Trapp, Matter of

Decision Date15 January 1980
Docket NumberNo. 61076,61076
Citation593 S.W.2d 193
PartiesIn the Matter of Sheryl Ann TRAPP, Dee Ann Trapp, and Duane Edwin Trapp. Robert Emery Trapp, Father, Linda Mae Trapp, Mother and Appellant, David L. and Judy E. Bridgeman, Intervenors-Respondents.
CourtMissouri Supreme Court

James L. Muller, Kansas City, for appellants.

William J. Cason, Michael X. Edgett, Fred R. Bunch, Clinton, William L. Curry, Juvenile Officer, Clinton, for intervenors-respondents.

WELLIVER, Judge.

The appellant, Linda Mae Trapp, is the natural mother of three children who are presently in the legal custody of the Missouri State Division of Family Services. She appeals from the judgment of the juvenile division of the Circuit Court of Henry County entered September 25, 1978, overruling her motions to set aside a custody order entered January 2, 1973, and a child support order entered February 27, 1973. She also appeals from the order allowing the foster parents (the Bridgemans, intervenors-respondents) to intervene in the proceedings. Appellant alleges error in the denial of her motions on the ground that the court had no jurisdiction to enter the original custody and support orders and on the ground that the statutes providing the juvenile court with jurisdiction in neglect proceedings are unconstitutional both on their face and as applied to appellant. Appellant also contends that permitting foster parents to intervene in the custody proceedings is without basis in either Rule 52.12 or the Juvenile Code because they do not have a legal interest that would be affected by the proceedings and because their participation would be unfair and against public policy. That portion of the September 25, 1978, order that overruled appellant's motions to set aside the 1973 custody and support orders will be affirmed; the portion that sustained respondents' motion to intervene will be reversed.

On December 19, 1972, the juvenile officer of Henry County, Missouri, filed a petition in the Henry County Juvenile Court alleging that four of appellant's children, Robert Emery Trapp, Sheryl Ann Trapp, Dee Ann Elaine Trapp and Duane Edwin Trapp, were under the age of 17, physically present in Henry County, Missouri, and in need of care and treatment under the supervision of the court because:

(a) The parents or other persons legally responsible for the care and support of the children have neglected and refused to provide proper support, education which is required by law, medical, surgical or other care necessary for the well being of said child(ren).

(b) The child(ren) are otherwise without care, custody or support.

(c) The behavior, environment or associations of the child(ren) are injurious to (their) welfare or to the welfare of others.

On December 22, 1972, the juvenile court entered its temporary order finding that the facts alleged in the juvenile officer's neglect petition were true and "that the best interests of said children require" that the Division of Welfare be given temporary custody of the children. Accordingly, the court granted temporary custody of the four children to the Division of Welfare and ordered that a hearing on the neglect petition be held on January 2, 1973, and that the parents be notified and summoned to appear.

On January 2, 1973, appellant appeared personally and through her court-appointed attorney, and evidence on the neglect petition was heard. On the same day, the court entered the following findings and order:

The Court finds the four children herein are neglected children within the meaning of the law and are in need of the care and protection of the State of Missouri and are hereby made wards of this Court until further order. Said children's care, custody and control is hereby vested in the Welfare Department of Henry County, Missouri, until further order of this Court.

No stenographic notes or recordings were requested or made of the hearing of January 2, 1973, but from the transcript of subsequent proceedings filed with this court, it is clear that evidence was presented to support a finding of neglect. In November of 1972, Duane Edwin Trapp, then two months old, was diagnosed as suffering from dehydration. In mid-December, Robert Emery Trapp, then nearly five years old, was admitted in critical condition to the Clinton hospital with severe dehydration and acute streptococcal pneumonia in both lung fields. In November, the Trapps were living in a four-room house that had no running water and was heated only by a small Coleman cooking stove. The three older children were seen dressed only in undershorts, although the weather was beginning to turn cold. In December, the Trapps moved to a two-room condemned hunting cabin located in an isolated area.

On February 27, 1973, the trial court entered a judgment for $198 per month child support against appellant and her husband, on the finding that both "are gainfully employed" and ordered that this amount be garnished from their wages. A motion for rehearing on the custody order was filed March 16, 1973, and was overruled after a hearing on March 26, 1973. No appeal was taken from these custody and support orders. 1

On October 28, 1975, the court entered an order returning custody of the appellant's eldest son, Robert Emery Trapp, to her and her husband, and his custody is therefore not involved in this appeal. The record is further complicated by numerous other proceedings wherein respondents and the foster parents caring for the other Trapp children sought to adopt the children. None of those proceedings directly relate to the issues herein.

On December 27, 1975, appellant and her husband filed a motion to set aside the January 2, 1973, custody order and the February 27, 1973, support order, and in the alternative for a hearing to return custody of the children to them. This motion alleged that the custody and support orders were void because of jurisdictional and constitutional defects, and that appellant and her husband were fit and qualified to be given custody of the three children still in foster care.

On May 22, 1978, appellant alone filed a motion to set aside the custody order of January 2, 1973, and to dismiss the neglect petition. This motion did not allege that appellant was fit to have custody of the three children returned to her, but alleged that the juvenile court had no jurisdiction to enter the custody order and that the statutes on which the orders were based (§§ 211.031 and 211.181, RSMo 1978) violated the due process clause of the fourteenth amendment to the United States Constitution. On May 30, 1978, appellant filed a motion challenging the validity of the support order of February 27, 1973, alleging that the support order exceeded the juvenile court's jurisdiction under § 211.241, RSMo 1978 and violated the due process clause of the fourteenth amendment to the United States Constitution. Appellant alleged that the support order was entered without prior notice to the parents and without a hearing into or an express finding of the parents' ability to pay.

On June 7, 1978, respondents filed their third motion to intervene in proceedings on appellant's motion to set aside the 1973 custody and support orders. In the motion to intervene, respondents alleged that they had been caring for Sheryl Ann Trapp as foster parents for several years and that they desired to adopt her. Respondents alleged that they had a direct and substantial interest in the custody proceedings because the court's ruling could prevent them from petitioning for Sheryl Ann's adoption. Appellant opposed the motion to intervene.

On September 14, 1978, appellant gave notice that on September 25, 1978, she would call up for hearing and disposition in the Circuit Court of Henry County six motions then pending in the neglect proceeding:

(1) Parents' Motion to Set Aside Ex Parte Order Granting Motion to Intervene and Making Intervenors Parties (filed herein on June 15, 1976); (2) Parent's Motion to Dismiss Petition to Intervene Which Petitioners David L. and Judy E. Bridgeman Were Granted Leave to File Herein on February 25, 1977 (filed herein on March 28, 1978); (3) Bridgemans' Motion to Intervene in Matter of Parents' Motion to Set Aside Orders in Child Neglect Proceeding (filed herein on June 7, 1978); (4) Parents' Motion to Set Aside Custody Order of January 2, 1973, and to Set Aside Support Order of February 27, 1973 (filed herein on December 27, 1975); (5) Parent's Motion to Set Aside Custody Order of January 2, 1973 and to Dismiss Neglect Petition (filed herein on May 22, 1978); and (6) Parent's Motion to Set Aside Support Order of February 27, 1973 (filed herein on May 30, 1978).

At the hearing held on September 25, 1978, the court overruled appellant's motions to set aside the custody and support orders, and granted respondents' motion to intervene. Appellant thereafter filed notice of appeal to this court, alleging that the appeal involves construction of the federal or state Constitutions.

The first question here presented is whether or not the orders of September 25, 1978, constituted final judgment for the purposes of appeal. From the record, it is apparent that the trial court did not dispose of the alternative count in appellant's December 27, 1975, motion that requested a hearing into appellant's fitness to regain custody of the children. The transcript of the September 25 hearing indicates that the court offered to proceed with a hearing into the facts and circumstances surrounding appellant's claim of fitness to regain custody of the children and that both parties declined to present evidence on the issue at that time. In this state of the record, the rulings of the court in effect disposed of all issues. We have concluded that in this instance and on these facts there are strong reasons for treating the September 25 orders as final and appealable. The validity of the juvenile court's custody orders has been...

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