In the Interest of: C.W.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: In the Interest of: C.W. Case Number: ED87800 Handdown Date: 09/26/2006 Appeal From: Circuit Court of St. Francois County, Hon. Sandy Martinez Counsel for Appellant: Geoffrey L. Pratte, James C. Felakos, Jr., and Jack L. Duncan Counsel for Respondent: Rebecca Shelton Opinion Summary: A. W. ("Mother") appeals from the circuit court's judgment terminating her parental rights to her son, C.W. Mother claims, inter alia, that the trial court erred in accepting and relying on an investigative study submitted to the trial court prior to the petition for termination of parental rights in violation of section 211.455.3, RSMo 2004. TRANSFERRED TO SUPREME COURT OF MISSOURI. Division One holds: Preparation and submission of the investigation and social study prior to the filing of the petition conflicts with the legislative intent of section 211.455.3. The procedure set out in section 211.455.3 is mandatory, not directory. Because of the general interest and importance of this issue, we transfer to the Supreme Court of Missouri. Citation: Opinion Author: Nannette A. Baker, Judge Opinion Vote: TRANSFERRED TO MISSOURI SUPREME COURT. Ahrens, P.J., and Hoff, J., concur. Opinion:

Introduction A. W. ("Mother") appeals from a judgment of the Circuit Court of St. Francois County terminating her parental rights to her son, C.W. Mother claims, inter alia, that the trial court erred in accepting and relying on an investigative study submitted to the trial court prior to the Petition for Termination of Parental Rights in violation of Section 211.455.3.(FN1) We would hold to reverse on this point, but we transfer to the Supreme Court because of the general importance and interest of this issue. Factual and Procedural Background Mother gave birth to C.W. on June 19, 2003. C.W. was born with a cleft palate and micrognathia, conditions that required special care and feeding. Due to Mother's physical and psychological conditions, it was concluded that she could not properly care for C.W. When C.W. was five days old, he was placed in the custody of the Missouri Children's Division. Children's Division assigned Lindsay Ulen, a recent social-work graduate from Southeast Missouri State University, to C.W.'s case. In July 2005, the Children's Division and Juvenile Office sought leave to file a petition for Termination of Parental Rights. The trial court held a review/permanency hearing and issued a judgment on July 25, 2005. The judgment was issued on a preprinted judgment form. In a handwritten portion of the judgment, the court stated: "Children's Division granted leave to file TPR." On October 17, 2005, the Children's Division filed a document titled "Termination of Parental Rights Investigation and Social Study - 211.455.3" ("Investigation and Social Study")(FN2) written by Ms. Ulen of the Children's Division. Four days later, on October 21, the Juvenile Office of St. Francois County ("the Juvenile Office") filed a petition for Termination of Parental Rights. On November 21, 2005, Mother filed an answer. She then filed a Motion in Limine and for Continuance on January 17, 2006. In her motion, Mother argued that the trial court erred in accepting the Investigation and Social Study because Section 211.455 mandates that the Investigation and Social Study be ordered by the court within thirty days after the petition is filed, not before. The court overruled the motion, but refused to take judicial notice of the Investigation and Social Study at that time, stating "The Court will defer on taking judicial notice...until the Court makes a decision pertaining to this case." The case proceeded to trial. At the end of the Juvenile Office's evidence, it requested that the trial court take judicial notice of the Investigation and Social Study. Mother renewed her objection. The court did not rule on the

objection at that time, stating "I'll rule on those during the time that I take everything under -- obviously I'm going to review everything, so I'll make a list of the rulings." The trial court entered judgment terminating Mother's parental rights on February 3, 2006. The trial court stated in its judgment that, at the beginning of the hearing, it took judicial notice of the "Termination of Parental Rights Investigation and Social Study submitted by the Children's Division along with all its attachments pursuant to 211.455.3." Mother appealed, presenting four points relied on. However, we will only review the first point because it is dispositive. In her first point, Mother asserts that the trial court erred in accepting the Investigation and Social Study when the Children's Division submitted it before the petition was filed in violation of Section 211.455. Standard of Review Our review of a trial court's decision to terminate parental rights is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. In re E.T.C., 141 S.W.3d 39, 45 (Mo. App. E.D. 2004). Discussion In her first point, Mother contends that the trial court erred in accepting the Investigation and Social Study when the Children's Division submitted the report before the petition was filed in violation of Section 211.455. Section 211.455 outlines the "[p]rocedure after filing of petition." It states: "[w]ithin thirty days after the filing of 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." (emphasis supplied). The written report of the investigation and social study contemplated by section 211.445 is mandatory, In the Interest of T.G., 965 S.W.2d 326, 332 (Mo. App. W.D. 1998), and is intended to aid the court " in determining whether termination of parental rights is in the child's best interest.." In the Interest of S.J., 849 S.W.2d 608, 612 (Mo. App. W.D. 1993). The Southern District recently addressed a similar issue in In the Interest of A.H., 169 S.W.3d 152 (Mo. App. S.D. 2005). In A.H. the Children's Division filed an Investigation and Social Study simultaneously with the petition. Id. at 154. There was no meeting with the juvenile officer and the court did not decide which agency should prepare the Investigation and Social Study. Id. at 157-158. The appellant argued that the Children's Division's completion of the Investigation and Social Study without a trial court order denied the trial court the opportunity to select an unbiased organization to complete the study. Id. at 154.

The Southern District reversed the case, finding that the word "shall" made the statute mandatory rather than directory. Id. at 158. The court noted that the word "shall" in the text of a statute is generally used to express compulsion, obligation or necessity and mandates action. Id. at 157, citing State ex rel. Hunter v. Lippold, 142 S.W.3d 241, 244 (Mo. App. W.D. 2004). The court also pointed out that the Juvenile Code "is a complete code within itself, and proceedings thereunder must be in strict accordance with its terms." Id. quoting In re S.M.W., 485 S.W.2d 158, 164 (Mo. App. K.C. 1972). The court then examined the legislative history of the statute, finding that the original juvenile code required that the juvenile officer or other agency make an Investigation and Social Study. See A.H., 169 S.W.3d at 157. However, in the original enactments the juvenile code did not require that the court meet with the juvenile officer to determine who would conduct the study or that the study be submitted after the petition. See A.H., 169 S.W.3d at 157. See also Sections 211.491 (1959) and 211.472 (1978). When the code was amended in 1985, the legislature expressly provided that the juvenile officer and the court meet within thirty days after the petition is filed and the court order the study at that time. Id. See Section 211.455. The A.H. court considered the change in the statute "in context with the admonishment that proceedings under the Juvenile Code be punctiliously applied" and determined that the statute mandated a meeting between the juvenile officer and the court wherein the court should determine which agency will write the Investigation and social Study. Id. at 157. We find this reasoning persuasive and agree that the statute is mandatory and requires literal compliance. The Respondent argues that this case is distinguishable from A.H. because here, the trial court ordered the Children's Division to make the Investigation and Social Study in the July judgment. Indeed, in overruling Mother's objection to the Investigation and Social Study, the trial court stated: [T]his Court ordered the Juvenile Office in July to file their petition, and also the order states that the--the court also ordered the Children's Division to prepare the investigative summary for the Court, so the court did in fact direct both agencies not only to file a petition but the Court also ordered the Children's Division to prepare the investigative study. However, there is no such order in the record. The trial court's July 25 judgment is on a pre-printed judgment form wherein the court marked orders for the parties with an "x" in the space provided. There is a pre-printed line on the form stating "The Children's Division shall file an Investigative and Social Study pursuant to RSMo. 211.455.3," but that

line is not marked with an "x". In addition, the handwritten portion of the judgment form states, "Children's Division granted leave to file TPR." Therefore, nothing in the Judgment indicates that the trial court ordered the Children's Division to file the Investigation and Social Study. In fact, there is no indication in the record that the trial court ever ordered any agency to file an Investigation and Social Study. Respondent next argues that we should infer that the court ordered the Investigation and Social Study in the July 25 judgment when the court stated the "Children's Division granted leave to file TPR" because the Children's Division "believed" this order included the Investigation and Social Study. However, without any support for this contention, we do not find this argument persuasive. Furthermore, even if the trial court had ordered the Investigation and Social Study on July 25, the order would not have been in compliance with the statute. Section 211.455 requires that the Investigation and Social Study be ordered after the court meets with the juvenile officer after the petition is filed. Thus, even if we accepted Respondent's interpretation of the events, we would not find that the trial court complied with the statute. Finally, Respondent argues that Mother was required to show that she was prejudiced. At oral argument, Respondent relied on In the Interest of A.D.G., 23 S.W.3d 717 (Mo.App.W.D. 2000) to support this proposition. In A.D.G. the appellant asserted that the court erred because it failed to have the Section 211.455 meeting with the juvenile officer. Id. at 719. The Western District found that the record was inconclusive as to whether the meeting occurred and that the appellant failed to "state how he was prejudiced" if the meeting did not occur. Id. Initially, we note that in A.D.G., the issue considered by the court was the meeting between the trial court and the juvenile officer, not the Investigation and Social Study. A.D.G., 23 S.W.3d at 718. Moreover, the court in A.D.G. dismissed the issue perfunctorily with little discussion. Id. The court's observation that the appellant failed to state how he was prejudiced should not be considered, as respondent contends, to require a showing of prejudice. Here, Mother claims multiple reasons that the early submission of the Investigation and Social Study caused her prejudice. Mother alleges that Ms. Ulen, who created the report, was biased against Mother and included false information in the Investigation and Social Study even though Ms. Ulen was alerted that the information was false. Mother further argues that she was prejudiced because the court never made a decision regarding which agency would file the Investigation and Social Study and relegated that decision solely to the Children's Division. In A.H., the court did not require the appellant to show specific prejudice, but discussed general prejudice that would result from the early submission of the report. 169 S.W.3d at 157-158. The court noted that early submission denied the trial court the opportunity to decide which agency would investigate and prepare the report. Id. The court stated "the intent of the legislature obviously was not to relegate this decision solely to the Children's Division." Id. at 158.

Here, because the Investigation and Social Study was never ordered by the court, the Children's Division's early submission of the report clearly frustrated the legislative intent of the statute. "Severance of the parent-child relationship by act of law is an exercise of awesome power and demands strict and literal compliance with the statutory authority from which it is derived." A.H., 169 S.W.3d at 158. Here, the trial court and the Children's Division did not comply with the statutorily mandated procedure, and we would reverse the judgment of the trial court. However, because of the general interest and importance of the issues involved in this case, we transfer the case to the Missouri Supreme Court pursuant to Rule 83.02. Footnotes: FN1.All references are to RSMo. 2004 unless otherwise indicated. FN2.We note that the Investigation and Social Study is not file stamped by the court, but at oral argument, Respondent admitted that the Investigation and Social Study was filed before the petition. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.