In re A.H.

• Decision Date: 11 August 2005
• Docket Number: No. 26477.,26477.
• Citation: 169 S.W.3d 152
• Court: Missouri Supreme Court
• Parties: In the Interest of A.H. Y.O., Appellant, v. Barton County Juvenile Office, Respondent.

169 S.W.3d 152

In the Interest of A.H.

Y.O., Appellant, v. Barton County Juvenile Office, Respondent.

No. 26477.

Missouri Court of Appeals, Southern District, Division One.

August 11, 2005.

Brandon B. Fisher, Nevada, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Nicole L. Loethen, Asst. Atty. Gen., for respondent.

JAMES K. PREWITT, Judge.

Y.O. ("Mother") appeals the termination of her parental rights to her daughter, A.H. ("Child"), born January 6, 2002. Child's biological father, C.H., consented to the termination of his parental rights in November of 2003 and is not a party to this appeal.

Custody of Child was taken by the Division of Children's Services ("Division") on January 14, 2002. On November 20, 2003, the Division filed a Petition for Termination of Parental Rights in the juvenile division of the Circuit Court of Barton County. The petition alleged that Child "has been in foster care for at least fifteen of the most recent twenty-two months" and that Child had been "abused or neglected" in that Mother "was abusing prescription medications and using marijuana during the time period when the child was in her direct care." A hearing on the petition to terminate was held on March 24, 2004. The trial court filed a judgment containing its findings and conclusions on May 10, 2004, and ordered the termination of Mother's parental rights. Mother appeals presenting eight points relied on. We find Mother's first point to be dispositive.

Point I asserts that the trial court erred in accepting and relying upon a written report compiled and submitted by the Children's Division regarding its investigation and social study, as the trial court failed to comply with the procedure as mandated by section 211.455, RSMo 2000. The statute requires that "within thirty days after the filing of the petition, the juvenile officer shall meet with the court[.]" Here, the record shows no such meeting.

Section 211.455 also states that "[t]he court shall order an investigation and social study" in cases involving the involuntary termination of parental rights and directs that "[t]he investigation and social study shall be made by the juvenile officer, the state division of family services or a public or private agency authorized or licensed to care for children or any other competent person, as directed by the court[.]" In this case, the written report of the "investigation and social study," was prepared by the Children's Division and filed simultaneously with the petition for termination on November 20, 2003. The report was signed by Division personnel on September 30, 2003.

Mother contends that "the completion of these documents [investigation and social summary] without providing the Court the opportunity to select the appropriate, unbiased organization to complete the study[,] prejudiced [Mother]." Mother alleges that "allowing the same entity filing to terminate a parent's rights to complete the investigation and social summary without Trial Court order, and the acceptance of those documents by the Trial Court, was prejudicial error."

The report to which Mother objected is entitled "Investigation and Social Summary." Under "Reason for Placement," the report alleges that Child was found to be in need of care on January 14, 2002, due to Mother's abuse of "prescription medication while providing direct care for [Child] causing her judgment to be impaired leaving [Child] without proper care, custody, or support[.]" The report documents services provided to assist Mother and her efforts to comply with the service plan, as well as visitation schedules, employment and housing histories, counseling and therapy reports, and drug screening test results. Concluding the report, DFS recommended "a petition for Termination of Parental Rights ... be filed and that [Child] be freed for adoption."

The report contained a substantial amount of information unfavorable to Mother and extraneous to the contentions cited by the Division as justification for its continued jurisdiction over Child. In addition to numerous references to Mother's ongoing desire to continue a relationship with Child's father, to which the Division seemingly objected but was not alleged as a ground for termination, the report contained descriptions of incidents involving Mother's allegedly unmanaged anger and reports that Child threw intense tantrums, the cause of which was ascribed to Mother's visitation with Child. Much of this information was provided via narratives written by DFS personnel reporting communications between DFS and various therapists and counselors.

In a January 7, 2004 docket entry, the court noted: "Court will not review the Investigation and Social Summary until testimony presented and admitted as evidence." On January 8, 2004, Mother filed a motion in limine contesting the filing of the investigation and social study prior to the establishment of statutory grounds for termination, claiming that the filing of such report was prejudicial to Mother and requesting an order prohibiting the submission of the report until so ordered by the court. At the termination hearing on March 24, 2004, counsel for Mother objected to the admission of the investigation and social summary, admitted as Exhibit 15, and the court overruled the objection.

In 1959, the General Assembly added seven new sections to chapter 211 (renumbered as §§ 211.441 to 211.511) relating to neglected and delinquent children. In the Interest of T.P.S., 595 S.W.2d 320, 321 (Mo.App.1980). Section 211.491, RSMo 1959, read:

211.491. Social investigation and report to court in termination case. — In all proceedings for termination of parental rights of a child, except in cases where the parents have consented to the termination or have abandoned the child, an investigation and social study shall be made by the juvenile officer, the state division of welfare, or other public or private agency authorized or licensed to care for children as directed by the court and a written report shall be made to the court to aid the court in determining whether the termination is in the best interest of the child, and it shall include such matters as the parental background, the fitness and capacity of the parents to discharge parental responsibilities, the child's home, present adjustment, physical and mental condition and such other facts as are pertinent to the determination.

"In 1978, eight sections pertaining to termination of parental rights were repealed, and eleven new sections `relating to the same subject' were enacted." T.P.S., 595 S.W.2d at 321. Section 211.491 was one such section repealed, and it was enacted as section 211.472, RSMo 1978, which read:

211.472. Social investigation and report to court, contents — access to reports and evaluations. In all proceedings for termination of parental rights of a child, except those filed under subdivision (1) of subsection 2 of section 211.447 ["When the parent has consented in writing to the termination of his parental rights"], an investigation and social study shall be made by the juvenile officer, the state division of family services or other public or private agency authorized or licensed to care for children as directed by the court, and a written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child's home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination. Attorneys representing parties before the court shall have access to the written report. All ordered evaluations and reports shall be made available to the attorneys representing parties before the court at least fifteen days prior to the hearing.

Upon its enactment in 1978, section 211.472, RSMo 1978, contained new language providing for access to the written report of the investigation and social study by "[a]ttorneys representing parties before the court." In addition, this section mandated that "all ordered evaluations and reports" be made available to such attorneys at least fifteen days prior to hearing.

Section 211.472, RSMo 1978, was repealed in 1985 and replaced with section 211.455, RSMo Supp.1985. In the Interest of B.M.P., 704 S.W.2d 237, 251 (Mo.App.1986). Section 211.455, RSMo 2000, remains identical to the 1985 enactment and reads:

211.455. Procedure after filing of petition — determination of service — extension of time for service, when — investigation. — 1. Within thirty days after the filing of the petition [for termination], the juvenile officer shall meet with the court in order to determine that all parties have been served with summons and to request that the court order the investigation and social study.

2. If, at that time, all parties required to be served with summons have not been served, the court, in its discretion, may extend the time for service if the court finds that service may be forthcoming and that the best interests of the child would be served thereby.

3. The court shall order an investigation and social study except in cases filed under section 211.444 [when parent consents to termination]. The investigation and social study shall be made by the juvenile officer, the state division of family services or a public or private agency authorized or licensed to care for children or any other competent person, as directed by the court, and a written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child's home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the...