                                        In the
                       Missouri Court of Appeals
                                Western District
 BRYAN KEITH MARTIN AND                     )
 MARY ELIZABETH MARTIN,                     )
                                            )   WD82024
               Appellants,                  )
                                            )   OPINION FILED: April 2, 2019
 v.                                         )
                                            )
 CAROLYN SUMMERS, ET AL.,                   )
                                            )
              Respondents.                  )

            Appeal from the Circuit Court of Callaway County, Missouri
                          The Honorable Jeff Harris, Judge

 Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Gary D. Witt, Judge and
                           Thomas N. Chapman, Judge


      Bryan Keith Martin and Mary Elizabeth Martin (collectively the "Martins") appeal

the judgment of the Circuit Court of Callaway County dismissing their Petition for

Declaratory Judgment and Damages Claims for Wrongful Death ("Petition"). The Petition

sought a declaration that the Martins were proper parties to bring a wrongful death claim

as the equitable adoptive parents of Carl Lee DeBrodie ("DeBrodie"). The Petition was

originally brought against a number of defendants but, following voluntary dismissals in

the circuit court, the Respondents before this Court are Carolyn Summers (who is the
biological mother of DeBrodie) ("Summers") and Carol Samson, (who is the personal

representative of the Estate of Carl Lee DeBrodie and Next Friend to Summers)

("Samson") (collectively, "Defendants") and Second Chance Homes of Fulton, LLC

("Second Chance Homes"). Following the filing of this appeal and briefing of the issues,

the Martins moved to dismiss the appeal as to Second Chance Homes, leaving only the

Defendants as Respondent's in this action. The Martins bring seven allegations of error on

appeal. We affirm.

                                             Factual Background1

         The relevant and somewhat tortured legal history of this case began in 1999. In

September 1999, the Cole County Circuit Court appointed Mary Martin to be the legal

guardian of DeBrodie, who was then thirteen years old and considered a special needs

child. In the guardianship judgment, that court found that DeBrodie's biological mother,

Summers, was "severely intellectually, psychologically, socially, and occupationally

impaired" and that both she and DeBrodie's biological father2 were unable or unfit to

assume the duties of guardianship. The court found that grounds existed to terminate the

parental rights of DeBrodie's mother as to DeBrodie and his younger sister, but found that

termination would not be in the children's best interest. Mary Martin continued to serve as

DeBrodie's legal guardian until 2004 when he turned eighteen and he lived with the

Martin's in their home. At some point after DeBrodie turned 18, the Callaway County



         1
            "When this Court reviews the dismissal of a petition for failure to state a claim, the facts contained in the
petition are treated as true and they are construed liberally in favor of the plaintiffs." Lynch v. Lynch, 260 S.W.3d
834, 836 (Mo. banc 2008).
          2
            DeBrodie's biological father is now deceased.

                                                            2
Circuit Court adjudged DeBrodie to be an incapacitated and disabled adult. DeBrodie

became a ward of the Public Administrator of Callaway County and a new legal guardian

was appointed.

         In 2011, the Martins sought to legally adopt DeBrodie as an incapacitated and

disabled adult. In re DeBrodie, 400 S.W.3d 881, 883 (Mo. App. W.D. 2013) ("In re

DeBrodie I"); In re DeBrodie, 452 S.W.3d 644 (Mo. App. W.D. 2014) ("In re DeBrodie

II").3 The adoption was initially denied by the circuit court due to DeBrodie's inability to

consent to the adoption. This Court reversed and remanded that judgment finding, under

the circumstances, DeBrodie's consent was not statutorily required. In re DeBrodie I, 400

S.W.3d at 889. On remand, the circuit court heard additional evidence and, thereafter,

denied the Martins' petition for adoption on the grounds that they failed to establish by

clear and convincing evidence the fitness or propriety of the adoption, or that the welfare

of DeBrodie demanded that the adoption be granted. This Court affirmed the judgment, in

part based on a consideration of the familial ties between DeBrodie and his mother that

would be severed by such an adoption. In re DeBrodie II, 452 S.W.3d at 648-51.

DeBrodie's father was deceased but DeBrodie received a monthly monetary death benefit

through his father, although it was unclear how much it was or where the benefit derived.

Id. at 653. DeBrodie maintained a close relationship with his mother who:

         visited him at least once a month, more if transportation allowed, and
         engaged in weekly telephone conversations with [DeBrodie]. [DeBrodie]
         references his mother as "Momma." [DeBrodie] and his mother share an
         undisputed affectionate bond. [DeBrodie] exhibits excitement when his

         3
            Portions of the facts are quoted from the opinion in In re DeBrodie I and In re DeBrodie II, without
further attribution.

                                                          3
       mother is scheduled to call or visit and asks for his hair to be done or to put
       on special clothing. He cries when she is unable to visit.

In re DeBrodie II, 452 S.W.3d at 648. This Court found that "mentally incapacitated adults

have a significant liberty interest in protecting their intact familial ties from interference

by a third party." Id. Further, although there was certainly some evidence that DeBrodie

would benefit from being adopted by the Martins, the circuit court's finding to the contrary

was not against the weight of the evidence. Id. at 656.

       In 2017, DeBrodie was a resident of Second Chance Homes. Second Chance Homes

reported DeBrodie missing on April 17, 2017. On April 24, 2017, DeBrodie's body was

found encased in concrete inside a locked storage unit in Fulton.

       The Martins filed their Petition on April 9, 2018. The Petition named as defendants

Summers and Samson as well as Second Chance Homes, and the unknown parties

responsible for DeBrodie's death. The Petition sought a declaration that the Martins were

entitled to sue for wrongful death pursuant to section 537.080 4 as the equitable adoptive

parents of DeBrodie. The Petition also sought declarations that the Martins were entitled

to recover from all defendants--other than Summers and Sampson--compensatory and

aggravated damages in the amount of twenty-one million dollars for the negligent death of

DeBrodie and twenty-one million dollars for the intentional torts which caused the

wrongful death of DeBrodie.

       On May 21, 2018, Summers and Samson filed a joint Motion to Dismiss ("Motion

to Dismiss") alleging the Martins lacked the legal capacity to sue, citing to Rule


       4
           All statutory citations are to RSMo 2016 as currently supplemented unless otherwise noted.

                                                         4
55.27(a)(3).5      Second Chance Homes filed a separate Motion to Dismiss or in the

Alternative Motion for Judgment on the Pleadings on June 22, 2018. The circuit court held

a hearing on both motions and entered judgment dismissing the Petition on July 17, 20186

("Judgment"). The Court dismissed the Petition for four stated reasons: (1) the Martins

lacked standing to bring a wrongful death claim pursuant to section 537.080 because they

were not the natural or adoptive parents of DeBrodie; (2) the Martins' claims are barred by

res judicata, in that their attempt at equitable adoption has already been adjudicated and

rejected in other proceedings (referencing the Martins' previous adoption proceedings); (3)

Missouri does not recognize a right for "equitable parents" to recover on behalf of a

deceased child; and (4) only one action may be brought under section 537.080 for the death

of DeBrodie and there is an existing previously filed lawsuit that bars the current action.

The Judgment dismissed all claims and all defendants.7 This appeal followed.8

                                            Motion to Dismiss

        After the conclusion of the briefing in this matter, the Martins filed a Motion to

Dismiss this appeal as to Second Chance Homes. The Martins alleged in that motion that

on December 5, 2018, a judgment was entered under seal in a wrongful death case

regarding the death of DeBrodie brought by the Defendants in the United States District

Court for the Western District of Missouri ("Federal Judgment"). According to the



        5
          All rule references are to Missouri Supreme Court Rules (2018).
        6
          The Judgment was originally entered on July 2, 2018, as a docket entry followed by typed initials. The
Judgment was reissued on July 17, 2018, as a separate document denominated a judgment and signed by the judge.
        7
          The Petition made various allegations against other unknown parties who may have been responsible for
DeBrodie's death. These additional defendants were dismissed by Martins without prejudice on July 12, 2018, after
the Judgment was entered.
        8
          The Defendants have not filed a Brief in this proceeding.

                                                        5
Martins, the Federal Judgment releases Second Chance Homes from all further liability for

the death of DeBrodie and as such, renders this appeal moot as to Second Chance Homes.

Second Chance Homes filed Suggestions in Opposition which did not dispute that the

Federal Judgment renders this appeal moot as to Second Chance Homes but contends that

the appeal is now moot in its entirety. The Defendants filed no response to that motion.

The Martins argue that the appeal, as to the Defendants, still presents a live controversy

because it seeks a declaration that the Martins are equitable parents of DeBrodie who have

standing to bring a wrongful death claim against other tortfeasors in later actions.

       A copy of the Federal Judgment was not filed with this Court. We have no ability

to determine what affect the Federal Judgment might have on the rights and liabilities of

the Defendants. It does not appear based solely on the Motion to Dismiss and Suggestions

in Opposition that the question of whether the Martins may bring a claim for wrongful

death based on their position as alleged equitable parents of DeBrodie was addressed by

the federal court. Because the Martins and Second Chance Homes are in mutual agreement

that the appeal is moot as to Second Chance Homes we may dismiss that portion of this

appeal without the benefit of knowing the terms of the Federal Judgment. The Martins,

however, still allege that there exists a live controversy as to their claims against the

Defendants and we cannot determine otherwise without reviewing the Federal Judgment.

       The Martins' Motion to Dismiss Second Chance Homes is granted and Second

Chance Homes is dismissed from this appeal. We proceed with the appeal only as to the

Defendants.



                                             6
                                    Standard of Review

       "The standard of review for a trial court's grant of a motion to dismiss is de novo."

Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). "When this Court reviews the

dismissal of a petition for failure to state a claim, the facts contained in the petition are

treated as true and they are construed liberally in favor of the plaintiffs." Id.

                                         Discussion

       The Martins raise seven points of error on appeal. As we find their fourth point on

appeal dispositive we begin there. The Martins allege that the circuit court erred in granting

Defendant's Motion to Dismiss for lack of standing to sue for the wrongful death of

DeBrodie because the Legislature intended equitable parents to have standing as first class

beneficiaries under section 537.080.

       The Martins' Petition sought a declaration from the circuit court recognizing "their

rights and interests as persons entitled to sue for wrongful death of Carl Lee DeBrodie

under Missouri statutes and law, specifically including [the Martins'] standing and status

as persons, parents of Carl Lee DeBrodie, entitled to sue for the death of Carl Lee DeBrodie

under § [537.080] RSMo. . . ." The Martins did not seek a declaration of equitable adoption

beyond the scope of granting them standing to bring a wrongful death action. They are

further not requesting that Summers' parental rights be terminated or a declaration that

Summers is not a proper party to bring a wrongful death action on DeBrodie's behalf. In

fact, the Martins only seek to share in any wrongful death recovery with Summers as

additional First Class plaintiffs under section 537.080 in any wrongful death action.

Because of the dismissal of the other defendants, this request for declaration of equitable

                                               7
adoption remains as the only live controversy in the Petition. Thus, if such a declaration

of equitable adoption is made and the Martins still lack standing to bring a claim under

section 537.080 then the circuit court did not err in finding that their Petition failed to state

a claim upon which relief could be granted. This Court then need not answer the question

of whether the Martins should be declared as equitable adoptive parents of DeBrodie, or

even if such a declaration could be made given this Court's prior holdings in In re DeBrodie

I and In re DeBrodie II. We must therefore first address the question of whether equitably

adopted parents have standing as first class litigants under Section 537.080.1(1) to bring a

cause of action for wrongful death.

       "Standing is a question of law that we review de novo." Borges v. Mo. Pub. Entity

Risk Mgmt. Fund, 358 S.W.3d 177, 180 (Mo. App. W.D. 2012). "We consider the petition

along with any other non-contested facts to determine whether the petition should be

dismissed due to Petitioners' lack of standing." Id. Courts have a duty to determine if a

party has standing prior to addressing the substantive issues of the case. Farmer v. Kinder,

89 S.W.3d 447, 451 (Mo. banc 2002). "A party seeking relief has the burden to establish

that it has standing to maintain its claim." Brannum v. City of Poplar Bluff, 439 S.W.3d

825, 829 (Mo. App. S.D. 2014) (citing Borges, 358 S.W.3d at 181).

       Section 537.080.1 governs who has standing to bring a claim for wrongful death.

The Missouri legislature created three classes of parties who may bring suit for wrongful

death. Section 537.080.1. As relevant to this case, parents of a decedent are included in

the first class. Section 537.080.1(1). The first class includes "the spouse or children or the

surviving lineal descendants of any deceased children, natural or adopted, legitimate or

                                               8
illegitimate, or by the father or mother of the deceased, natural or adoptive." Section

537.080.1(1). If there is no person listed in the first class then the statute directs that one

looks to the second class. Section 537.080.1(2). Siblings and descendants of siblings are

in the second class. Section 537.080.1(2). Then, only if there are no persons provided for

in class one or two, the court is allowed to appoint a plaintiff ad litem to bring the claim

under the third class. Section 537.080.1(3).

         The Martins allege that they are the "equitable" adoptive parents of DeBrodie and

seek a declaration that "equitable" adoptive parents are first-class litigants under section

537.080.1(1) the same as legally adoptive parents. In support of this contention they first

argue that the terms "natural" and "adoptive" in section 537.080 are ambiguous and leave

open the question of whether equitably adoptive parents may have standing to bring an

action and to recover damages as first class beneficiaries. For further support the Martins

cite to Taylor v. General Motors Corp., 715 S.W.2d 925 (Mo. banc 1986). In Taylor, an

aunt9 brought an action for wrongful death of her niece, whom she alleged she had

"equitably adopted." Id. at 926. A motion to dismiss was brought and the circuit court

ruled that a separate trial on the issue of whether there had been an equitable adoption was

necessary. Id. The circuit court ruled that there was insufficient evidence to support a

declaration of equitable adoption. Id. The Supreme Court affirmed the holding of the

circuit court on the question of the equitable adoption and found that, under the

circumstances, "[t]he question whether the doctrine of equitable adoption should be applied


         9
           The Court in Taylor used the terms "aunt" and "niece" to refer to the plaintiff and her deceased relatives
although the findings of fact were that the deceased was the daughter of the plaintiff's cousin. Id. at 926. For clarity
of discussion we adopt the same terms as the Court.

                                                           9
to allow an 'adoptive parent' to bring an action for the wrongful death of an 'equitably

adopted child' is not ripe for determination in the absence of an appropriate and definitive

decree of equitable adoption." Id. at 927.

       The Court in Taylor did not hold that the aunt could recover as the equitable

adoptive parent of her niece but merely that the issue was not ripe for determination. The

issue was, however, squarely decided by this Court six years later in Halterman v.

Halterman, 867 S.W.2d 559 (Mo. App. W.D. 1993). In Halterman, a father filed a

wrongful death action for the death of his daughter. Id. at 559. Father's former wife, who

was not the child's biological mother, filed a motion to intervene on the ground that she

was the adopted mother of daughter by equitable adoption. Id. The Court held that the

doctrine of equitable adoption "is solely for the benefit of a child" and as such not available

for an alleged equitable parent seeking to recover damages for the death of a child. Id. at

560. As explained by this Court in Halterman, "equitable adoption was developed because

the court was not willing to allow the failure of a party to properly execute and record a

deed to work an irreparable harm on the child." Id. The Court found that doctrine of

equitable adoption was "developed solely to benefit the child." Id. (citing Drake v. Drake,

43 S.W.2d 556 (Mo. banc 1931). This original intent was supported by Rumans v.

Lighthizer, 249 S.W.2d 397 (Mo. 1952) in which the Missouri Supreme Court held that

equitable adoption could not be used to establish heirship for the purposes of an alleged

"adopted" parent inheriting from a child who was alleged to have been equitably adopted.

Id.; See also Sarazin v. Union R. Co., 55 S.W. 92 (Mo. 1900) (declining to consider

equitable adoption in a wrongful death case brought by "adoptive" parents after the

                                              10
adoption agreement was found to be deficient and the adoption void, noting that such

doctrine was for the benefit of the child).

       The Martins seek to challenge the validity of Halterman finding fault that the

opinion failed to cite to O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983). O'Grady

construed the wrongful death statute broadly to find that the term "person" as used in

section 537.080 included a viable human fetus. Id. at 910. The Court found that a narrow

reading of the statute would be contrary to its purpose to allow recovery not previously

available under the common-law. Id. at 909. While certainly O'Grady makes a case for a

broad interpretation, O'Grady itself notes that a contrary finding would result in a tortfeasor

who causes a prenatal death being treated more favorably than one who merely causes a

prenatal injury. Id. at 909-10. While certainly the discussion of O'Grady may speak to the

issues in Halterman and deal with the same underlying statute, the considerations of this

Court in Halterman were not so similar to that in O'Grady that we can find fault with this

Court for failing to cite to the prior decision in its analysis or to find it controlling of the

issues presented in that later case.

       Neither does this Court's failure cite to Holt v. Burlington N. R.R. Co., 685 S.W.2d

851 (Mo. App. W.D. 1984) call into question Halterman's validity. Holt held that a child,

declared equitably adopted by his aunt six months after aunt's death, could bring an action

against the railroad whose train struck and killed his aunt. Id. Halterman does not conflict

with the holding in Holt because the equitable adoption and subsequent wrongful death suit

was brought for the benefit of the equitably adopted child. See accord, Coon v. Am.

Compress Steel, Inc., 207 S.W.3d 629 (Mo. App. W.D. 2007) (affirming the validity of the

                                              11
equitable adoption of a child after adoptive mother's death in a car accident and affirming

child as a proper plaintiff to prosecute a wrongful death claim on adoptive mother's behalf).

        The Martins cite to no Missouri case law, nor can we find any, in which postmortem

equitable adoption of a child has been permitted to allow an equitable parent to recover

damages for the child's death. The Martins ask that we overrule Halterman or, in the

alternative, distinguish the holding of Halterman from the present case. The Martins argue

that public policy dictates that we should liberally construe section 537.080 in favor of a

greater number of grieving persons being granted standing. In seeking such an outcome,

the Martins analogize the present case to cases of child custody disputes in which Missouri

courts have found that a recognition of non-familial relationships may be in the best

interests of a child. See Bowers v. Bowers, 543 S.W.3d 608 (Mo. banc 2018); Cotton v.

Wise, 977 S.W.2d 263 (Mo. banc 1998). These cases are inapposite. As with Coon and

Holt, these cases recognize non-familial relationships for the benefit of a child. We find

no basis for extending the holdings of these cases to create a legal benefit for the alleged

parent to proceed with a cause of action for damages. As noted by this Court in Halterman,

courts will not punish a child for an adult's failure to timely and properly formalize an

adoption. The same justification does not operate in reverse to benefit an adult who

controls whether or not a legal relationship with a child is formalized.10 The reasoning in

Halterman was and remains sound. The doctrine of equitable adoption is for the benefit

of a child not so that the "adoptive" parent may recover damages for the wrongful death of


        10
           We recognize that the Martins did seek to legally adopt DeBrodie before his death. However, a final
judgment affirmed by this Court denied that adoption. That decision does not act as support for later recognizing an
equitable adoption contrary to a final judgment denying an actual adoption.

                                                        12
a child.11 To the extent that the Martins are correct that the language of section 537.080

might allow for the doctrine of equitable adoption, the courts have made clear that the

statute only allows for recovery of damages by an equitably adopted child and not by

equitably adopted parents.

         We recognize that the Martins shared a close familial like relationship with

DeBrodie and viewed their role as his de facto parents. They took him into their home and

raised him through most of his formative years and clearly cared deeply for him. We also

do not doubt that the Martins sincerely grieve the loss of DeBrodie. Missouri's wrongful

death statute does not, however, encompass all parties who grieve the loss of an individual.

The statute only confers on certain parties the authority to bring and recover damages from

a wrongful death suit and sound precedent holds that equitable adoptive parents are not

parties given the authority to sue for damages under section 537.080.1(1). Halterman, 867

S.W.2d at 560. As such, the circuit court did not err in granting the Defendant's Motion to

Dismiss.12




         11
             Additionally, the Martins contend that section 537.080 should be construed to allow for equitable
adoption so that the person who raised the child may bring suit if the child's parents are dead. Section 537.080
already allows for such a situation where, should a person not have a representative in the first or second class, a
court may appoint a third party to bring an action on behalf of the deceased.
          12
             The Martins mention briefly within the argument for their fourth point on appeal that the Petition argued
that interpreting section 537.080 as not allowing "equitably adopted" parents to be considered first-class
beneficiaries would be "unconstitutional in violation of their rights to due process, equal rights, open courts, and
right and just remedies administered without denial pursuant to Article I, Sections 2, 10, and 14 of the Missouri
Constitution and the 14th Amendment to the U.S. Constitution." The constitutionality of section 537.080 was not
raised in the trial court or in the point relied on and thus is not properly before this Court. Eltiste v. Ford Motor Co.,
167 S.W.3d 742, 750 (Mo. App. E.D. 2005). Even were we to gratuitously review such an argument, the Martins
fail to provide this Court with any substantive legal analysis and merely make the conclusory statement that the
present interpretation of section 537.080 is unconstitutional. "If a party does not support contentions with relevant
authority or argument beyond conclusory statements, the point is deemed abandoned." Kuenz v. Walker, 244
S.W.3d 191, 194 (Mo. App. E.D. 2007) (citing Houston v. Weisman, 197 S.W.3d 204, 206 (Mo. App. E.D. 2006)).

                                                           13
        The circuit court did not err in finding that, even if declared to be equitable adoptive

parents of DeBrodie, the Martins had no right to bring a wrongful death claim under section

537.080. Equitable adoption was the sole theory by which the Martins sought to bring an

action under section 537.080. As such, the circuit court's finding that such a theory was

invalid was dispositive of the entirety of the Petition.13

                                                  Conclusion

        The circuit court did not err in finding that, even were the Martins to be deemed the

equitable adoptive parents of DeBrodie, they would not have had standing to bring a

wrongful death action under section 537.080. As such, the circuit court did not err in

dismissing the Petition for failure to state a claim upon which relief could be granted as to

the Defendants. We grant the Martins' motion to dismiss Second Chance Homes from this

appeal and affirm the Judgment of the circuit court as to the Defendants.




                                                     __________________________________
                                                     Gary D. Witt, Judge
All concur




        13
           We also note, as was raised by Second Chance Homes in its Suggestions in Opposition to the Motion to
Dismiss filed by the Martins in this appeal, the sole remaining defendants to the Petition which seeks damages for
the wrongful death of DeBrodie are DeBrodie's mother and her next friend who are not alleged to have had any
involvement in or liability for DeBrodie's disappearance or death.

                                                        14
