In the Interest of: J.T.S. Juvenile Officer v. H.J.S. (Mother)

In the
Missouri Court of Appeals
Western District
IN THE INTEREST OF: J.T.S.; )
)
JUVENILE OFFICER, ) WD77713
)
Respondent, ) OPINION FILED: June 2, 2015
)
v. )
)
H.J.S. (MOTHER), )
)
Appellant. )

Appeal from the Circuit Court of Platte County, Missouri
The Honorable Wanda A. Hansbrough, Judge

Before Division Four: Lisa White Hardwick, Presiding Judge, James E. Welsh, Judge
and Cynthia L. Martin, Judge

H.J.S. ("Mother") appeals an adjudication and disposition judgment of the Circuit

Court of Platte County finding that her son, J.S., should be subject to the jurisdiction of

the court and placed in the custody of the Missouri Children's Division due to allegations

of abuse. Mother alleges that the State failed to properly allege abuse or neglect in its

petition and that the court lacked sufficient evidence to find abuse. We dismiss the

appeal because it is moot.
 Factual and Procedural Background

Mother is the natural mother of J.S. Six year-old J.S. resided with Mother, his

nine year-old sister, E.S., and Mother's boyfriend ("A.K.").

On April 10, 2014, Mother discovered that J.S. had a serious burn on his hip and

thigh. Mother immediately sought appropriate medical care for J.S. At the time of the

injury, J.S. was in his room. Mother and A.K. were present in the home. Mother did not

witness and could not explain how the injury occurred.

On April 11, 2014, the Platte County Juvenile Office ("Juvenile Office") filed for

and was granted a request for Temporary Protective Custody of J.S. The Juvenile Office

then filed a Petition ("Petition") requesting that J.S. be placed in protective custody. The

Petition alleged that J.S. was injured while in the care, custody, and control of Mother

and A.K., and that Mother had been unable to provide an explanation as to how the

juvenile was injured.1

A protective custody hearing was held on April 16, 2014. Mother stipulated that

J.S. should be placed in protective custody with her parents. The order placing J.S. in

protective custody provided that an adjudication hearing would be held on June 9, 2014.

At the adjudication hearing, Mother stipulated that the injuries to J.S. alleged in

the Petition occurred. She objected, however, to the Petition, claiming that it was

deficient because it failed to allege abuse or neglect pursuant to Section 211.031. Mother

further argued that there was insufficient evidence for the Court to make a finding of

abuse or neglect as to support jurisdiction pursuant to Section 211.031. The trial court
1
The cause of J.S.'s burn, which experts characterized as a scald, was never definitively determined by the
trial court.

2
entered a Finding of Jurisdiction, Final Order and Judgment of Disposition ("Disposition

Judgment") on June 10, 2014, that placed J.S. under the care, custody, and control of the

Missouri Children's Division for alternative care and placement.2 The Disposition

Judgment did not find that J.S. had been abused and found only that J.S. was injured

while in the care, custody and control of Mother and A.K. under circumstances where

Mother was "unable to provide an explanation" for the injury.

Mother appealed the Disposition Judgment.

Analysis

"Before considering the merits of this dispute, we must determine whether or not

we have jurisdiction to decide the appeal." In re J.L.R., 257 S.W.3d 163, 165 (Mo. App.

2008). An appellate court is not permitted to review moot claims of error. Id. "A case is

moot when the circumstances that surround it change sufficiently to cause a legal

controversy to cease, and a decision by the judiciary would be insignificant in providing

effective relief." Id. (citing State ex rel. Missouri Gas Energy v. Pub. Serv. Comm'n, 224

S.W.3d 20, 24-5 (Mo. App. W.D. 2007)).

The remedy Mother seeks in this appeal is our mandate to vacate the Disposition

Judgment and to remove J.S. from the care and custody of the Missouri Children's

Division. On April 27, 2015, and, thus, after this appeal was filed, the trial court entered

its Order and Judgment on Motion to Terminate Court Jurisdiction, granting Mother's

motion to terminate the court's jurisdiction over J.S. and to discharge J.S. from the care,

custody, and control of the Missouri Children's Division. The April 27th, 2015 judgment

2
The Disposition Judgment was amended Nunc Pro Tunc on June 11, 2014.

3
expressly ordered that J.S. be "immediately return[ed] to the care, custody and control of

[Mother]." Though the April 27, 2015 judgment is not a part of the record in this appeal,

it was brought to our attention by the Juvenile Officer in connection with a second appeal

taken by Mother from an interim placement determination made by the trial court. 3 "In

determining mootness, the appellate court may consider facts outside the record." State

ex rel. Missouri Gas Energy, 224 S.W.3d at 25 (citing State ex rel. Monsanto Co. v. Pub.

Serv. Comm'n, 716 S.W.2d 791, 793 (Mo. banc 1986)). By virtue of the April 27, 2015

judgment, Mother has secured the relief she seeks in this appeal--the termination of

jurisdiction over J.S. and the restoration of J.S. to her care, custody, and control.

Because Mother has now secured the relief she seeks in this appeal, "a decision by

this court would not grant any effective relief." In re J.L.R., 257 S.W.3d at 165. The

facts of this case are indistinguishable from In re J.L.R. There, a mother took an appeal

from a judgment following an adjudication and disposition hearing where the court found

abuse had occurred as to which mother failed to protect the minor child. Id. While the

appeal was pending, the trial court issued an order returning custody of the child to the

mother. Id. We found mother's appeal in that case to be moot, rejecting mother's

argument that a trial court in a juvenile matter has "continuing jurisdiction during the

adjudication and dispositional phases" creating a live controversy. Id. We noted that the

continuing jurisdiction afforded a trial court continues only as "'long as the child is in the

custody of the division.'" Id. at 166 (quoting Section 211.032.4).4 Here, as in In re

3
In the Interest of J.T.S.; Juvenile Officer v. H.J.S., WD78245. Mother concedes that this appeal was
rendered moot by the trial court's April 27, 2015 order and judgment.
4
All statutory references are RSMo 2000, as supplemented.

4
J.L.R., the April 27, 2015 judgment restoring J.S. to the legal and physical custody of

Mother terminated the trial court's jurisdiction. Id. The trial court did not retain

continuing jurisdiction to provide services or supervision. Id. There remains no live

controversy before this court, rendering Mother's appeal moot.

Appellate courts are required to dismiss appeals that are moot except in "in two

narrow situations: when the case becomes moot after submission and argument, and

when the issue raised has general public interest and importance and is likely to recur and

will otherwise evade appellate review." Id. These exceptions to the mootness doctrine

are to be narrowly construed. Cross v. Cross, 815 S.W.2d 65, 66 (Mo. App. E.D. 1991).

If an exception to the mootness doctrine applies, dismissal of a moot appeal becomes

discretionary. T.D.H. v. O'Connell, 258 S.W.3d 850, 851 (Mo. App. E.D. 2008). Neither

exception to the mootness doctrine applies to this case, and even if one did, we would

exercise our discretion to dismiss Mother's moot appeal.

Mother argues that the first exception applies because this court assigned a

submission date to her case in late January 2015, before entry of the April 27, 2015

judgment. Presuming Mother is correct,5 our decision to entertain Mother's moot appeal

5
The origin of the "after argument and submission" exception to the mootness doctrine traces back to State
ex rel. Donnell v. Searcy, 152 S.W.2d 8 (Mo. banc 1941). There, our Supreme Court held that "when a case
becomes moot after it has been argued and submitted and is under the deliberation of the court pending its
decision, then the court will exercise its right of unlimited discretion to complete its deliberation of the case and
prepare an opinion and enter a final judgment on the merits if it sees fit to do so." Id. at 10 (emphasis added). Since
then, every case discussing the exception refers to the requirement of both argument and submission. See, e.g.,
T.D.H., 258 S.W.3d at 851 ("The first [exception to the mootness doctrine] applies to a case that becomes moot after
argument and submission.") (emphasis added); Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo. App. E.D. 2003)
("First, if a case becomes moot after argument and submission, then dismissal is within the discretion of the
court.") (emphasis added); Cross, 815 S.W.2d at 66 ("If a case becomes moot after submission and argument, then
dismissal for mootness is discretionary.") (emphasis added); State v. Eyberg, 671 S.W.2d 26, 28 (Mo. App. S.D.
1984) ("[D]ismissal of an appeal is discretionary if a cause has become moot after argument and submission.")
(emphasis added).

5
would simply be rendered "discretionary rather than mandatory." T.D.H., 258 S.W.3d at

851 (citing Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo. App. E.D. 2003)); see also State

ex rel. Donnell v. Searcy, 152 S.W.2d 8, 10 (Mo. banc 1941). Left to our discretion, we

dismiss Mother's appeal as moot. "Where a situation so changes that no relief may be

granted because it has already been obtained, the court will not go through the empty

formality of determining whether or not the relief asked for might have been granted."

State ex rel. Donnell, 152 S.W.2d at 10.

The second mootness exception is narrowly applied to matters of general public

interest and importance that are likely to recur and will otherwise evade appellate review.

Mother does not argue that this exception applies to her appeal. We agree that it does

not. Mother's issues on appeal involve the sufficiency of allegations and/or evidence to

support a finding of abuse and the corresponding assertion of jurisdiction over J.S. A

"challenge [to] the sufficiency of the evidence is insufficient to establish a public interest

under the second exception." In re J.L.R., 257 S.W.3d at 166; see also T.D.H., 258

S.W.3d at 851 (holding that challenges to the sufficiency of the evidence to support

lapsed protective orders are not an adequate basis to invoke the "public interest"

exception to the mootness doctrine).

Mother argues that a third exception to the mootness doctrine is recognized which

"allows courts to proceed with [a moot] appeal if the decision could have significant

Here, oral argument was waived by written agreement of the parties, and Mother's appeal was submitted on
the briefs. Mother cites no authority addressing whether the narrow "after argument and submission" mootness
exception applies to a case where oral argument has been waived. Because we would, in any event, dismiss
Mother's appeal as moot in the exercise of our discretion, we need not address the parameters of the "after argument
and submission" mootness exception.

6
collateral consequences for one or more of the parties." M.T. v. Juvenile Officer, 431

S.W.3d 539, 543 (Mo. App. E.D. 2014) (citing Glover v. Michaud, 222 S.W.3d 347, 351

(Mo. App. S.D. 2007)). We respectfully disagree with M.T.'s attribution of the

announcement of a third mootness exception to Glover. Glover did not announce a third

mootness exception. Rather, Glover identified the two recognized mootness exceptions,

then proceeded to discuss the potential "collateral consequences" of an expired (and thus

moot) child protection order in the context of the second mootness exception involving

matters of "'general public interest and importance, recurring in nature, [that] will

otherwise evade appellate review.'" 222 S.W.3d at 350 (quoting In re A.T.H., 37 S.W.3d

423, 426 (Mo. App. S.D. 2001)). To this point, it is noteworthy that the court in M.T.

relied heavily on this court's analysis in In re J.L.R. M.T., 431 S.W.3d at 543 (citing In re

J.L.R., 257 S.W.3d 163). In In re J.L.R., we plainly held that "[c]ourts make an exception

to mootness in two narrow situations." 257 S.W.3d at 166 (emphasis added). We thus do

not agree that a third mootness exception exists.6

Regardless, it is immaterial whether "significant collateral consequences" support

recognition of a third mootness exception, or whether such considerations are merely

subsumed in determining application of the second mootness exception. In either case,

6
Because this opinion chooses not to follow M.T. insofar as its recognition of a third mootness exception,
this opinion has been reviewed and approved by order of the court en banc, as required by Missouri Court of
Appeals Western District Special Rules, Rule XXXI (2015), and in accordance with Supreme Court Operating Rule
22.01.
No case decided after M.T. has mentioned a third exception to the mootness doctrine. Instead, several
cases, including Eastern District cases, have repeated the accepted principle that there are only two narrow
exceptions to the mootness doctrine. See, e.g., Lebeau v. Commissioners of Franklin Cty., No. ED101712, 2015 WL
1211313, *1 (Mo. App. E.D. March 17, 2015); Noble v. Noble, 456 S.W.3d 120, 127 (Mo. App. W.D. 2015);
Broyles v. Department of Community Health & Environment of St. Charles Cty., 456 S.W.3d 517, 520 (Mo. App.
E.D. 2015); Floyd v. Department of Mental Health, 452 S.W.3d 154, 158 (Mo. App. W.D. 2014); In re C.T., 432
S.W.3d 283, 286 (Mo. App. E.D. 2014).

7
the exception would not apply to Mother's appeal. Mother claims she is entitled to

vindication from a finding of abuse. However, a desire for personal vindication does not

rise to the level of a general public interest. "We have . . . held that a . . . moot appeal

seeking only personal vindication does not fall within the public interest exception."

T.D.H., 258 S.W.3d at 851 (citing Reay v. Philips, 169 S.W.3d 896, 897 (Mo. App. E.D.

2005) (holding that a claim that a decision constituted a blemish on appellant's legal

record did not warrant invocation of the general public interest exception)). And in M.T.,

the Eastern District refused to apply the supposed third exception to the mootness

doctrine to a parent's request for personal vindication. M.T., 431 S.W.3d at 543. There,

minor children were placed in protective custody based on suspected abuse. Id. at 541.

Father appealed the adjudication and disposition order. Id. The trial court later entered a

judgment terminating its jurisdiction and restoring custody of the minor children to

mother. Id. at 542. The Eastern District rejected father's contention that his appeal from

the adjudication order, though moot, should be heard because the order "label[ed] him as

a child abuser." Id. The Eastern District found that the adjudication order "includes no

finding that Father abused his child. Thus, there is nothing here to prejudice Father in

this case. The potential for future injury 'does not change the lack of a current legal

controversy.'" Id. at 543 (quoting M.W. v. Mabry, 282 S.W.3d 33, 36 (Mo. App. E.D.

2009)).

Mother's circumstances are indistinguishable from M.T. Mother claims she has

been labeled a child abuser. However, the Disposition Judgment makes no such finding,

and found only that J.S. suffered an injury Mother could not explain. "There is nothing

8
here to prejudice [Mother] in this case." Id. Mother also claims the Disposition

Judgment "can affect Mother's ability to find employment, . . . impact future custody

issues, as well as form the basis for criminal charges. . . ." [Mother's Answer to Order to

Show Cause.] Similar bare assertions about speculative future consequences were

rejected in In re J.L.R., where mother requested that we entertain a moot appeal because

of the possibility that an adjudication and disposition order could harm her future

employment prospects. In re J.L.R., 257 S.W.3d at 166. Mother's bare, speculative

assertions are not persuasive. "[T]he legal controversy involving the [Missouri]

Children's Division here has ceased and the facts of this case are uniquely [Mother's].

Any decision in [Mother's] favor here would have no effect on the current custody of

[J.S.], who [is] now with Mother." M.T., 431 S.W.3d at 543.

Conclusion

Because Mother has regained custody of J.S., the very relief she seeks in this

appeal, her appeal is moot. We lack jurisdiction to consider the appeal, and would

exercise our discretion not to entertain Mother's moot appeal even presuming application

of an exception to the mootness doctrine. Mother's appeal is dismissed.

__________________________________
Cynthia L. Martin, Judge
All concur

9