State ex rel. T.W., Relator v. The Honorable Steven R. Ohmer, Judge, Respondent.

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

Case Style: State ex rel. T.W., Relator v. The Honorable Steven R. Ohmer, Judge, Respondent. Case Number: SC85631 Handdown Date: 03/30/2004 Appeal From: Original Proceeding in Prohibition Counsel for Appellant: Kayla Vaughan, Chris E. Rollins and Mark H. Kruger Counsel for Respondent: Thad Hollie, Jr., Rita M. Montgomery, Gary L. Gardner, Bryan L. Hettenbach, Karen A. Dill, Donna L. Head, Susan C. Guerra, Bernhardt W. Klippel, III, R. Jeff Childress, Patricia A. Hageman and Edward J. Hanlon Opinion Summary: In December 2002, the court terminated the parental rights of the natural mother of twin girls K.A.W. and K.A.W. The mother appealed. While her appeal was pending, the court permitted the twins' foster parents to adopt them, entering its adoption decree in April 2003. The mother seeks relief from this Court. PRELIMINARY ORDER MADE ABSOLUTE. Court en banc holds: The court abused its discretion in proceeding with the adoption while the mother's appeal of the judgment terminating her parental rights was pending. Proceeding with adoption while a termination of parental rights is reviewed on appeal compromises the parent's right to appellate review by requiring, as an effective condition to reversing the termination, that the appellate court be prepared to address a separate adoption proceeding.

parental rights (see summary of SC85683 decided this date), the author agrees that the adoption also must be set aside. The author notes that sections 211.447.8 and 453.040(8), RSMo 2000, permit actions for termination of parental rights and adoption to be combined in one proceeding and that, pursuant to Rule 120.01(b), an adoption should be stayed pending the outcome of an appeal of a parental rights termination judgment.

Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: PRELIMINARY ORDER MADE ABSOLUTE. White, C.J., Wolff and Stith, JJ., concur; Price, J., concurs in separate opinion filed; Benton and Limbaugh, JJ., concur in opinion of Price, J. Opinion: Relator seeks a writ of prohibition barring respondent from taking any further action other than to set aside his "Order, Judgment and Decree of Adoption" concerning the minors K.A.W. and K.A.W. Relator is the natural mother of K.A.W. and K.A.W. On December 11, 2002, respondent entered a judgment terminating relator's parental rights as to K.A.W. and K.A.W., and relator appealed. (FN1) While the appeal was pending, respondent proceeded with the adoption of K.A.W. and K.A.W. by their foster parents, entering his "Order, Judgment and Decree of Adoption" on April 18, 2003. A parent whose rights as to a child have been terminated has the right to appeal. In the Interest of M.E.W., 729 S.W.2d 194 (Mo. banc 1987); see sec. 453.011.2. (FN2) Proceeding with adoption while the termination is reviewed on appeal compromises the parent's right to appellate review by requiring, as an effective precondition to reversal of the termination, that the appellate court be prepared to address a separate adoption proceeding. In re J.K., 661 N.W.2d 216, 225 (Mich. 2003); see sec. 453.160. "The extraordinary remedy of a writ of prohibition is appropriate in one of three circumstances: (1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy a excess of jurisdiction or an abuse of discretion where the lower court lacks the power to act as intended ; or (3) where a party may suffer irreparable harm if relief is not made available in response to the trial court's order." State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 776 (Mo. banc 2003). It is an abuse of discretion and a circuit court lacks the power to proceed with adoption of a child who has been the subject of a termination of parental rights while an appeal of the judgment terminating parental rights is pending. The preliminary writ is made absolute. Respondent is ordered to set aside his "Order, Judgment and Decree of Adoption" concerning the minors K.A.W. and K.A.W.

Footnotes: FN1. T.W.'s direct appeal of the termination of her parental rights was argued before this Court concurrently with this writ. See In the Interest of K.A.W. and K.A.W., ___ S.W.3d ___ (Mo. banc 2004) (No. SC85683, decided March 30, 2004).

A.W., the natural father, consented to termination of his parental rights and did not appeal. FN2. All statutory references are to RSMo 2000. Separate Opinion: Concurring Opinion by Judge Price: Missouri statutes 211.447.8 and 453.040(8), RSMo 2000, provide that actions for termination of parental rights and adoption may be combined in one proceeding. Should a party appeal a judgment terminating parental rights, the judgment of adoption should be stayed pending the outcome of the appeal. See Rule 120.01(b). Although I do not agree with the majority in its decision to reverse and remand the trial court's judgment terminating parental rights in In the Interest of: K.A.W. and K.A.W., No. SC85683 (Mo. banc Mar. 30, 2004), the effect of that outcome must be to set aside the adoption action as well. For this reason, I concur in the result of the majority decision to issue the writ.

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