IN RE: O.S. (2026)

Introduction

“․I write separately to emphasize the potential for future problems and to suggest that trial judges may want to seriously consider the consequences of denial of permissive intervention requests or full consolidation requests by either grandparents or other adoption petitioners. To leave competing [adoption] cases totally separate means there is no complete appellate review because of the principles of standing, as in this case, or mootness, as in the companion case ․ I suspect that many trial counsel and some trial judges would not anticipate this result. They should now be forewarned.”

-  In re K.W., 32 S.W.3d 674, 677 (Mo. App. 2000) (J. Holliger, concurring).

* * *

In the case at bar, Judge Holliger's now twenty-six-year-old warning has gone unheeded yet again. Here, as in In re K.W., two couples filed independent actions seeking to adopt the same child. By granting one of the two competing petitions for adoption, the trial court rendered the other petition moot and deprived the parties and this court of the opportunity to conduct full appellate review of the issues including the relative merits of the two would-be adoptive parents’ petitions and whether the law's preeminent requirement — the best interests of the child — has been served. Instead, this court is left with one option; to apply the mootness doctrine and affirm the trial court's dismissal.

Background

This appeal concerns the adoption of O.S. (Child), born in April 2021. In May 2021, the Children's Division placed Child in the custody of her paternal Grandparents (appellants Christopher and Jamie Jones) while the Division pursued the termination of the parental rights of Child's natural parents. In February 2023, the Division removed Child from Grandparents’ custody due to Grandparents’ failure to adhere to the court's conditions. In May 2023, the Division placed Child with Foster Parents.

In September 2023, Grandparents filed a petition for custody and adoption of Child. In December 2023, in a separate case, Foster Parents filed their own petition for custody and adoption. Those parallel cases remained separate with the same family court commissioner and the same circuit court judge presiding over both cases. Neither party sought to intervene in the other case or to consolidate the cases; nor did the court order consolidation sua sponte. The court held separate evidentiary hearings in August 2024, in Grandparents’ case, and in September 2024, in Foster Parents’ case.

On December 9, 2024, the court granted Foster Parents’ petition for adoption and then on the next day dismissed Grandparents’ petition as moot. The judgment granting Child's adoption by Foster Parents became final on January 8, 2025, since no party appealed it.¹

As to the judgment dismissing their petition as moot, Grandparents filed two timely post-judgment motions — a motion for rehearing and a motion to amend the judgment. Following a February 6 hearing on those motions, the trial court ordered the commissioner to issue findings of fact and conclusions of law, as Grandparents had requested back in 2023, based on the August 2024 evidentiary hearing. The commissioner did so and on February 24, 2025, the court confirmed the commissioner's findings and conclusions in the judgment of the court.

Those findings and conclusions addressed the merits of Grandparents’ adoption petition, including the finding that adoption by Grandparents was not in Child's best interests, and reiterated the dismissal of the petition as moot. On March 11, 2025, Grandparents filed a timely motion for rehearing of that judgment and on April 14, following a hearing, the court denied the motion. Grandparents now appeal in five points, each of which requests this court review the merits of their adoption petition's denial.

The Division did not deign to file a brief in this court or to appear at oral argument. We find this deeply troubling given the importance of the matter and because this court has concerns with the Division's handling of this matter.

Standard of Review

“An appellate court is not permitted to review moot claims of error.” K.R. v. D.D., 481 S.W.3d 924, 925 (Mo. App. 2016). “A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy.” In re T.L.F., 184 S.W.3d 642, 644 (Mo. App. 2006). “Whether a case is moot is a legal question that the appellate court raises sua sponte on appeal.” C.D.R. v. Wideman, 520 S.W.3d 839, 842 (Mo. App. 2017).

Discussion

Mootness and Standing

We affirm the trial court's dismissal of Grandparents’ adoption petition as moot for the same reasons spelled out by the court in the two In re K.W. cases — In re K.W.(I), 32 S.W.3d 674 (Mo. App. 2000) and In re K.W.(II), 32 S.W.3d 678 (Mo. App. 2000). The dispositive facts and determinative law in those cases, which concerned the adoption of two young girls, make it a “white horse case”² here. As here, the girls’ foster parents and the girls’ grandparents maintained competing adoption petitions filed in separately-docketed cases. In re K.W.(I), at 675. The day after the court entered judgment granting the foster parents’ petition, the court entered judgment denying the grandparents’ petition. Id. The grandparents filed an appeal in the foster parents’ case but the court of appeals dismissed the appeal because grandparents lacked standing. Id. The court reasoned that the grandparents were not parties in the foster parents’ suit and the court rejected the grandparents’ claim that the cases had been “informally” consolidated. Id. at 675-76.

The grandparents also appealed the separate judgment denying their adoption petition. In that opinion, handed down on the same day, the court held that since the foster parents’ judgment had become final and binding upon dismissal of grandparents’ appeal of that judgment, the grandparents’ own petition had now become moot. In re K.W.(II), at 679.

The court's reasoning in those cases was sound then, remains sound now, and leads us to the unavoidable conclusion that Grandparents’ petition here became definitively moot when the judgment granting Foster Parents’ adoption petition became final. And, Grandparents’ lack of standing would have doomed any appeal by them of the judgment granting Foster Parents’ petition.

The merits of Grandparents’ petition

Despite Grandparents’ five points on appeal addressing the merits of the trial court's findings of fact and conclusions of law, we are unable to reach any of their points here because the findings and conclusions were issued after the court had ruled that Grandparents’ petition was moot, a ruling with which we agree. And even in its February 2025 amended judgment in which the court included the commissioner's evidentiary findings and conclusions, the court reiterated its mootness holding and dismissed the petition with prejudice on that basis. Declaring a matter moot and deciding the merits of the matter are not compatible. Interest of J.T.S., 462 S.W.3d 475, 477 (Mo. App. 2015) (“A case is moot when the circumstances that surround it change sufficiently to cause a legal controversy to cease, and a decision by the judiciary would be insignificant in providing effective relief.”) (Emphasis added).

Intervention (Rule 52.12) and Consolidation (Rule 66.01)

To avoid this harsh and unsavory result in the context of such a delicate and supremely important matter, the adoption of a child, this court encourages litigants and courts to seek a solution going forward. We consider Rule 52.12(a)(2), Intervention of Right, to be the most appropriate procedural vehicle when there are competing adoption petitions.

To intervene as a matter of right, the intervenor must establish: “(1) an interest relating to the property or transaction which is the subject of the action; (2) that the applicant's ability to protect the interest is impaired or impeded; and (3) that the existing parties are inadequately representing the applicant's interest.” Adoption of K.L.C.B. v. D.L.B., 674 S.W.3d 1, 6 (Mo. App. 2023) (internal citations omitted). “An interest, for purposes of intervention as of right, means a concern, more than mere curiosity, or academic or sentimental desire.” Id. (quoting In Matter of Adoption of C.T.P., 452 S.W.3d 705, 714 (Mo. App. 2014)). Further, the interest “must be a direct claim upon the subject matter such that the intervenor will either gain or lose by direct operation of judgment” rather than a mere possibility of being affected. Id. at 6-7.

Intervention generally should be allowed with considerable liberality. Johnson v. State, 366 S.W.3d 11, 20 (Mo. banc 2012). The denial of a motion to intervene as of right is a final and appealable judgment. In re M.B., 91 S.W.3d 122, 125 (Mo. App. 2002).

In K.L.C.B., the court found grandmother had the right to intervene under Rule 52.12(a)(2) because she had previously established joint legal and physical custody of the child. Id. at 7. But, “Missouri courts have held that a grandparent's biological relationship to a child, by itself, does not constitute the necessary ‘interest’ under Rule 52.12(a)(2) to require intervention in adoption.” Matter of Adoption of E.N.C., 458 S.W.3d 387, 399 (Mo. App. 2014) (abrogated on other grounds by S.S.S. v. C.V.S., 529 S.W.3d 811, 816 n.3 (Mo. banc 2017)).

Among the Missouri cases that have considered the issue before us, a number have done so in the context of Rule 52.12(b) - Permissive Intervention. Unlike intervention as a matter of right, the court has discretion to allow for permissive intervention if: (1) a statute confers a conditional right on a particular party to intervene or (2) when the intervenor has a claim or defense that has common questions of law or fact to the issues in the action in which she seeks to intervene. Id.; Rule 52.12(a)(1) and (2). See also In re Adoption of H.M.C., 11 S.W.3d 81, 90-91 (Mo. App. 2000); Adoption of K.M.W., 516 S.W.3d 375, 379 (Mo. App. 2017).

Likewise, Rule 66.01 — Consolidation, provides an additional avenue. For instance, Rule 52.12(b) permits the court to consolidate the two actions, either by a party's motion or by sua sponte order of the court. Notably, Rule 66.01(c) addresses family court matters and contemplates the consolidation of actions that involve “the same or different members of the same family.”

Turning to the language of Rule 52.12(a), Grandparents, as competing adoption petitioners, would appear in our judgment to satisfy the “interest” element, like the grandparents in Adoption of K.L.C.B., 674 S.W.3d at 7, but not because of their role as the child's grandparents; rather, in their role as competing adoption petitioners and because they had previously exercised custody of Child. Adoption of E.N.C., 458 S.W.3d at 399. The second element — the “disposition of the action may ․ impair or impede the applicant's ability to protect that interest․” — likewise appears manifest due to the dispositive impact the doctrines of standing and mootness have had on this case.

Thus, in the context of competing adoption petitions pending separately, especially when they are pending in the same circuit, we reiterate that intervention of right seems to be the most applicable and appropriate tool, among the procedures mentioned above, to ensure full appellate review of the child's adoption and to avoid what has continued to occur since Judge Holliger's poignant warning in In re K.W. twenty-six years ago.

And had Grandparents sought to intervene under 52.12(a)(2), they would have been able to seek this Court's relief if that motion had been denied under our Murphy v. Carron standard. Adoption of K.L.C.B., 674 S.W.3d at 6. But, as we have already discussed at length, we are unable to address any of the merits of their petition.

Conclusion

We affirm the trial court's dismissal.

Concurring Opinion

The majority opinion is a well-written, legally correct opinion. I concur, but I write separately because the rights of biological families in adoptions should not have the courthouse door shut on appellate review based strictly on mootness.

Here, both the Grandparents, who filed first, and the Foster Parents filed adoption petitions, which were both pending before the same family-court judge. The order of filing is irrelevant; rather, what is of paramount importance is that the family-court judge, by failing to rule simultaneously on both adoption petitions or consolidating them, deprived the child's biological family of the opportunity for appellate review under the mootness doctrine. See In re K.W., 32 S.W.3d 678, 679 (Mo. App. W.D. 2000) (where there is no actual and vital controversy upon which relief can be granted, case is moot and appellate court does not have authority to consider merits); see also Rule 66.01(c) (when more than one civil action is pending in family court division that involves same family member, judge “may” consolidate such actions).

Former Chief Justice Richard B. Teitelman recognized that the termination of parental rights is “tantamount to a ‘civil death penalty.’ ” In re K.A.W., 133 S.W.3d 1, 12 (Mo. banc 2004) (citation omitted). Accordingly, Judge Teitelman demanded close scrutiny of trial courts’ decisions in termination cases on appellate review to provide critical protections for familial relationships. Id. Although our case here addresses adoption and not the termination of parental rights, the effect here is similar: the familial link between the Grandparents and O.S. has been legally terminated. The fundamental importance of familial relationships necessitates that when familial relationships are severed, Missouri appellate courts should allow full review of the merits of these cases, even if the family does not ultimately prevail.

In other family-law contexts, Missouri prioritizes birth-family relationships. Sections 210.305 and 210.565 require the Missouri Department of Social Services, Children's Division (Children's Division) to give preference and first consideration to grandparents in emergency placement and foster-care placement, unless contrary to the child's welfare. See Section 210.305.1; Section 210.565.1, .3; but see Section 453.070.7 (for adoptive placement, Children's Division shall give preference and first consideration to foster parents who have cared for foster child continuously for period of nine months and bonding has occurred, but final determination of adoption placement is in sole discretion of trial court). Crucially, both Sections 210.305 and 210.565 require that the Children's Division document its reasons for the denial of emergency and foster care placement with a grandparent. See Section 210.305.1; Section 210.565.4. Such documentation allows for review on the merits of the separation of families, again recognizing the importance of such appellate review in order to provide protection to fundamental familial relationships.

The Grandparents acknowledge that under current Missouri law their adoption petition here is moot, in that the Foster Parents’ competing adoption petition has been granted and thus no court can grant the Grandparents’ petition. Yet, the Grandparents seek review under the public-policy exception to the mootness doctrine, which allows the appellate court to consider the merits on appeal in a case of general public interest and importance that will recur and likewise evade appellate review in future controversies. See L.E.C. v. K.R.C., 674 S.W. 3d 97, 103-04 (Mo. App. E.D. 2023). Our intermediate Missouri appellate courts cannot upend settled law. See State ex rel. Schmitt v. Schier Co. Inc., 594 S.W.3d 245, 256 (Mo. App. S.D. 2000). Only the Supreme Court of Missouri can create a public-policy exception to the mootness doctrine to allow appellate review of this decision separating this family.

The Missouri Legislature could in the future statutorily mandate consolidation when there are competing adoption petitions involving the same child. When competing adoption petitions are filed in different jurisdictions, parties are often prevented by the rules of confidentiality involving minors and adoption from discovering these filings on Casenet. This is of particular importance as children in foster care are often placed with caregivers that reside in counties outside the jurisdiction where the underlying abuse and neglect proceedings occurred or where the family of origin resides. Rather, legislation mandating consolidation of competing adoptions ensures that biological families will have the right to appellate review of any trial court decisions that forever terminates familial bonds.

In the alternative, the Missouri Legislature could grant a statutory public-interest exception to the mootness doctrine to allow appellate review of adoption petitions denied as moot, as the Missouri Legislature did for appeals from expired full orders of protection. See Section 455.007 (“[n]otwithstanding any other provision of law to the contrary, the public interest exception to the mootness doctrine shall apply to an appeal of a full order of protection which has expired”).

These cases are so exceptionally important to society that the sanctity of even a broken family necessitates appellate review of the merits of the loss of a family member to a competing adoption.

FOOTNOTES

1.   Interest of E.R.S., 584 S.W.3d 363, 367 (Mo. App. 2019).

2.   See, e.g., Holyfield v. Joplin Coca Cola Bottling Co., 170 S.W.2d 451, 453 (Mo. App. 1943).

James M. Dowd, Judge

Rebeca Navarro-McKelvey, Presiding Judge concurs and Gary M. Gaertner, Jr., Judge concurs in a separate opinion.