In Re DT

248 S.W.3d 74, 2008 WL 220140
CourtMissouri Court of Appeals
DecidedJanuary 29, 2008
DocketWD 66650
StatusPublished
Cited by2 cases

This text of 248 S.W.3d 74 (In Re DT) 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
In Re DT, 248 S.W.3d 74, 2008 WL 220140 (Mo. Ct. App. 2008).

Opinion

248 S.W.3d 74 (2008)

In the Interest of D.T. and L.T.; Respondents,
Joanna Smith, Defendant, and
Richard Tolbert, Appellant,
v.
Juvenile Officer, Respondent.

No. WD 66650.

Missouri Court of Appeals, Western District.

January 29, 2008.
Motion for Rehearing and/or Transfer Denied March 4, 2008.
Application for Transfer Denied April 15, 2008.

*75 Richard C. Tolbert, Kansas City, MO, Acting Pro Se, appellant.

Pamela S. Deforest, Kansas City, MO; for respondent, Juvenile Officer.

Mary S. Mann; for respondent, L.J.T.

Laurie V. Snell, Kansas City, MO, for defendant.

Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, Jr., and JAMES EDWARD WELSH, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 4, 2008.

JAMES EDWARD WELSH, Judge.

Richard Tolbert appeals the circuit court's judgment denying his request to remain a party and be considered for kinship placement. The circuit court found that it was not in the best interests of the children for Tolbert to remain a party and subsequently discharged him from this case. Tolbert asserts the circuit court erred on the following six points: (1) in ordering a paternity test of Tolbert; (2) in dismissing Tolbert as a party to the case; (3) in not giving Tolbert a hearing or trial on the validity of the seizure of the children; (4) in its assessment of Tolbert's knowledge of the drug issues of the children's mother; (5) in allowing Tolbert's appointed counsel to withdraw before his appeal was perfected; and (6) in confusing Tolbert with the biological father of the children's older sister. We affirm.

Twin boys D.T. and L.T. were born March 31, 2005. Their mother was Joanna Smith, and she advised Tolbert that he was their father. Mother and Tolbert had *76 known each other for five years but were not in a committed relationship. They were not married. Mother lived with Tolbert off and on and came and went as she pleased. Mother had an older child that had been born at a time when mother and Tolbert had been residing together. She named a different man as father of that child. The older child had been born drug exposed and was taken into the custody of the juvenile court prior to her release from the hospital. That child remains under the jurisdiction of the juvenile court.

When the twins were able to leave the hospital, they were also taken into judicial custody and placed with the children's division after a protective custody hearing. The twins were taken into protective custody due to mother's alleged history of chemical dependency, particularly to cocaine, which would place the children at risk if they remained in mother's custody. At the protective custody hearing, the court indicated the necessity to determine paternity of the boys.

Mother, Tolbert, and the twins were each summoned to appear at the adjudication hearing. At that hearing, both mother and Tolbert appeared in person and were represented by appointed counsel. The twins appeared by their guardian ad litem. Mother stipulated that the twins were without proper care, custody, and support because of her cocaine addiction, and both mother and Tolbert stipulated that paternity had not yet been established. Based upon these stipulations, the court assumed jurisdiction and proceeded directly into the dispositional hearing. All agreed to the disposition recommended by the Juvenile Officer and the children's division. The court entered its order placing the twins in the custody of the children's division for foster care placement. Mother was to enter and successfully complete the family court drug program. The children's division was ordered to see that paternity tests were completed. Tolbert was awarded some supervised and some unsupervised visitation with the boys.

The court conducted a review hearing during which the court was advised that paternity testing had eliminated Tolbert as the biological father of the twins. The results of the testing were admitted into evidence. Tolbert does not contest the results. The court was also advised that mother had been unsuccessful in the family drug court and was then in prison. The court terminated mother from the family drug court. Apparently, Tolbert moved to remain a party and function as a kinship placement for the twins because the circuit court heard evidence to that effect over two days. No written motion appears in the legal file and no oral motion could be located in the transcript, but Tolbert himself did entreat the court to allow him to maintain a relationship with the boys. At the conclusion of the hearing on the motion, the circuit court found Tolbert an inappropriate placement for the children and discharged him as a party. Tolbert appeals pro se. The Juvenile Officer claims Tolbert is without standing to appeal.

The Juvenile Officer moves the court to dismiss this appeal because Tolbert lacks standing. The Juvenile Officer cites the court to section 211.261, RSMo 2000, which provides:

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 *77 officer from any final judgment, order or decree made under this chapter. . . .

The Juvenile Officer correctly observes that the circuit court has determined that Tolbert is not a parent of the twins. In fact, paternity testing has excluded Tolbert as their father. Tolbert does not contest the finding of the court or the accuracy of the paternity testing. It is apparent that Tolbert lacks standing under section 211.261. If Tolbert's standing must be found exclusively from within the juvenile code, the motion to dismiss must be sustained.

We must, however, also consider whether or not Tolbert may have standing to appeal pursuant to section 512.020, RSMo Supp.2006. The Missouri Supreme Court in State ex rel. R.L.W. v. Billings, 451 S.W.2d 125 (Mo. banc 1970), considered the applicability of the Code of Civil Procedure to juvenile proceedings and concluded as follows:

While it has been frequently held that the Juvenile Act is a complete law within itself dealing with minors under the age of seventeen years, it is obvious that the Act does not purport to set up its own procedures in all respects. For instance, while it provides for an appeal from judgments, orders or decrees entered by the Juvenile Court (Sec. 211.261), no provision is made for the procedure to be followed on appeal. When confronted with such lapses, the courts have tended to treat proceedings under the Juvenile Act in much the same manner as they have those special actions (Civil Rules 85 through 102, and certain other statutory actions) for which special procedures have been established suitable to their distinctive remedial purposes, but which were not intended to meet every procedural exigency. In such instances, the Rules of Civil Procedure (which have been made to govern special proceedings through Civil Rule 41.02) have been made applicable to such special action statutes where not inconsistent with or repugnant to them.

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Bluebook (online)
248 S.W.3d 74, 2008 WL 220140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dt-moctapp-2008.