In the Interest of: L.N.G.S.; Juvenile Officer; and Missouri Department of Social Services, Children's Division v. A.S. and A.S.

• Court: Missouri Court of Appeals
• Decided: September 6, 2022
• Docket: WD85072
• Status: Published

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT

IN THE INTEREST OF: L.N.G.S.; ) ) WD85072 Juvenile, ) ) OPINION FILED: JUVENILE OFFICER; and ) ) September 6, 2022 Respondent, ) ) MISSOURI DEPARTMENT OF ) SOCIAL SERVICES, CHILDREN’S ) DIVISION, ) ) Respondent, ) ) v. ) ) A.S. AND A.S., ) ) Appellants. )

Appeal from the Circuit Court of Clay County, Missouri Honorable Alisha Diane O'Hara, Judge

Before Division One: Janet Sutton, Presiding Judge, Alok Ahuja and Karen King Mitchell, Judges

A.S. and A.S. (the relatives) appeal a Clay County juvenile court judgment

assuming jurisdiction over L.N.G.S. (the child) under section 211.031 and placing the

child in Children’s Division care and custody for placement in alternative care. 1 The

relatives bring this appeal based on the juvenile court’s denial of their motion to

1 All statutory references are to RSMo 2016 as supplemented. continue the adjudication hearing. We would ordinarily dismiss the appeal because we

do not believe the relatives are entitled to appeal under section 211.261. However,

because of the split of authority on the issue of whether an appealing party can rely on

section 512.020 to confer authority to appeal as an “aggrieved party” when they are

excluded by section 211.261 to appeal a juvenile court judgment issued under chapter

211, we do not finally decide the relatives’ appeal, and instead order this appeal be

transferred to the Supreme Court of Missouri for final disposition pursuant to Rule

83.02.

Factual and Procedural Background

The child was born on March 7, 2020. The natural mother executed a consent

to termination of parental rights and adoption, and, in early June 2020, the relatives,

the child’s aunt and uncle, filed a petition for transfer of custody and adoption. On

June 7, 2021, the court granted the relatives temporary custody for subsequent

adoption.

On July 7, 2021, while the relatives’ adoption petition was pending, the Clay

County Juvenile Officer (Juvenile Officer) completed an emergency authorization to

place the child in judicial custody, specifically, in alternative care under the temporary

care and custody of Children’s Division. In the authorization for judicial custody, the

Juvenile Officer stated that the child had four healing leg fractures, that the relatives

were unable to give a plausible explanation for the injuries, and that the child also had

second-degree leg burns, which the relatives said were accidental.

The next day, on July 8, 2021, the Juvenile Officer filed a petition alleging that

the parents or other persons legally responsible for the care and support of the child

2 neglected or refused to provide the proper care, custody or support necessary for the

child’s well-being under section 211.031. 2 The petition specifically alleged the

following, supported by an attached probable cause statement signed by the Deputy

Juvenile Officer: that Children’s Mercy Hospital reported to Children’s Division that

on June 14, 2021, the child was diagnosed with second-degree burns to her legs and

feet, the child had healing fractures to her right distal femur, right proximal tibia, and

left proximal tibia, and on June 30, 2021, an additional fracture to the left distal femur

was found. The petition alleged these injuries were diagnosed as child physical abuse.

The petition also alleged that the relatives were the child’s only caretakers and they

were unable to give a reasonable explanation for the child’s injuries. The juvenile court

entered an order of temporary protective custody, and the child remained in Children’s

Division’s temporary care and custody.

After the juvenile court removed the child from the relatives’ custody, the

Juvenile Officer filed a motion to dismiss the relatives as “interested parties,” arguing

that because the relatives were no longer custodians of the child, the relatives lacked

both standing and a statutory direct interest in the matter. The juvenile court did not

rule on the motion before the adjudication and dispositional hearing.

The relatives’ first attorney entered her appearance in mid-July 2021, and, on

July 23, 2021, the relatives filed motions to disqualify both the judge and guardian ad

litem. The case was reassigned to a different judge and the guardian ad litem remained

on the case. That same day, the juvenile court held a protective custody hearing, 3 after

2 The petition itself did not reference section 211.031, but the attached probable cause statement did. 3 The juvenile court previously extended its order for protective custody two times, but the reason for the extensions is unknown. The relatives do not assert error related to these extensions.

3 which the juvenile court ordered the child remain in Children’s Division temporary

protective custody. The juvenile court scheduled an adjudication hearing for August

30, 2021.

On August 19 and August 24, 2021, a new attorney entered his appearance for

the relatives, and the relatives’ previous attorney withdrew.

Three days before the adjudication hearing, the relatives ’ new counsel filed a

motion for continuance. In the motion, the relatives gave the following reason for the

continuance request: “The witness is not available for the scheduled matter.” The

motion did not include any additional details, and it did not include an affidavit. The

Juvenile Officer did not consent to the continuance request and filed suggestions in

opposition. The juvenile court did not rule on the motion for continuance before the

adjudication hearing.

The parties, including the relatives and their attorney, appeared for the

adjudication hearing. The juvenile court heard arguments on the relatives ’ continuance

motion at the start of the hearing, and the juvenile court denied the continuance request

and the case proceeded to trial.

At trial, a doctor from Children’s Mercy Hospital (who was also a child abuse

pediatrics fellow) testified that she examined the child, and that the child had second-

degree burns on her feet and legs, and had four healing leg fractures. The doctor

testified that the child’s fractures were of the type caused by “pulling, yanking, and in

some cases twisting of the bones.” The doctor stated that there was a “high probability”

that all of the above injuries were a result of child abuse and neglect . A Children’s

Division investigator testified that the Division initially recommended the child remain

4 with the relatives, but after receiving additional information from the doctor about the

child’s injuries, the recommendation changed to the child remaining in Children ’s

Division custody. The relatives testified and denied that they abused the child, and

said the burns were accidental.

The juvenile court issued a judgment finding that the allegations of the petition

were established by clear and convincing evidence, that the relatives neglected or

refused to provide the proper care necessary for the child’s well-being, and determined

it had jurisdiction over the child pursuant to section 211.031. A dispositional hearing

was held immediately following adjudication, and the child was committed to the

custody of the Children’s Division for appropriate placement. 4 The juvenile court also

ordered the relatives “released as parties” from the case.

After the adjudication and dispositional hearing, the juvenile court entered a

separate judgment in the adoption case terminating its earlier order granting temporary

custody of the child to the relatives. The relatives took no further action on the

adoption case and did not appeal.

The relatives 5 filed a motion for new trial, the guardian ad litem filed suggestions

in opposition, and the parties appeared for a hearing on the motion in December 2021.

The juvenile court denied the motion.

The relatives appeal.

4 At oral argument, the relatives’ counsel suggested that they were not present at the dispositional hearing. The transcript from the hearing does not indicate whether the relatives left the courtroom before the dispositional stage, but the relatives ’ counsel remained at the hearing, addressed the court, and argued about the appropriate placement for the child. 5 The motion for new trial was filed only on the aunt’s behalf.

5 Legal Analysis

“‘This Court has an obligation, acting sua sponte if necessary, to determine its

authority to hear the appeals that come before it.’” In re D.R.T., 626 S.W.3d 311, 314

(Mo. App. W.D. 2021) (quoting State v. Johnson, 617 S.W.3d 439, 443 (Mo. banc

2021)). See also In re J.N.W., 643 S.W.3d 618, 627 (Mo. App. W.D. 2022). Therefore,

although neither party has raised the issue in this Court, before we address the merits

of the relatives’ claims we must first determine whether the relatives are entitled to

appeal.

“Article V, section 5 of the Missouri Constitution provides that [the Supreme

Court of Missouri] may issue procedural rules but that those rules ‘shall not change . .

. the right of appeal.’” Butala v. Curators of Univ. of Mo., 620 S.W.3d 89, 93 (Mo.

banc 2021). Therefore, “‘it is for the legislature to set the requirements for the right

to appeal.’” J.N.W., 643 S.W.3d at 627 (quoting D.E.G. v. Juv. Officer of Jackson Cnty.,

601 S.W.3d 212, 216 (Mo. banc 2020)).

“The right of appeal is statutory.” In re J.I.S., 791 S.W.2d 379, 379 (Mo. banc

1990); In re Beste, 515 S.W.2d 530, 533 (Mo. 1974); In re M.B.F., 528 S.W.3d 480,

484 (Mo. App. W.D. 2017). “‘[W]here a statute does not give a right to appeal, no right

exists.’” J.N.W., 643 S.W.3d at 627 (quoting D.E.G., 601 S.W.3d at 216).

Rule 120.01(a) 6 provides that appeals in juvenile court matters shall be allowed

“as provided by statute.” Section 211.261.1 allows appeals from juvenile court final

judgments, orders, or decrees issued under chapter 211 and provides in pertinent part:

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 6 Rule references are to Supreme Court Rules (2021), unless otherwise stated.

6 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 . . . .

(emphasis added). A “parent” is defined in section 211.021(5) as “either a natural

parent or a parent by adoption and if the child is illegitimate, ‘parent’ means the

mother[.]”

“If [an] appeal is [taken] under the Juvenile Code, appellant must come within

the class of persons entitled to appeal.” Beste, 515 S.W.2d at 533. “The Juvenile Code,

Chapter 211 . . . is a complete act or law within itself, and [s]ection 211.261 . . . is

construed to require all appeals under the Code to be taken in compliance with that

section.” Id. (citing In re C—, 314 S.W.2d 756, 759 (Mo. App. 1958)) (emphasis

added). The Supreme Court of Missouri has held: “Where a separate appeals process

is specified by law, the general provision contained in section 512.020 is inapplicable. ”

Abmeyer v. State Tax Comm’n, 959 S.W.2d 800, 802 (Mo. banc 1998) (citing J.I.S., 791

S.W.2d at 379). 7

In order to appeal the juvenile court’s judgment entered under chapter 211, the

relatives must derive authority from section 211.261. See J.I.S., 791 S.W.2d at 379. In

J.I.S., a Juvenile Officer filed a delinquency petition against a juvenile. Id. The court

found the statute on which the delinquency petition relied to be unconstitutional, and

discharged the juvenile. Id. The Juvenile Officer appealed and attempted to rely on

section 512.020 for authority to appeal, which permits an appeal by “[a]ny party . . .

7 The dissenting opinion in Abmeyer even referenced the J.I.S. holding, discussed infra, but reasoned J.I.S. did not apply in the case because the statute at issue in Abmeyer, section 137.155 RSMo 1994, was not part of a “complete” or self-contained code like the Juvenile Code. Abmeyer v. State Tax Comm’n, 959 S.W.2d 800, 806 (Mo. banc 1998) (Holstein, J., dissenting).

7 aggrieved by any [civil] judgment.” Id. The Supreme Court of Missouri dismissed the

appeal and held that the Juvenile Officer had no right to appeal under a version of

section 211.261 that did not specifically list the Juvenile Officer in the class of persons

authorized to appeal. 8 Id. The Court also noted its desire “to avoid holdings in which

a trial court’s judgment is unreviewable” but that the Court could not “invade the

General Assembly’s province to create a right of appeal where none exists.” Id.

After the J.I.S. decision, in 1994 the Missouri legislature amended section

211.261 to include, among other things, statutory authorization for the Juvenile Officer

to appeal.

Here, the juvenile court appointed a guardian ad litem to represent the child’s

interests, and the relatives do not purport to appeal on the child’s behalf. 9 Because the

relatives are neither parents, as defined by section 211.021(5), nor bringing the appeal

on the child’s behalf, the relatives lack statutory authority under section 211.261 to

appeal the juvenile court’s chapter 211 judgment. See J.I.S., 791 S.W.2d at 379; M.B.F.,

528 S.W.3d at 484. 10

8 Section 211.261 RSMo 1986 provided, in pertinent part:

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. 9 Although the relatives’ counsel discussed the possibility of appealing on the child’s behalf at oral argument, this was not alleged in briefing to this Court and is not supported by the relatives’ notice of appeal.

10 See also In re Beste, 515 S.W.2d 530, 533 (Mo. 1974) (holding that prospective adoptive fathe r, if attempting to appeal under the Juvenile Code, was not authorized under section 211.261 to appeal); Matter of Trapp, 593 S.W.2d 193, 204 (Mo. banc 1980) (stating that foster parents had no right to appeal a judgment denying their motion to intervene in a chapter 211 proceeding, citing section 211.261 RSMo 1978 and In re Baby Girl B—, 545 S.W.2d 696, 697 (Mo. App. 1976)); In re N.D., 120 S.W.3d 782, 787 (Mo. App. S.D. 2003) (holding that a grandfather had the right to appeal as a relative on his

8 The Missouri Supreme Court cases of Beste and J.I.S. appear to stand for the

proposition that if a party does not fall within those specified in 211.261, then they are

not authorized to appeal. The additional intermediate appellate cases cited in note ten

hold that only the parties listed in section 211.261 may appeal a judgment entered under

chapter 211. And yet, a handful of intermediate appellate cases from each district have

held that section 512.020 gives those otherwise excluded parties an avenue to appeal if

they are an “aggrieved party.” 11 Therefore, a significant split of authority exists on the

issue of whether an appealing party can rely on section 512.020 for authority to appeal

a juvenile court judgment issued under chapter 211 when they are not specifically listed

in section 211.261. We are troubled that cases issued after Beste and J.I.S. seem to

disregard or overlook the Beste and J.I.S. holdings.

granddaughter’s behalf, but not on his own behalf under section 211.261); In re J.A.D., 905 S.W.2d 101, 105 (Mo. App. S.D. 1995) (holding that ‘‘[the foster parents] have no right to appeal because . . . section 211.261.1 does not confer such a right upon them’’); In re Baby Girl B—, 545 S.W.2d at 697 (reiterating after the second appeal of Beste that an individual who was not a parent lacked authority to appeal under section 211.261).

11 See, e.g., B.D. v. Mo. Dep’t of Soc. Servs. Children’s Div., 645 S.W.3d 681, 685 (Mo. App. W.D. 2022) (stating that “Children’s Division’s exclusion from the list of parties permitted to appeal from a juvenile court judgment under section 211.261 . . . is of no consequence” and holding that the Children’s Division was authorized to appeal a judgment entered under section 211.036); In re L.C., 477 S.W.3d 171, 173-74 (Mo. App. E.D. 2015) (stating that Children’s Division was aggrieved in a case where it was ordered to pay benefits and services to a juvenile ’s caretaker and thus could appeal under section 512.020 even though Childre n’s Division had no authority to bring the appeal under section 211.261); In re D.T., 248 S.W.3d 74, 76-78 (Mo. App. W.D. 2008) (holding that while an appellant, who was not a parent to the children, was not authorized to appeal under section 211.261, he had authority to appeal as an “aggrieved party” under section 512.020); In re L.J.H., 67 S.W.3d 751, 752 (Mo. App. S.D. 2002) (concluding that grandparents had the right to appeal the denial of their motion to intervene as aggrieved parties under section 512.020 where section 211.261 did not grant such authority), abrogated on other grounds by In re S.M.B., 588 S.W.3d 641, 643 (Mo. App. S.D. 2019); In re R.M.P., 811 S.W.2d 61, 62-63 (Mo. App. E.D. 1991) (stating that in “order to have standing to appeal, [appellants] must derive authority from either section 512.020. . . or section 211.261” and concluding that an aunt and uncle who were given legal custody of a child following abandonment proceedings lacked authority to appeal the modification of custody order removing the child from their home under section 211.261 and under section 512.020 as “aggrieved parties”).

9 We choose to follow the line of cases applying only section 211.261 to determine

who is authorized to appeal from the Juvenile Code. We are also, however, troubled

by the number of parties to an action brought under the Juvenile Code to which there

would be no right of appeal or review.

Under article V, section 2 of the Missouri Constitution, we are bound to follow

the holdings of J.I.S., and Beste, recognizing that the Juvenile Code is a complete act

or law within itself, and therefore authority to appeal must come from section 211.261.

Therefore, the relatives are not permitted to rely on section 512.020 to derive authority

to appeal the juvenile court’s judgment entered under section 211.031.

Conclusion

We would dismiss the appeal because the relatives are not authorized under the

Juvenile Code to pursue this appeal. However, in light of the divergent authority on

the application of section 512.020 to appeal juvenile court judgments issued under

chapter 211, we do not finally dismiss the relatives’ appeal, but instead, on our own

motion transfer this case to the Supreme Court of Missouri for decision pursuant to

Rule 83.02 for the purpose of reexamining the existing law.

Janet Sutton, Presiding Judge

Ahuja and Mitchell, JJ. concur.