State ex rel. In Interest of R.P. v. Rosen

• Decision Date: 20 January 1998
• Docket Number: No. WD,WD
• Citation: 966 S.W.2d 292
• Parties: STATE of Missouri, ex rel. In the Interest of R.P., Relator, v. Commissioner Sherrill L. ROSEN, Respondent. 54905.
• Court: Missouri Court of Appeals

Page 292

966 S.W.2d 292

STATE of Missouri, ex rel. In the Interest of R.P., Relator, v. Commissioner Sherrill L. ROSEN, Respondent.

No. WD 54905.

Missouri Court of Appeals,

Western District.

Jan. 20, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 3, 1998.

Application to Transfer Denied

April 21, 1998.

M. Courtney Koger, Blackwell Sanders Matheny Weary & Lombardi, LLP., Kansas City, Guardian ad Litem for R.P.

Carolyn D. Rowe, Independence, for Division of Family Services.

Daniel G. Barry, Kansas City, for Juvenile Officer.

W. Stephen Nixon, Independence, for Natural Father.

Susan D. Szczucinski, Kansas City, for Natural Mother.

Before LAURA DENVIR STITH, P.J., and SMART and HOWARD, JJ.

LAURA DENVIR STITH, Presiding Judge.

This case involves the question of whether the Family Court Division of the Jackson County Circuit Court had jurisdiction over an abuse and neglect proceeding brought by the Juvenile Officer and concerning R.P., a newborn infant alleged to be at serious risk of physical and sexual abuse. The Family Court Commissioner ruled that, because the child had been brought into Missouri from Kansas by a Missouri state employee two days after her birth, the Jackson County Court did not acquire jurisdiction and, therefore, could not adjudicate R.P.'s custody. The court, therefore, determined, it was required to release R.P. to her parents' custody despite its further finding that it was in R.P.'s best interest that Missouri exercise jurisdiction, and that it would contravene public policy to release R.P. to her parents. The court delayed the effect of its ruling to give time to the parties to seek a Writ from this court. Relators then filed their Petition for Writ of Prohibition or Mandamus in this court. We issued our Preliminary Writ of Prohibition. We now make that writ permanent.

I. FACTUAL AND PROCEDURAL BACKGROUND

R.P. was born at the Kansas University Medical Center (KUMC), in Kansas City, Kansas, on April 15, 1997, to C.P. (father) and S.P. (mother). Missouri Medicaid paid the hospital bills which ensued from R.P.'s birth and from S.P.'s and R.P.'s hospital stay. Shortly after R.P.'s birth, a social worker at the hospital discovered that the parents were homeless and that the Missouri Division of Family Services (DFS) had previously removed six children from their custody. The social worker indicated that the father appeared to be attempting to get the mother and R.P. out of the hospital before the social worker could "clarify the situation." The mother had indicated that she had a restraining order on the father in the past and that she had called the police on him on several occasions. The parents indicated to the social worker that they intended to return to City Union Mission, in Jackson County, Missouri, with the minor child. The social worker determined that since other children had been removed from the parents, the father had a history of violence, and the parents behaved as if they were trying to run with the baby, it was too risky to allow this baby to leave the hospital without "the approval of Child Protective Services." She completed a suspected child abuse and/or neglect report and discussed the case with her supervisor, who told her that since the parents had indicated an intent to return to Missouri, it was a "DFS case." The social worker called Missouri's DFS.

A police officer from the University of Kansas Police Department prevented R.P.'s parents from leaving with her. The officer completed a juvenile data sheet and took the minor child into protective custody. Dr. Curry signed the juvenile form at 2:30 p.m. on April 17, 1997, and assumed responsibility for R.P. pending the arrival of the a representative of Missouri's DFS. The Juvenile Officer of Jackson County, Missouri, then issued a pick-up order. A DFS caseworker, Kelly Wiemann, was authorized by the order to pick up R.P. for placement in DFS custody. She came to the hospital to pick up the child from Dr. Curry at KUMC at 3:30 p.m. on April 17, 1997, and transported her to Missouri. On April 18, 1997, the juvenile officer filed a Petition alleging that R.P. was in need of care and treatment, and on April 24, 1997, the juvenile officer amended this Petition. C.P. (the natural father) challenged the court's jurisdiction to proceed. On July 17, 1997, at 2:28 p.m., the juvenile officer voluntarily dismissed the amended Petition but then filed a new Petition at 2:54 p.m. that same day.

On July 23, 1997, C.P. filed a Motion to Dismiss the amended Petition, again alleging that the court lacked jurisdiction to proceed. A hearing on this motion was held on September 5, 1997. On September 8, 1997, Sherrill L. Rosen, the Family Court Commissioner, notified the parties by a Notice of Intent to Enter Order of her decision to grant the motion to dismiss for lack of jurisdiction. Commissioner Rosen noted that:

Six siblings of the minor child are presently under the jurisdiction of this Court, pursuant to judgments of this Court made August 23, 1996. In those matters, this Court found the children had been sexually abused by the natural father; that the natural mother was aware of the sexual abuse but failed to protect the children; that there was a history of domestic violence; that both parents had a history of substance abuse; that the children had previously been under the jurisdiction of Walla Walla, Washington Juvenile Court, but the natural parents absconded with the children from the State of Washington; and that the natural mother has had her parental rights terminated with regard to three other children by the State of Kansas and two other children in the State of Oregon.

The court, nonetheless, concluded that DFS "had no legal authority on April 17, 1997 to remove the minor child from the State of Kansas to Missouri" and that the court, therefore, lacked jurisdiction over this child's custody determination under Section 211.031. That section requires that the child "be a resident of or found within the county" before that county court has jurisdiction over an action involving that child. The court further concluded that the voluntary dismissal and filing of a new Petition did not cure this defect, nor confer jurisdiction on the court, under either Section 211.031 under the Uniform Child Custody Jurisdiction Act, or Section 452.450, because "there was no original legal authority for the child to be in this county."

While finding it lacked jurisdiction, the court further found that:

[R]equiring return of the minor child to the custody of the natural parents is in direct contravention of the legislative intent of Chapter 211, which states that the child welfare policy of this state is what is in the best interests of the child. In being required to sustain this motion for lack of jurisdiction, the Court makes a specific finding that to do so is not in the child's best interests, and violates the public policy of the State of Missouri.

(emphasis added). The court then stayed entry of its order sustaining C.P.'s motion to dismiss, to allow any party to file a petition for an extraordinary writ in this court prior to the effective date of her order.

DFS, the Juvenile Officer, and R.P.'s Guardian Ad Litem (Relators), filed a Petition for a Writ of Prohibition and/or a Writ of Mandamus with this court to prohibit Commissioner Rosen from releasing jurisdiction over R.P. or, alternatively, to command Commissioner Rosen to exercise her jurisdiction to protect R.P. We issued a Preliminary Writ of Prohibition on September 22, 1997. This proceeding for a permanent writ followed.

II. A WRIT OF PROHIBITION IS AN APPROPRIATE REMEDY

There are three situations in which we may issue a writ of prohibition:

First, prohibition will lie where there is a usurpation of judicial power because the trial court lacks either personal or subject matter jurisdiction. Id. at 862 Second, a writ of prohibition will issue to remedy a clear excess of jurisdiction or abuse of discretion such that the lower court lacks the power to act as contemplated. Id. Finally, departing from jurisdictional grounds, a writ of prohibition will be issued if the party can satisfy a number of conditions, after falling under the rubric of no adequate remedy by appeal.

State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994) (citations to State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862-63 (Mo. banc 1986)). Relators claim they are entitled to seek a writ here because there is "no adequate remedy by appeal." Writs of prohibition will be issued in this situation only "in limited situations where some 'absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court's order.' " Chassaing, 887 S.W.2d at 577, quoting, State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). This will occur if "there is an important question of law decided erroneously that would otherwise escape review by this court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision." Chassaing, Id. at 577, citing, Noranda, 706 S.W.2d at 862-63.

This action clearly meets the requirements of this third category. We have found that the court below erroneously decided a question of law as to whether it had jurisdiction to determine this child's custody. Since the filing of a notice of appeal subsequent to the court's erroneous dismissal of this Petition will not stay the execution of that dismissal, both R.P. and the State will suffer considerable hardships because of this erroneous entry of dismissal, and the relators have no adequate remedy upon appeal. More specifically, if we do not make our writ absolute, R.P. will be released from DFS's custody and be returned to her parents. The Petition alleges that these parents have a history of physically and sexually abusing their children. They...