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In re Adoption of K.M.W.

Court of Appeals of Missouri, Southern District, Second Division

March 15, 2017

In the Adoption of K.M.W. and N.A.W. D.S. and R.S., Intervenors-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable James V. Nichols

          OPINION

          GARY W. LYNCH, P.J.

         The paternal grandparents ("Paternal Grandparents") of K.M.W. and N.A.W. petitioned the trial court for adoption of both minors. The maternal grandparents ("Maternal Grandparents") moved for and were granted leave by the trial court to intervene because their "rights to visit" would be terminated by the adoption. Following a hearing, the trial court denied the petition for adoption. Paternal Grandparents timely appealed, asserting two points of trial court error in granting intervention and three points of trial court error in denying adoption. Finding no merit in any point, we affirm the trial court's judgment.

         Intervention

         For ease of analysis, we take Paternal Grandparents' points addressing intervention out of order.

         Point Two: No Prejudicial Error in Allowing Permissive Intervention

         Paternal Grandparents' second point contends that the trial court committed reversible error in granting Maternal Grandparents' motion to intervene because Maternal Grandparents did not meet the requirements for permissive intervention under Rule 52.12(b).[1]

         "This Court reviews permissive intervention for abuse of discretion. Intervention generally should be allowed with considerable liberality." Breitenfeld v. Sch. Dist. of Clayton, 399 S.W.3d 816, 837 (Mo. banc 2013) (quoting Johnson v. State, 366 S.W.3d 11, 20 (Mo. banc 2012) (internal quotations and citations omitted)). Our review includes whether an appellant has demonstrated that prejudice resulted from the alleged abuse of discretion. Comm. for Educ. Equal. v. State, 294 S.W.3d 477, 487 (Mo. banc 2009) (trial court error in permitting defendant-intervenors to join case "does not merit reversal unless Plaintiffs were harmed.").

         Paternal Grandparents' second point contains no allegation or contention that they suffered any prejudice arising from the trial court permitting Maternal Grandparents' permissive intervention. Furthermore, we have carefully reviewed Paternal Grandparents' argument under this point and cannot find any argument asserting, much less demonstrating, that they were prejudiced by such intervention.[2]

         Assuming, without deciding, that the trial court erred in granting permissive intervention as Paternal Grandparents contend, failure to demonstrate prejudice is fatal to Paternal Grandparents' point because "appellate review is for prejudice, not mere error." Heritage Warranty Ins., RRG, Inc. v. Swiney, 244 S.W.3d 290, 294 (Mo.App. 2008). Rule 84.13(b) does not permit this court to reverse a trial court's judgment unless we find "that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b) (emphasis added). As a result of Paternal Grandparents' failure to allege or show prejudice, we cannot conclude that the trial court's ruling "materially affect[ed] the merits of the action." Rule 84.13(b). "Because reversible error cannot be demonstrated without a showing of prejudice, Missouri courts may hold a party has abandoned an issue where the party fails to address the issue of prejudice in his or her brief." Matter of Hasty, 446 S.W.3d 336, 339 (Mo.App. 2014).

         Nevertheless, we ex gratia observe the following from our review of the trial court record. As the proponents of the adoption, Paternal Grandparents had the burden to prove that the welfare of K.M.W. and N.A.W. demanded the granting of the adoption, section 453.030.1, [3]and that it was "fit and proper that such adoption be made[, ]" section 453.080.1(8).[4] At the hearing on their adoption petition, Paternal Grandparents had the initial opportunity to present evidence during which they presumably adduced all the evidence they believed relevant to the issues in the adoption and then rested their case. No relevant evidence adduced by Paternal Grandparents was excluded by the trial court at the behest of Maternal Grandparents. Immediately after Paternal Grandparents rested their case, the trial court denied their petition for adoption. Maternal Grandparents adduced no evidence at the adoption hearing outside of their cross examination of Paternal Grandparents' witnesses. Those cross examinations produced only evidence that was relevant to the adoption issues. Because the trial court denied the requested adoption, our standard of review requires us to conclude that the trial court did not sufficiently credit Paternal Grandparents' evidence favoring adoption. Viewed in this light, there is no basis upon which to conclude that remanding the case and removing Maternal Grandparents as parties would materially affect the merits of the action. Accordingly, we cannot conclude that the trial court committed reversible-prejudicial-error in allowing Maternal Grandparents to intervene under Rule 52.12(b). Paternal Grandparents' second point is denied.

         Point One: Intervention as a Matter of Right is Moot

         Paternal Grandparents' first point contends that the trial court committed reversible error in granting Maternal Grandparents' motion to intervene as a matter of right under Rule 52.12(a). Because we found no reversible error in the trial court allowing Maternal Grandparents to permissively intervene under Rule 52.12(b), the issue of whether their intervention was correct as a matter of right is moot and need not be addressed.

         Denial of Adoption

         We review adoption cases using the well-known standard of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re C.G.L., 63 S.W.3d 693, 696 (Mo.App. 2002). As such, we will uphold the judgment of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy, 536 S.W.2d at 32. "[E]ach Murphy ground is a separate, distinct legal claim." Smith v. Great Am. Assur. Co., 436 S.W.3d 700, 703 (Mo.App. 2014). "The application of this standard of review varies depending on the burden of proof applicable at trial and the error claimed on appeal to challenge the judgment." Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).

         We defer to the trial court's determinations of witness credibility and factual issues. In re K.K.J., 984 S.W.2d 548, 552 (Mo.App. 1999). All facts and the reasonable inferences that can be drawn therefrom are examined in the light most favorable to the trial court's judgment. In re C.J.G., 75 S.W.3d 794, 797 (Mo.App. 2002). All contrary evidence and inferences are disregarded. In re Adoption of F.C., 274 S.W.3d 478, 482 (Mo.App. 2008).

         For ease of analysis, we also take Paternal Grandparents' points addressing denial of adoption out of order.[5]

         Point Five: Denial of Adoption Need Not be Supported by ...


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