In the Matter of the Adoption of E.N.C., Minor. , 458 S.W.3d 387 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
IN THE MATTER OF THE ADOPTION ) No. ED101311
OF E.N.C., )
)
Minor. ) Appeal from the Circuit Court
) of St. Louis County
)
) Honorable John D. Warner, Jr.
)
)
) FILED: December 9, 2014
S.M.C.Q. ("Mother") and her husband, M.P.Q. ("Adoptive Father"), appeal from the trial
court's judgment allowing a biological paternal grandmother, C.L. ("Grandmother"), to intervene
in the case of 10-year-old E.N.C.'s ("Child") adoption and be granted legal visitation with Child
on approximately 19 days during the year. Because the law does not allow for third-party
intervention in an uncontested step-parent adoption case with no visitation or custody at issue,
the judgment erroneously declares and applies the law. We reverse and remand with instructions
to dismiss the GAL's cross-petition and Grandmother's motions for visitation.
I. Background
Child was born out of wedlock to 19-year-old Mother and 20-year-old C.D.W.
("Biological Father") on July 31, 2003. The parties have not provided this Court with a copy of
Child's birth certificate; therefore, the record does not reflect whether a father was listed on the
birth certificate. Evidence was presented that Biological Father abandoned Mother during her
pregnancy and Mother felt that he also had abandoned and neglected Child since the time Child
was born. Mother had full custody of Child and Child spent every other weekend visiting
Biological Father and members of his family, including Grandmother.
In August 2012, sealed paternity actions were filed in the City of St. Louis by Biological
Father against Mother, addressing paternity and issues involving the establishment of custody
between Biological Father and Mother. See Case No. 1222-FC02535. Nothing in this Court's
record indicates that paternity testing was conducted to prove or disprove Biological Father is
Child's biological father. Meanwhile Mother married Adoptive Father on September 28, 2012.
Soon after, Biological Father voluntarily dismissed his case with prejudice in connection with his
consent to terminate his parental rights and allow for Child's adoption.1 Hearing testimony
indicates that Biological Father was tired of putting Child through "an inquisition" every time
she left him to go back home. Child was told that her Biological Father decided it would be
better if Child had just one family.
Mother and Adoptive Father (collectively, "Petitioners") filed a petition for Adoptive
Father's adoption of Child pursuant to Chapter 453, "Adoption and Foster Care," RSMo Supp.
20122, in St. Louis County on December 27, 2012. The consent to the adoption was signed by
Biological Father, filed on January 8, 2013, and approved by the court.
On January 23, 2013, attorneys entered their appearance on behalf of paternal
grandmother and "prospective Intervenor," Grandmother, who is Biological Father's mother. It
1
A Settlement Agreement and Release was signed by Mother, Biological Father, and Biological Father's wife,
stating that Biological Father would dismiss with prejudice the paternity action alleging that he is the father of
Child; he shall execute a Specific Consent to Termination of Parental Rights and Adoption so that Mother's husband,
Adoptive Father, may adopt Child; and Biological Father and his wife shall immediately remove all pictures of
Child from their social media accounts and use reasonable efforts to have their friends and relatives do the same.
They were not to "attempt to have contact or communication with the Child without the prior consent of [Mother] or
the Child after she reaches the age of majority." As a condition of the agreement, Mother was to pay $11,500 for
Biological Father's attorneys' fees.
2
Unless otherwise noted, all statutory references are to RSMo Supp. 2012.
2
was approved by the court that day. A guardian ad litem ("GAL") was then appointed by the
court. On March 12, 2013, Mother and Adoptive Father filed an Amended Petition for
Adoption, alleging that all of the parents required to give consent to the adoption by Chapter 453
had given such consent, and that Petitioners believe the adoption promotes the best interest of the
child. On March 29, 2013, Grandmother filed her motion to intervene as a third party, motion
for visitation and motion for further investigation regarding third party visitation, pursuant to
Section 211.177.3 Grandmother alleged that since birth, Child had enjoyed a close and bonded
relationship with Biological Father and his family, including a permitted and encouraged
relationship with Grandmother, and that the settlement agreement consenting to termination of
Biological Father's parental rights and the step-child adoption was not in Child's best interest.
Because Mother and Adoptive Father have refused to allow Child any contact with Grandmother
since the consent agreement, Grandmother asked for reasonable visitation with Child pursuant to
Section 452.402.4 Petitioners filed a memorandum in opposition to Grandmother's motion to
intervene, for visitation, and for further investigation. Petitioners' memorandum included
arguments that the motion to intervene was untimely since the paternity action already was
dismissed, there was no statutory right to intervene, no legally cognizable interest supports
intervention "as of right," and ordering grandparent visitation would constitute unreasonable
interference with the parents' constitutional rights. Evidence was heard on April 11, 2013;
afterward, the court entered its order permitting Grandmother's intervention and ordering
mediation.5
3
Section 211.177 is the statute titled, "Grandparent's right to intervene in action, restrictions, termination," found
within Missouri's revised statutes, Chapter 211, "Juvenile Courts."
4
Section 452.402 is titled "Grandparent's visitation rights, granted, when, terminated, when—guardian ad litem
appointed, when—attorney fees and costs assessed, when." It is found within Chapter 452, "Dissolution of
Marriage, Divorce, Alimony and Separate Maintenance."
5
Also in April 2013 in St. Louis County Circuit Court, another action was filed involving Mother and M.P.S. in
which the trial court ruled that M.P.S. is the father of the minor child in that case (the half-sister of Child here at
3
On May 20, 2013, a cross-petition for declaration of paternity, custody and visitation was
filed by the GAL, invoking Section 210.826(2).6 Three days later, Grandmother filed a Motion
to Intervene as a third party and for third-party visitation and grandparent visitation in the GAL's
cross-petition for declaration of paternity and custody. Objections were filed by Petitioners, as
was a motion to strike the cross-petition. However, Petitioners then consented to Grandmother's
intervention in the cross-petition on June 4, 2013, "without waiving Motion to Strike Cross
Petition." The cross-petition was not called up for a separate hearing. Petitioners also filed a
motion to dismiss the cross-petition for declaration of paternity for failure to state a claim,
arguing that neither cross-petitioner nor the intervenor has standing to seek a declaration of
paternity in an uncontested step-parent adoption case wherein the biological father has
voluntarily relinquished parental rights and consented to the adoption; therefore, the court lacks
jurisdiction.
The final adoption hearing, along with a hearing on Grandmother's motion and the GAL's
petition for determination of paternity, took place on September 27, 2013, and November 4,
2013. Child was 10 years old at the time the case was heard.
During the presentation of evidence, all parties agreed that Mother is a fit parent, and
there was no dispute that Adoptive Father is a fit parent as well. It was clear that Biological
Father was detached from Child; however, the parties stipulated that Child had a positive
relationship with Grandmother and that together, they had "plenty of good times" and "did a lot
of fun stuff." The trial court made findings from the evidence that Grandmother spent
substantial periods of time caring for Child and Grandmother had visitation with Child during the
issue). See Cause No. 13SL-DR02284. M.P.S. was ordered by a court to begin paying Mother child support in
2009. See Cause No. 09SL-DR08543.
6
Section 210.826 is titled, "Determination of father and child relationship, who may bring action, when action may
be brought, notification to be included with petition, contents." This section is within the Uniform Parentage Act in
Chapter 210 on Child Protection and Reformation.
4
times when Child was visiting with Biological Father. Grandmother and Child engaged in a
variety of activities together, including Halloween parties, trips to the Magic House, making
crafts, buying presents, and frequently, Child spending the night. Grandmother presented
compelling evidence of the significant bonding relationship between her and Child, including but
not limited to a 2012 Christmas present from Child to Grandmother, which was a necklace with
both of their birthstones and on which Child wrote "I ♥ you;" photographs of Grandmother,
Child, and family members together spanning over eight years, during which time Child
celebrated her First Communion, Grandmother recovered from cancer, they shared time in
Grandmother's home, attended movie previews, celebrated Christmas, took a Disney cruise, went
to museums and amusement parks as well as Child's sporting events. The trial court noted that
"photographs and other exhibits admitted into evidence reflect a happy and warm relationship
between Grandmother and Child and demonstrate the Child having fun." Further, Grandmother
also welcomed Mother and Mother's other daughter (Child's half-sister) to join them, including
welcoming them in holiday celebrations and taking Mother on two Disney vacations with Child.
Petitioners stipulated that Grandmother and Mother had a cordial relationship with each other.
Grandmother also made efforts to welcome Adoptive Father and encourage a warm relationship
with him, too, when he and Mother began dating.
The trial court found from the evidence that the last time Grandmother saw Child was
December 2, 2012. Prior to that time, Mother had never suggested to Grandmother that
Grandmother stop seeing Child or even reduce the frequency of their visits. The evidence shows
that Grandmother requested that Mother permit her to resume seeing Child under whatever terms
and conditions Mother would deem appropriate. Grandmother testified at trial that she would
not prefer supervised visits, but "[i]f it meant getting to see [Child], [s]he would do that."
5
Mother sent Grandmother an e-mail on January 11, 2013, directing Grandmother to "refrain from
any contact with Child," and remove all pictures of her from her Facebook page. Grandmother
has been denied time with Child repeatedly since then. Mother testified that a relationship with
Grandmother was not in Child's best interest because Child is "ready to move on with her life"
and that Child would be upset if she spent time with her former younger half-brother, who was
Biological Father's son and whom Child loved. The trial court found Mother's testimony lacked
credibility with regard to her concerns over the relationship between Grandmother and Child,
and that Child's testimony may have been influenced by Mother and Adoptive Father.
Adoptive Father testified that Grandmother was not someone he wanted any of "his"
children around. He based this opinion on an experience where Grandmother bought a car from
him, Grandmother's surprise presence at Child's school picnic, and Grandmother's unscheduled
attendance at Child's basketball game when he and Mother were out of town.7 The trial court
also found Adoptive Father's testimony lacked credibility and that none of his stated reasons bore
upon the best interest of Child or any alleged detriment that Child would suffer if she visited
with Grandmother.
Additionally, Child testified that Mother and Adoptive Father told her they were
objecting to her seeing Grandmother because it might confuse her little brother (Mother's newest
baby, born after Mother married Adoptive Father, half-brother to Child). Child provided details
regarding the baby's confusion about where Child might be and who Grandmother was, which
confirmed to the trial court Child's in-depth conversations with Mother and Adoptive Father
7
One day when Mother and Adoptive Father were out of town, Grandmother called family members to learn
whether Child was going to play in her basketball game, so that Grandmother knew before driving 45 minutes to the
game. Mother's mother was at the game and the two grandmothers and the girls went out to eat after the game.
Later, Grandmother learned Mother and Adoptive Father thought she had no right to call and find out where Child
might be. Mother testified, "I found out from my mother that she [Grandmother] showed up to the basketball game
while I was out of town," and she was upset with her own mother because of the incident too. While this Court does
not proclaim to be an expert on family relationships, we think surprise visits by people one loves are quite common
and within a normal range of expected behavior within a family.
6
about the issues. Child conceded that her half-sister spends time with her father and is gone at
times, but they were still a family. Child testified that she enjoyed the activities she did with
Grandmother, had good times with her, and she loved her and missed her. Child testified, "I
would just say I like her because, well, I've seen her for years, and how can you not like
somebody that you've seen for that many years." In contrast, the trial court found that Child's
statement that she would not miss her Grandmother was a reflection of Child's discomfort with
being disloyal to Mother and Adoptive Father rather than a detriment to Child in continuing the
relationship with Grandmother, which "clearly has historically been an important and positive
one for Child."
The trial court found that the overriding factors militating against Child's relationship
with Grandmother are Mother and Adoptive Father's desires to make a clean break from
Mother's past,8 which the court did not find to be a reason to deny Child or Grandmother the
right to continue their special relationship.9 The court found no evidence demonstrating
Grandmother's detrimental impact on Child. The GAL recommended that visitation between
Grandmother and Child would be in Child's best interests and would not be detrimental to her, as
it was clearly in the child's best interest to have as many people as possible who love her and
care about her and who will see to her best interest in her life. She believed Mother and
Adoptive Father wished to limit Child's world to just their new family and believed they told
Child she would be sad if she had visitation with Grandmother. The court found the GAL is an
experienced professional with more than 30 years of working in the juvenile court and gave her
8
The reason Child was given for the termination of parental rights was that Biological Father thought it would be
better if Child had just one family.
9
Grandmother testified that she understood one of the reasons she was denied contact with Child was because she
was Biological Father's mother. She testified that was not a sufficient reason because she was not him.
7
opinion great credibility. No evidence was presented that Child would suffer harm if she did not
have visitation with Grandmother.
On January 31, 2014, the trial court issued its Order and Judgment, finding Biological
Father the natural and biological father of Child and Grandmother the paternal grandmother of
Child. Additionally, finding that Child's welfare and best interest requires establishing a
schedule of visitation, the court granted Grandmother visitation with Child for one day each
month and one week during the summer.
Mother and Adoptive Father filed a petition for writ of prohibition and suggestions in
support thereof on March 4, 2014, and this Court issued a preliminary order in prohibition,
staying the trial court's order of visitation while parties filed suggestions in opposition as well as
full briefs on the issue. Meanwhile the adoption decree was entered on March 10, 2014.
Ultimately, this Court quashed the preliminary order and extraordinary writ on May 15, 2014.
This appeal follows. Mother and Adoptive Father filed a motion to stay enforcement of the
visitation order, which was granted on June 3, 2014.
II. Discussion
Petitioners raise two points on appeal. First, they allege the trial court erred in granting
third-party visitation to Grandmother in that an award of visitation must be authorized by statute
and no statute gives Grandmother a right, or the trial court authority, to make an award of
visitation in this case. Petitioners support this argument by contending that Section 452.375.5(5)
did not supply the necessary statutory authority for an award of visitation because it applies only
in custody proceedings, there is no custody issue involved in this case, and Grandmother has no
standing to initiate a custody proceeding.10 Further, Petitioners claim the trial court erroneously
10
Grandmother has also filed a motion to strike portions of Appellants' Reply brief, arguing that this Court should
strike Appellants' arguments made relating to the GAL's standing to initiate a cause of action under the authority of
8
declared and misapplied the law in holding that Section 452.375.5(5) allows a grant of third-
party visitation in this adoption case in that Grandmother failed to present any evidence of
essential elements of a claim, including the existence of a prior custodial relationship with Child
and "special or extraordinary circumstances" showing that "the welfare of the child require[d]"
the award of visitation.
In their second point, Petitioners allege the trial court unconstitutionally applied Section
452.375.5 in that the trial court ignored Petitioners' assertion of their constitutional rights as
parents to direct the associations of their child, and: the trial court improperly failed to give any
deference whatsoever to Petitioners' determination of Child's best interest, despite the trial court's
finding Petitioners to be fit parents; the trial court improperly presumed that visitation with
Grandmother was in Child's best interest without regard to any facts in this case; the trial court
improperly placed on Petitioners the burden to prove that visitation would be harmful to Child.
Petitioners further argue the trial court's order of visitation far exceeds the constitutionality
mandated "minimal intrusion" into Petitioners' family life in that it is more frequent than once
every 90 days and is far more than the prior visitation Grandmother had with Child.
A. Standard of Review
This Court reviews the judgment of the trial court under the standard of review applicable
to any other court-tried case. The judgment will be affirmed unless it is not supported by
substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies
the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The reviewing court defers to
the GAL in adoption cases, enumerated in Section 453.025. The motion has been taken with the case and we agree
that Appellants are raising a new issue in their reply brief. "Appellate courts are generally 'precluded from
addressing assertions made for the first time in a reply brief because a respondent has no opportunity to address the
argument." Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995) (internal citations omitted). We grant
Grandmother's motion to strike those portions of the reply brief, and, moreover, find the argument regarding the
GAL's authority inconsequential here because the dismissed paternity action and consent to adoption were final
prior to the GAL's filing of any cross-petition.
9
the trial court's determination of credibility and views the evidence and permissible inferences in
the light most favorable to the trial court's judgment. Wright ex rel. McBath v. Wright, 129
S.W.3d 882, 884 (Mo. App. W.D. 2004). Specifically in child custody proceedings, we give
greater deference to the trial court than in any other proceedings, operating under the
presumption that the trial court reviewed all evidence and based its decision on the child's best
interests. Id.
The trial court's interpretation of statutes involves a question of law, subject to de novo
review. Conseco Fin. Corp. v. Mo. Dept. of Rev., 98 S.W.3d 540, 542 (Mo. banc 2003).
Constitutionality of the trial court's application of a statute is also a question of law, subject to de
novo review. State v. Jeffrey, 400 S.W.3d 303, 307 (Mo. banc 2013).
B. Analysis
This case poses a difficult question to this Court based on our current society and its
"modern" family life. Missouri statutes, Chapter 452, regulate dissolution of marriages with
children and visitation and custody therein, even allowing for third-party intervention in certain
circumstances. Additionally, Missouri statutes provide for grandparent intervention in
proceedings initiated pursuant to the provisions of Chapter 211, which "facilitates the care,
protection and discipline of children who come within the jurisdiction of the juvenile court" and
are removed from the control of their parents, and in which the custody of the grandchild is in
issue. Section 211.177; Section 211.011. However, this adoption case, filed under Chapter 453,
does not fit within the parameters of either Chapter 452's dissolution of marriage context or that
of Chapter 211's custody determination when a child has been removed from her parents and is
within the juvenile court system. Chapter 453 for adoption does not speak to termination of
parental rights; rather, it authorizes adoption with or without consent. See In re Adoption of
10
C.M.B.R., 332 S.W.3d 793, 806 (Mo. banc 2011). Neither does the chapter for dissolution of
marriage allow for third-party intervention in a Chapter 453 adoption proceeding. Although
strategic efforts were made to use the statutes and rules to give Grandmother standing to
continue a relationship with Child, and in the best interest of the child, we find, with sympathy,
Grandmother had no standing to intervene in Petitioners' adoption action to request visitation
with Child after her son, Biological Father, signed away his parental rights and consented to the
adoption.
Point I: Was the Third-party visitation authorized by statute?
We begin our analysis by looking at the original petition filed in this case. The parties
have overlooked the fact that the Petition filed here was a petition for adoption, pursuant to
Chapter 453 regulating adoptions. Grandmother and the trial court operated under the erroneous
assumption that Chapter 452, which regulates dissolution of marriage, divorce, alimony and
separate maintenance, applies here. Mother and Adoptive Father filed their petition for Adoptive
Father's step-parent adoption of Child pursuant to Chapter 453, following the voluntary dismissal
of Biological Father's paternity case, with prejudice, and consent to terminate his parental rights
as well as consent to Child's adoption. Now this Court must determine whether the trial court
was correct in granting Grandmother visitation through Section 452.375.
Although the GAL here attempted to file a cross-petition for paternity and interject the
issue of custody and visitation into the adoption proceeding, it is significant that Biological
Father already had voluntarily dismissed his paternity case with prejudice in connection with his
consent to terminate his parental rights. 11 Biological Father signed his consent to the adoption,
11
But for Biological Father's previous dismissal and consent, we also would question the GAL's authority to file a
cross-petition here, which filing is an extremely rare occurrence. Section 453.025 states that a GAL is "to represent
the person sought to be adopted," Section 453.025.1 (emphasis added). Commentary has stated that "[b]asically, a
[GAL] will be afforded all the same rights as the other parties' attorneys." 21 Mo Prac., Family Law § 17:13.
11
filed it on January 8, 2013, and it was approved by the court. Biological Father's voluntary
dismissal was effective as of the date it was filed. Thornton v. Deaconess Med. Center-West
Campus, 929 S.W.2d 872, 873 (Mo. App. E.D. 1996). According to the Missouri Rules of Civil
Procedure, Rule 67.01, a "dismissal with prejudice bars the assertion of the same cause of action
or claim against the same party." Hermann v. Heskett, 403 S.W.3d 136 (Mo. App. E.D. 2013).
Moreover, a consent to adoption is final when it is executed, unless one proves it was not
voluntarily given. Section 453.040.6.
Instructive to our analysis is In re Adoption of R.V.H., where a mother signed a consent
for another party's adoption of her child, and the court held that the "mother's rights were fixed,
absent a court's later determination of fraud, duress, coercion or other elements which would
render the consent involuntary, at the time of her consent." She therefore had no right to
intervene in the other party's case for adoption. In re Adoption of R.V.H., 824 S.W.2d 28, 30
(Mo. App. W.D. 1991). Biological Father here did not try to withdraw the dismissal with
prejudice of his paternity action, nor did he attempt to withdraw his consent to adoption.
Missouri case law indicates that Biological Father's actions were final and his rights were fixed.
In the GAL's cross-petition for declaration of paternity, she, on behalf of Child, was
"asserting the same cause of action or claim against the same party as was asserted" in Biological
Father's paternity action, which Biological Father had dismissed with prejudice. See Rice v.
Further, Missouri Supreme Court Appendix C sets forth the general duties and responsibilities of a GAL appointed
under family law-related court matters provided in Chapters 210, 211, 452, 453, and 455. Standard 4.0 states that a
GAL shall "diligently advocate a position in the best interests of the child" and, when appropriate, "shall file
petitions, motions, parenting plans, responses, or objections." Sup. Ct. Appendix C. However, Section 453.025.4
further delineates specific duties for a GAL, which do not include filing cross-petitions in their representation of the
child:
(1) Be the legal advocate for the best interest of the party he is appointed to represent with the
power and authority to cross-examine, subpoena witnesses, and offer testimony;
(2) Initiate an appeal of any disposition that he determines to be adverse to the interests of the
party he represents; and
(3) Ascertain the child's wishes, feelings and attitudes regarding the adoption by interviewing
persons with knowledge of the child, and if appropriate, to meet with the child.
Section 453.025.4.
12
Taylor-Morley-Simon, Inc., 842 S.W.2d 926, 929 (Mo. App. E.D. 1992) (internal citation
omitted) (finding a trial court properly dismissed plaintiff's action because the action was barred
by the doctrine of res judicata). Here, the trial court never ruled on Petitioners' objections and
motion to strike the cross-petition or motion to dismiss the cross-petition for declaration of
paternity for failure to state a claim, arguing that neither cross-petitioner nor the intervenor has
standing to seek a declaration of paternity in an uncontested step-parent adoption case in which
the biological father has voluntarily relinquished parental rights and consented to the adoption;
Petitioners argued that therefore, the court lacks jurisdiction. Given the circumstances here, we
find the trial court erred in failing to dismiss the cross-petition for declaration of paternity, which
cross-petition served no purpose other than giving Grandmother a vehicle to enter an uncontested
adoption case that raised no custody or visitation issues.
Grandmother's Standing to be added to the proceedings
Next we evaluate whether Grandmother had standing to enter into this case at all, prior to
a determination that she be awarded visitation. To review the unique procedural facts here, first,
on March 29, 2013, Grandmother filed her motion to intervene as a third party, for visitation and
for further investigation, pursuant to Section 211.177.12 Grandmother asked for reasonable
visitation with Child pursuant to Section 452.402.13 Petitioners filed a memorandum in
opposition to Grandmother's motion to intervene, for visitation, and for further investigation.
Evidence was heard and, afterward, the court entered its order permitting Grandmother's
intervention and ordering mediation. Secondly, in May 2013, after the GAL filed a cross-
12
Section 211.177 is the statute for "Grandparent's right to intervene in action, restrictions, termination," within
Missouri's revised statutes, Chapter 211 titled "Juvenile Courts."
13
Section 452.402 is titled "Grandparent's visitation rights, granted, when, terminated, when—guardian ad litem
appointed, when—attorney fees and costs assessed, when." It falls within Chapter 452, "Dissolution of Marriage,
Divorce, Alimony and Separate Maintenance."
13
petition for declaration of paternity, custody and visitation, invoking Section 210.826(2)14,
Grandmother filed a Motion to Intervene as a third party and for third-party visitation and
grandparent visitation in the GAL's cross-petition for declaration of paternity and custody.
Objections were filed by Petitioners, as was a motion to strike the cross-petition. However,
Petitioners then consented to Grandmother's intervention in the cross-petition on June 4, 2013,
"without waiving Motion to Strike Cross Petition." The cross-petition was not called up for a
separate hearing. Petitioners also filed a motion to dismiss the cross-petition for declaration of
paternity for failure to state a claim, arguing that neither cross-petitioner nor the intervenor has
standing to seek a declaration of paternity in an uncontested step-parent adoption case wherein
the biological father has voluntarily relinquished parental rights and consented to the adoption;
therefore the court lacks jurisdiction.
The Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275
S.W.3d 249 (Mo. banc 2009), left some question as to whether a plaintiff's lack of standing
implicates the trial court's subject-matter jurisdiction. See Borges v. Mo. Pub. Entity Risk
Mgmt. Fund, 358 S.W.3d 177, 183 (Mo. App. W.D. 2012) ("It remains an open question whether
a lack of standing implicates the court's jurisdiction or merely the court's authority. . . .").
However, more recently, in CACH, LLC v. Askew, 358 S.W.3d 58 (Mo. banc 2012), the
Supreme Court clarified that "[c]ourts have a duty to determine if a party has standing prior to
addressing the substantive issues of the case," and that, "[f]or this reason, standing cannot be
waived." Id. at 61. The Court cited Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002), to
support these statements. Farmer states that "[s]tanding is a jurisdictional matter antecedent to
the right to relief." Id. Other post-Webb Court of Appeals decisions have characterized standing
14
Section 210.826 is titled, "Determination of father and child relationship, who may bring action, when action may
be brought, notification to be included with petition, contents." This section is within the Uniform Parentage Act in
Chapter 210 on Child Protection and Reformation.
14
as an aspect of the circuit court's subject-matter jurisdiction. See, e.g., Higginbotham v.
Higginbotham, 362 S.W.3d 34, 36-37 (Mo. App. S.D. 2012) ("When a party lacks standing
sufficient to maintain the action and, consequently, has no right to relief, the court necessarily
does not have jurisdiction of the question presented and may not enter a judgment on the matter."
(citation omitted)); State ex rel. St. Louis Retail Grp. v. Kraiberg, 343 S.W.3d 712, 715 (Mo.
App. E.D. 2011) ("If a party lacks standing, the court must dismiss the case because it lacks
jurisdiction to consider the substantive matters." (citation omitted)); White v. White, 293 S.W.3d
1, 8 (Mo. App. W.D. 2009) (same).
Thus, we first must determine the question of standing, which was raised by Petitioners in
their motion to strike the cross-petition and motion to dismiss the cross-petition for declaration of
paternity for failure to state a claim. Standing to sue evaluates the sufficiency of a plaintiff's
interest in the subject of the lawsuit. City of Wellston v. SBC Communications, Inc., 203
S.W.3d 189, 193 (Mo. banc 2006). Standing is "a concept used to ascertain if a party is
sufficiently affected by the conduct complained of in the suit, so as to insure that a justiciable
controversy is before the court." Coyne v. Edwards, 395 S.W.3d 509, 516 (Mo. banc 2013).
"Interest," generally, means a concern which is more than mere curiosity, or
academic or sentimental desire. One interested in an action is one who is
interested in the outcome or result thereof because he has a legal right which will
be directly affected thereby or a legal liability which will be directly enlarged or
diminished by the judgment or decree in such action.
Matter of J.F.K., 853 S.W.2d 932, 935 (Mo. banc 1993) (quoting In the Matter of Trapp, 593
S.W.2d 193, 204 (Mo. banc 1980)). Objections to standing, unlike objections based on the real
party in interest rule, cannot be waived. City of Wellston, 203 S.W.3d at 193. "In order to be a
party, a person must either be named as a party in the original pleadings, or be later added as a
party by appropriate trial court orders." In re R.R.R., 236 S.W.3d 103, 105 (Mo. App. S.D.
15
2007) (quoting State ex rel. Morris v. McDonald, 817 S.W.2d 923-26-27 (Mo. App. S.D. 1991)).
Appellate review of a trial court's determination regarding a litigant's standing is de novo, with
no deference given to the lower court's decision. Blue Cross & Blue Shield of Mo. v. Nixon, 81
S.W.3d 546, 551 (Mo. App. W.D. 2002). "We determine standing as a matter of law on the basis
of the petition and the undisputed facts." Id.; White v. White, 293 S.W.3d 1, 8 (Mo. App. W.D.
2009).
Under Missouri law, the grandparents of a child, whose parent has consented to have the
child adopted, are not necessary parties to an adoption proceeding and are not entitled to notice
of the adoption proceedings. State ex rel. T.W.N. v. Kehm, 787 S.W.2d 728, 731 (Mo. App.
E.D. 1989). Further, Missouri law does not extend visitation rights to the natural grandparents of
adopted children. Kambitch v. Ederle, 642 S.W.2d 690, 694 (Mo. App. E.D. 1982); Aegerter v.
Thompson, 610 S.W.2d 308 (Mo. App. 1980). In Aegerter v. Thompson, 610 S.W.2d at 310, the
court stated that, except for Sections 452.400 and 452.402, grandparents did not have standing to
litigate visitation. Further, Missouri courts have held that grandparents or other third parties
have no standing to litigate either custody or visitation where they claim such standing without
an existing order or decree for custody; however, when a trial court places children with a third
party, when the parents are unfit or unable to undertake that custody, the third party has then
acquired personal rights and, by that decree, has standing to litigate its modification. Warman v.
Warman, 496 S.W.2d 286, 289 (Mo. App. 1973); McCoy v. Rivera, 926 S.W.2d 78, 80 (Mo.
App. W.D. 1996) (trial court had no subject matter jurisdiction to determine custody in case
where no court previously had entered a custody order). Other jurisdictions have reached similar
conclusions: In re Anonymous, 47 Misc. 2d 139, 261 (N.Y.S.2d 806 (Surr.Cr. 1965) (maternal
grandmother not necessary party to adoption proceedings); In re Watson's Adoption, 45 Haw. 69,
16
361 P.2d 1054 (1961) (paternal grandfather had no legal interest or custodial rights to child and
is not entitled to notice; see annot., 48 A.L.R. 4th 860, 900 (1986) (grandparents not required
parties in adoption proceedings).
Because Grandmother was not named as a party in the adoption proceeding here, we
must evaluate whether the trial court appropriately allowed her to intervene. We begin such
analysis by first looking to Missouri Supreme Court Rule 52.12, which governs motions to
intervene, providing for intervention as a matter of right and permissive intervention.
Intervention as of Right
Rule 52.12(a) provides two circumstances under which a court must grant intervention:
(1) when a statute confers an unconditional right on the moving party to intervene in a particular
class of case, or (2) when the moving party has an interest in the subject of the action and is so
situated that the outcome of the litigation may have a practical affect which impairs or impedes
his ability to protect his interest. When a party claims intervention as a matter of right, he is
asserting that he may be legally bound or prejudiced by any judgment entered in the case. Coon
ex rel. Coon v. American Compressed Steel, 133 S.W.3d 75, 79 (Mo. App. W.D. 2004).
Under intervention as a matter of right, a potential intervenor must meet three
requirements in order to intervene: (1) the applicant must have an interest in the subject matter;
(2) a disposition of the action may impede the ability of the applicant to protect that interest; and
(3) the applicant's interests are not adequately represented by the existing parties. Estate of
Langhorn v. Laws, 905 S.W.2d 908, 910 (Mo. App. W.D. 1995).
Missouri courts have held that a grandparent's biological relationship to a child, by itself,
does not constitute the necessary "interest" under Rule 52.12(a)(2) to require intervention in an
adoption. In re Adoption of H.M.C., 11 S.W.3d 81, 90 (Mo. App. W.D. 2000) ("Paternal
17
Grandparents have no legal right, under current Missouri caselaw, which will be directly
enlarged or diminished by the adoption of their biological grandchild").
We find Grandmother did not have the standing to intervene here as a matter of right.
Permissive Intervention
Permissive intervention, on the other hand, gives the court discretion as to whether to
permit intervention if one of the following three basic grounds exist: (1) when a statute confers a
conditional right on a particular party to intervene, (2) when the intervenor has a claim or
defense that has common questions of law or fact to the issues in the principal action in which
she seeks to intervene, or (3) when the validity of a statue, regulation, ordinance or constitutional
provision is challenged affecting the public interests, the governmental entity may be permitted
to intervene. Rule 52.12(b). Permissive intervention is discretionary and may only be reviewed
on appeal for abuse of discretion. In re Adoption of H.M.C., 11 S.W.3d at 90. Judicial
discretion is abused when a trial court's ruling is clearly against the logic of the circumstances
then before the court and is so arbitrary and unreasonable as to shock the sense of justice and
indicate a lack of careful consideration; if reasonable persons can differ about the propriety of
the action taken by the trial court, then it cannot be said the trial court abused its discretion. Id.
at 90-91.
The case at hand does not challenge the validity of a law; the third ground for permissive
intervention is not in question. Moreover, Grandmother's claim for visitation does not raise a
question of law or fact in common with Petitioner's uncontested adoption petition, which raises
18
no issue of custody or visitation for the court's determination.15 Thus, we analyze whether a
statute confers a conditional right on Grandmother to intervene. Rule 52.12(b).
The trial court here first permitted Grandmother to intervene,16 then Petitioners consented
to her second intervention in the GAL's cross-petition "without waiving Motion to Strike Cross
Petition" and still arguing a motion to dismiss for her lack of standing. Ultimately the trial court
allowed Grandmother's intervention in its January 31, 2014 Order granting Grandmother
visitation, concluding that Section 452.375.5(5)(b) afforded Grandmother "the right to intervene
in a custody proceeding as a party in interest at any time as provided by supreme court rule."
The trial court noted that, pursuant to the statute, "the court must find both that the welfare of the
child requires such visitation and that it is also in the best interest of the child." Further, the trial
court recognized that establishing the standard, the "welfare of the child requires visitation,"
requires that a grandparent prove "special or extraordinary circumstances," Jones v. Jones, 10
S.W.3d 528, 537 (Mo. App. W.D. 1999), and that the Jones court held that a significant bonding,
familial relationship between a child and grandmother constitutes special or extraordinary
circumstances such that the welfare of the child and best interest of the child would be served by
awarding third-party custody under Section 452.375.5. 10 S.W.3d at 539. Accordingly, based
on the evidence, the trial court found the welfare of Child and best interest of Child here would
be served by allowing Grandmother visitation.
Chapter 211
The Missouri Court of Appeals has held that a grandmother may intervene under Section
211.177 where custody of the grandchild is at issue, In re C.M.D., 18 S.W.3d 565, 567 (Mo.
15
Even the GAL's cross-petition for paternity only alleged issues of custody and visitation in relation to the request
for grandparent's visitation rights, although Grandmother was not a party to the action. As we noted, supra, the
cross-petition should have been dismissed.
16
The parties have abandoned any arguments that Grandmother was appropriately allowed to intervene as a third
party pursuant to Section 211.177 so we need not address that issue here.
19
App. W.D. 2000), and that the test is whether it would be against the best interests of the child to
allow the grandparents to intervene. Section 211.177.1; In re L.J.H., 67 S.W.3d 751, 755 (Mo.
App. S.D. 2002) (finding juvenile court did not err in overruling grandparent's motion to
intervene where no evidence was presented to rebut the juvenile officer's evidence demonstrating
that intervention in the termination of parental rights case would be against the child's best
interests). This case, however, was not filed pursuant to Chapter 211; it was filed as a private
adoption action under Chapter 453, without raising Child's custody as an issue.
In a more recent private action for termination of parental rights, the Missouri Supreme
Court distinguished such private action from those actions initiated under Chapter 211, which "is
utilized primarily by state actors, that is, the division of children's services or the juvenile officer,
to take children into protective custody and terminate parental rights." In re Adoption of
C.M.B.R., 332 S.W.3d 793, 806 (Mo. banc 2011). The Court noted that Chapter 453 does not
speak to termination of parental rights; rather, it authorizes adoption without consent or with
consent that has the effect of terminating parental rights. Id.
The In re Adoption of H.M.C., 11 S.W.3d at 91, court found that a trial court did not
abuse its discretion in denying paternal grandparents' motion to intervene in an adoptive parents'
petition to adopt a child and terminate the parental rights of the child's natural parents. Id. The
appellate court stated, "Paternal Grandparents' interest was not sufficient to warrant permissive
intervention in this case," reasoning that the grandparents played no role in the child's life, nor
had they attempted to locate or contact the child from the time the child was an infant until after
the adoption petition was filed. Id. To qualify for adoption, the grandparents would have had to
have custody of the child for at least six months, the court stated, citing Section 453.080, RSMo.
1994.
20
Chapter 452
Here, within the context of a Chapter 453 adoption case, the trial court allowed
Grandmother to intervene pursuant to a different chapter, 452, specifically Section 452.375. To
determine whether the trial court appropriately allowed the intervention, we first look at the
statute itself. It reads, in relevant part:
5. Prior to awarding the appropriate custody arrangement in the best interest of
the child, the court shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both parents . . .
(4) Sole custody to either parent; or
(5) Third party custody or visitation:
(a) When the court finds that each parent is unfit, unsuitable, or unable to be a
custodian, or the welfare of the child requires, and it is in the best interests of the
child, then custody, temporary custody or visitation may be awarded to any other
person or persons deemed by the court to be suitable and able to provide an
adequate and stable environment for the child. Before the court awards custody,
temporary custody or visitation to a third person under this subdivision, the court
shall make that person a party to the action;
(b) Under the provisions of this subsection, any person may petition the court to
intervene as a party in interest at any time as provided by supreme court rule.
Section 452.375.5.
In Hastings v. Van Black, 831 S.W.2d 214 (Mo. App. W.D. 1992), the court discussed
intervention pursuant to Section 452.375. The court did not allow a child's stepfather to
intervene under the statute as a "party in interest" in the biological parents' dissolution action
after a final judgment had been entered in that action because there was no pending action or suit
in which the court was called upon to exercise its jurisdiction over the child. Id. at 215. Here, an
adoption case was pending and the trial court was called upon to exercise its jurisdiction over
Child, but other cases suggest more is necessary; a party must have standing in the case to
intervene.
Also relevant to our discussion here is a case regarding a woman's standing to bring an
action to determine a mother-child relationship after a same-sex relationship ended, involving
21
children, White v. White, 293 S.W.3d 1, 17-22 (Mo. App. W.D. 2009). In White, the Western
District discusses the "exceptional circumstances" that give rise to third-party custody or
visitation. Id. There the court discussed Section 452.375.5's presumption that parents are fit,
suitable and able custodians of their children, rebuttable by showing that the welfare of the
children, due to extraordinary circumstances, renders it in their best interest that custody be
granted to a third party. Id. at 17-18. However, importantly, the court noted that Section
452.375.5's interpretation was "[i]n the dissolution context," rather than any other action, and
that "[n]either our statutes nor our case law remotely suggest that any third party that comes
along has standing to bring an action seeking custody of children." Id. at 18. Rather, the case
law and statutory provisions are consistent with regard to grandparents and third parties in
dissolution proceedings, permitting grandparents to intervene as a party in interest, pursuant to
supreme court rule, "in any dissolution action solely on the issue of visitation rights," or they
may file a motion to modify. Id. The Western District found that the limited circumstances
under which a third party has foundational standing to litigate custody and visitation under the
exceptional circumstances doctrine of Section 452.375.5 did not include the woman's petition.
Id. at 21. Thus, Section 452.375.5 provides that a third party may intervene in a case in which
custody is at issue, only in a dissolution of marriage action or a modification of a dissolution
proceeding. Id. at 18.
To compare, Missouri courts have also noted that Section 452.402 addresses
grandparents' rights of visitation in dissolution cases, not adoption proceedings. State ex rel.
T.W.N. v. Kehm, 787 S.W.2d 728, 732 n.1 (Mo. App. E.D. 1989). We note, however, that the
Western District once found that a grandparent petitioner could seek visitation of a child under
Section 452.402, RSMo Supp. 1989, outside of a dissolution case, when it allowed visitation
22
between a grandmother and child born out of wedlock even where the putative father was not
married to the mother, had not acknowledged paternity, had not paid support, and had not
otherwise established a relationship with the child. Matter of C--- E--- R---, 796 S.W.2d 423,
424 (Mo. App. S.D. 1990). The court stated, "Were we to add any of these conditions, we would
be engrafting an exception upon the statute which it does not contain. Petitioner is undisputedly
the mother of the father of the child and thus a grandparent. She was denied visitation with the
child." Id. Matter of C--- E--- R---, however, included undisputed evidence at trial that the
petitioner's son was the father of the child, and father had not terminated his parental rights like
Biological Father voluntarily did here in a separate proceeding. Nor was C--- E--- R--- an
adoption proceeding as this case. Additionally, since C--- E--- R--- was decided, Section
452.402 has been amended to provide for grandparent visitation when one of three circumstances
is met first, plus an additional requirement that the grandparent be denied visitation unreasonably
for a period exceeding ninety days. Section 452.402.1(1)-(4). The three circumstances are: (1)
there is a dissolution action involving the parents of the child; (2) one parent of the child is
deceased and the surviving parent denies reasonable visitation to a parent of the deceased parent
of the child; or (3) the child has resided in the grandparent's home for at least six months within
the twenty-four month period immediately preceding the filing of the petition. Section
452.402.1(1)-(4). The legislature has also amended the statute to state currently that the "right of
a grandparent to maintain visitation rights pursuant to this section may terminate upon the
adoption of the child," and deleted the exception that previously still allowed grandparent
visitation in cases "where the child is adopted by a stepparent, another grandparent or other
blood relative." Section 452.402.6.
Even after C--- E--- R--- was decided, however, the Missouri Supreme Court noted:
23
Section 452.375 includes definitions for various types of child custody
arrangements following the dissolution of a marriage, for example, "joint legal
custody" or "joint physical custody." That statute is irrelevant here as this is not a
dissolution proceeding. The only class into which Grandparents could possibly fit
would be "third party custody," section 452.375.1(4). Beyond the "third party"
denomination, section 452.375 does not apply in this grandparent visitation case.
Neither section 452.375 nor section 452.402 cross-references the other. In short,
section 452.375 does not affect section 452.402 or Grandparents' visitation. If the
legislature had intended such a connection, it could have drafted section 452.402
or section 452.375 to reference each other. As it did not, we decline the overly
broad interpretation of section 452.375 that Parents advocate.
In re G.P.C., 28 S.W.3d 357, 367 (Mo. App. E.D. 2000) (overruled on other grounds).
Later, in Tompkins v. Ford, 135 S.W.3d 508, (Mo. App. W.D. 2004), the Court of
Appeals found the trial court erred in permitting a grandmother's request for visitation, pursuant
to Section 452.402 and by a separate petition, where the grandmother was required to seek relief
through a motion to modify a dissolution judgment under the circumstances that the child's
parents had been married and then divorced. The court specifically noted that it did "not reach
the issue of how a grandparent may seek visitation with a grandchild in circumstances where the
child's parents were never married." Id. at 511 n.3.
Accordingly, if all grandparents were allowed to legally petition the court for visitation
with a grandchild pursuant to third-party visitation in Section 452.375, then Section 452.402 and
its three circumstances allowing for grandparent visitation would not be necessary.
Grandparents of children born to an unmarried parent who terminated his parental rights could
have been included in these circumstances allowing for visitation rights had the legislature so
intended it. Such grandparents wanting visitation could have been anticipated and, as the
legislature did not provide for visitation under this circumstance, it is reasonable to assume they
have the same rights as the parents of a married father or mother and must meet the criteria that
there is either (1) a dissolution action, (2) a deceased parent, or (3) child resided in grandparent's
24
home, plus the additional requirement that the grandparent be denied visitation unreasonably for
a period exceeding ninety days. Section 452.402.1(1)-(4). None of these circumstances apply
here. This was never a case of dissolution, which is required for grandparent visitation under
Section 452.402.1(1), as well as a requirement for third-party visitation under Section 452.375.
The issue here has been well addressed in a Southern District case involving the
intervention of paternal grandparents into the maternal grandparents' case petitioning for transfer
of custody and adoption of their two grandchildren. In re Adoption of R.S. and D.S., 231
S.W.3d 826 (Mo. App. S.D. 2007). The parties never challenged the intervention pursuant to
Section 452.375.5, and the court repeatedly stated that it "need not decide whether Section
452.375.5 gives a party a statutory right to intervene in adoption proceedings brought under
Chapter 453, but that the court can allow grandparents permissive intervention. Id. at 830. The
court did find, however, that Section 452.375.5 "does not give a grandparent a statutory right to
visitation in an adoption proceeding commenced under Chapter 453." Id. at 831. The court
explained:
It is unlikely this statute [452.375] was ever intended to be used to grant a
party a right to visitation in an "adoption" case. First, the statute is speaking of
providing a "custody arrangement" for a child. While an adoption certainly
entails the adoptive parents receiving both legal and physical custody of the child,
it is different than just granting custody to a parent or a third party. "When a child
is adopted . . . all legal relationships and all rights and duties between such child
and his natural parents . . . shall cease and . . . [s]uch child shall thereafter be
deemed and held to be for every purpose the child of his parent or parents by
adoption[.]" Section 453.090. Accordingly, in an adoption proceeding, unlike in
a proceeding awarding custody to a parent or a third party, the legal rights of a
natural parent are completely abrogated. Id. This "statutory abrogation extends
to grandparents – parents of the natural parents whose rights were taken away" as
well. In re Marriage of A.S.A., 931 S.W.2d 218, 225 (Mo. App. S.D. 1996).
Therefore, Section 452.375.5 does not give a grandparent a statutory right to
visitation in an adoption proceeding commenced under Chapter 453.
Id. at 830-31.
25
As Petitioners here have questioned Grandmother's standing in the case from the time she
first intervened, we now look at Section 452.375's applicability to parties seeking intervention
and visitation in an adoption case. Because this was not a dissolution case and Grandmother did
not have standing by virtue of previous custody or court-ordered visitation, we conclude that
Grandmother had no interest that could support intervention.
Chapter 453
Petitioners here filed an uncontested petition for adoption by a step-parent, without
raising any issues of custody or visitation. Adoption is purely a creature of statute, unknown to
common law. In re Baby Girl P., 159 S.W.3d 862, 864 (Mo. App. W.D. 2005). Our adoption
statutes, Chapter 453, constitute a complete code, and the various sections thereof should be
construed together. In re Adoption of Smith, 314 S.W.2d 464, 466 (Mo. App. 1958). It has been
stated that the purpose of Missouri's adoption law "is to provide homes and proper nurture,
education, and training for children who have lost their parents, or for children whose parents,
because of misfortune or improvidence, are unable to properly rear and educate them." In re
Perkins, 117 S.W.2d 686, 693 (Mo. App. 1938). Further, "[i]t was never intended to supplant the
jurisdiction of courts to adjudicate the custody of children as between parents who are living
apart . . ." Id. Neither do we hold today that an uncontested adoption was intended as a means to
adjudicate issues of custody or visitation for parties outside of the adoption proceeding.
Even though Section 452.375 is a statute that confers a conditional right on a third party
to intervene, we find that the statute provides only for intervention in dissolution proceedings.
Grandmother has no prior custody or visitation order subject to modification during the adoption
proceeding. Grandmother's claim to visitation has no common questions of law or fact to the
issues in the principal step-parent adoption action in which she seeks to intervene. Thus, we find
26
that the trial court abused its discretion in permitting Grandmother to use Section 452.375 to
intervene in Petitioners' uncontested adoption case.
The earliest reported case addressing the issue of grandparent visitation, Succession of
Reiss, 15 So. 151 (La. 1894), held that grandparent visitation was a moral, not legal obligation.
See Blakely and Missouri's Grandparent Visitation Statute: An Abridgment of Parents'
Constitutional Rights?, 68 Mo. L. Rev. 691, 704 (2003). While we hold today that Grandmother
cannot legally obtain visitation rights under these circumstances, we agree with the GAL, the
trial court, and the first reported case discussing the issue that allowing Child continued contact
with Grandmother, whom she has grown to love throughout perhaps a less stable time in her
mother's life, can only benefit this Child's positive development and should be seen as a moral
obligation. We do not doubt that this was the trial court's priority when it granted Grandmother
visitation. Even though Grandmother is not entitled to court-ordered visitation, this in no way
must limit her ability to see Child, provided that Petitioners would agree to such request.
A grandparent's relationship with grandchildren can be a fulfilling and important
bond. A loss of contact resulting from divorce, separation, intentional alienation,
or any number of situations can have a detrimental affect on both grandparents
and grandchildren. An elderly grandparent's emotional health may be adversely
impacted immediately after the loss, as well as years later. Grandparents play an
important role in the lives of their grandchildren as well. Close relationships with
grandparents are especially important to children experiencing divorce or family
turmoil. Studies have found that continued contact with grandparents reduces
depressive symptoms in young adults of single-parent families.
McCormick, Mary and Christine A. Gilsinan, Grandparents' rights, 41 Mo. Prac. Series § 5:8
(2014) (internal citations omitted).
A child and his grandparents have the same relationship regardless of whether his
parents are married. The grandparents may, and perhaps should have, the same
regard for the grandchild born out of wedlock, as one born of married parents.
The out-of-wedlock child may even need the love and assistance of the
grandparents more than a child whose parents are married and live together.
27
Matter of C--- E--- R---, 796 S.W.2d 423, 425 (Mo. App. S.D. 1990). Here Child spent a
number of years in an out-of-wedlock situation and it is obvious from the record that she
benefited greatly from the love and assistance of her grandparents. It is unfortunate that
her adoptive parents do not see that the loss of contact with Grandmother may have a
detrimental effect on both Grandmother and Child. Child is old enough to remember her
relationship with Grandmother, her desire to spend time with Grandmother, and her love
for Grandmother. Although the legal ties are broken, forcing a broken relationship with
Grandmother may result in repercussions someday, even if it is when Child reads this
opinion, questions her parents' true motives, and makes her own decisions to rekindle
what was once an important relationship with Grandmother.17
This Court hopes, for the sake of all parties involved, that Child and Grandmother
will be reunited one day when Mother has moved past her disdain for Biological Father's
abandonment of her and Child, Adoptive Father realizes that raising an adoptive child is
not a competition between old and new families, and they both remember the love
Grandmother has shown to their daughter and family.
We find that the trial court abused its discretion in allowing Grandmother to intervene in
the parties' adoption case by way of Section 452.375. Grandmother's intervention for purposes
of obtaining court-ordered visitation had no issue of fact or law in common with Petitioner's
uncontested adoption petition. Thus, Grandmother did not have standing. Petitioners' first point
is granted and we decline to consider Petitioners' second point relating to the unconstitutional
application of Section 452.375.
17
During the hearing, the trial court explained to Child, "One of the things as a judge that you have to do all the time
is make decisions that affect other people's lives, and sometimes it gets tough. You know, it's kind of like a mom or
a dad or a grandma and grandpa. We sometimes have to make decisions, and sometimes you don't make everybody
happy. When you get bigger, you will have to be making those decisions. . . ." (Tr. 132)
28
III. Conclusion
We reverse and remand with directions that the trial court dismiss the GAL's cross-
petition and Grandmother's motions to intervene in this case.
___________________________________
ROY L. RICHTER, Judge
Patricia L. Cohen, P.J., concurs.
Robert M. Clayton III, J., concurs.
29