                                                  In the
                              Missouri Court of Appeals
                                         Western District


                                                       
IN THE INTEREST OF: K.S.W.;                            
                  Plaintiff,                              WD77453
JUVENILE OFFICER;                                         OPINION FILED:
                             Respondent,               
                                                          February 17, 2015
DEPARTMENT OF SOCIAL SERVICES,                         
MISSOURI CHILDREN’S DIVISION,                          
                                                       
                             Respondent,               
v.                                                     
                                                       
C.P.S.;                                                
                             Appellant,                
                                                       
D.B.W.,                                                
                                                       
                             Appellant.                


                   Appeal from the Circuit Court of Jackson County, Missouri
                            The Honorable John M. Torrence, Judge

 Before Division Three: Victor C. Howard, P.J., James Edward Welsh, and Gary D. Witt, JJ.

          C.P.S. and D.B.W. ("the Parents") appeal the circuit court's judgment sustaining the

Juvenile Officer's petition which alleged that K.S.W. ("the Juvenile") was without the necessary

and proper care, custody, or support and is subject to jurisdiction of the court, pursuant to section

211.031.1, RSMo.1 We dismiss.


          1
        Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2013
Cumulative Supplement.
                                                  Background

       This case was initially presented to the circuit court in 2011 and 2012. The circuit court

sustained the Juvenile Officer's petition at that time, and, on appeal, this Court reversed and

remanded for rehearing in In re K.S.-W., 412 S.W.3d 452, 457 (Mo. App. 2013). That opinion

recites the pertinent background facts as follows:

               In December of 2003, when K.S.-W. was ten years old, the Children's
       Division placed K.S.-W. in the foster home of Appellants[2] after he was abused in
       his prior foster home. Appellants adopted K.S.-W. and his brother, D.J., in
       December of 2006.

                In August of 2010, when K.S.-W. was seventeen years old, he was placed
       in the Woodward Sexual Offender Program. In the program, participants are
       required to take a polygraph test and discuss incidents of sexual abuse they
       perpetrated along with any sexual acts perpetrated on them. During the polygraph
       test, the examiner asked K.S.-W. if he had ever been sexually abused at home and
       he initially said, "No." The test indicated that K.S.-W. failed that question and the
       examiner and staff discussed this with him further. K.S.-W. then reported that he
       had improperly touched his older half-brother who had cerebral palsy, that he had
       molested a current foster brother, and that Appellant C.P.S. had abused him. K.S.-
       W.'s allegations with regard to C.P.S. were "hotlined" to the Children's Division,
       and Children's Division staff interviewed Appellants . . . regarding the allegations.

Id. at 453. As part of the hotline investigation, Rhonda Schilli, a child services worker,

interviewed the Appellants at their home in September 2010. Schilli and her supervisor, Jennifer

Washam, interviewed C.P.S. in December 2010. C.P.S. recorded both interviews.

       Based on those interviews, on March 30, 2011, the Jackson County Juvenile Officer filed

a petition alleging that K.S.W. is without the proper care, custody, or support necessary for his

well being and is subject to the jurisdiction of the juvenile court, pursuant to section 211.031.1.

That statute grants the juvenile court "exclusive original jurisdiction" in proceedings "[i]nvolving

any child or person seventeen years of age . . . alleged to be in need of care and treatment"


       2
           The Appellants, D.B.W. and C.P.S., are both male.

                                                         2
because his parents have failed to provide the care and support necessary for his well-being, or

he is "otherwise without proper care, custody or support." § 211.031.1(1). On that same day, the

circuit court ordered that K.S.W. be placed in the care and custody of the Children's Division.3

         The Juvenile Officer's petition alleged specifically that:

         1. The child is without proper care, custody or support necessary for his well
         being and is subject to jurisdiction pursuant to 211.031.1 RSMo in that his
         parents, D.B.W. and C.P.S., neglect him.

         2. The child has a history of sexual abuse and has exhibited sexualized behaviors
         both prior and subsequent to his adoption, at the age of eleven, by C.P.S. and
         D.B.W. The child is also diagnosed with Reactive Attachment Disorder.

         3. Despite the parents' knowledge of the child's history and behaviors:

             (a.) The parents admitted to Children's Division staff that since the child's
             adoption, they have engaged in "cuddle time" with the child in the parents'
             shared bed at times when both parents were naked and covered with only a
             sheet or a blanket.

             (b.) On or about December 16, 2010, C.P.S. admitted to Children's Division
             staff that, on more than one instance during "cuddle time" with the child,
             [C.P.S.]'s penis was erect.

             (c.) On or about December 16, 2010, C.P.S. admitted to Children's Division
             staff that during the brief time in 2009 after the child's discharge from
             Ozanam but before the child's placement in Woodward Academy's Sex
             Offender Program, C.P.S. took the child on a biking trip on the Katy Trail,
             during which trip [C.P.S.] and the child slept naked in the same bed together
             two nights during the trip and on one of those nights, C.P.S. engaged in
             "cuddle time" with the child while he and the child were naked.

             (d.) D.B.W. knew or should have known of C.P.S.'s above referenced
             behaviors with the child and failed or refused to protect the child from C.P.S.


         3
           Although K.S.W. would turn eighteen years of age on April 3, 2011, four days after the petition was filed,
"the jurisdiction of the court attaches from the time the juvenile is taken into judicial custody." See Mo. Juv. Proc.
Rule 123.01(b). In addition, under section 211.041, "[w]hen jurisdiction over the person of a child has been
acquired by the juvenile court . . . in proceedings coming within the applicable provisions of section 211.031, the
jurisdiction of the child may be retained for the purpose of this chapter until he or she has attained the age of twenty-
one years." Following this court's remand, a new adjudication hearing was held, and the circuit court entered its
judgment on March 28, 2014. Six days later, on April 3, 2014, K.S.W. turned twenty-one years of age.

                                                           3
        4. The child is at risk of further harm or neglect absent the intervention of this
        Court.

        As stated, the cause was originally presented to the juvenile court over several days in

2011 and 2012. On September 21, 2012, the court sustained the Juvenile Officer's petition. The

Parents appealed, and this Court reversed and remanded for a rehearing on the basis that the

circuit court considered and relied upon prejudicial evidence that was outside of and irrelevant to

the allegations in the petition. K.S.-W., 412 S.W.3d at 454-55.

        On remand, Appellants successfully moved for a change of judge, and a different

Commissioner conducted a new adjudication hearing on March 19 and 21, 2014. At the

rehearing, Rhonda Schilli testified about her interview with the Parents on September 24, 2010.

Both Schilli and Jennifer Washam testified about the December 16, 2010 interview with C.P.S.

The Juvenile Officer presented the recordings and transcripts of those interviews. The Juvenile

Officer also introduced portions of the transcript of Dr. Sally D. Popper's4 testimony from the

first trial. Both Appellants testified, and they introduced transcript designations from Dr.

Popper's prior testimony.

        Following the conclusion of the adjudication hearing, the circuit court entered its "Order

and Judgment" on March 28, 2014. The court sustained each of the allegations in the Juvenile

Officer's petition. The court found, "based on all the evidence received," that the Parents' actions

"resulted in neglect to K.S.W." and that K.S.W. was subject to the jurisdiction of the juvenile

court, pursuant to section 211.031.1(1)(b).

        The Parents appeal.


        4
          Sally Popper, Ph.D., M.Ed., was K.S.W.'s therapist. K.S.W. had individual and family therapy with Dr.
Popper twice weekly from 2004 to 2009. She diagnosed K.S.W. with Reactive Attachment Disorder and advised the
Parents, among other things, to engage in healthy physical contact with K.S.W. in the form of nurturing touch.

                                                      4
                                                   Discussion

        Before we consider the merits of the Parents' appeal, we first must determine sua sponte

whether we have the authority to do so. In re J.W.P., 986 S.W.2d 198, 199 (Mo. App. 1999). "A

prerequisite to appellate review is that there be a final judgment." Id. If there is no final

judgment, this Court must dismiss the appeal. See id. In order to properly assess this matter, we

begin with an overview of the applicable statutes and rules governing juvenile proceedings.

        Chapter 211 of Missouri's Revised Statutes governs all proceedings brought in juvenile

court. In re A.R., 330 S.W.3d 858, 862 (Mo. App. 2011). Sections 211.171 and 211.181,

generally, and Rules 124.06 and 124.07,5 more particularly, provide for bifurcated hearings to

dispose of any petition alleging that a minor is in need of care and treatment by the court. These

hearings are identified as an adjudication hearing and a dispositional hearing. See In re M.P.R.,

381 S.W.3d 392, 393-94 (Mo. App. 2012) (citing § 211.032.4); §§ 211.171 and 211.181; Rules

124.06 and 124.07. The first hearing concerns only whether the Juvenile Officer established the

necessity of the court to assume jurisdiction over the child. M.P.R., 381 S.W.3d at 394. There,

the juvenile court conducts an adjudication hearing at which it receives evidence on the

allegations that have not been admitted. In re O.J.B., 436 S.W.3d 726, 729 n. 1 (Mo. App. 2014);

Rule 124.06(c). The purpose of the adjudication hearing is for the juvenile court to determine

whether there exists sufficient evidence that the court should assume jurisdiction over the child.

A.R., 330 S.W.3d at 862-63; § 211.031. If, at the adjudication hearing, the court determines that

such evidence exists, the court then moves to the dispositional phase. M.P.R., 381 S.W.3d at 394




        5
          Rules 110 through 129 govern practice and procedure in the juvenile and family court divisions of the
circuit court under Chapter 211 and certain sections of Chapter 210. Rule 110.01.

                                                         5
(citing § 211.032.4).6 In that second hearing, the juvenile court must conduct a separate hearing

to determine what disposition, if any, (i.e., placement, treatment, and care) the court should order

as being in the best interest of the child. See id. After the dispositional hearing, the court "shall

enter an order for the legal and physical custody of the juvenile." Rule 124.07(e)(1) (emphasis

added).7 Section 211.181.1 lists the various dispositions that the juvenile court may make after it

has determined that a child is subject to its jurisdiction, pursuant to section 211.031.1(1).8

         With that framework in mind, we turn back to the issue of finality. Section 211.261.1

provides that a parent may appeal "from any final judgment, order or decree made under the

provisions of this chapter which adversely affects him." "Generally, a final judgment disposes of

all issues in the case and leaves nothing for future determination." M.P.R., 381 S.W.3d at 393.

The standard for a "final judgment" in a juvenile case differs from this general standard,

however, because the very nature of a juvenile proceeding anticipates an on-going consideration.

Id. In a juvenile case, "[o]nce the trial court issues a judgment that includes the disposition or

treatment of the juvenile, all the issues before the . . . court have been disposed[,] nothing has




         6
           Rule 124.06(f) provides that the dispositional hearing may immediately follow the adjudication hearing
but, if not, must be scheduled within the adjudication hearing findings and order.
         7
          Additionally, Rule 124.07 provides that the court shall make findings "on whether the children's division is
required to engage in reasonable efforts to reunify the family" and "on the services required to reunify the family,"
and the court "shall schedule a future dispositional review hearing or, when appropriate, a permanency hearing."
O.J.B., 436 S.W.3d at 729 n. 1 (citing Rule 124.07(c) and (e)(4)).
         8
           The various dispositions set forth in section 211.181.1 include (1) placing "the child or person seventeen
years of age under supervision in his own home or in the custody of a relative or other suitable person " or (2)
committing him to the custody of: a public agency or institution (or other licensed institution or agency) authorized
by law to care for children or to place them in family homes; an association, school, or institution in another state if
specific conditions are met; or the juvenile officer.
          It is at least theoretically possible that, after the dispositional hearing, the court could find that although the
minor comes within the jurisdiction of the court (as found in the adjudication hearing), the parents, or other
custodian, can adequately handle the matter without assistance of the court and dismiss the petition.

                                                              6
been left for future determination, and the judgment is final and appealable." Juvenile Officer v.

A.S.M., 423 S.W.3d 824, 829 (Mo. App. 2014) (emphasis added).

       Conversely, where the judgment does not include the disposition or treatment of the

juvenile, there are issues "left for future determination." See Interest of T---G---, 455 S.W.2d 3, 7

(Mo. App. 1970). In T---G---, one of the earliest cases to address this issue, the court stated:

       [W]e do not have a final judgment after the finding of January 24, 1968, because
       it did not dispose of the parties and all the issues. Disposition of the child awaited
       the hearing of March 25, 1968. Something was left for further determination. His
       future course of training, custody and control would be decided at the
       dispositional hearing.

Id. The court held that "until judgment is rendered in which some disposition is made of the

child under Section 211.181, there is no final appealable judgment." Id. at 8. Since then, various

courts have relied on this rationale to dismiss appeals for lack of a dispositional hearing and

order. See, e.g., M.P.R., 381 S.W.3d at 393-94 (appeal dismissed on basis that "absent an order

of disposition concerning [the juvenile], there is no final, appealable judgment or order"); In re

T.E., 35 S.W.3d 497, 505 (Mo. App. 2001) (a finding of jurisdiction that "simply affirmed the . . .

previous order placing [child] in protective custody pending a disposition hearing," is not a final

judgment for purposes of appeal); Interest of K.S., 856 S.W.2d 915, 917 (Mo. App. 1993)

(dismissing appeal where "there was no disposition; hence, no judgment from which an appeal

will lie"). See also O.J.B., 436 S.W.3d at 730 n.2 (noting that "the adjudication order was not

appealable until the dispositional hearing . . . and the judgment thereafter").

       Procedurally, this case is nearly identical to M.P.R., which the Eastern District of this

Court recently dismissed for lack of a final, appealable judgment. That court explained:

       [T]he initial adjudication hearing was held to determine whether sufficient cause
       existed for [the child] to remain in the protective custody of the State. The trial
       court was then required to hold a second hearing, the dispositional hearing.

                                                  7
         Following this dispositional hearing, the court will make findings concerning the
         legal and physical custody of the juvenile, among other findings. However, as
         previously discussed, the trial court did not hold a dispositional hearing in this
         case. Instead, Mother appealed the order entered by the trial court following the
         initial adjudication hearing. The order entered by the court in this case was not an
         order of disposition. It simply affirmed the initial placement of [the child] into
         protective custody, finding sufficient cause existed to maintain that protective
         custody pending the dispositional hearing. As discussed above, absent an order of
         disposition concerning [the child], there is no final, appealable judgment or order.

M.P.R., 381 S.W.3d at 394 (internal citations omitted).

         Similarly, in this case, the juvenile court held an adjudication hearing in March 2014.

Following the conclusion of that hearing, the circuit court entered its "Order and Judgment," in

which it sustained the Juvenile Officer's petition and held that the Juvenile was subject to the

jurisdiction of the court, pursuant to section 211.031.1(1)(b). The record before this Court

indicates that the juvenile court did not conduct a dispositional hearing prior to the Parents filing

their notice of appeal.9 Based on the authorities cited herein, the adjudication judgment being

appealed is not a final, appealable judgment because there was no dispositional hearing, and,

hence, no judgment of disposition as to this Juvenile. Where there is no final, appealable

judgment, this Court has no authority to consider the appeal. See M.P.R., 381 S.W.3d at 394;

J.W.P., 986 S.W.2d at 199. Consequently, we are constrained to dismiss the Parents' appeal.




                                                                 /s/ JAMES EDWARD WELSH
                                                                 James Edward Welsh, Judge


All concur.

         9
           "The finality of a judgment for the purpose of appeal is determined by the situation as it exists in the trial
court at the time the appeal is sought." T.E., 35 S.W.3d at 505 n.13.
          We acknowledge that the lack of a dispositional hearing herein is understandable because, when the
dispositional hearing did not follow immediately upon the conclusion of the adjudication hearing, it may not have
been possible to conduct one prior to the court losing jurisdiction over K.S.W. on his 21st birthday on April 3, 2014.

                                                            8
