In re E.N.K.

• Decision Date: 10 February 2004
• Docket Number: No. WD 62789.,WD 62789.
• Citation: 126 S.W.3d 458
• Parties: In the Interest of E.N.K., R.M.R., and R.C.R., Plaintiffs, M.S.S. and M.M.S, Appellants, v. M.R.C., M.T.C., R.R.R., and John Doe, Respondents.
• Court: Missouri Court of Appeals

126 S.W.3d 458

In the Interest of E.N.K., R.M.R., and R.C.R., Plaintiffs M.S.S. and M.M.S, Appellants, v. M.R.C., M.T.C., R.R.R., and John Doe, Respondents.

No. WD 62789.

Missouri Court of Appeals, Western District.

February 10, 2004.

Sharlie Pender, Independence, MO, for appellants.

Cheri Cole Simpkins, Independence, MO for plaintiffs.

Curtis G. Eylar, Kansas City, MO, for respondents.

Before ELLIS, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

M.M.S. and M.S.S. (Aunt and Uncle) appeal the trial court's judgment granting them co-guardianship of their niece, R.M.R., and nephew, R.C.R. On appeal, Aunt and Uncle argue that the trial court erred in failing to terminate the parental rights of the children's mother, M.R.C. (Mother). Because this court finds that the trial court failed to dispose of the rights of one of the natural fathers, the judgment is not final for purposes of appeal. The appeal is dismissed.

Factual and Procedural History

In January 1997, Mother filed a petition requesting that Aunt be granted letters of guardianship of Mother's three children: E.N.K., a female child who was born October 31, 1990; R.M.R., a female child who was born December 13, 1993; and R.C.R., a male child who was born on December 14, 1994. At the time, Mother was on probation on a municipal conviction for child neglect and had a substance abuse problem. E.N.K.'s natural father consented to the appointment of Aunt as her guardian, and R.M.R. and R.C.R.'s natural father also consented to the appointment of Aunt as their guardian. The probate court appointed Aunt as the children's legal guardian on January 16, 1997.

Initially, Aunt and Uncle thought they would care for the children until such time as Mother was able to straighten out her life and properly care for the children. The children remained under Aunt and Uncle's exclusive care and custody for the next six years, however. During that time, Mother requested visitation with the children on only two occasions, while the natural fathers and an unknown alleged father of R.M.R. and R.C.R. never requested visitation. From January 1997 to January 2003, Mother sent only one card to the children and did not send them any letters, cards, or gifts. Despite being ordered in April 1998 to pay child support in the amount of $359 per month, the only support Mother provided to the children between January 1997 and January 2003 was a $33 payment, involuntary tax refund intercepts of $333 and $358.51, and two $50 checks from her live-in boyfriend.

On November 8, 2001, Aunt and Uncle filed a Petition for Adoption seeking to adopt the three children. In their petition, Aunt and Uncle alleged, inter alia, that Mother had willfully abandoned E.N.K., R.M.R., and R.C.R. and had "willfully, substantially, and continuously neglected to provide the children with the necessary care and protection for a period of at least six months immediately prior to the filing of the Petition for Adoption." Aunt and Uncle made the same allegations concerning the natural father of E.N.K., the natural father of R.M.R. and R.C.R., and an unknown alleged father of R.M.R. and R.C.R. Aunt and Uncle alleged that the adoption would promote the children's best interest and welfare.

The family court commissioner subsequently appointed a qualified social worker to perform an adoption home study on Aunt and Uncle. The social worker performed the study and recommended that Aunt and Uncle be allowed to adopt the three children. The social worker believed that the adoption was in the children's best interest.

The family court commissioner held a hearing on Aunt and Uncle's adoption petition. The hearing began on January 30, 2003, and was continued to March 7, 2003. At the start of the hearing, the commissioner noted that Mother had been personally served and had filed an answer. The commissioner further noted that the natural fathers of E.N.K., R.M.R., and R.C.R., and the unknown alleged father of R.M.R. and R.C.R., had been served by publication, but had failed to answer or appear and, thus, were in default.

During their testimonies, Aunt and Uncle requested that their prayer for relief in their petition be amended. Specifically, they asked that their adoption petition be amended to request co-guardianship of E.N.K. instead of adoption. The reason they requested co-guardianship of E.N.K. was because E.N.K., who is blind, mentally retarded, does not speak, and has several other medical and developmental problems, receives insurance benefits from the state to help address her special needs. If Aunt and Uncle were to adopt E.N.K., she would lose these insurance benefits that could otherwise be maintained if Aunt and Uncle retain guardianship of her. Because the family's insurance plan through Uncle's employer indicated that it would not cover E.N.K.'s special needs, Aunt and Uncle decided to amend their adoption petition to seek co-guardianship of E.N.K. Aunt and Uncle specifically testified, however, that they were still seeking to adopt R.M.R. and R.C.R Aunt, Uncle, the children's maternal grandfather, and the social worker who performed the home study testified in support of the adoption petition. Mother and her boyfriend testified in opposition to the petition. At the close of the evidence, the family court commissioner asked for the guardian ad litem's recommendation. The guardian ad litem recommended "final adoption" of R.M.R. and R.C.R. by Aunt and Uncle and "a continuing guardianship" of E.N.K. by Aunt and Uncle.

After taking the matter under advisement, the family court commissioner made recommendations which he entitled, "Findings and Recommendations for Letters of Guardianship." In his recommendations, the commissioner made the following statements concerning Mother:

That the natural mother of said children willfully abandoned, and willfully, substantially, and continuously neglected to provide the children with the necessary care and protection for a period of at least six months immediately prior to the filing of the Petition due in part to her current health limitations, and her total failure to show any interest in the children since January, 1997, and the Court finds that the natural mother is presently unfit and unwilling and unable to provide for the care and protection of these children.

The commissioner made similar statements concerning one of the natural fathers and the unknown alleged father of R.M.R. and R.C.R. The commissioner recommended that Aunt and Uncle be made co-guardians of all three children. A family court judge later adopted the commissioner's recommendations and entered them as the court's judgment. Letters of guardianship subsequently issued, appointing Aunt and Uncle co-guardians of E.N.K., R.M.R., and R.C.R. Aunt and Uncle filed this appeal.

Judgment is Not Final

Aunt and Uncle's sole point is that the trial court erred in not terminating Mother's parental rights to R.M.R. and R.C.R. because the evidence established that grounds for termination exist and that termination would be in the children's best interests. Before this court can consider the merits of Aunt and Uncle's claim, however, it must first determine whether jurisdiction is proper. This court has a duty to consider, sua sponte, issues concerning jurisdiction of the appeal. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). To have jurisdiction to review a lower court's judgment, there must be a final, appealable judgment. Id. "An appealable judgment resolves all issues in a case, leaving nothing for future determination." Id. If the trial court's judgment is not final, this court is without jurisdiction to consider the appeal, and the appeal must be dismissed. Id.

Although not raised by either party, this court notes that the trial court's judgment does not dispose of one of the natural fathers. In its judgment, the court made the following findings concerning the fathers in this case:

That the natural father and the "John Doe" second alleged father of said children willfully abandoned, and willfully, substantially, and continuously neglected to provide the children with the necessary care and protection for a period of at least six months immediately prior to the filing of the Petition for Adoption and therefore the Court finds the natural father and the unknown second alleged father are unfit, unwilling and unable to care for these children.

There are two natural fathers, however—the natural father of E.N.K. and the natural father of R.M.R. and R.C.R. The judgment does not indicate to which natural father the court was referring, nor does it indicate why the court omitted any findings concerning the other natural father.

Section 475.030.4, RSMo 2000,¹ provides that...