J.F.K., Matter of, 74934

• Decision Date: 25 May 1993
• Docket Number: No. 74934,74934
• Citation: 853 S.W.2d 932
• Parties: In the Matter of J.F.K., a minor. William and Marilyn RANDLE, Appellants, v. S.K., an Incompetent, Respondent. In the Interest of J.F.K., a minor. David A. COOK, Ray County Juvenile Officer, Respondent, v. William and Marilyn RANDLE, Appellants.
• Court: Missouri Supreme Court

Page 932

853 S.W.2d 932

In the Matter of J.F.K., a minor.

William and Marilyn RANDLE, Appellants, v. S.K., an Incompetent, Respondent.

In the Interest of J.F.K., a minor.

David A. COOK, Ray County Juvenile Officer, Respondent, v. William and Marilyn RANDLE, Appellants.

No. 74934.

Supreme Court of Missouri,

En Banc.

May 25, 1993.

Leonard K. Breon, Warrensburg, for appellants.

Mary V. Hower, St. Joseph, Stanley M. Thompson, Richmond, Catherine A. Schulte, Independence, for respondents.

LIMBAUGH, Judge.

In these consolidated cases, accepted on transfer from the court of appeals, William and Marilyn Randle appeal the dismissal of their chapter 453 petition to adopt J.F.K., a minor, and the denial of their motion to intervene in a separate chapter 211 proceeding involving the same child. We affirm the dismissal of the adoption petition and affirm the denial of the motion to intervene.

I.

On September 14, 1989, J.F.K., born just a few weeks earlier on June 30, 1989, was removed by the Division of Family Services [DFS] from the home of his natural parents, apparently under an emergency order of protective custody. DFS immediately placed him in the care of William and Marilyn Randle, licensed foster parents. Although the legal file is sparse, it appears that on December 6, 1989, after a hearing on the merits of a petition filed under § 211.031.1, RSMo 1986, ¹ the Juvenile Division of the Ray County Circuit Court assumed jurisdiction over J.F.K. upon a finding that he was "dependent and neglected." Legal and physical custody was awarded to DFS, which in turn, continued the placement of the child in the Randles' foster home.

On February 26, 1990, J.F.K's natural mother, suffering from "mild mental retardation," was adjudicated under § 475.010(8), RSMo 1986, to be "totally incapacitated," and her parents, E.B. and W.B., were appointed as her guardians. The mother's parental rights have not been terminated, nor is any termination proceeding pending.

The natural father was convicted of child abuse and on November 7, 1990, his parental rights in J.F.K. were terminated.

The child continued in the care of the Randles throughout the proceedings described above, until November 16, 1990. On that date two events occurred: The Randles filed a separate action in the Juvenile Division of the Ray County Circuit Court for adoption of J.F.K. as their own child, and, immediately thereafter, DFS removed the child from the Randles' home. ² The Randles then filed an amended petition omitting the allegation that the child was physically in their care and adding a count requesting that custody of the child be transferred back to them. Additionally, they requested termination of the natural mother's parental rights.

At this point, there were two cases affecting J.F.K., both pending in the Juvenile Division of the Ray County Circuit Court, and both proceeding concurrently. The first case was the ongoing child neglect action prosecuted by the juvenile officer under chapter 211 in which the court had assumed jurisdiction of the minor child. The second was the adoption proceeding instituted by the Randles under chapter 453. Complicating this scenario was the fact that two different judges presided over the cases. ³

On April 12, 1991, the court awarded physical custody of J.F.K. to the natural mother's guardians (the maternal grandparents) in the home they shared with the mother. Legal custody of J.F.K. remained with DFS. Subsequently, on April 17, 1991, the mother's guardians moved to dismiss the Randles' adoption petition on the ground that it would be "inappropriate" for the court to entertain an adoption petition filed under chapter 453 while the underlying child neglect case was pending. That motion was sustained by Judge Robb on April 24, 1991. It is from that dismissal that the Randles raise their first appeal.

In a fallback position, the Randles then moved to intervene in the chapter 211 proceeding and attached to the motion their proposed pleading, a reconstituted petition for the adoption of J.F.K. As prospective adoptive parents, they claimed intervention "as of right" under Rule 52.12(a). Judge Sloan concluded that the Randles lacked standing to intervene and that their proposed petition failed to state a claim on which relief could be granted; therefore, he denied the motion. The Randles' second appeal is from this ruling.

II.

Resolution of the issue in the first appeal--whether the juvenile division may entertain a petition for adoption of a minor child filed separately from a pending child neglect case involving the same child--turns on the interplay between the adoption statutes set out in chapter 453 and the juvenile laws contained in chapter 211.

The Randles brought their petition for adoption under § 453.010.1, RSMo 1986, which states:

Any person desiring to adopt another person as his child may petition the juvenile division of the circuit court of the county in which the person seeking to adopt resides, or in which the person sought to be adopted may be, for permission to adopt such person as his child.

An obvious prerequisite to any adoption is the consent of the natural parents or the involuntary termination of their parental rights. §§ 453.030, 453.040, RSMo 1986. J.F.K.'s mother has never consented to the adoption of her child, nor, as stated earlier, have her parental rights been terminated.

The Randles argue that 1990 legislative revisions to § 211.447 ⁴ give them the express statutory authority to bring a separate action for the adoption of J.F.K. and the involuntary termination of his natural mother's parental rights. Section 211.447 states in pertinent part:

* * * * * *

2. The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer or in adoption cases by a prospective parent, if it finds by clear, cogent and convincing evidence that one or more of the following grounds for termination exists. (emphasis added)

* * * * * *

5. In actions for adoption under chapter 453, RSMo, the court may hear and determine the issues raised in a petition for adoption containing a prayer for termination of parental rights filed with the same effect as a petition permitted under subsection 2 of this section.

Clearly, the legislature has provided two separate means for the involuntary termination of parental rights. The first is a direct proceeding against the natural parent(s) brought by the juvenile officer. The second is a request for termination of parental rights that is incident to an action brought by prospective adoptive parents seeking to adopt a minor child.

There is, however, a qualification of the right of prospective adoptive parents to proceed independently. Section 211.093, RSMo Supp.1992, passed as part of the same bill that included the revisions to § 211.447.2, states:

Any order or judgment entered by the court under authority of this chapter or chapter 210, RSMo, shall, so long as such order or judgment remains in effect, take precedence over any order or judgment concerning the status or custody of a child under age twenty-one entered by a court under authority of chapter 452 453, 454 or 455, RSMo, but only to the extent inconsistent therewith.

This statute precludes the operation of any order affecting the status or custody of a minor child under chapter 453 that is inconsistent with an order entered under chapter 211.

In this case, an order granting custody of J.F.K. to the Randles would be patently inconsistent with the earlier order in the chapter 211 action in which custody of J.F.K. was awarded to the division of family services. Under § 211.093, the award of custody to DFS must "take precedence." The juvenile division has no jurisdiction to proceed on the Randles' action for custody and adoption because the action is preempted by the underlying child neglect case. We hold that Judge Robb, having taken judicial notice of the underlying chapter 211 case involving J.F.K., was correct in dismissing the Randles' petition.

III.

In their second appeal, the Randles, citing Rule 52.12(a), claim a right to intervene in the pending chapter 211 action because the disposition in that case may as a practical matter impede or impair their interest in adopting J.F.K., and further, because their petition for adoption raised significant questions of law and fact that are common to both proceedings. Rule 52.12(a) states:

Upon timely application anyone shall be permitted to intervene in an action:

(1) when a statute of this state confers an unconditional right to intervene; or

(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The Randles' proposed application of this rule...