from orders terminating parental rights. With respect to parents, it provides: “An appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of this chapter which adversely affects him.”

Rules 110 to 129 govern practice and procedure under Chapter 211. Rule 110.01. Rule 110.02 provides:

Rules 110 to 129 and Rule 130 are promulgated pursuant to the authority granted this Court by section 5 of article V of the Missouri Constitution and supersede all statutes and existing court rules inconsistent therewith. They are intended to provide for the just determination of proceedings in court, as that term is defined in Rule 110.04. Rules 110 to 129 and Rule 130 shall be construed to assure simplicity and uniformity in judicial procedure and fairness in the administration of justice and to conduce to the welfare of the juvenile and the best interests of the state.

Rule 110.03 provides that “[t]o the extent not inconsistent with these rules, the court shall be governed” by Rules 41–101 in proceedings under subdivisions (1) and (2) of subsection 1 of section 211.031. Rule 119 governs judgments, but it does not address a “final judgment.”

What constitutes a final judgment for purposes of appeal in section 211.261 is not the same as a final judgment for purposes of appeal in civil cases. In Interest of N.D., 857 S.W.2d 835 (Mo.App.1993) (N.D. II ).

The very nature of a juvenile proceeding entails an on-going case which does not result in a “final” order, as that term is

[394 S.W.3d 463]

generally defined. The juvenile court's exercise of continuing jurisdiction over a child, however, does not defeat a right to appeal.

Id. at 842.

N.D. II was decided in the following context. After the trial court took jurisdiction of the three children but before the petitions to terminate parental rights were filed, the trial court denied the mother's motion requesting visitation. The mother appealed from this order, and the appellate court dismissed the appeal for lack of jurisdiction. In the Interest of N.D., 819 S.W.2d 790 (Mo.App.1991) (N.D. I ). After the mother's rights were terminated, she filed a second appeal. In this appeal, the appellate court revisited the question of the finality of the order denying visitation, and it held that the order was appealable even though the termination of parental rights proceeding had not been adjudicated. N.D. II, 857 S.W.2d at 842. The court recognized that previous cases had permitted appeals pursuant to section 211.261 of an adverse ruling on a parent's petition for modification of an order of custody, and of an order overruling a motion for rehearing of an order denying a parent's visitation. See In Interest of M––––S––––M––––, 666 S.W.2d 800 (Mo.App.1984), and In Interest of R.D., 842 S.W.2d 560, 560–61 (Mo.App.1992). It held that the denial of a motion requesting visitation was appealable under the rationale of those cases, even though the petition for termination was still pending. N.D. II, 857 S.W.2d at 842. The court held:

There is no connection between the issues in the denial of visitation and the petition for termination of parental rights sufficient to require that they be combined in a single appeal. The rights at stake are significant and the best interest of children is served by resolving juvenile matters promptly, particularly when the effect of the order sought to be appealed is to deny contact between a parent and child.

Id.

This rationale was subsequently extended to a custody order awarding custody of a child who was within the jurisdiction of the court, which order had not been denominated as a judgment as required by Rule 74.01(a). C.A.D., 995 S.W.2d at 26–28. In C.A.D., the court first considered Rule 110.02, which “provides that the Juvenile Court Rules shall be construed to ‘conduce to the welfare of the juvenile and the best interests of the state.’ ” C.A.D., 995 S.W.2d at 27. It then observed that the “promotion of the best interest and welfare of the child is the primary consideration in custody cases in juvenile court.” Id. The court explained:

Custody issues should be disposed of as expeditiously as possible because they involve young developing children. Frequently, as in this case, we are dealing with a removal of a child from the actual physical and legal custody of the parents. Such cases implicate the fundamental right of parents to rear their children free from government interference. In the Interest of M.D.S., 837 S.W.2d 338,...