In re C.W.

• Citation: 211 S.W.3d 93
• Decision Date: 09 January 2007
• Docket Number: No. SC 88049.,SC 88049.
• Parties: In the Interest of C.W.
• Court: Missouri Supreme Court

211 S.W.3d 93

In the Interest of C.W.

No. SC 88049.

Supreme Court of Missouri, En Banc.

January 9, 2007.

Geoffrey L. Pratte, Framington, for Appellant.

Rebecca Shelton, Farmington, for Respondent.

Anthony E. Rothert, St. Louis, for amicus curiae American Civil Liberties Union.

Jennifer Mathis, Washington, D.C., for amicus curiae Bazelon Center for Mental Health Law.

Jack L. Duncan, Park Hills, Guardian ad Litem.

RICHARD B. TEITELMAN, Judge.

A.W. (Mother) appeals from a judgment terminating her parental rights to her son, C.W. Mother claims that the circuit court erred in accepting and relying on an investigative study submitted prior to the petition to terminate parental rights and that the evidence is insufficient to support the judgment. Both of these claims have merit. Consequently, the judgment is reversed, and the case is remanded.

I. Background

Mother gave birth to C.W. on June 19, 2003. C.W. was born with a cleft palate and micrognathia, which are conditions that necessitate special care and feeding. When C.W. was five days old, he was taken from Mother's custody and placed with the Missouri children's division. The state removed C.W. from Mother's custody based upon concerns that Mother could not adequately care for C.W. given his special needs and Mother's bipolar disorder and mild cerebral palsy.

Mother entered into a written service agreement with the children's division in which she was required to comply with thirteen directives, including completion of a psychological examination. The psychologist evaluated Mother. In her August 25, 2003, report, she concluded Mother was, at that time, "not mature enough to care for her baby" and recommended adoption. However, the psychologist concluded that if Mother continued to work through her issues, she may in the future be able to "be a good and responsible mother."

In July 2005, the children's division and the juvenile office sought leave to file petitions for termination of Mother's parental rights. On July 25, 2005, the circuit court entered an order that stated "Children's Division granted leave to file TPR."

On October 17, 2005, the children's division filed a "Termination of Parental Rights Investigation and Social Study — 211.455.3." On October 21, 2005, the juvenile office filed its petition for termination of parental rights. Mother filed her answer and also objected to the investigation and social study on the grounds that section 211.455, RSMo 2004,¹ requires the study to be ordered by the court after the petition is filed, not before. On February 3, 2006, the court entered judgment terminating parental rights and specifically stated that it took judicial notice of the study. Mother appeals.

II. Section 211.455

Section 211.455 provides, in part, that "[w]ithin thirty days after filing the petition, the juvenile officer shall meet with the court in order to determine that all parties have been served with the summons and to request that the court order the investigation and social study." Mother maintains that the circuit court violated section 211.455 by accepting the investigation and social study from the children's division prior to the filing of the petition. The juvenile office asserts that section 211.455 does not require the study to be filed after the petition and that even if there was not strict compliance with the statute, Mother was not prejudiced and there is no reversible error. That assertion is not consistent with section 211.455.

The plain language of section 211.455 provides that within thirty days after the petition is filed, the juvenile officer shall meet with the court to request that the court order the investigation and social study. Although the statute is phrased in part as a directive to the juvenile officer, use of the term "shall" also imposes an obligation upon the circuit court to meet with the juvenile officer after the petition is filed. At this meeting, the juvenile officer is to request that the court order the investigation and social study. Because the written investigation and social study referenced in section 211.455 is mandatory, In the Interest of T.G., 965 S.W.2d 326, 332 (Mo.App.1998), the net effect is that the circuit court must order the study at some point after meeting with the juvenile officer.

The court of appeals reached the same conclusion in In the Interest of A.H., 169 S.W.3d 152, 158 (Mo.App.2005). In A.H, the children's division filed the investigation and social study simultaneously with the petition. Id. at 154. The court held that the word "shall" made the statute mandatory rather than directory. Id. at 158. The court also noted that the original versions of the juvenile code did not require the court to meet with the juvenile officer to determine who would conduct the study. Id. at 157. However, when the code was amended in 1985, the juvenile officer and the court were required to meet regarding the study. Id. The A.H. court considered the statutory amendments in context with the requirement of strict compliance with the juvenile code and concluded that section 211.455 is mandatory and that the court must determine which agency will write the investigation and social study. Id. By requiring the investigation and social study to be filed after filing the termination petition, the statute grants the circuit court the opportunity to determine which of several authorized agencies will conduct the study.² This procedural requirement indicates that the legislature did not intend to vest the children's division with the sole authority to determine which agency would prepare the study. Id. at 158. The reasoning in A.H. is consistent with the language of the statute. Therefore, this Court holds that section 211.455 requires the circuit court to order the mandatory investigation and social study after the petition is filed.³

The juvenile office relies on In the Interest of A.D. G., 23 S.W.3d 717 (Mo.App. 2000), to argue that even if there was not strict compliance with the statute, there is no reversible error because Mother was not prejudiced. In A.D.G., the father argued that the court erred by not holding a meeting with the juvenile officer as required by section 211.455. The court rejected this argument, finding the record inconclusive and noting that the father "failed to show how he was prejudiced" if the meeting did not occur. Id. at 719.

The A.D.G. case does not establish that a parent facing the termination of parental rights bears the burden of establishing prejudice if the mandatory requirements of section 211.455 are violated. The holding in A.D.G. is premised upon the fact that the record was inconclusive as to whether the meeting occurred. The subsequent statement regarding the lack of prejudice cited no supporting case law and was conditioned upon a hypothetical situation in which the record was unclear as to whether there was a meeting. This statement is non-binding dicta which this Court declines to follow.

In this case, the circuit court did not meet with the juvenile officer to make a decision regarding which agency would prepare the investigation and social study. As a result, the children's civision, an interested party that was seeking the termination of Mother's parental rights, essentially selected itself to submit the study. The circuit court did not strictly comply with the mandatory requirement in section 211.455 that the investigation and social study be submitted after the petition is filed. Given the fundamental interests involved, there must be strict and literal compliance with the statutes authorizing the State to terminate the parent-child relationship. In re K.A.W., 133 S.W.3d 1, 16 (Mo. banc 2004). Failure to strictly comply with section 211.455 is reversible error.

III. Termination of parental rights

Section 211.447 provides various grounds for a termination of parental rights. A trial court must find the existence of at least one ground and that the termination of parental rights is in the child's best interests. In re A.S.W., 137 S.W.3d 448, 452 (Mo. banc 2004). The state bears the burden of proof, which must be met by the presentation of substantial evidence, which is evidence that, if true, is probative of the issues in the case. Id.

A judgment terminating parental rights must be based upon more than past conditions. "Regardless of the past, [termination of parental rights] `requires the trial court to determine that the parent is currently unfit . . . to be a party to the parent-child relationship.'" In re K.A.W., 133 S.W.3d 1, 20-21 (Mo. banc 2004), quoting In re T.A.S., 32 S.W.3d 804, 815 (Mo. App.2000). While past behavior is one component of finding grounds for termination, the circuit court must also assess the extent to which past behavior is predictive of similar issues in the future. K.A.W., 133 S.W.3d at 10. Findings supporting earlier determinations are not irrelevant, but such findings must be updated to address the parent's current ability and willingness to parent as well as the potential for future harm. Id. There must be a prospective analysis with some explicit consideration of whether past behaviors indicate future harm. Id.

The circuit court found three separate grounds warranting the termination of Mother's parental rights and also determined that termination would be in the best interest of C.W. These findings must be supported by "clear, cogent and convincing evidence." Sec. 211.447.5. Clear, cogent and convincing evidence instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true. A.S.W., 137 S.W.3d at 453. This Court defers to the trial court's ability to judge the credibility of witnesses and will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law. In the Interest of M.E.W, 729...