In the Interest of J_A_D

905 S.W.2d 101, 1995 WL 493764
CourtMissouri Court of Appeals
DecidedAugust 18, 1995
DocketNo. 19796
StatusPublished
Cited by6 cases

This text of 905 S.W.2d 101 (In the Interest of J_A_D) 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 the Interest of J_A_D, 905 S.W.2d 101, 1995 WL 493764 (Mo. Ct. App. 1995).

Opinion

CROW, Judge.

Appellants, foster parents of J_A_D_ (“the child”), appeal from an order of the Juvenile Division of the Circuit Court of Jasper County (“the juvenile court,” [102]*102§ 211.021(3)1) taking the child from them and placing him “in the physical custody” of another couple.

Respondent, the Juvenile Officer of Jasper County, maintains that § 211.261.1, which governs appeals from such orders, does not grant Appellants the right to appeal. For the reasons that follow, we agree with Respondent and dismiss the appeal. We set forth only the facts necessary to address that issue.

The child was born May 3, 1992. Fifteen days later, Respondent filed a petition in the juvenile court alleging the child was without proper care, custody or support. The petition prayed the court to take jurisdiction of the child per § 211.031.1(l)(b), RSMo Cum. Supp.1991.2 The juvenile court held a hearing September 22, 1992, and found it had jurisdiction over the child under that statute. The court then addressed the issue of disposition and placed the child in the custody of the Division of Family Services (“DFS”) for “foster care placement.”

In November, 1993, after two successive foster home placements, DFS placed the child in foster care with Appellants.

On March 3, 1994, the child’s mother filed a “Motion to Modify” per § 211.251.2, averring that “relatives” had expressed an interest in having the child placed with them until the mother “recovers from several stressful matters that have been pending in her life.” The motion identified the relatives as D_ B_ and Y_ B_, husband and wife, residents of Nebraska.3 The motion prayed the juvenile court to place the child with the Nebraska couple, subject to DFS supervision through the “Interstate Compact.”

On May 16, 1994, Appellants filed a “Motion to Intervene” in the juvenile court. The motion averred intervention was sought “for the purpose of objecting to a transfer of the child from [Appellants’] foster care to that of [the Nebraska couple].” The juvenile court granted Appellants’ motion the day it was filed, apparently without a hearing.

On August 16,1994, the juvenile court held a hearing on the motion to modify. The Chief Deputy Juvenile Officer appeared; the child appeared by his guardian ad litem; the mother appeared in person and with counsel; Appellants appeared in person and with counsel; the Nebraska couple appeared in person and with counsel. The Nebraska couple presented evidence, as did Appellants and the mother.

On September 1, 1994, the juvenile court found it was in the child’s best interest that he remain in the “legal care and custody” of DFS and be placed in the physical custody of the Nebraska couple. The court entered an order to that effect. This appeal followed.

Respondent cites § 211.261.1, which reads:

“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 officer from any final judgment, order or decree made under this chapter....”

Respondent refers us to In Interest of Beste, 515 S.W.2d 530 (Mo.1974), where a man who (together with his wife) had been awarded “preadoptive legal and physical custody” of a child appealed from a subsequent order restoring custody of the child to DFS. The Supreme Court of Missouri held:

“All appeals are statutory in origin and must be taken in compliance with the appropriate statutes.
[103]*103... The Juvenile Code, Chapter 211, ... is a complete act or law within itself, and Section 211.261 ... is construed to require all appeals under the Code to be taken in compliance with that section.”

Id. at 533[2] and [3]. Inasmuch as the appellant in Beste was not a person authorized by § 211.261 to appeal, the Supreme Court dismissed the appeal.4 Id. at 534.

Respondent argues that because Appellants are not among the classes of persons allowed to appeal by § 211.261.1, and because Appellants “are not entitled to a civil appeal” under § 512.020, the appeal must be dismissed.

Appellants tacitly concede they are not among the classes of persons upon whom § 211.261.1 confers the right to appeal, and Appellants claim no right to appeal under § 512.020. However, Appellants assert their appeal is authorized by Rule 120.01 .a,5 which reads:

“An appeal shall be allowed to the juvenile from any final judgment made under the Juvenile Code and may be taken on the part of the juvenile by the custodian.”

Appellants maintain that as foster parents, they are custodians of the child within the meaning of the above rule. They reach that conclusion by the following route.

They begin with the definition of “custodian” in Rule 110.05.a(4), which reads:

“custodian” means parent, spouse of a juvenile, guardian of the person, guardian ad litem, or a person having legal or actual custody of a juvenile[.]

Appellants reason that because “custodian,” as defined above, includes both a person who has legal custody of a juvenile and a person who has actual custody of a juvenile, the Supreme Court of Missouri, which promulgated the definition, recognized a difference exists between legal custody and actual custody. In support of that premise, Appellants direct us to the definition of “legal custody” in Rule 110.05.a(13), which reads:

“legal custody” means the right to the care, custody and control of a juvenile and the duty to provide food, clothing, shelter, ordinary medical care, education, treatment and discipline to a juvenile[.]6

Appellants point out that unlike “legal custody,” the Supreme Court of Missouri promulgated no definition of “actual custody.”

From there, Appellants proceed to In Interest of R.K.W., 689 S.W.2d 647 (Mo.App.W.D.1985), which holds: “Foster parents have physical custody but DFS has legal custody.” Id. at 650[3], citing Matter of Trapp, 593 S.W.2d 193, 204-05 (Mo. banc 1980).

Appellants equate “physical custody,” as used in R.K.W., with “actual custody,” as used in the definition of “custodian” (Rule 110.05.a(4), quoted supra). Therefore, say Appellants, their actual custody of the child at the time the juvenile court entered the order placing him with the Nebraska couple gives them (Appellants) standing to appeal as “custodians” per Rule 120.01.a, quoted supra

The instant ease is like Trapp in two respects. In Trapp, the juvenile court took jurisdiction of four children based on a finding of neglect. 593 S.W.2d at 195. In the instant case, the juvenile court likewise took jurisdiction of the child based on a finding of neglect. Secondly, the juvenile court in Trapp

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905 S.W.2d 101, 1995 WL 493764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-j_a_d-moctapp-1995.