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Tacchi v. Mueller

Court of Appeals of Missouri, Eastern District, Second Division

March 12, 2019

KELSEY TACCHI, Appellant,
v.
DUSTIN MUELLER AND BRITTANY MUELLER, Respondents.

          Appeal from the Circuit Court of St. Charles County Honorable Elizabeth W. Swann

          PHILIP M. HESS, PRESIDING JUDGE

         Introduction

         Kelsey Tacchi ("Tacchi") appeals judgment of the trial court denying and dismissing her Petition for Habeas corpus which sought to obtain the release of her natural born son ("the child") from the custody of Dustin Mueller and Brittany Mueller (collectively, "Muellers"). The child was transferred to the Muellers through an adoption agency after Tacchi executed a consent form and power of attorney form. Based on these documents, the Muellers filed a petition to adopt the child in an on-going, collateral adoption proceeding.[1] Though the Muellers incorporated by reference the consent form and durable power of attorney dated August 11, 2018 and a November 5, 2018 order and judgment from the collateral adoption pleading in their responsive pleading to Tacchi's Petition for habeas corpus under Rule 91.09[2], the parties both acknowledge the trial court has since granted temporary custody of the child to the Muellers in orders dated January 4, 2019 in the collateral adoption proceeding and dated November 29, 2018 in the habeas corpus proceeding.

         Tacchi raises three points on appeal. For Point I, Tacchi argues the trial court erred in dismissing and denying her Petition for Habeas Corpus without permitting the introduction of evidence supporting her allegations of both residency and deficiencies in the power of attorney. In Point II, she argues the trial court erred in finding the power of attorney provided lawful custody. In Point III, she argues the trial court erred in granting temporary custody of the minor child in her order denying the Petition for habeas corpus.

         Although we note the charged nature of any proceedings involving custody of a child, we must dismiss Tacchi's appeal of the petition of habeas corpus as moot, and decline to exercise our discretion to consider the matter under the so-called "mootness exceptions."

         Factual and Procedural Background

         Beginning in May 2018, Tacchi (the birth mother) and Kelly Yeager, Jr. ("Yeager"), the birth father, contemplated adoption of their unborn child and were engaged in on-going discussions with Bringing Families Together, a placement agency. Months later, on August 6, 2018, the child was born. On August 11, 2018, Tacchi and Yeager traveled to Bringing Families Together, and executed two documents each: (A) a consent to adoption form; and (B) a durable power of attorney form. The circumstances surrounding the actual execution of these forms is disputed.[3] Nevertheless, Tacchi and Yeager had engaged in long-term coordination with the placement center since May 2018. On August 11, 2018, under then-effective Section 475.024 RSMo[4], Tacchi and Yeager transferred care and physical custody of their child to Dustin and Brittany Mueller ("The Muellers"), a couple intending to adopt him, through the placement agency. Thereafter, Tacchi informed her family the child had died; Tacchi's family, after placing a church bulletin requesting prayers for the soul of the child, grew suspicious, and called the police to investigate.

         On August 17, 2018, the Muellers filed their Petition for Termination of Parental Rights, Transfer of Custody, and Subsequent Adoption, relying upon the documents executed by Tacchi and Yeager on August 11, 2018. On August 20, 2018, the Court entered a Judgment accepting and approving Tacchi's Consent to Termination of Parental Rights and Consent to Adoption. Contemporaneously, Tacchi sought to revoke the power of attorney and consent and filed her Entry of Appearance in the collateral adoption proceeding.

         On August 28, 2018, the Supporting and Strengthening Families Act became effective, intended by the General Assembly to overhaul the statutory structure related to the execution of these types of documents.

         On November 20, 2018, Tacchi filed her Petition for Habeas Corpus, arguing the Muellers did not have legal custody of the child, despite the orders accepting the consent to terminate parental rights and the order denying Tacchi's Motion to withdraw the consent in the collateral matter. On November 26, 2018, the Muellers filed their Answer under Rule 91.09, incorporating by reference the power of attorney, consent form, and the November 5, 2018 order from the collateral adoption action. On November 29, 2018, the trial court denied and dismissed the petition for habeas corpus, noting the Muellers properly had custody under the power of attorney. The trial court then granted temporary custody to the Muellers.

         Another temporary custody order was entered by the trial court in the collateral matter on January 4, 2019, assigning temporary custody to the Muellers.

         On March 4, 2019, Tacchi moved for Summary Judgment in the collateral matter upon substantially similar arguments to ...


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