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In re E.R.S.

Court of Appeals of Missouri, Southern District, Second Division

August 30, 2019

IN THE INTEREST OF: E.R.S., A child under seventeen years of age,
v.
T.J.B. and T.M.B., Respondents-Respondents. D.R., Movant-Appellant,

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable D. Andrew Hosmer, Associate Circuit Judge

          JEFFREY W. BATES, C.J.

         D.R. (Appellant) filed a motion to set aside the adoption of E.R.S. (Child) by T.J.B. and T.M.B. (Adoptive Parents). The Judgment for Decree of Adoption (Adoption Judgment), to which Appellant was not a party, was entered six months earlier by the juvenile division of the circuit court of Greene County, Missouri. In response to Appellant's motion to set aside, Adoptive Parents filed a motion to strike Appellant's motion. The motion to strike asserted, inter alia, that because Appellant was not a party to the underlying adoption action, the trial court had no authority to grant relief on Appellant's motion to set aside the Adoption Judgment. See Rule 74.06.[1] The trial court agreed and struck Appellant's motion to set aside, and Appellant appealed. Because the trial court lacked authority to grant relief, this Court similarly lacks jusrisdiction to review the appeal on the merits. We therefore must dismiss this appeal for lack of appellate jurisdiction.

         Factual and Procedural Background

         In early August 2017, T.S. (Mother), then 20 years old, gave birth to Child. While in the hospital, Mother decided to put Child up for adoption. Mother chose Adoptive Parents for the adoption and provided Lutheran Family and Children's Services (LFCS) with the authority to take custody of Child and move the adoption process forward.

         Mother was represented by counsel as part of the adoption process. Mother executed, inter alia, an Affidavit of Birth Mother, stating in relevant part:

I placed no man's name on [Child's] birth certificate. As provided under RSMo § 453.030.8(1), I decline to name [Child's] birth father ("Birth Father") and exercise my right to privacy in not naming the birth father. Missouri law gives me the right not to name the birth father and I choose to exercise this right. …
I do … have reason to fear the birth father.

         On September 1, 2017, a hearing was held to approve the transfer of custody of Child to Adoptive Parents. Evidence was adduced that no man had filed with the putative father registry or filed a paternity action within 15 days of Child's birth. At the conclusion of the hearing, the court entered: (1) a Judgment Resolving Parental Rights determining that the consent of Child's father was not necessary for the adoption to move forward; (2) an order acknowledging Mother's consent to the termination of her parental rights and to the adoption; and (3) an order formally transferring custody to Adoptive Parents. The court set the final adoption hearing for March 16, 2018.

         Around February 17, 2018, Mother visited Appellant. He discovered photos of Child on Mother's phone. Mother told Appellant that she believed that he was the father of Child and that Child had been placed for adoption. Three days later, Mother informed Adoptive Parents that she had an encounter with the person she believed to be Child's father. Mother did not identify him by name. Around that same time, Appellant retained counsel.

         On February 26, 2018, Appellant's counsel called Mother's counsel. While withholding Appellant's identity, Appellant's counsel claimed he had knowledge of a potential father of Child and that he had not been served in the adoption case. Mother's counsel informed him that service is not required upon a man who has not asserted his paternity. Mother's counsel offered, however, to arrange for DNA testing and consideration by the Adoptive Parents for post-adoption contact, in exchange for consent to the adoption on the part of the unidentified man. Appellant's counsel knew: (1) the names of Adoptive Parents; (2) the adoption was placed through LFCS; and (3) the adoption case was filed in Greene County. Mother's counsel confirmed that Greene County was where the case was pending, but she did not provide the case number. Mother's Counsel was aware that Mother stated early on in her Affidavit that she had reason to fear Child's father. Although Mother's counsel had additional communication with Appellant's counsel on March 1 and 2, 2018, no agreement was reached and the name of the potential father was still unknown. Appellant did not file with the putative father registry or file a paternity action at that time.

         On March 16, 2018, the final adoption hearing was held as scheduled. Counsel for Adoptive Parents informed the trial court that Mother's counsel had been contacted by Appellant's counsel. The identity and whereabouts of Child's father were still unknown to everyone except Mother, who chose not to identify him. Ultimately, the trial court found that the adoption case had been handled appropriately and that the unidentified, potential father had been provided ample opportunity to come forward. Finalization of the adoption was approved.

         On March 19, 2018, the trial court entered the Adoption Judgment. The court reiterated its finding the previous September "that the consent of any man who could be [Child's] father is not required to proceed with this adoption" pursuant to § 453.030.3(2)(a), (b) and (c); § 192.016; § 453.040(3).[2] No after-trial motions were filed, and no appeal from this judgment was taken.

          Later in March, after entry of the Adoption Judgment, Appellant filed a paternity action in Polk County. Appellant's counsel subsequently withdrew from the paternity case. Appellant did not pursue the case as a self-represented litigant, and the ...


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