B.S. v. A.O.

70 S.W.3d 579, 2002 Mo. App. LEXIS 253
CourtMissouri Court of Appeals
DecidedFebruary 13, 2002
DocketNos. WD 58895, WD 58997
StatusPublished
Cited by14 cases

This text of 70 S.W.3d 579 (B.S. v. A.O.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.S. v. A.O., 70 S.W.3d 579, 2002 Mo. App. LEXIS 253 (Mo. Ct. App. 2002).

Opinions

JAMES M. SMART, Jr., Judge.

This is an appeal of a judgment denying a petition for termination of parental rights and adoption. The child is M.O. (hereafter “Daughter”). The individuals who brought the petition are B.S. and C.B. (hereafter “Petitioners”). The natural mother is A.O. (hereafter “Mother”). On August 18, 2000, the court denied the petition for termination of parental rights as it pertained to Mother and granted the termination of parental rights as to the biological father of the child. The court directed the Division of Family Services (hereafter “DFS”) to continue to provide services to Mother and Daughter to assist with reunification and increase contact and [581]*581visitation of Daughter with Mother. Petitioners appeal the denial of termination as to Mother, and the consequent dismissal of their petition for adoption. For the reasons stated herein, we vacate the judgment and remand the case to the trial court.

Factual Background

Daughter is a little girl who was born June 25, 1998. Mother was not married. It was discovered at the time of her birth that Daughter was a “crack baby” due to Mother’s addiction to crack cocaine. DFS took custody of Daughter. Mother failed to attend a meeting with DFS which had been scheduled several days later. Daughter was placed in a foster home; a month later, DFS moved Daughter to the foster care of Petitioners. Petitioners are two Roman Catholic nuns who operate an urban day care ministry. A half-brother of Daughter, Ronnie, was already living with the Petitioners in their foster care.

Daughter suffered severe physical problems and lack of emotional attachment at the time she came to live with the Petitioners. Under the nurturing care of Petitioners, the child made remarkable physical and emotional progress. As a two-year-old, she was, according to the trial court, a thriving child “full of energy, love, and contentment.” Daughter’s half-brother, Ronnie, was adopted by Petitioners in January 1999.

Mother was incarcerated as a result of a parole violation from the time Daughter was two months old until Daughter was six months old. While confined, Mother began contacting DFS concerning Daughter. After her release from confinement, Mother stated she wished to regain custody of Daughter. Mother was prohibited from seeing Daughter by a no-contact order. Mother began a drug treatment program as a condition of her parole. In March 1999, DFS recommended termination of Mother’s parental rights as to Daughter and selected Petitioners as proposed adoptive parents. The Juvenile Officer filed a petition to terminate Mother’s parental rights. In May 1999, with the consent of the Juvenile Officer, Petitioners filed their own petition to terminate parental rights of Mother and to obtain a decree of adoption as to Daughter. DFS subsequently decided not to pursue termination. The Juvenile Officer dismissed his petition. DFS workers reported that Mother was maintaining sobriety and progressing in the management of her life. Mother’s no-contact order was removed. Mother and Daughter began having visitation and establishing familiarity. Petitioners nevertheless continued with their petition to terminate. In March and April 2000, the court held a hearing on the petition of Petitioners. The court denied the petition to terminate parental rights as to Mother, but granted termination as to the biological father. The court directed DFS to continue providing services to Mother and Daughter with a view toward reuniting Mother and Daughter.

A short time after that order, the North Star treatment program discharged Mother for attendance problems. Petitioners sought and obtained a new trial on the petition. In August, the court again took up the petition to terminate Mother’s parental rights. The court, after hearing, again denied termination, finding that Mother had made much progress with her addictions. The court found that in spite of her discharge from the treatment program, Mother had maintained sobriety since August 1998, that Mother was continuing “to deal successfully with her chemical dependency,” that Mother had successfully maintained employment for the previous seven months, and that Mother was making lifestyle changes that made reunification more possible in the near fu[582]*582ture. The court again directed DFS to begin increasing contact between Daughter and Mother as a part of the process of reunification. Petitioners appeal the decision of the trial court to deny the termination of parental rights of Mother.

The Petitioners present six points on appeal. Four of the first five points challenge the evidentiary conclusions and factual findings of the trial court, contending that the court abused its discretion in failing to sever the parental rights of Mother. One point contends the court erred in failing to grant the Petitioners’ motion for default judgment after Mother failed to respond to Petitioners’ amended petition. The final point contends that the court erred in placing undue emphasis on the ages of the Petitioners in determining whether to terminate Mother’s rights.

Appealability

We turn first to the motion to dismiss filed by Mother and DFS. Movants argue that the ruling appealed from is not a final disposition of the issues and the parties and therefore is not an appealable judgment. The right to appeal is purely statutory, and appeal may be taken only from a final judgment. Reis v. Peabody Coal Co., 935 S.W.2d 625 (Mo.App.1996); see § 512.020, RSMo 1996. Movants do. not argue that the Petitioners, who seek to adopt Daughter, have no standing to appeal. Instead, Movants argue only that the judgment is not final, relying on R.D. by Reine v. I.D., 778 S.W.2d 848 (Mo.App.1989).

In R.D., a guardian ad litem appealed the denial of the petition for termination, which had been instituted by a juvenile officer. The effect of the judgment was to continue the child in foster care. The guardian ad litem asserted that the trial court erred in failing to terminate the mother’s parental rights. In dismissing the appeal and remanding the cause to the trial court for its continuing exercise of jurisdiction over the child, this court noted that there was no precedent for the appeal of an order denying termination of parental rights. The court addressed the issue of appealability, noting that a denial of termination and also denying a return of the child to its mother “is to continue the pre-petition status of the case, retaining the child under the jurisdiction of the juvenile court.” R.D., 778 S.W.2d at 850. The court noted that the judgment “denying termination does not foreclose the prospect that another petition for termination may be presented to the court at a future date nor is the present judgment a bar to a later order of termination based on different grounds or additional evidence.” Id. at 851.

The Movants contend that in this case, also, the trial court’s decision does not have the required elements of finality. The trial court has retained jurisdiction over the child and may at any time intervene in matters affecting the child’s welfare. The trial court is charged with the duty of promoting the best interests and welfare of the child, and as in R.D., the movants say, the judgment in the case at hand does not preclude the filing and adjudication of any subsequent petitions for termination of parental rights as to the child.

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Cite This Page — Counsel Stack

Bluebook (online)
70 S.W.3d 579, 2002 Mo. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bs-v-ao-moctapp-2002.