In re S.M.H.

• Decision Date: 15 March 2005
• Docket Number: No. SC 86440.,SC 86440.
• Citation: In re S.M.H., 160 S.W.3d 355 (Mo. 2005)
• Parties: In the Interest of S.M.H., a minor. Missouri Department of Social Services, Division of Family Services, and Juvenile Officer, Respondents, v. T.H., Jr., Appellant.
• Court: Missouri Supreme Court

Page 355

160 S.W.3d 355

In the Interest of S.M.H., a minor Missouri Department of Social Services, Division of Family Services, and Juvenile Officer, Respondents, v. T.H., Jr., Appellant.

No. SC 86440.

Supreme Court of Missouri, En Banc.

March 15, 2005.

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Michele Hammond and Francis J. Murphy, III, St. Louis, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James H. Klahr and Gary L. Gardner, Asst. Attys. Gen., Jefferson City, MO, Margaret E. Gangle, St. Louis, MO, for Respondents.

Ashley R. Beumer, St. Louis, MO, Amicus Curiae.

LAURA DENVIR STITH, Judge.

T.H., Jr., (Father) appeals the termination of his parental rights to his daughter, S.M.H. He alleges that the trial judge erred in failing to grant his motion for change of judge under Rule 126.01 and, further, that there was insufficient evidence to support the termination. This Court holds a petition to terminate parental rights is a "supplemental petition" for purposes of Rule 126.01. As such, Father was not entitled to a change of judge under Rule 126.01 upon the filing of the petition to terminate his parental rights where, as here, the petition was to be heard by the same judge who heard the earlier petition. This Court also holds that the record does not support the judge's termination of Father's parental rights. The judgment, therefore, is reversed, and the case is remanded.

I. THE MOTION FOR CHANGE OF JUDGE WAS UNTIMELY

Before setting out the facts underlying the termination of Father's parental rights, this Court must address his claim that the trial court had no authority to try the termination of parental rights proceeding in the first instance. If that is the case, then the Court need not reach the other issues, but must remand with directions to transfer the case to another judge for hearing.

The initial petition, asking the circuit court to take jurisdiction over S.M.H. and place her in the protective custody of the Division of Family Services (the Division) was filed in the spring of 2001. It was assigned to Judge Frawley, who presided over an adjudication of the allegations of the petition in June 2001. Father did not move for a change of judge at that time. In August 2003, Judge Frawley directed the Division to file a petition to terminate Father and Mother's parental rights. The Division filed that petition on September 8, 2003, under the same case number as had been assigned to the prior petition. On November 4, 2003, the petition to terminate parental rights was set for trial. On November 10, 2003, Father moved for a change of judge. The motion was overruled as untimely.

Father asserts that his change of judge application was timely under Rule 126.01 because it was filed within five days of the time the petition to terminate his parental rights was set for trial. The Division argues that it was untimely because the period for filing it ran from the time Judge Frawley was initially assigned to hear the petition adjudicating S.M.H.'s custody and a new time period for requesting a change of judge did not begin to run merely because a petition to terminate Father's parental rights was filed.

Because the timeliness of Father's motion under Rule 126.01 is an issue of law, this Court decides it de novo. Junior College District v. City of St. Louis, 149 S.W.3d 442, 446 (Mo. banc 2004). Rule 126.01(a) permits a change of judge without cause, stating in relevant part:

(a) A change of judicial officer of the court shall be ordered:

....

(2) upon application of a party. The application need not allege or prove any cause for such change of judicial officer and need not be verified.

Rule 126.01(a)(2).¹ Rule 126.01(b) provides limits on the time for requesting such a change of judge, however. It states that:

(b) The application must be filed within five days after a trial date has been set, unless the trial judicial officer has not been designated within that time, in which event the application must be filed within five days after the trial judicial officer has been designated....

Rule 126.01(b). Here, while Father filed his motion within five business days of the time that the petition to terminate parental rights was set for trial before Judge Frawley, he did not file it until some 18 months after the judge heard the adjudication of the Division's petition seeking protective custody of S.M.H. Thus, if the setting of the date for trial of the petition to terminate Father's parental rights is the relevant trial date under Rule 126.01, then the application was timely; if the relevant trial date is the date that the initial trial of the adjudication of the petition for custody was set, however, then the application was filed long after the time permitted and was properly denied.

Father argues that a petition to terminate parental rights is an independent cause of action; thus, the time to file for a change of judge should begin to run anew, as if an entirely new case had been filed. In support, he cites State ex rel. Brault v. Kyser, 562 S.W.2d 172 (Mo.App. W.D.1978), which held that a proceeding to terminate parental rights is an independent civil action for purposes of a change of judge application.

Brault does state that a petition to terminate parental rights was treated as an independent civil action under chapter 211 at that time, and that a parent had a new opportunity to seek a change of judge in a termination action. But, this was based on chapter 211 as then constituted, not on Rule 126.01. The current Rule 126.01 was adopted after Brault. Brault did not address whether Father is entitled to a change of judge under the current rule. Current Rule 126.01(c) does directly address this question. It provides:

For purposes of this Rule 126.01, a supplemental petition and a motion to modify a prior order of disposition under Chapter 211, RSMo, shall not be deemed to be an independent civil action unless the judicial officer designated to hear the motion is not the same judicial officer that heard the previous motion.

Rule 126.01(c) (emphasis added). Judge Frawley has been the judge assigned to this case since it was initially filed in 2001. Thus, whether a new period for seeking a change of judge began to run depends on whether the petition to terminate Father's parental rights is encompassed within the term "supplemental petition." If not, then it is treated as an independent civil action and Father's application for change of judge should have been granted; if so, then it is not treated as an independent civil action and the change of judge application was properly denied.

The term "supplemental petition" is not expressly defined in Missouri rules or statutes or in prior case law, and the parties disagree as to its meaning. The Division notes that a proceeding to terminate parental rights is, by its nature, a supplement to the initial petition taking jurisdiction of the child, and follows up on it where necessary to protect the child; therefore, logically, it can be considered a supplemental petition.

This Court agrees that use of the term "supplemental" itself indicates that the rule is to apply to proceedings filed as an addition to something previously filed and that is filed by petition. It is indisputable that a petition to terminate parental rights is filed in the same case as, and is given the same case number as, the initial petition requesting the court to take jurisdiction of the child. It is in a true sense a "supplemental" pleading in that initial case. It is, in addition, denominated a "petition." Indeed, a petition to terminate parental rights is the only pleading that either party has identified that is regularly filed in the juvenile proceeding itself, after the initial petition is filed, and which is denominated a "petition" rather than an application or a motion. No doubt for these reasons, while the nomenclature is not universal, juvenile authorities previously have expressly entitled a petition to terminate parental rights as a "supplemental petition". See, e.g., R.L.L. v. Strait, 633 S.W.2d 409, 410 (Mo.App. W.D.1982) ("On May 30, 1980, the juvenile officer filed a `Supplemental Petition for Termination of Parental Rights.'")

There is nothing inconsistent between Brault's recognition that proceedings to terminate parental rights are considered independent civil actions for some purposes, and a holding herein that they are not independent civil actions for purposes of applications for change of judge under current Rule 126.01. Indeed, the fact that Rule 126.01(c) sets out an exception to the rule that termination proceedings are independent civil actions acts is an implicit acknowledgment that in other circumstances termination petitions will be so treated. Otherwise, there would have been no need to set out the exception.²

The decision not to permit a change of judge without cause when a petition to terminate parental rights is filed, or when a motion to modify a prior order of disposition under chapter 211 is filed, is appropriate when considered in the context of Missouri's current approach to juvenile and family matters. In 1993, Missouri modified its previous approach to juvenile matters by adopting a unified family court system.³ Sec. 487.010 RSMo.⁴ See also Paul Williams, Symposium Issue: Children and the Law: A Unified Family Court for Missouri, 63 UMKC L.Rev. 383, 384 (Spring 1995). The idea behind adoption of a unified family court is to create a single court with comprehensive jurisdiction over all cases involving children and their families. To the extent possible, one judge, specially trained, is to address the legal and accompanying emotional and social issues challenging each family. Id. Under this approach, judicial action, informal court processes, and social service agencies and resources are coordinated to produce a comprehensive solution tailored to the individual family's legal, personal, emotional, and social...