Kierst v. L.L.

989 S.W.2d 673, 1999 Mo. App. LEXIS 515
CourtMissouri Court of Appeals
DecidedApril 20, 1999
DocketNos. WD 55195 to WD 55198
StatusPublished
Cited by12 cases

This text of 989 S.W.2d 673 (Kierst v. L.L.) 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
Kierst v. L.L., 989 S.W.2d 673, 1999 Mo. App. LEXIS 515 (Mo. Ct. App. 1999).

Opinion

HOWARD, Judge.

Natural mother and natural father appeal from the judgments terminating their parental rights with respect to two minor children, L.T. and L.L. Appellants raise three points. First, they contend that the trial court lacked subject matter jurisdiction to terminate their parental rights because the court’s findings that the children had been adjudicated abused or neglected and that the children had been under the jurisdiction of the court for more than a year were dependent on the underlying Chapter 211 judgments, which are void because they were signed by a family court commissioner with no assent by a judge. Appellants further contend under this point that the underlying “judgment” [675]*675regarding L.L. is void because it has no finding of reasonable efforts. The second point on appeal is that the trial court erred in sustaining the petition for termination of parental rights regarding L.L. on the ground stated in § 211.447.2(3)1 because the court’s finding that the child has been under the jurisdiction of the court for a period exceeding one year was not pleaded in the petition for termination, nor was it supported by substantial evidence. The third point on appeal is that the trial court erred in sustaining the petitions for termination regarding L.T. and L.L. on the ground stated in § 211.447.2(2) because there was no evidence that the children were adjudicated abused or neglected.

We affirm.

Facts

L.T.

A first amended petition was filed on September 11,1995, in the interest of L.T., a girl born on July 27, 1995. The petition was further amended in open court on October 25, 1995, and as amended alleged as follows: “The child is without proper care, custody, and support in that, in August and September, 1995, the child was diagnosed with failure to thrive, secondary to a failure of the mother to provide adequate nutrition for the child.” On October 25, 1995, the amended petition came on for hearing before a family court commissioner. On October 27, 1995, the commissioner entered his “judgment,” sustaining the petition and finding that L.T. was in need of care and treatment. The commissioner ordered that L.T. be placed in the custody of the Division of Family Services (“DFS”).

On February 24,1997, a petition for termination of parental rights was filed in the interest of L.T.

L.L.

A petition was filed on October 30, 1996, in the interest of L.L., a boy born on November 14, 1996. The petition was amended in open court on March 4, 1997, and as amended alleged as follows: “The child is without proper care, custody and support in that the parents are unable to adequately parent the child at this time. Further, the parents are in need of services to assist in developing further parenting skills.” On March 4, 1997, the petition came on for hearing before a family court commissioner. On March 5, 1997, the commissioner entered his “judgment,” sustaining the petition and finding that L.L. was in need of care and treatment. As with L.T., the commissioner ordered that L.L. be placed in the custody of DFS.

On April 9,1£(97, a petition for termination of parental rights was filed in the interest of L.L.

Termination Proceeding

On October 9,1997, the petitions for termination of parental rights with respect to both children came on for hearing before a family court judge. The juvenile officer asked the court to take notice of the underlying judgments with regard to L.T. and L.L., and the court took note of its own records.

On November 24, 1997, the judge entered his judgments terminating Appellants’ parental rights. The court found sufficient evidence to sustain the petitions pursuant to § 211.447.2(2)(a) and § 211.447.2(3)(a), (b) and (e). This appeal followed.

Standard of Review

A trial court’s order terminating parental rights will be affirmed unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. In Interest of J.M.L., 917 S.W.2d 193, 195 (Mo.App. W.D.1996). We view the facts and all reasonable inferences therefrom in the light most favorable to the trial court’s order. Id. This court will reverse only when left with a firm belief the judgment is wrong. Id.

Point I

The first point on appeal is that the trial court lacked subject matter jurisdiction to terminate Appellants’ parental rights. The court terminated Appellants’ parental [676]*676rights on the basis of §§ 211.447.2(2) and (3). Appellants argue that the court lacked subject matter jurisdiction to terminate their parental rights on those bases because the court found pursuant to § 211.447.2(2) that L.T. and L.L. had been adjudicated abused and neglected, and pursuant to § 211.447.2(3) that L.T. and L.L. had been under the jurisdiction of the court for a period exceeding one year, and those findings were dependent on the underlying Chapter 211 judgments, which are void because they were signed by a family court commissioner and there was no assent by a judge.

Waiver and Estoppel

In Slay v. Slay, 965 S.W.2d 845 (Mo. banc 1998), the Missouri Supreme Court held that documents signed by a family court commissioner do not constitute final appealable judgments because they “are not signed by a person selected for office in accordance with and authorized to exercise judicial power by article V of the state constitution.” Slay, 965 S.W.2d at 845; see also Fowler v. Fowler, 984 S.W.2d 508 (Mo. banc 1999).

Shortly after the Slay decision, the Missouri Supreme Court held in State ex rel. York v. Daugherty, 969 S.W.2d 223, 225 (Mo. banc 1998), that any party who fails to challenge the commissioner’s “judgment” waives the right to object to the commissioner’s authority, findings and legal conclusions, and any party who assumes the benefits or burdens of the “judgment” is estopped from attacking it. See also Fowler, id. Therefore, as to any such party, “the commissioner’s findings and recommendations are as conclusive as if entered as the judgment of an article V judge.” York, 969 S.W.2d at 225; Fowler, id.

Section § 211.029 provides a similar mechanism to that in York for testing the correctness of the commissioner’s determination. Section § 211.029 provides, in relevant part, that “[t]he minor and his parents ... are entitled to file with the court a motion for a hearing by a judge of the juvenile court within fifteen days after receiving notice of the findings of the commissioner.” Appellants did not take advantage of this mechanism with regard to the underlying judgments, and therefore they have waived any objection to the commissioner’s authority and findings in this case. The only distinction between York and the present case is that in this case Appellants are not directly attacking the commissioner’s determination, but instead they are attacking a judgment relying on that determination. We find that this is a distinction without a difference. As we read York,

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Bluebook (online)
989 S.W.2d 673, 1999 Mo. App. LEXIS 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kierst-v-ll-moctapp-1999.