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STATE OF MISSOURI ex rel. )

CHOCTAW NATION OF OKLAHOMA, )

)

Relator, )

)

vs. ) No. SD37148

)

HONORABLE SCOTT S. SIFFERMAN, ) Filed: October 6, 2021

ASSOCIATE CIRCUIT JUDGE, )

)

Respondent. )

ORIGINAL PROCEEDING IN PROHIBITION

PRELIMINARY WRIT OF PROHIBITION MADE PERMANENT

Procedural History

Child was born in May 2018. Child’s biological father (“B.F.”) is a member of 

the Choctaw Indian Nation of Oklahoma (“Choctaw Nation”).1 There is no indication 

Child’s biological mother (“K.F.”) was a member of any Indian tribe.

Shortly after birth, Child was “remove[d]” due to “emergency circumstances,” 

and was placed with Foster Parents on May 9, 2018. The juvenile division of the circuit 

court (“juvenile court”) acquired jurisdiction of Child the next day under section 

211.031.1(1) concerning abuse and neglect. The protective custody proceeding was 

 1 DNA testing reported on February 8, 2019 established B.F. is Child’s biological father with a probability 

of paternity equal to 99.9997%.
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assigned case number 18LW-JU00074, and Respondent is the judge who was assigned to 

preside over that proceeding. Respondent then vested temporary and ultimately full legal 

custody of Child in the Children’s Division.2 The Children’s Division placed Child with 

Foster Parents, who are not members of any Indian tribe and are not relatives of Child. 

The Children’s Division’s initial permanency goal was reunification with a concurrent 

goal of adoption. 

On September 14, 2018, the Choctaw Nation filed a notice of intervention in the 

protective custody proceeding under 25 U.S.C. § 1911(c), and Respondent “accept[ed] 

and acknowledge[ed]” the intervention. Respondent subsequently entered an order on 

April 10, 2020, granting the Choctaw Nation the right to intervene in the protective 

custody proceeding under 25 U.S.C. § 1911(c). B.F.’s parental rights to Child were 

terminated in March 2021.3

 A paternal cousin (“M.S.”), who is a member of the 

Choctaw Nation, contacted the Children’s Division “to request adoptive placement.” 

Weekly “[v]irtual visits” between Child and M.S. occurred “since March 2020” through 

at least March 9, 2021. 

On Friday, April 3, 2020, the Children’s Division convened an Adoption Staffing

that produced a recommendation that Foster Parents should adopt Child rather than M.S. 

Under Section 4.9.3 of the Missouri Department of Social Services Child Welfare 

 2 The Children’s Division is “an integral part of the department of social services,” and is the “state 

agency” to administer “[c]hild welfare services,” and “[a]ny other duties relating to public assistance and 

social services which may be imposed upon the department of social services.” Section 207.010, RSMo 

2016. The Children’s Division also has the “power” “[u]pon request, to cooperate with the juvenile court 

and furnish social studies and reports to the court with respect to children as to whom adoption, abuse, or 

neglect petitions have been filed,” and “[t]o accept for social services and care, homeless, dependent or 

neglected children in all counties where legal custody is vested in the children’s division by the juvenile 

court where the juvenile court has acquired jurisdiction pursuant to subdivision (1) or (2) of subsection 1 of 

section 211.031; provided that prior to legal custody being vested in the children’s division, the children’s 

division shall conduct an evaluation of the child . . . . Temporary custody may be placed with the 

children’s division while the evaluation is being conducted.” Section 207.020.1(16) and (17), RSMo 2016.

3 B.F. is in prison for the murder of K.F. 
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Manual, the Adoption Staffing Team’s recommendation is subject to review by an 

independent reviewer for “procedur[al] error” or “bias which precluded consensus from 

being reached.” Requests for review must be submitted within three business days of the 

recommendation. The independent reviewer must be an experienced and disinterested 

member of the Children’s Division staff, and must submit a written response within five 

business days “of assignment of the review request.”4

On Tuesday, April 7, 2020, M.S. and the Choctaw Nation each submitted a timely 

request for review of the Adoption Staffing Team’s recommendation. On April 10, 2020, 

the independent reviewer concluded “the case management agency failed to give due 

diligence to explore familial placements and take actions to ensure the child’s cousin, 

[M.S.] was afforded the opportunity to be considered as an adoptive placement.” On 

April 14, 2020, the Children’s Division informed Respondent that “[a]s such, the 

adoption staffing decision made on April 3, 2020 has been set aside, and Children’s 

Division will complete the necessary relative exploration and associated activities.” 

In early March 2021, M.S. filed a petition in the juvenile court to adopt Child in a 

proceeding with case number 21LW-JU00041. Later that month, Foster Parents filed a 

petition in the juvenile court to adopt Child in a proceeding with case number 21LWJU00053. Both adoption proceedings were assigned to Respondent. On motion of the 

Choctaw Nation filed in this protective custody proceeding, Respondent granted the 

Choctaw Nation and M.S. the right to intervene in Foster Parents’ adoption proceeding –

on April 3, 2021 in this protective custody proceeding and on April 2 and 23, 2021 in the 

Foster Parents’ adoption proceeding. On motion of the Choctaw Nation filed on May 24, 

 4 Missouri Department of Social Services Child Welfare Manual (2019), https://dssmanuals.mo.gov/childwelfare-manual/child-welfare-manual-2019-update/. 
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2021 in both adoption proceedings for a change of judge as a matter of right, the adoption 

proceedings were reassigned to another judge shortly after that date. At a meeting on 

March 8, 2021, the Children’s Division “reminded” Foster Parents, M.S., Child’s 

guardian ad litem (“GAL”), and representatives of the Choctaw Nation “of the scheduled 

adoption staffing coming up on” March 30, 2021. 

Subsequently, on motion by Child’s GAL in May 2021, more than one year after 

the Adoption Staffing Team’s nonfinal administrative recommendation on April 3, 2020 

that Foster Parents should adopt Child was reviewed administratively and set aside, 

Respondent temporarily enjoined the Children’s Division “from moving forward with a 

new Adoption Staffing” for Child “pending this Court’s resolution” of the GAL’s motion 

to reinstate the Adoption Staffing Team’s prior nonfinal recommendation. On May 26, 

2021, Respondent vacated the Children’s Division’s administrative review and set aside 

of the Adoption Staffing Team’s prior nonfinal recommendation; ordered that the 

recommendation be reinstated; and dissolved its temporary injunction against the 

Children’s Division.

On June 17, 2021, the Choctaw Nation filed a petition requesting a writ of 

prohibition ordering Respondent to take no further action in this protective custody

proceeding other than vacating Respondent’s May 26, 2021 order pending resolution of 

competing petitions seeking to adopt Child. We issued a preliminary writ of prohibition 

on June 29, 2021, “direct[ing] [Respondent] to vacate [his] order of May 26, 2021, and 

refrain from taking further action in the internal administrative processes of the 

Children’s Division, until further order of this Court.” We now make our preliminary 

writ of prohibition permanent.
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Standard of Review

As stated by our Supreme Court in State ex rel. St. Charles County v. 

Cunningham, 401 S.W.3d 493, 495 (Mo. banc 2013):

A writ of prohibition is available in the following circumstances: (1) to 

prevent a usurpation of judicial power when the circuit court lacks 

authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction 

or abuse of discretion when the lower court lacks the power to act as 

intended; or (3) when a party may suffer irreparable harm if relief is not 

granted. State ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 32 (Mo. banc 

2010). “Prohibition may be appropriate to prevent unnecessary, 

inconvenient, and expensive litigation.” Id.

Further, as the Eastern District stated in State ex rel. M.D.K. v. Dolan, 968 S.W.2d 740, 

745 (Mo.App. E.D. 1998):

appellate courts are reluctant to issue the extraordinary writ of prohibition 

except “where a clear right” to it exists. State ex rel. Lahammer v. 

Franklin, 756 S.W.2d 956 (Mo.App. S.D. 1988). Courts “should employ 

the writ judiciously and with great restraint.” Derfelt v. Yocom, 692 

S.W.2d 300, 301 (Mo. banc 1985). A writ should issue only “when the 

facts and circumstances of the particular case demonstrate unequivocally 

that there exists an extreme necessity for preventive action.” Id.

Analysis

The Choctaw Nation asserts that Respondent exceeded his authority in this 

protective custody proceeding when he vacated the Children’s Division’s administrative 

review of, and decision to set aside, a nonfinal, administrative recommendation by an 

Adoption Staffing Team that Foster Parents should adopt Child, and reinstated the prior 

nonfinal recommendation. We agree.

Standing

In his brief, Respondent argues that the Choctaw Nation does not have standing to 

seek this writ of prohibition. On two occasions, Respondent granted the Choctaw Nation 

the right to intervene in this protective custody proceeding under 25 U.S.C. § 1911(c), 
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and also granted the Choctaw Nation the right to intervene in Foster Parents’ adoption 

proceeding. We see no error in these rulings. The Choctaw Nation has standing to seek 

this writ of prohibition.

Respondent’s Express or Implied Authority

The juvenile court:

“is a legal tribunal limited in its jurisdiction[

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] by the statute law which 

establishes it.” State v. Taylor, 323 S.W.2d 534, 537 (Mo.App. 1959); 

State ex rel. L.L.B. v. Eiffert, 775 S.W.2d 216, 219 (Mo.App. 1989) (§ 

211.031 does not give the juvenile division plenary authority to determine 

custody of children in all circumstances or in all proceedings). While the 

juvenile code is to be liberally construed to promote the interests of 

infants, § 211.011, RSMo 1986, such liberal construction cannot be 

utilized to give the juvenile court jurisdiction and powers not conferred 

upon it by statute. In Interest of M.K.R., 515 S.W.2d 467, 470 (Mo. banc 

1974) (no authority under juvenile code to order sterilization of an infant).

In the Interest of B.L.W., 823 S.W.2d 119, 121-22 (Mo.App. S.D. 1992). The juvenile 

court also has by implication the authority necessary to permit it to effectively exercise its 

express authority. See Miller v. Russell, 593 S.W.2d 598, 602 (Mo.App. W.D. 1979) (in 

the context of determining paternity, stating “Section 211.241 authorizes the court to 

summon the child’s parent for inquiry as to financial resources and to order appropriate 

contribution to the child’s support. Of necessity, this function may only be performed if 

the court by implication is also authorized under the statute to identify as a parent the 

person against whom the order for support is to be entered and enforced.”); and In re the 

Marriage of Denton, 169 S.W.3d 604, 611-12 (Mo.App. S.D. 2005) (discussing Miller

and quoting the language referenced above).

 5 Following J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), “jurisdiction” in this 

context should be read “authority.” See State ex rel. Country Mutual Insurance Co. v. May, 620 S.W.3d 

96, 98 n.3 (Mo. banc 2021) (“Whether a circuit court has the power to act as intended within the exercise of 

its personal and subject matter jurisdiction is an issue of circuit court authority.”); and In the Matter of 

B.R.R., 487 S.W.3d 515, 518 & n.3 (Mo.App. S.D. 2016) (“the granting of relief not authorized by statute 

is not jurisdictional in nature”).
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In this protective custody proceeding, section 211.031, RSMo Cum.Supp. 2021,

provides in relevant part:

1. Except as otherwise provided in this chapter, the juvenile court . . . 

shall have exclusive original jurisdiction in proceedings:

(1) Involving any child who may be a resident of or found within the 

county and who is alleged to be in need of care and treatment because:

(a) The parents, or other persons legally responsible for the care and 

support of the child, neglect or refuse to provide proper support, education 

which is required by law, medical, surgical or other care necessary for his 

or her well-being . . . ;

(b) The child is otherwise without proper care, custody or support; [and]

. . . .

(4) For the adoption of a person . . . .

Nothing in these express powers or other express powers referenced by 

Respondent authorizes Respondent to interfere in the Children’s Division’s 

administrative review of a nonfinal administrative recommendation for adoption, and 

then substitute Respondent’s judgment for that of the Children’s Division and compel the 

Children’s Division to reach or adhere to a particular recommendation. And, authority to 

do so by implication is not necessary to permit Respondent to exercise effectively any of 

its express authority. Even a final administrative recommendation as to who should 

adopt Child (much less a nonfinal recommendation) would not be binding on the juvenile 

court, and, in any juvenile court proceeding, the juvenile court would be entitled to give 

the recommendation the weight the juvenile court felt it deserved.6

 A final 

recommendation for adoption would not decide any issue that the juvenile court must 

 6 Section 4.9.1.2 of the Child Welfare Manual makes clear that “only the juvenile court has the final 

authority to approve the adoption of a specific child by a specific family.” Missouri Department of Social 

Services Child Welfare Manual (2019), https://dssmanuals.mo.gov/child-welfare-manual/child-welfaremanual-2019-update/. 
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decide in exercising its express or implied authority – a “recommendation” for adoption 

simply does not decide an issue and would not prevent Respondent from accomplishing 

the effective exercise of any of the juvenile court’s express or implied authority. 

Respondent did not have the express or implied authority to interfere in the Children’s 

Division’s administrative review of a nonfinal administrative recommendation for 

adoption, and then substitute Respondent’s judgment for that of the Children’s Division 

and compel the Children’s Division to reach or adhere to a particular recommendation.7

We make our preliminary writ permanent, and further direct Respondent to refrain 

from taking further action in the internal administrative processes of the Children’s 

Division except as authorized by law.

Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, C.J., – Concurs

Mary W. Sheffield, P.J. – Concurs

 7 Respondent contends that he is authorized to review the Children’s Division’s nonfinal administrative 

recommendation under section 536.150, RSMo 2016. Section 536.150.1 in relevant part provides:

When any administrative officer or body existing under the constitution or by 

statute or by municipal charter or ordinance shall have rendered a decision which is not 

subject to administrative review, determining the legal rights, duties or privileges of any 

person, . . . and there is no other provision for judicial inquiry into or review of such 

decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, 

prohibition or other appropriate action . . . ; and the court shall render judgment 

accordingly, and may order the administrative officer or body to take such further action 

as it may be proper to require; but the court shall not substitute its discretion for 

discretion legally vested in such administrative officer or body . . . . 

Section 536.150 does not apply in this proceeding as we currently do not have a decision which is 

not subject to administrative review or determines the legal rights, duties or privileges of any person. 

Furthermore, if a final Children’s Division recommendation for adoption were subject to review 

by the juvenile court under section 536.150, the statute prohibits the reviewing court from “substitut[ing] its 

discretion for discretion legally vested in such administrative officer or body.”