J.A.D., In Interest of, 19796

• Decision Date: 18 August 1995
• Docket Number: No. 19796,19796
• Citation: 905 S.W.2d 101
• Parties: In the Interest of J__ A__ D__, a child under seventeen years of age. R__ L__ and K__ L__, Appellants.
• Court: Missouri Court of Appeals

Page 101

905 S.W.2d 101

In the Interest of J__ A__ D__, a child under seventeen years of age R__ L__ and K__ L__, Appellants.

No. 19796.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 18, 1995.

Chris L. Weber, Checkett & Pauly, P.C., Carthage, for appellants.

William E. White, Joplin, for respondent, Juvenile Officer of Jasper County.

CROW, Judge.

Appellants, foster parents of J__ A__ D__ ("the child"), appeal from an order of the Juvenile Division of the Circuit Court of Jasper County ("the juvenile court," § 211.021(3) ¹) taking the child from them and placing him "in the physical custody" of another couple.

Respondent, the Juvenile Officer of Jasper County, maintains that § 211.261.1, which governs appeals from such orders, does not grant Appellants the right to appeal. For the reasons that follow, we agree with Respondent and dismiss the appeal. We set forth only the facts necessary to address that issue.

The child was born May 3, 1992. Fifteen days later, Respondent filed a petition in the juvenile court alleging the child was without proper care, custody or support. The petition prayed the court to take jurisdiction of the child per § 211.031.1(1)(b), RSMo Cum.Supp.1991. ² The juvenile court held a hearing September 22, 1992, and found it had jurisdiction over the child under that statute. The court then addressed the issue of disposition and placed the child in the custody of the Division of Family Services ("DFS") for "foster care placement."

In November, 1993, after two successive foster home placements, DFS placed the child in foster care with Appellants.

On March 3, 1994, the child's mother filed a "Motion to Modify" per § 211.251.2, averring that "relatives" had expressed an interest in having the child placed with them until the mother "recovers from several stressful matters that have been pending in her life." The motion identified the relatives as D__ B__ and V__ B__, husband and wife, residents of Nebraska. ³ The motion prayed the juvenile court to place the child with the Nebraska couple, subject to DFS supervision through the "Interstate Compact."

On May 16, 1994, Appellants filed a "Motion to Intervene" in the juvenile court. The motion averred intervention was sought "for the purpose of objecting to a transfer of the child from [Appellants'] foster care to that of [the Nebraska couple]." The juvenile court granted Appellants' motion the day it was filed, apparently without a hearing.

On August 16, 1994, the juvenile court held a hearing on the motion to modify. The Chief Deputy Juvenile Officer appeared; the child appeared by his guardian ad litem; the mother appeared in person and with counsel; Appellants appeared in person and with counsel; the Nebraska couple appeared in person and with counsel. The Nebraska couple presented evidence, as did Appellants and the mother.

On September 1, 1994, the juvenile court found it was in the child's best interest that he remain in the "legal care and custody" of DFS and be placed in the physical custody of the Nebraska couple. The court entered an order to that effect. This appeal followed.

Respondent cites § 211.261.1, which reads:

"An appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of this chapter and may be taken on the part of the child by its parent, guardian, legal custodian, spouse, relative or next friend. 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. An appeal shall be allowed to the juvenile officer from any final judgment, order or decree made under this chapter...."

Respondent refers us to In Interest of Beste, 515 S.W.2d 530 (Mo.1974), where a man who (together with his wife) had been awarded "preadoptive legal and physical custody" of a child appealed from a subsequent order restoring custody of the child to DFS. The Supreme Court of Missouri held:

"All appeals are statutory in origin and must be taken in compliance with the appropriate statutes ... The Juvenile Code, Chapter 211, ... is a complete act or law within itself, and Section 211.261 ... is construed to require all appeals under the Code to be taken in compliance with that section."

Id. at 533 and . Inasmuch as the appellant in Beste was not a person authorized by § 211.261 to appeal, the Supreme Court dismissed the appeal. ⁴ Id. at 534.

Respondent argues that because Appellants are not among the classes of persons allowed to appeal by § 211.261.1, and because Appellants "are not entitled to a civil appeal" under § 512.020, the appeal must be dismissed.

Appellants tacitly concede they are not among the classes of persons upon whom § 211.261.1 confers the right to appeal, and Appellants claim no right to appeal under § 512.020. However, Appellants assert their appeal is authorized by Rule 120.01.a, ⁵ which reads:

"An appeal shall be allowed to the juvenile from any final judgment made under the Juvenile Code and may be taken on the part of the juvenile by the custodian."

Appellants maintain that as foster parents, they are custodians of the child within the meaning of the above rule. They reach that conclusion by the following route.

They begin with the definition of "custodian" in Rule 110.05.a(4), which reads:

"custodian" means parent, spouse of a juvenile, guardian of the person, guardian ad litem, or a person having legal or actual custody of a juvenile[.]

Appellants reason that because "custodian," as defined above, includes both a person who has legal custody of a juvenile and a person who has actual custody of a juvenile, the Supreme Court of Missouri, which promulgated the definition, recognized a difference exists between legal custody and actual custody. In support of that premise, Appellants direct us to the definition of "legal custody" in Rule 110.05.a(13), which reads:

"legal custody" means the right to the care, custody and control of a juvenile and the duty to provide food, clothing, shelter, ordinary medical care, education, treatment and discipline to a juvenile[.] ⁶

Appellants point out that unlike "legal custody," the Supreme Court of Missouri promulgated no definition of "actual custody."

From there, Appellants proceed to In Interest of R.K.W., 689 S.W.2d 647 (Mo.App.W.D.1985), which holds: "Foster parents have physical custody but DFS has legal custody." Id. at 650, citing Matter of Trapp, 593 S.W.2d 193, 204-05 (Mo. banc 1980).

Appellants equate "physical custody," as used in R.K.W., with "actual custody," as used in the definition of "custodian" (Rule 110.05.a(4), quoted supra). Therefore, say Appellants, their actual custody of the child at the time the juvenile court entered the order placing him with the Nebraska couple gives them (Appellants) standing to appeal as "custodians" per Rule 120.01.a, quoted supra.

The instant case is like Trapp in two respects. In Trapp, the juvenile court took jurisdiction of four children based on a finding of neglect. 593 S.W.2d at 195. In the instant case, the juvenile court likewise took jurisdiction of the child based on a finding of neglect. Secondly, the juvenile court in Trapp placed the children in the legal custody of DFS, which in turn put them in foster care. Id. As we have seen, that was also done in the instant case, Appellants being the child's third foster placement.

In Trapp, the mother sought to regain custody of the children. The foster parents of one child moved to intervene, alleging they wanted to adopt the child. The juvenile court allowed intervention. The mother's effort to regain custody failed in the juvenile court. On appeal, the mother claimed the juvenile court wrongly allowed the foster parents to intervene.

The Supreme Court of Missouri agreed, explaining: "The legal right to custody is in [DFS]; the foster parents retain physical custody as agents of [DFS]." Id. at 204-05. Noting that one seeking intervention must claim an interest relating to the subject of the action, the Supreme Court held the foster parents had no such interest. Id. at 204. The opinion also said: "[The foster parents] have no right to appeal the judgment in the proceeding. § 211.261, RSMo 1978." 593 S.W.2d at 204. For those reasons and others, the Supreme Court held the foster parents had no right to intervene.

Appellants say Trapp does not bar their appeal because the issue in Trapp was whether the foster parents had the right to intervene, not whether they had the right to appeal. Additionally, Appellants argue that even if Trapp establishes that foster parents have no right to appeal, the holding has been superseded by the present version of Rule 120.01.a.

When Trapp was decided, Rule 120.01.a read:

"An appeal shall be allowed to the juvenile from any final judgment made under the Juvenile Code and may be taken on the part of the juvenile by his parent, guardian, legal custodian, spouse, relative or next friend."

The classes of persons enumerated in that version of Rule 120.01.a are identical to the classes of persons enumerated in the first sentence of § 211.261.1 (quoted supra).

The present version of Rule 120.01.a (quoted supra) took effect January 1, 1982, two years after Trapp. As we have seen, the present version allows an appeal by the "custodian." Consequently, Appellants insist Trapp does not compel dismissal of their appeal.

For the reasons that follow, we need not decide whether Appellants had "actual custody" of the child within the meaning of that term as used in the definition of "custodian," Rule 110.05.a(4) (quoted supra), at the time the juvenile court entered the order placing the child with the Nebraska couple.

Our reasoning begins with Art. V, § 5 of the Constitution of Missouri (1945, amended 1976), which reads, in pertinent part:

"The supreme court may establish rules relating to practice, procedure and pleading for all courts ... which shall have the force and effect...