In the Interest of S.M.H., a minor. Missouri Department of Social Services, Division of Family Services, Juvenile Officer, Petitioners/Respondents v. T.H., Jr., Respondent/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: In the Interest of S.M.H., a minor. Missouri Department of Social Services, Division of Family Services, Juvenile Officer, Petitioners/Respondents v. T.H., Jr., Respondent/Appellant. Case Number: ED84210 Handdown Date: 11/09/2004 Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley Counsel for Appellant: Michele Hammond Counsel for Respondent: Gary L. Gardner and Margaret E. Gangle Opinion Summary: Father appeals from the court's judgment terminating his parental rights pursuant to section 211.447, RSMo 2000. On appeal, father contends that the court erred in denying his request for a change of judge. REVERSED AND REMANDED. TRANSFERRED TO MISSOURI SUPREME COURT. Division Two holds: (1) Under State ex rel. Brault v. Kyser, 562 S.W.2d 172, 174 (Mo.App. 1978), the trial court erred in denying the motion for change of judge under Rule 126.01 because the termination of parental rights petition commenced a new civil action. (2) Rule 126.01(c), adopted after Brault, provides that a supplemental petition under chapter 211, RSMo, is not an independent civil action. (3) We transfer the case to the Supreme Court of Missouri because of the importance of the question whether the termination of parental rights petition filed in an action commenced under section 211.031, RSMo 2000, is a "supplemental petition" under chapter 211. Citation: Opinion Author: Kathianne Knaup Crane, Judge Opinion Vote: REVERSED AND REMANDED. TRANSFERRED TO MISSOURI SUPREME COURT. Cohen, P. J., concurs. Dowd, Jr., J., concurs in result with separate concurring opinion.

Opinion: Father appeals from the trial court's judgment terminating his parental rights pursuant to Section 211.447 RSMo (2000). On appeal, father contends that the trial court erred in denying his request for a change of judge. He further challenges the sufficiency of the evidence to support the trial court's findings that the statutory grounds for termination exist and that termination was in the child's best interests. He also asserts that certain evidentiary rulings were erroneous. We reverse and remand on the denial of the request for change of judge and transfer to the Missouri Supreme Court pursuant to Rule 83.02 because of the general interest and importance of this question. Father, T.H., Jr., is the natural father of S.M.H. (the child), born on October 6, 2001. S.M.F. is the natural mother of the child. On April 27, 2002, pursuant to a petition filed in Cause No. 025-398, the child was taken into protective custody by the Division of Family Services (DFS). On May 3, 2002, the court held a protective custody hearing and ordered that the child remain in protective custody and set trial for June 10, 2002. The trial was held on June 10 and 12, 2002. On June 12, 2002, the court awarded DFS temporary legal and physical custody for appropriate placement of the child and determined that father was an appropriate placement. It scheduled a review hearing for October 8, 2002. On June 17, 2002, the court entered Findings and Judgment of Jurisdiction based on the June 10 trial. On the same date, the court entered an Order and Judgment of Disposition and set a review hearing on October 8, 2002. This hearing was subsequently continued to October 22, 2002. After the October 22, 2002 review hearing, the trial court entered a Review Order that the child should remain in the temporary legal custody of DFS for appropriate placement, "which may or may not be the Father, which is to be determined by the Family Support Team." On November 4, 2002, father filed a Motion to Modify Review Order, which was subsequently modified by consent of the parties. After the February 6, 2003 review hearing, DFS filed a Permanent Plan Summary, which recommended that the child return to the legal custody of father and mother. On February 13, 2003, after conducting a Permanency Planning Hearing retaining jurisdiction and ordering DFS to continue its reunification efforts, the court entered a Permanency Review Order. On June 25, 2003, DFS filed a Permanent Plan Summary recommending that the child be returned to the legal custody of father and mother, that DFS terminate custody, and that the court terminate jurisdiction over the child. On June 25, 2003, the trial court continued the review hearing until August 11, 2003, allowed father visitation, and ordered DFS to file a guardianship petition within thirty days from that order. On August 11, 2003, the court held a Post-Permanency Review Hearing, after which it entered a Post-Permanency

Review Order finding that the permanent plan that would best serve the child's interests was termination of mother's and father's parental rights and ordered DFS to file a petition for termination of mother's and father's parental rights. DFS filed a Petition to Terminate Parental Rights pursuant to Section 211.447 on September 8, 2003 in the same case, Cause No. 025-398. On September 15, 2003, father filed a Motion to Terminate Temporary Legal and Physical Custody of the Division of Family Services over [the child] and to Return Physical and Legal Custody of [the child] to Father. The court held a trial on father's motion on September 22, 2003. On October 8, 2003, the trial court entered Findings, Conclusions and Judgment denying father's motion. On November 4, 2003, father filed a motion for new trial or to amend the October 8 judgment, which was subsequently denied. Also on November 4, the trial court set the trial on the Termination of Parental Rights petition for December 18, 2003. On November 10, 2003, father filed an application for change of judicial officer pursuant to Rules 126.01(b) and 44.01. After a hearing on November 26, 2003, the trial court denied the motion for change of judicial officer. The trial on the petition to terminate parental rights began on December 18, 2003. On January 28, 2004, the trial court entered its Findings, Conclusions and Judgment Terminating Parental Rights. For his first point, father asserts the trial court erred in denying his request for change of judge. Father claims that he was entitled to a change of judge because he made a timely request pursuant to Rule 126.01. Courts "adhere to a rule of liberal construction in favor of the right to disqualify." State ex rel. Stubblefield v. Bader, 66 S.W.3d 741, 742 (Mo. banc 2002). Rule 126.01(b) entitles a party to a change of judicial officer if filed "within five days after a trial date has been set . . . ." Father asserts, and the juvenile officer agrees, that father filed his motion to change judicial officer within five days after a trial was set on the termination petition. The juvenile officer contends that the termination of parental rights petition filed pursuant to Section 211.447 is a supplemental petition under Chapter 211 in the care and protection proceedings that had been held and tried over a two- year period prior to the termination proceeding. In Stubblefield, DFS had filed a petition to obtain custody of the relator's children. The court held a protective custody hearing on February 22, followed by a "first hearing" on the petition on April

1. On April 30, the relator filed a written request for a "trial setting," which was granted that day, and an application for

change of judge. The Missouri Supreme Court held that none of the prior hearings had been a "trial on the merits," and therefore relator's request was timely. 66 S.W.3d at 742. Similarly, in State ex rel. L.B. v. Frawley, 136 S.W.3d 534, 535 (Mo.App. 2004), the juvenile officer had filed a petition alleging that the relator's son came within the provisions of Section 211.031. The court held a protective custody hearing

the next day and ordered the son placed in protective custody. The case was continued for a status conference. After the relator's motion to disqualify the guardian ad litem was denied, the relator filed a motion for change of judge pursuant to Rule 126.01(b). Applying Stubblefield, we held that the previous hearing had not been a trial on the merits, and therefore, the motion should have been granted. Id. at 536. In State ex rel. Brault v. Kyser, 562 S.W.2d 172 (Mo.App. KC 1978), the juvenile officer filed a petition under Section 211.031 to have the juvenile court take jurisdiction of the relator's children. The court did take jurisdiction. The juvenile officer subsequently filed a petition to terminate parental rights under Section 211.441 in the same case. A judgment terminating parental rights was entered, but reversed on appeal. During the course of the litigation that followed, the relator filed a motion for change of judge on a particular motion, which was granted. The juvenile officer subsequently filed a new petition to terminate parental rights in the same case. In response, the relator filed a change of judge application, but the court denied the motion on the grounds that relator had already had one change of judge. The court of appeals held that neglect proceedings under Sections 211.031-211.431 and termination proceedings under Sections 211.441-211.511 have fundamentally different purposes. Id. at 174. As a result, it concluded that the petition to terminate parental rights "instituted a new and different 'civil action' within the meaning of Rule 51.05(d) and permitted a fresh application for change of judge." Id. Stubblefield and Frawley could be distinguished from this case on the grounds that the only hearing previously held in those cases was a protective custody hearing which is in the nature of a preliminary proceeding, whereas this case had had several trials and evidentiary hearings on the merits of the care and protection proceedings. However, Brault would compel us to reverse the judgment and remand for new trial on the grounds that the trial court erred in denying the motion for change of judge, because the filing of the petition to terminate parental rights commenced a new civil action. However, Brault was decided before Rule 126.01(c) became effective. That section of the rule, which became effective January 1, 1999, provides: c. For purposes of this Rule 126.01, a supplemental petition and a motion to modify a prior order of disposition under chapter 211, RSMo, shall not be deemed to be an independent civil action unless the judicial officer designated to hear the motion is not the same judicial officer that heard the previous action. The petition to terminate parental rights was filed in the same case as the care and protection proceeding after the trial court found that the permanent plan that would best serve the child's interests was termination of parental rights and ordered DFS to file a petition for termination of parental rights. The juvenile officer contends that this was a "supplemental petition" under Chapter 211 that did not commence an independent civil action under Rule 126.01(c). This issue has never

been addressed. Whether the petition to terminate parental rights filed in an action commenced under section 211.031 is a "supplemental petition" for purposes of Rule 126.01(c) is an important question of general interest to the administration of family courts. Therefore, we transfer to the Missouri Supreme Court pursuant to Rule 83.02. The judgment of the trial court is reversed and remanded and the case is transferred to the Missouri Supreme Court.

Separate Opinion:

case to the Supreme Court. I write separately to raise the additional issue that Rule 126.01(c) be construed consistent with the underlying philosophy of the Family Court as adopted by the legislature in Chapter 487. Since State ex rel. Brault v. Kyser, 562 S.W.2d 172, 174 (Mo.App.W.D. 1978), the Supreme Court has adopted Rule 126.01(c), which states "a supplemental petition and a motion to modify a prior order of disposition under chapter 211, RSMo, shall not be deemed to be an independent civil action" permitting a change of judge. Good policy reasons exist to limit judicial disqualifications after dispositional orders are entered. The judge is familiar with the entire history of the child's family and of the relationship between the parent and the child. The judge is therefore better able to make decisions in the best interest of the child and family. An aphorism concisely states this principle: "one judge for one family," which is the basis for the family court idea. The instant case is a perfect example of how this principle works. Here, the judge had followed the case from its inception. There had been an adjudication and disposition. There were numerous proceedings and court hearings, all of which were presided over by the same judge. The judge had been following the case for almost two years before the termination of parental rights petition was heard. The trial court's denial of Father's motion to disqualify the judge was consistent with the philosophy of the Family Court as promulgated in Rule 126.01(c).

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.