text:
    James L. WILSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85006.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 30, 2005.
    James L. Wilson, Bonne Terre, pro se.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant James L. Wilson (“Wilson”) appeals from the motion court’s judgment denying his motion to reopen Rule 29.15 proceedings due to abandonment and conflict of interest of appointed counsel. Wilson was convicted by a jury of three counts of first degree robbery, Section 569.020, RSMo 1986, three counts of kidnapping, Section 565.110, RSMo 1986, and six counts of armed criminal action, Section 571.015, RSMo 1986. Wilson was sentenced to a total of three consecutive life sentences plus one hundred fifty years.

On appeal, Wilson argues the motion court erred in not addressing the issues raised in his motion to reopen the case under Rule 29.15; and in denying his motion to reopen the case because the record reflects that counsel abandoned one of his claims in the amended motion, which was a violation of his due process rights.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward WARE, Appellant, v. The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Respondent.
    No. ED 85059.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Rehearing Denied June 30, 2005.
    Kenneth E. Rudd, Louis, MO, for appellant.
    William P. Coates, Jr., Overland Park, KS, for respondent.
    Before PATRICIA L. COHEN, P. J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Edward Ware appeals from an Order and Judgment of the Circuit Court of the City of St. Louis that: (1) granted summary judgment for Ware’s former employer, The Burlington Northern and Santa Fe Railway (“BNSF”), on the grounds that the statute of limitations barred Ware’s action for recovery for injuries to his wrists and elbows under the Federal Employers’ Liability Act (“FELA”); and (2) struck portions of an affidavit Ware filed in opposition to BNSF’s motion for summary judgment.

We have reviewed the briefs of the parties and the record on appeal and find no error in either of the respects alleged. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm the award pursuant to Rule 84.16(b).


text:
    STATE of Missouri ex rel., Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. Richard KOCH, Appellant.
    No. WD 63907.
    Missouri Court of Appeals, Western District.
    June 14, 2005.
    Richard Koch pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Paul Harper, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   Order

PER CURIAM.

Richard Koch, a Missouri prison inmate, appeals from the trial court’s decision awarding a portion of his trust proceeds to the Inmate Incarceration Reimbursement Act Revolving Fund. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    In the Interest of J.D., a minor.
    No. ED 84561.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 21, 2005.
    William E. Albrecht, St. Louis, MO, for appellant.
    Elizabeth J.S. Redmond, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

J.D., a juvenile, was found guilty of statutory sodomy in the first degree and sexual misconduct in the third degree on March 31, 2004. In the original petition J.D. was charged with having deviate sexual intercourse with R.B. in violation of Section 566.010. The petition was amended to include deviate sexual intercourse with another minor child, L.K., also in violation of Section 566.010. After hearing the allegations, Family Court Commissioner Terry W. Wiese made his findings and recommendations. He found that the allegation of deviate sexual intercourse with R.B. had been proven. The Commissioner found that the allegation of deviate sexual intercourse with L.K. had not been proven, but that J.D. had committed a misdemean- or offense of sexual misconduct in the third degree in violation of Section 566.095. These findings and recommendations were transferred to the Family Court Administrative Judge Thomas DePriest, Jr. who adopted the findings and recommendations and entered them as a judgment of the court. J.D. appeals.

As his sole point, J.D. contends that the trial court erred in finding that he had committed the offenses because there was no substantial evidence to support the judgment and it is against the weight of the evidence because of the extreme youthful age of both of the victims, the substantial delay before each victim reported the misconduct, the inconsistencies in their statements and the evidence of J.D.’s good moral character preclude a finding of guilt beyond a reasonable doubt. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25.

      . All statutory references are to RSMo.2004 unless otherwise indicated.


author: JAMES K. PREWITT, Judge. PHILLIP R. GARRISON, Presiding Judge, dissenting.

text:
    In the Interest of S.T.C. A.R.C., Appellant, v. Greene County Juvenile Office, Respondent.
    No. 26298.
    Missouri Court of Appeals, Southern District, Division One.
    June 23, 2005.

      John E. Kelly, Springfield, for appellant.
    Bill Prince, Springfield, for respondent.
   JAMES K. PREWITT, Judge.

S.T.C. (“Child”) was born May 26, 2002 to A.R.C. (“Appellant”). Child was taken into protective custody by the Greene County Juvenile Office on or about May 28, 2002, upon a request for a newborn assessment after Appellant and Child tested positive for cocaine at the time of Child’s birth. Child was subsequently placed in alternative care pursuant to a determination by the juvenile division of the Circuit Court of Greene County that he was “abused and/or neglected.”

A “Petition to Terminate Parental Rights” was filed on July 10, 2003. Two grounds for termination were alleged in the petition; the first being that Child “has been abused and/or neglected.” Under this allegation, the juvenile officer contended that Appellant “suffers from a chemical dependency which prevents her from consistently providing the necessary care, custody and control of the child and which cannot be treated” and, further, that Appellant “repeatedly and continuously failed, although physically or financially able to provide” for Child. As the second ground for termination, it was alleged that Child has been under the jurisdiction of the juvenile court “in excess of one year and that conditions which led to the assumption of jurisdiction still persist or conditions of a potentially harmful nature continue to exist[.]” Appellant’s non-compliance “with the terms of her court[-]ordered treatment plan” is cited as support for this contention.

On March 29, 2004, a termination hearing was held. Preliminary to the hearing on termination, counsel for Appellant moved for a continuance on the basis that Appellant was not present, and counsel was not sure that Appellant had received notice of the hearing date. The trial court denied the motion, and the hearing proceeded.

The trial court took judicial notice of the underlying action in the juvenile division. Counsel for Appellant objected “to any matters contained in that file which might be hearsay and which might form the proof of an element of the statutory allegations against my client for which additional in-person or documentary proof is not offered at this point.”

The first witness called was Jackie Gibson, an employee at the Lake’s Country Resource Center. Ms. Gibson’s testimony laid a foundation for certain records admitted into evidence as Juvenile Office’s Exhibit 3.

Lorie Cobb, an investigator ■ with the Greene County Children’s Division (“Children’s Division”), testified that she visited Appellant in the hospital on May 27, 2002, after receiving a request for a newborn assessment. At that time, Appellant stated that she “had done two lines of cocaine” on the Friday preceding Child’s birth after learning she had lost her job. Appellant also stated that she had used methamphet-amines and marijuana for four years prior to Child’s birth and continued to do so “until about the fourth or fifth month” of her pregnancy. Ms. Cobb testified that Appellant began a treatment program in January of 2002, but ceased participation in the program three or four weeks prior to Child’s birth. Appellant admitted to Ms. Cobb that she was not able to take care for Child. Custody was taken on May 28, 2002, and that was Ms. Cobb’s last contact with Appellant. Ms. Cobb stated that her concerns about Appellant’s ability to parent a child included “her drug use and instability to keep a home and a job.” An investigative report prepared by Ms. Cobb was admitted into evidence and marked “Juvenile Office’s Exhibit 4.”

Maria Graham testified that she was “a case manager for alternative care” with the Children’s Division. She stated that Appellant had communicated to her a desire to stop abusing substances, “but due to her bipolar diagnosis she sometimes can’t help herself.” Appellant told Graham that “in the past” there were times that she medicated herself with illegal substances because she could not afford her medications. Appellant indicated in May of 2003 that she had used marijuana.

A treatment plan was established to aid Appellant in addressing the issues which, according to Ms. Graham, Appellant “needed to work on” and which were described by Ms. Graham as Appellant’s “continued drug abuse [and] chaotic lifestyle^]” This plan was initially prepared and instituted by another caseworker, Latisha Clark, and Ms. Graham continued to follow the plan after she Ayas assigned to Appellant’s case.

The plan provided, and Appellant agreed to comply with, the following: 1) to cooperate with the Division, informing her social service worker of any changes in address, employment, or household composition pri- or to changes; 2) to sign all releases of information requested; 3) to attend and actively participate in parenting skill classes if recommended and provide proof of attendance and/or successful completion; 4) to provide and maintain a stable residence which meets minimal health and safety standards; 5) to not allow individuals who may pose a threat to her children to frequent or reside in the household; 6) to maintain a regular visitation schedule with the Child unless visitation is determined to be detrimental to child, at which time visitation will be suspended; 7) to pay a determined amount of child support, and until such an order has been established, to contribute items such as clothing, diapers, formula, etc. for the support of the Child; 8) to maintain gainful employment or have a lawful means of steady support and provide verification of income; 9) to refrain from the use of any drugs and/or alcohol, other than prescribed medication, and submit to random urinalyses if abstinence is in question; 10) to continue participation in and complete substance-abuse treatment and provide verification of completion; and 11) to actively participate in and attend individual counseling with a licensed therapist, if recommended.

Regarding Appellant’s agreement to inform the Division of changes in address, employment and household composition, Ms. Graham testified that the last contact she had with Appellant was on December 16, 2003, when Appellant was upset and agitated upon learning visitation had been suspended. Subsequently, Ms. Graham stated that she “made several attempts by phone and four attempts to her home address[,]” to contact Appellant, however those attempts were unsuccessful. Ms. Graham also testified that Appellant was employed at Food for Less and working twenty hours per week. Ms. Graham stated she had not received verification of Appellant’s income, although Appellant had reported that she received subsidized rent, food stamps and Medicaid benefits.

Over counsel’s objection that the witness was testifying to matters outside of her personal knowledge, Ms. Graham testified that “the best I could discern from the file,” Appellant had lived at four separate residences since jurisdiction was taken.

Ms. Graham testified that Appellant’s last-known address was a two-bedroom apartment where she had resided for over a year. This was the residence where Appellant resided while Ms. Graham served as Appellant’s caseworker. Ms. Graham conceded the apartment met “minimal health and safety standards.” During the only home visit made by Ms. Graham, there was a couple living with Appellant who, Appellant explained, were friends who were homeless. Their stay at Appellant’s residence was temporary. Ms. Graham stated that although she requested, Appellant never provided her with information to enable her to check on the couple’s background.

Ms. Graham testified regarding Appellant’s participation in parenting classes, stating that, although she had never referred Appellant to attend a parenting class, to her “understanding,” Appellant had been referred to a parenting class within the first six months of initiating the plan. Ms. -Graham stated, “We have no verification that [Appellant] completed any parenting classes.”

As to Appellant’s participation in a substance-abuse treatment program, also a provision of the treatment plan, Ms. Graham testified that upon verification that Appellant was “continuing classes and treatment at Carol Jones Recovery Center[,]” and had submitted several “clean” urinalyses, “the team felt comfortable resuming [previously-suspended] visitation.” Ms. Graham stated that Appellant failed to attend the treatment program for approximately six weeks, stating that she had to work. Appellant told Ms. Graham she would resume treatment at the recovery center, however, Ms. Graham received no verification that Appellant resumed treatment.

Ms. Graham stated that Appellant had told her in May of 2003, that she would test positive for marijuana use on an upcoming drug test, and that Appellant had submitted to various drug tests on several occasions, the last being on December 16, 2003.

Ms. Graham said that Appellant was allowed one hour per week of supervised visitation with the Child at the Children’s Division offices. However, visitation was suspended “roughly from [the time of] the permanency hearing” in May 2003, until November 2003. Ms. Graham stated “[i]t was [her] understanding” that visits were suspended “until such a time [Appellant] could prove her commitment to continued sobriety through drug and alcohol treatment.” When visitation was resumed, upon the team’s decision that Appellant was in compliance, there were “roughly three” visits allowed until the last visit on December 9, 2003.

Ms. Graham testified that on December 16, 2003, Appellant learned visitation would again be suspended and that Appellant was “very upset” and “agitated.” Ms. Graham told Appellant that visitation was suspended because Appellant had failed to continue treatment at the Carol Jones Recovery Center.

Ms. Graham testified that she was not “aware of’ any order directing Appellant to pay support for the child, and that she had “not seen any financial support.” During the few visits that Ms. Graham supervised, Appellant did not bring any gifts, although when Appellant last visited the Child, she brought a toy, but took the toy with her when she left.

When asked to identify the barriers to reunification the Division had been able to determine, Ms. Graham responded, over counsel’s objection, “[Appellant’s] continued substance abuse.”

At the close of Ms. Graham’s direct examination, the Juvenile Office submitted Exhibit 6, a “Termination of Parental Rights Court Summary” (“termination summary”) prepared by Ms. Graham. Counsel for Mother objected “to any matters not within the personal knowledge of the witness that are contained therein which might be used to prove an element of the statutory allegations.” The trial court overruled the objection and admitted the exhibit “as to best interest of the child.”

In her first point, Appellant contends that the finding that the Child had been abused and/or neglected was against the weight of the evidence, in that there was no evidence outside of hearsay adduced at trial that (1) Appellant continued in her substance abuse; and (2) Appellant failed to provide food, clothing, shelter, or other necessary things for the child. Appellant maintains that Appellant’s alleged failure to complete drug rehabilitation programs and any positive urinalyses, evidence upon which the trial court relied in its findings, was outside the personal knowledge of Ms. Graham and “was a matter properly addressed by the chain of witnesses who could cover Appellant’s entire chronology in her treatment plan.” However, those witnesses did not testify at the termination hearing.

Appellant’s parental rights were terminated upon the trial court’s findings of neglect, pursuant to § 211.447.4(2), and failure to rectify or remedy, pursuant to § 211.447(3). Where multiple grounds for termination are found by the trial court, this court “will affirm if any one of those grounds is sustainable and termination lies in the child’s best interests.” In the Interest of D.C.S., 99 S.W.3d 584, 539 (Mo.App.2003).

Upon review of a trial court’s finding that statutory grounds exist for the termination of parental rights, this court must determine whether clear, cogent and convincing evidence supports the finding and reverse only if the judgment is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Id. at 538. “ ‘Clear, cogent, and convincing evidence’ is that which instantly tilts the balance in favor of termination when weighed against the evidence presented by the parent whose rights were terminated.” Id.

As petitioner, the juvenile officer bears the burden of proof, which must be met by the presentation of “substantial evidence, that is, evidence which, if true, has probative force upon the issues[.]” In the Interest of B.S.B., 76 S.W.3d 318, 324 (Mo.App.2002). Prior to considering the child’s best interest, a circuit court must determine whether or not the juvenile officer proved a statutory ground for termination. In the Interest of 134 S.W.3d 58, 65 (Mo.App.2004).

Pertinent to its finding that Child had been neglected, the trial court set forth the following:

b. The child has been abused and/or neglected. Court makes the following findings.
ii. Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control [of] the child and which cannot be treated so as to enable the parent to consistently provide the necessary care, custody and control. No evidence was presented that the unknown biological father suffered from an untreatable chemical dependency. Evidence was presented that the mother suffered from such a chemical dependency. The evidence established that the mother and the minor child tested positive for cocaine upon the bh’th of the minor child. The mother self-reported an extensive history of drug abuse and misuse. A psychological evaluation completed upon the mother in March of 2002 found the mother to be suffering from Amphetamine dependency and cannabis dependency. At the same time of that evaluation, the mother informed the evaluator that she was no longer using, however, subsequent to that evaluation the mother continued to test positive for controlled substances on an ongoing basis. The mother was never able to successfully complete an in-patient or outpatient substance abuse treatment program. Court finds that the mother’s chemical dependency directly affects her ability to provide the child with the necessary care, custody and control as evidence by the environs and associations of the mother while abusing controlled substances.
iv. Repeated or continuous failure by the parent, although physically and financially able, to provide the child with adequate food, clothing, shelter, or education as defined by law, or other care and control necessary for the child’s physical, mental or emotional health and development. There was no contact from any male claiming to be the biological father of the minor child. While the child was removed at birth, subsequent thereto the evidence presented indicated that the mother failed to provide financial or any significant in-kind support for the child.

Appellant contends that the trial court’s findings as to neglect are not supported by the evidence and that, after excluding inadmissible evidence, the remaining evidence is not sufficient to support termination of Appellant’s parental rights. Reversal on the basis of erroneous admission of evidence is rare in a non-jury case. In Interest of S.T.W., 39 S.W.3d 517, 518 (Mo.App.2000). In reviewing such cases, this court defers to the trial court’s ability to consider the evidence that is relevant and admissible, and we presume that the trial court was not prejudiced or influenced by inadmissible evidence. Id. We will not reverse a decision

terminating parental rights unless, after excluding inadmissible evidence, the remaining evidence is not sufficient to support termination. Id. However, appeals “involving the termination of parental rights are reviewed more closely than others because of the fundamental liberty interests associated with family and .child rearing.” In the Interest of J.V.O., 133 S.W.3d 570, 573 (Mo.App.2004).

The juvenile division obtained jurisdiction over the child on or about May 28, 2002. Ms. Cobb testified to the conditions which led to the assumption of jurisdiction at that time, and she stated that she had no further involvement in this case after preparing an investigative summary dated June 29, 2002. Ms. Cobb testified that the concerns which led to the assumption of jurisdiction were Appellant’s “drug use and instability to keep a home and a job.” That “mother self-reported an extensive history of drug abuse and misuse[,]” as stated in the trial court’s findings, was reported by Ms. Cobb in her testimony.

However, “[cjourts have required that abuse or neglect sufficient to support termination under section 211.447.4(2) be based on conduct at the time of termination, not just at the time jurisdiction was initially taken.” In the Interest of K.A.W., 133 S.W.3d 1, 10 (Mo.banc 2004). “Past behavior can support grounds for termination, but only if it is convincingly linked to predicted future behavior.” Id. at 9-10.

Maria Graham was the only caseworker, other than Ms. Cobb, who testified at the termination hearing. In reference to the origination of the treatment plan, Ms. Graham refers to a “previous worker,” Latisha Clark, who did not appear at trial. The record on appeal is confusing as to the period of time for which Maria Graham served as Appellant’s caseworker. Ms. Graham testified that her involvement in this case spanned a period of time “starting in November [2003], until presently .... then again roughly seven months ago — before that, in between workers.” Respondent contends that Ms. Graham “was responsible for the case during two periods of túne: a seven month period of time from May of 2003; and a period of time beginning in November of 2003 and carrying through to the date of trial on March 29, 2004.” At one point in the transcript, Ms. Graham indicates that she “carried this case” at two different time periods [“During the first period of time that I ... carried this case, she was not employed.] To my knowledge during these last months since November of 2003, she’s been employed for Food for Less.” It appears that Ms. Graham was Appellant’s caseworker at least throughout the period from November of 2002 until the time of the termination hearing. Ms. Graham did not testify that Appellant had a chemical dependency in this period of time.

The court’s findings reference “[a] psychological evaluation completed upon the mother in March of 2002 found mother to be suffering from Amphetamine dependency and cannabis dependency. At the time of that evaluation the mother informed the evaluator that she was no longer using, however, subsequent to that evaluation the mother continued to test positive for controlled substances on an ongoing basis.” We find no evidence in the testimony at the termination hearing regarding “a psychological evaluation completed upon the mother in March of 2002[,]” However, the termination summary, references a “DSM IV Diagnostic Impression, dated 3-20-02[,]” under which “Amphetamine dependence” and “Cammabis [sic] Dependence” is referenced. No where in the testimony do we find where Appellant informed an evaluator that she was no longer using. Neither is there substantial evidence that “mother continued to test positive for controlled substances on an ongoing basis.” Furthermore, we are unable to locate evi-

dence supporting the finding that “mother’s chemical dependency directly affects her ability” to provide for Child, as there was no evidence of “the environs and associations of the mother while abusing controlled substances,” as referenced by the trial court.

Certain contentions contained in the termination summary, admitted as Exhibit 6, are similar to some of the findings in the trial court’s judgment which we could not locate in the testimony from the termination hearing. That summary provided a listing of Appellant’s drug-testing results and former addresses, and referenced an incident wherein Appellant reported being beaten up by individuals with whom she was living who she accused of dealing drags. However, this summary cannot be considered in reaching the determination that a statutory ground exists to justify termination of parental rights.

In termination proceedings, § 211.455.3 provides that 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.” The issue of “best interests” may be reached only after the court has made a determination that one or more statutory grounds for termination exist, pursuant to § 211.447. “Section 211.455.3 does not itself authorize the court to use the social report to determine whether one of the statutory grounds of termination exists,” and should be considered only on the issue of whether termination is in the best interests of the child. In the Interest of J.A.R., 968 S.W.2d 748, 750-51 (Mo.App.1998); In the Interest of S.P.W., 707 S.W.2d 814, 820 (Mo.App.1986). See also In the Interest of 920 S.W.2d 173,176 (Mo.App.1996) (reversing the court’s order of disposition upon finding that inadmissible evidence played a critical role in the court’s decision).

“[Sections 211.477.4(2)(b) and 211.477.4(3)(d) provide that chemical dependency is of sufficient severity to support termination, if it ‘prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control.’ ” K.A.W., 133 S.W.3d at 11. Here, the petition for termination alleged that Child “has been abused and/or neglected[,]” in that Appellant “suffers from a chemical dependency which prevents her from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the mother to consistently provide such care, custody and control.” It also alleges that Appellant has “repeatedly and continuously failed, although physically or financially able to provide the child with adequate food, clothing, shelter, or education....” However, there is no testimony alleging a chemical dependency, nor is there any proof that such a dependency was untreatable or of sufficient severity to support termination.

Considering that Child was removed from Appellant’s care at birth, it is not possible for us to say that Appellant is unable to properly care for Child. There was no evidence presented concerning Appellant’s ability, physically or financially, to provide for Child. That Appellant was employed on a part-time basis and received subsidized rent, food stamps and Medicaid benefits was in evidence, however the issue of whether Appellant was financially able to contribute to the care for Child was never reached.

We do not find clear, cogent and convincing evidence to support the finding that Appellant suffered from a chemical dependency or that she failed to provide for Child, although physically or financially able to do so. Point I has merit.

In Point II, Appellant contends that the trial court further erred in ordering termination on the basis of the trial court’s finding that Child had been under the jurisdiction of the juvenile court for more than one year and that conditions which led to the court’s assumption of jurisdiction still persisted [§ 211.447.4.(3) ], in that its finding was against the weight of the evidence because the finding references testimony from witness Maria Graham that was “outside the personal knowledge of’ the witness who, Appellant maintains, was only “familiar with events in a recent and brief period of time.”

Appellant contends that Ms. Graham had no personal knowledge of Appellant’s failure to complete parenting classes, and her testimony that Appellant did not maintain stable, appropriate housing “was entirely outside the scope of Ms. Graham’s knowledge.” Further, Appellant challenges the finding citing concerns regarding drug activity in and about Appellant’s premises, stating that the finding “appears nowhere in the trial evidence.” Regarding her failure to attend treatment and reference to a positive drug test, Appellant contends there was no support in the record, and “the alleged drug test result itself was actually excluded from evidence.” This testimony, Appellant contends, was hearsay.

Most of the testimony tracked Appellant’s compliance with the service agreement established by the Division. Section 411.477.4(3) provides that one ground for termination is that the child has been subject to the court’s jurisdiction in excess of one year and the conditions leading to the assumption of jurisdiction persist or conditions of a potentially harmful nature continue to exist. Upon such a finding, the trial court must then consider and make findings regarding the parent’s progress in complying with the terms of a social service plan, the success or failure of the efforts of the agency to aid the parent, whether the parent suffers from a mental condition rendering the parent unable to provide for the child, and whether the parent suffers from a chemical dependency which prevents the parent from providing the care necessary for the child.

Relevant to this point, the trial court’s findings were:

The child has been subject to the court’s jurisdiction for in excess of one year, the conditions leading to the assumption of jurisdiction continue to exist, including the ongoing abandonment by the unknown biological father, the ongoing substance abuse by the mother along with the mother’s ongoing failure to demonstrate the ability to provide the child with the necessary care, custody and control, that there is little or no likelihood that those conditions will be remedied at an early date so that the child can be returned to a parent in the near future. Court further finds that the continuation of the parent and child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. Court finds that the child is in a stable, appropriate permanent placement. Court makes the following findings:
i. The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms. The Children’s Division caseworker testified regarding parental compliance with the provision of the court ordered treatment plans. There was not [a] plan in effect for the unknown biological father due to his absence from and lack of contact with the jurisdiction. The mother was generally cooperative with her caseworker. The mother signed all requested release of information forms. Although referred, the mother failed to complete parenting classes. The mother did not consistently maintain stable, appropriate housing. She has recently obtained stable housing albeit concerns have existed regarding drug activity in and about the premises. The mother progressed to the point where she was afforded unsupervised visitation with the child. Due to behaviors exhibited by the mother those visits were scaled back to supervised status. Visits were subsequently suspended until such time as the mother could demonstrate sobriety and consistent compliance with her treatment plan. In October of 2003, visitation was reinstated but in December 2003, visits again were suspended due to the mother’s failure to attend treatment and a positive drug test. The mother did not voluntarily provide child support for the minor. The mother continued to use and abuse controlled substances. The mother did not provide verification of successful completion of substance abuse treatment, having been discharged from several programs due to positive drug screens and non-compliance with the programs. The mother did not provide verification of successful completion of counseling.

The trial court also found that the juvenile office was unable to successfully aid Appellant in adjusting her circumstance and conduct due to Appellant’s lack of cooperation “and her continued substance abuse,” that there was no evidence Appellant suffered from a permanent or irreversible mental condition, and that Appellant suffered from a chemical dependency which prevented her from consistent providing for Child “and which cannot be treated so as to enable [Appellant] to consistently provide such care[.]”

There is no question that there was evidence that Child has been under the jurisdiction of the juvenile court for more than one year preceding. the termination hearing. However, the evidence cited by the trial court in support of its findings under this ground does not substantiate the contention that the conditions under which jurisdiction was assumed continued to exist. Those conditions were Appellant’s alleged use of cocaine, and, according to Ms. Cobb’s testimony, Appellant’s “instability to keep a home and a job.” There was no evidence at trial that Appellant continued to use cocaine, and, as stated previously, there was no testimony that Appellant suffered from a chemical dependency.

Subsequent to custody being taken, the only reference we find regarding Appellant’s alleged substance abuse was, according to Maria Graham, Appellant’s admitted use of marijuana in May of 2003. Ms. Graham testified that the barrier to reunification was Appellant’s “continued substance abuse.” We do not find this to be substantial evidence that “the conditions leading to the assumption of jurisdiction continue to exist[J”

Furthermore, we found no testimony to support the finding that the continuation of the parent/child relationship greatly diminishes the child’s prospects for early integration into a stable, permanent home. There was no testimony received on this issue, although there was evidence that Child is developing normally and that the foster parent “indicated a willingness” to “consider adopting [Child].”

The finding that Appellant failed to keep a stable home or job was not supported by the evidence at trial. Throughout Ms. Graham’s service as Appellant’s caseworker, Appellant lived at the same address, and there was no testimony that Appellant’s housing was inappropriate, or that there was “drug activity in and about the premises.” Ms. Graham testified that Appellant was working in a part-time position, at Food for Less.

“[A] parent’s failure to comply with a written service agreement does not, in itself, constitute a ground for termination parental rights.” C.N.G., 109 S.W.3d 702, 707 (Mo.App.2003). “It is merely a factor to consider in deciding whether the grounds set out in § 211.447.4(3) exist.” Id. The evidence at trial regarding Appellant’s noncompliance with the social service plan, we believe, was not sufficient to justify termination of her parental rights. That mother failed to complete parenting classes to which Appellant had been referred prior to Ms. Graham’s assignment as caseworker was not within Ms. Graham’s personal knowledge, as she stated that she thought the referral was made within the first six months of the juvenile court taking jurisdiction, a period of time in which Ms. Graham was not assigned to Appellant’s case. Further, there was no testimony that Appellant was “discharged from several programs due to positive drug screens and non-compliance[.]”

As to the finding that Appellant failed to provide verification of successful completion of counseling, Ms. Graham’s testimony was: “We had asked that [Appellant], first and foremost, complete her drug and alcohol abuse treatment, and we would continue follow-up therapy as needed from there.” She then indicated that they never got “to the second step.” [Tr. 45] We cannot find testimony to support this finding.

“The goal of a termination hearing is not to justify termination, but to determine if grounds exist for termination.” K.A.W., 133 S.W.3d at 19. “It is only when grave and compelling reasons exist that parental rights should, be severed^]” In the Interest of A.R.S., 609 S.W.2d 490, 491 (Mo.App.1980). “The severance of the parent-child relationship is an exercise of awesome power which requires literal compliance with statutory authority.” In re S.P.W., 707 S.W.2d 814, 820 (Mo.App.1986). “By requiring strict compliance with the rules of evidence, we help to insure that a decision to terminate parental rights is made only on rehable, credible and relevant evidence.” Id.

“Statutes that provide for the termination of parental rights are strictly construed in favor of the parent and preservation of the natural parent-child relationship.” K.A.W., 133 S.W.3d at 12. As stated previously, the state bears the burden of proof, which must be met by the presentation of substantial evidence. Id. at 9. Here, we do not find that the State met its burden. Point II also has merit.

Because we find that neither statutory ground used for termination is supported by clear, cogent and convincing evidence, we must reverse the termination of Appellant’s parental rights.

The judgment is reversed.

GARRISON, P. J., dissenting in separate opinion.

RAHMEYER, J, concurs.

PHILLIP R. GARRISON, Presiding Judge, dissenting.

I respectfully dissent from the majority opinion. I believe that the evidence contained in this record was sufficient to support the judgment terminating Appellant’s parental rights, and I would affirm the judgment.

S.T.C. was born May 26, 2002, at which time he and Appellant tested positive for cocaine. Appellant reported at that time that: when she got pregnant with S.T.C. she was using methamphetamines, was seeing several different men, and could not remember or couldn’t identify S.T.C.’s father; on the Friday before the birth she used cocaine with an ex-boyfriend because she lost her job, was stressed out, and was easily manipulated; she had used both methamphetamines and marijuana for the previous four years, except she said she had stopped that usage four or five months before the birth; and, she had gone into treatment the preceding January but had stopped going to meetings three to four weeks prior to the birth of her child. S.T.C. was taken into custody by the Greene County Children’s Division on May 27, 2002. A meeting with Appellant was held the next day at the juvenile office at which time she admitted that she was not able to take care of S.T.C.

Maria Graham (“Graham”), a case manager for alternative care with the Missouri Children’s Division in Greene County, testified that the issues identified by the agency that Appellant needed to work on in order to reach the goal of reunification were her continued drug abuse, chaotic lifestyle, and ability to care for the child. Appellant told her that “she wants with all of her heart to not use substances, but due to her bipolar diagnosis she sometimes can’t help herself,” and that “in the past when she’s been unable to afford her medications that she [would] medicate with illegal substances.”

A treatment plan was prepared for Appellant, but although a copy of the plan itself was received in evidence, it is not in the record here. There was testimony, however, concerning the contents of the plan and Appellant’s compliance with it, or lack thereof. In that regard, a treatment plan can provide the trial court with highly relevant evidence in a termination case. In re K.A.W., 133 S.W.3d 1, 10 (Mo. banc 2004). “A parent’s efforts to comply with such a plan will provide the court with an indication of the parent’s likely efforts in the future to care for the child.” Id. “A lack of effort to comply with a plan, or a lack of success despite effort, can predict future problems.” Id.

The treatment plan here provided, among other things, that Appellant refrain from the use of drugs and/or alcohol other than prescribed medications, and she also agreed to random urinalysis. During the time S.T.C. was in foster care, Appellant was referred to three centers for substance abuse treatment and another for treatment for substance abuse and her diagnosis of bipolar disorder. As of the time of the hearing, the agency had received no verification that Appellant had successfully completed any of those programs. As of May 2003, Appellant admitted that she had recently used marijuana and that a scheduled drug test would be positive because of it. Appellant’s visits with S.T.C. were then terminated until such time as she could prove her commitment to continued sobriety through drug and alcohol treatment. Those visits were resumed in November 2003 because Appellant had submitted several urine tests that were clean, and she had verification that she was continuing classes and treatment at a recovery center. Thereafter, Appellant had three visits with S.T.C., the last being on December 9, 2003.

There was a Family Support Team meeting on December 16, 2003, during which Appellant’s visitation with S.T.C. was apparently discontinued because of her failure to continue with treatment for substance abuse. Appellant contended that she had “forgotten to go to treatment for the [prior] six weeks” because she was busy working at a job. She assured Graham that she would again begin treatment at the same recovery center. Graham told Appellant that the hearing on the termination of her parental rights, originally set for December 2003, had been rescheduled so that she then had four more months to continue sobriety and work towards regaining custody of her son. Because of a request made at that meeting, Appellant went for a drug test that same day, but as of the time of the termination hearing on March 29, 2004, she had not furnished the results of the test. She also had failed to provide verification that she had returned to treatment as promised. Graham testified that she had been unable to contact Appellant after December 16, 2003, although she had made numerous attempts to do so by phone and by going to Appellant’s apartment.

Accordingly, Graham had been unable to request other drug tests because of Appellant’s failure to respond to attempts to contact her. Graham testified that the barrier to reunification with the child that existed at the time of the hearing was Appellant’s continued substance abuse.

The treatment plan also provided that Appellant would maintain employment, have a lawful means of steady support, and provide verification of her income to the DFS worker. Although Appellant had previously existed on subsidized rent, food stamps, and Medicaid due to her bipolar diagnosis, she had been employed at a food market working twenty hours per week since November 2003. Nevertheless, she provided no verification about her earnings, and provided no financial support or items such as clothing, toys, or diapers for S.T.C., with the exception of one toy she brought to her last visit with S.T.C. She took that toy with her, however, at the end of the visit. A parent’s duty to support a child does not abate while the child is in the custody of the Division of Family Services. In re A.H., 9 S.W.3d 56, 60 (Mo.App. W.D.2000). A parent who lacks the ability to fully support a child but has the ability to make minimal contributions for their support has a duty to do so. In Interest of S.J.G., 871 S.W.2d 638, 642 (Mo.App. S.D.1994). “ ‘[E]ven a minimal contribution evinces the parent’s intent to continue the parent-child relationship.’ ” Id. (quoting In Interest of M.L.K., 804 S.W.2d 398, 402 (Mo.App. W.D.1991)).

A “Court Summary” prepared by Graham and her supervisor, dated twelve days earlier, was also introduced at the hearing. Appellant’s only objection to that summary was “to any matters not within the personal knowledge of the witness that are contained therein which might be used to prove an element of the statutory allegations.” Such reports are mandated by § 211.455.3 and are admissible over hearsay objections. In Interest of T.G., 965 S.W.2d 326, 332 (Mo.App. W.D.1998); In Interest of S.J., 849 S.W.2d 608, 611-612 (Mo.App. W.D.1993). In addition, no effort was made to identify which portions of the summary the hearsay objection would allegedly apply to. When a blanket objection is made to an entire offer of evidence, if any parts of the exhibit are admissible, the blanket objection should be overruled. Friese v. Mallon, 940 S.W.2d 37, 40 (Mo.App. E.D.1997). In this case, Appellant’s counsel objected only to the portions of the exhibit “not within the personal knowledge of the witness that are contained therein,” thus implying that there were portions that were within her knowledge. As such, the objection was insufficient.

It has been held that § 211.455.3 does not itself authorize the court to use the social report to determine whether one of the statutory grounds of termination ex-

ists, and that unless another ground for admission exists for all or pari of the report, it should be considered by the court only on the issue of whether the termination is in the best interests of the child. In Interest of J.A.R., 968 S.W.2d 748, 750-751 (Mo.App. W.D.1998). That was not the basis of Appellant’s objection to the report in this case, and in fact, counsel objected to only those portions of the report that were hearsay that “might be used to prove an element of the statutory allegations.”

The “Court Summary” documented the following: a diagnosis during Appellant’s pregnancy of dependence on amphetamines and cannabis; her inability to maintain employment; that she was then living in a homeless shelter; that she had not completed parenting classes; that she had lived in five different locations during the thirteen months prior to the hearing; that Appellant had told Graham that four months before the birth of S.T.C. she was living with people who were dealing drugs and had beaten her; that in November 2003, Appellant had physically taken S.T.C. out of a foster mother’s arms and was “very paranoid and bouncing off the walls”; that Appellant had either cancelled or failed to show up for visitations with S.T.C. five times, once not knowing what day it was and once saying she had forgotten that S.T.C. was being brought to her for a visit; that on December 16, 2003, Appellant tested positive for marijuana after saying she had “forgotten” to attend treatment for the past three to four weeks; and that between August 2002 and December 2003, she had tested positive for amphetamines three times, for cocaine three times, for prescription medications eight times, and for marijuana three times. It also revealed that Appellant had been discharged from a treatment center in both June 2003 and November 2003 for “failure to comply.”

In this case, Appellant contends that there was not sufficient competent evidence to support the judgment finding grounds for termination. In addition to the evidence referred to above, the record reveals that the records of the Lakes Country Resource Center (“Lakes Country”) concerning Appellant were introduced at the hearing without objection. Lakes Country is a rehabilitation center for people with “disabilities or problems like that” and which has affiliates that treat for substance abuse. The Lakes Country records, however, are not included in the record on appeal in this case. Likewise, those records have not been filed as an exhibit in this case.

On appeal the trial court’s judgment is presumed valid and the burden is on an appellant to demonstrate incorrectness of the judgment. Campbell v. Rickert, 938 S.W.2d 282, 285 (Mo.App. S.D.1997). Therefore, it is an appellant’s responsibility to file the transcript and prepare a legal file so that the record contains the evidence necessary for such a determination. Flora v. Flora, 834 S.W.2d 822, 823 (Mo.App. E.D.1992). The record on appeal must contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented to the appellate court for decision. Rule 81.12(a). In order to review Appellant’s contention that there was not substantial evidence in this case to support the judgment of termination, it would be necessary that we have all the evidence before us. Such evidentia-ry omissions will be taken as favorable to the trial court’s ruling and unfavorable to the appellant. In re Carl McDonald Revocable Trust, 942 S.W.2d 926, 932 (Mo.App. S.D.1997).

Finally, the termination hearing in this case was held on March 29, 2004. Graham had been unable to contact Appellant between December 16, 2003, and the hearing date, and Appellant failed to appear for the hearing itself. This was after Appellant dropped out of treatment for substance abuse and failed to report the results of a drug test requested by Graham.

For the above reasons, I would affirm the judgment of the trial court.

      . In objecting, counsel stated:
      I'm going to object or ask to voir dire, one or the other here. I ... think Maria’s identified herself as a worker that’s had a window in time of this, but she’s being asked general questions about what the agency’s experience has been. I ... don’t want to sit here and ask — object to every single question, but I ... think she’s being asked for something that might not be within her personal knowledge. And I am going to object to those things if it appears she’s just recalling from the record or looking at her file. She hasn’t been the only worker, yet she’s answering questions as if she were.
      In overruling counsel’s objection, the trial court stated:
      “[A]s to cross-examination you can determine the exact source of some of it if you have questions about that, Mr. Kelly. But, again, I think the nature of the work that the caseworker does and the requirement preparing social histories necessitate information from other people which is admissible at least as to the best interests of the child. And so the objection’ll be overruled as to the ... if it’s as to hearsay that you’re indicating it.”

      . The termination summary states Appellant "had forgotten to attend treatment for the past 3 to 4 weeks.”

      . The termination summary lists four visitations.

      . When Ms. Graham testified that Appellant's visitation was suspended in December of 2003 because Appellant "failed to continue treatment at Carol Jones Recovery Center[,]” and because Appellant "also provided a positive drug test for marijuana[,]” counsel objected on the basis that Graham's testimony was hearsay. The trial court indicated at that point that it would "receive it for best interest,” and "I’ll sustain it may be hearsay I think as to legal ground issues.”


author: JAMES K PREWITT, Judge.

text:
    Darold WIENERS, d/b/a Wieners Auto Sales, Plaintiff-Respondent, v. John DOE, Defendant, Director of Revenue, State of Missouri, Appellant. Darold Wieners, d/b/a Wieners Auto Sales, Plaintiff-Respondent, v. John Doe, Defendant, Director of Revenue, State of Missouri, Appellant. Chris Adamson, d/b/a Chris’s I-44 Service Station, Plaintiff-Respondent, v. John Doe, Defendant, Director of Revenue, State of Missouri, Appellant.
    Nos. 26481, 26484, 26486.
    Missouri Court of Appeals, Southern District, Division One.
    June 24, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., and Sarah E. Ledgerwood, Asst. Atty. Gen., Jefferson City, MO, for Appellant Director of Revenue.
    Wayne Gifford, Waynesville, MO, for Respondents Wieners and Adamson.
   JAMES K PREWITT, Judge.

Director of Revenue (“Director”) seeks to appeal from three judgments in favor of plaintiffs and against defendants denominated as “John Doe.” Darold Wieners (“Respondent Wieners”) and Chris Adam-son (“Respondent Adamson”) have filed a motion to dismiss the appeal, asserting that Director has no standing to appeal. We agree that the appeals must be dismissed, but we base it on grounds other than those urged in the motion and do not reach the grounds stated by plaintiffs.

It is this court’s duty to ascertain whether it has jurisdiction of the case even if not raised by either party. Jines v. Director of Revenue, 788 S.W.2d 801, 802 (Mo.App.1990).

On April 23, 2001, Respondent Wieners filed a petition against John Doe, appeal No. 26481, listing eighteen vehicles his business, Wieners Auto Sales, had spent $4,500 to repair and store that John Doe had not paid. Service was by publication. On May 16, 2001, the trial court entered a default judgment finding Wieners had stored and repaired the listed vehicles, was entitled to liens on them, and ordered them sold. Wieners purchased one of these vehicles, a 1987 Volvo, at auction for $100.

Appeal No. 26484 originated on January 12, 2004, when Wieners filed suit against John Doe. Wieners claimed a lien on twenty-two vehicles for repair and storage amounting to $4500. Service was by publication. A default judgment was entered on February 3, 2004, finding that Wieners stored and repaired the vehicles, was entitled to liens on them, and ordered a sale.

On May 11, 2004, Respondent Adamson filed a petition against John Doe. Adamson listed twenty-five vehicles his business, Chris’s 1-44 Service Station, had spent $4500 to repair and store vehicles that John Doe had not paid. Service was by publication. On June 4, 2004, default judgment was entered, finding Adamson stored and repaired the listed vehicles, was entitled to the liens on them, and ordered them sold.

Wieners applied to Director for certificate of title to the 1987 Volvo on April 27, 2004. Director then filed a “Motion to Set Aside Order for Lack of Subject Matter Jurisdiction” in Wieners’ first case on May 3, 2004, and an identical motion on May 24, 2004, in Wieners’ second case.

Director filed a “Motion to Set Aside Order for Lack of Subject Matter Jurisdiction” in Adamson’s case on August 3, 2004. Director contends the plaintiffs failed to name Director in its petition and failed to abide by § 430.082, RSMo 2000, in securing title of auctioned property. Director filed a motion to consolidate all three cases. On August 12, 2004, the trial court granted Director’s motion to consolidate, but denied the motions to set aside the judgments. On August 23, 2004, Appellant filed a Notice of Appeal seeking to appeal from the three judgments.

In order to be a party, a person “must either be named as a party in the original pleadings, or be later added as a party by appropriate trial court orders.” Proctor v. Director of Revenue, 753 S.W.2d 69, 70 (Mo.App.1988). See also lines, 788 S.W.2d at 802. Director was not a listed party nor was Director added by court order. Therefore, Director was not a proper party to the cases. Whether Director should have been named as a party or had a right to become one, we do not decide.

A non-party has no standing to attempt to set aside a judgment. In re Marriage of Clark, 813 S.W.2d 123, 125 (Mo.App.1991). Only a party may appeal. Jines, 788 S.W.2d at 802; Proctor, 753 S.W.2d at 70.

The appeals are dismissed.

GARRISON, P.J., and RAHMEYER, J., concur.


author: JOHN E. PARRISH, Presiding Judge.

text:
    In the Interest of C.M.L., a Minor J.M., Appellant v. Greene County Juvenile Office, Respondent.
    No. 26573.
    Missouri Court of Appeals, Southern District, Division Two.
    June 27, 2005.

      M. Elise Branyan Barker, Springfield, MO, for appellant.
    Bill Prince, Springfield, MO, for respondent.
   JOHN E. PARRISH, Presiding Judge.

J.M. (appellant), the alleged natural father of C.M.L., attempts to appeal an order terminating his parental rights. That order, however, is not a final judgment in that it fails to adjudicate the rights of S.L., the mother of C.M.L., although S.L. was named a party in the petition by which the termination of parental rights action was brought. The appeal is dismissed.

A petition to terminate parental rights of appellant and S.L. was filed in the Juvenile Division of the Circuit Court of Greene County, Missouri, on July 1, 2003. The case was called for trial June 2, 2004. At the beginning of the trial, the attorney for the Greene County Juvenile Office advised the court that S.L. had expressed an intention “to voluntarily terminate her parental rights but did not want to do so until after the alleged biological father’s rights had been severed.” The judge then inquired whether the attorney wished “to dismiss her from it or ... just not ... take it up as applies to her? In other words, if she, in fact, does not follow through on the voluntary, then you’re going to be starting over from day one.” The attorney replied, “Your Honor, if I could just not take it up as to her at this time.” The judge stated the court would “just take it up as to the father.”

Trial began. At the close of the evidence, the judge announced findings that the allegations of the petition were true; that it was in the best interests of the child to terminate appellant’s parental rights. Judgment was entered declaring, “The parental rights of [appellant], alleged biological father and the unknown biological father in, to and over the minor child, [C.M.L.], ... are forever terminated.” No action was taken with respect to S.L., although she remained a party to the termination of parental rights proceeding, nor was there a determination that no just reason for delay existed for purposes of entering judgment.

This court has a duty to sua sponte determine whether it has jurisdiction. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). If we lack jurisdiction to entertain an appeal it should be dismissed. Id. An appellate court has jurisdiction only over final judgments that dispose of all parties and issues in the case and leave nothing for future determination. O’Neill v. O’Neill, 864 S.W.2d 7, 8 (Mo.App. E.D.1993). If'the trial court does not either resolve all the issues as to all parties or expressly designate “there is no just reason for delay,” the appeal must be dismissed. Rule 74.01(b); Fleahman v. Fleahman, 25 S.W.3d 162, 164 (Mo.App. E.D.1999).

Gateway Directory Publishing Group, Inc. v. Fischer, 84 S.W.3d 496, 497 (Mo.App.2002). The appeal is dismissed.

BATES, C.J., and SHRUM, J., concur.


author: JAMES M. SMART, JR., Judge.

text:
    Ronald David MINGS, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. WD 64048.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Cheryl Ayn Caponegro Nield, Jefferson City, MO, for appellant.
    Robert H. Martin, Independence, MO, for respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

The Missouri Director of Revenue appeals the circuit court’s judgment reinstating the driving privileges of Ronald Mings. The judgment is reversed and remanded.

The Director of Revenue revoked Ronald Mings’ driving privileges for failure to submit to a breath test. Mings petitioned for a court hearing pursuant to section 577.041. At the hearing, the Director submitted her case via Department of Revenue records. Those records included the arresting officer’s report. The officer reported that a truck he was following was traveling at 15 miles per hour on a city street. He observed the truck cross the outside lane marker two times. He continued to follow the truck onto the highway, where it crossed the center lane divider three times.

The officer stopped the truck aixd identified the driver as Mings. Based on Mings’ actions and appearance, the officer believed that he was intoxicated. The officer asked Mings to get out of the truck so that he could perform field sobriety tests. The results of the horizontal gaze and nystag-mus test indicated to the officer that Mings was intoxicated. According to the officer’s report, Mings refused to do any more field sobriety tests. The officer arrested Mings for driving while intoxicated. He transported Mings to detention, where he advised him of Missouri’s implied consent law. Mings reportedly refused to submit to a breath test or answer any of the officer’s questions.

Mings testified at the hearing. He offered explanations for most of the things the officer cited as indicia of intoxication. He did not say that he explained any of that to the officer at the time. Mings denied that he was intoxicated and said he told the officer he had not been drinking. He denied that the officer asked him to do any field sobriety tests besides the horizontal gaze and nystagmus test. Mings also testified that he was never asked to submit to a breath test.

At a section 577.041 hearing, the trial court “shall determine only” whether or not the person was arrested; whether or not the officer had reasonable grounds (probable cause) to believe that the person was driving while in an intoxicated condition; and whether or not the person refused to submit to a test. § 577.041.4; Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). The Director bears the burden of establishing each element by a preponderance of the evidence. Yarsulik v. Dir. of Revenue, 118 S.W.3d 279, 281 (Mo.App.2003). If the court finds “any issue not to be in the affirmative,” it must order reinstatement of the driver’s license. § 577.041.5; Hinnah, 77 S.W.3d at 620.

Here, the court found the issue of probable cause “not to be in the affirmative” and ordered Mings’ driving privileges reinstated. The judgment stated:

In light of the testimony presented[,] the court evaluates the evidence and credibility of all the testimony received. The court evaluates the situation from the viewpoint of a cautious, trained and prudent police officer at the time of the arrest. The court finds the officer lacked probable cause to arrest the driver. It is therefore ordered that petitioner’s application is sustained and the Director of Revenue is ordered to reinstate applicant’s license.

The court did not make any findings as to whether Mings refused to submit to a breath test. The Director appeals.

On review, we will affirm the circuit court’s judgment unless it is not supported by substantial evidence, it is contrary to the weight of the evidence, or it erroneously declares or misapplies the law. Hinnah, 77 S.W.3d at 620.

The Director argues that the trial court erred in reinstating Mings’ driving privileges based on a finding of lack of probable cause because the judgment is against the weight of the evidence, is unsupported by substantial evidence, and misapplies the law. The Director says that probable cause to arrest was established by uncontroverted evidence.

We need not examine this issue further because Mings concedes the point. Mings twice states in his brief that he “is in agreement with [the Director’s] conclusion on the Probable Cause and arrest issue.” Rather than argue probable cause, Mings concentrates on the lack of findings on the refusal issue. We, therefore, reverse the court’s judgment on the issue of probable cause.

The Director also says the trial court should have made findings on Mings’ refusal to submit to a breath test. The Director urges this court to remand so that the trial court can weigh the evidence on the refusal question and issue appropriate findings.

Relying on Boyd v. Director of Revenue, 48 S.W.3d 901, 904 (Mo.App.2001), Mings argues that this court lacks jurisdiction because the judgment is not a final, appealable judgment. The Boyd court held that without an explicit finding concerning each of the three elements in section 577.041.4, the circuit court’s judgment is not final, and thus not appealable. 43 S.W.3d at 904. -We disagree with that assessment. We do not believe that section 577.041.4 mandates a written finding on all three factors in every section 577.041 case in order to have a final judgment. For example, in a case such as this — where the court made findings as to only one of the three factors, but found that factor not to be in the affirmative— were we to affirm that judgment, no further findings would be necessary. See § 577.041.5 (if the court determines any issue not to be in the affirmative, it must order- the license reinstated). Such was the case;in Yarsulik, 118 S.W.3d.at 281 n.1, 283.

Here, however, we are reversing the court’s judgment on the only factor about which it made an explicit finding: probable cause. It is undisputed that Mings was arrested. It is also now undisputed that there was probable cause to believe he was driving in an intoxicated condition. The issue of his refusal is disputed and remains unresolved. Therefore, we remand to the trial court with instructions to weigh the evidence on Mings’ refusal and issue appropriate findings.

The judgment is reversed and remanded.

HOLLIGER and HARDWICK, JJ„ concur.

      . Under section 577.041.4, "[i]f a person's license has been revoked because of ... refusal to submit to a chemical test, such person may petition for a hearing before a circuit ... court in the county in which the arrest or stop occurred.” (All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise noted.)

      . See §§ 577.020.1 and 577.041.1. Pursuant to section 577.020.1, "[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.020 to 577.041, a chemical test ... of the person's breath, blood, saliva or urine [to determine] the alcohol or drug content of the person's bloodCJ” Under section 577.041.1, an officer requesting a person to take such a test must inform the person of the reasons for his request, that evidence of refusal to take a test may be used against him, and that his license shall be immediately revoked upon refusal.

      . This court, in Yarsulik, also observed,' in disagreement with Boyd, that findings are not required for elements that are uncontroverted and that a court can "determine” an issue without making an express finding of fact where the parties do not request such findings. Yarsulik, 118 S.W.3d at 281 n.1.


text:
    STATE of Missouri, Respondent, v. Christopher PARRIS, Appellant.
    No. WD 63940.
    Missouri Court of Appeals, Western District.
    June 28, 2005.

      Irene C. Karns, Public Defender Office, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Evan Buchheim, Office of Attorney General, Jefferson City, for Respondent.
    Before JAMES M. SMART, JR., Presiding Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Christopher Parris appeals his convictions after jury trial of sexual misconduct and deviate assault. We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 30.25(b).


text:
    Warren W. FRAZIER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64243.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Susan Lynn Hogan, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty., Gen., Deborah Daniels and Aison K. Brown, Office of Attorney General, Jefferson City, for Respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Warren Frazier appeals the circuit court’s judgment denying his motion for post-conviction relief filed pursuant to Rule 29.15. We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Randy R. WYMER, Appellant.
    No. ED 84407.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 28, 2005.
    Amanda R. Schehr, St. Louis, MO, for appellant.
    Deborah Daniels, Shaun J. Mackelprang (co-counsel), Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Randy Wymer appeals the judgment entered on his convictions for child molestation and statutory sodomy.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. The parties have, however, been provided a memorandum setting forth the reasons for our decision in accordance with our local Rule 405. The judgment is affirmed under Rule 30.25(b).


text:
    Raymond HARGIS, Employee/Respondent, v. REE’S CONTRACT SERVICES, INC., Employer/Appellant, and Treasurer, State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Respondent.
    No. ED 85646.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.
    John P. Kafoury, St. Louis, MO, for appellant.
    Robert J. Lenze, Michael T. Finneran, Office of the Attorney General, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Ree’s Contract Services, Inc. (Employer) appeals from the Labor and Industrial Relations Commission’s (Commission) award finding Raymond Hargis (Claimant) permanently and totally disabled as a result of an injury he sustained while working for Employer, and awarding future medical and psychiatric benefits. Employer contends the Commission’s award is not supported by competent and substantial evidence and is against the overwhelming weight of the evidence.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. After reviewing the whole record, we find the Commission’s award is supported by competent and substantial evidence and is not contrary the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Jacques NISCHWITZ, Appellant.
    No. ED 84880.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 28, 2005.

      N. Scott Rosenblum, Clayton, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Jacques Nischwitz (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of St. Louis County upon his conviction for violating two orders of protection. Defendant contends that the trial court erred in improperly joining the charges relating to the two orders of protection into a single indictment and denying Defendant’s Motion to Sever.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


author: RONALD R. HOLLIGER, Presiding Judge.

text:
    In the Interest of T.C.T., A.R.T., S.C.T., and C.K.T.
    No. WD 64744.
    Missouri Court of Appeals, Western District.
    June 28, 2005.

      Tina and Bruce Towner, Warrensburg, Acting pro se.
    James A. Waits, Kansas City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

T.K.T. and B.J.T. (hereinafter “Appellants,” or “Father” and “Mother” when necessary to address each appellant individually) appeal the judgment of the trial court terminating their parental rights to four minor children, T.C.T., A.R.T., S.C.T., and C.K.T. and approving the adoption of the children by their foster parents. They first contend that the trial court erred by refusing to appoint counsel for Mother, despite her failure to answer the petition or to otherwise make an appearance in the case prior to trial. Next they contend that the trial court erred by barring them from offering affirmative evidence at trial, even though Mother had defaulted and Father had been sanctioned for refusal to comply with court-ordered discovery. Lastly, they contend that the trial court erred by providing inadequate notice of trial.

Father and Mother’s brief fails to comply even minimally with many of the requirements of Supreme Court Rule 84.04. Even more glaringly, they have failed to file any transcript of the proceeding below, making it impossible to attempt any review of their complaints to the extent that we would be able to discern them from their deficient brief. Their appeal is, therefore dismissed.

Factual and Procedural Background

The present appeal arises from a contested adoption proceeding regarding four minor children, T.C.T., A.R.T., S.C.T., and C.K.T. Appellants are the natural parents of the four children which had been removed from their custody due to abuse or neglect pursuant to Chapter 211, RSMo. The children were placed in foster care with Respondents.

Respondents subsequently sought to adopt the children, filing a petition for adoption and termination of Appellants’ parental rights on December 31, 2003. Appellants were served with notice of the adoption action on January 11, 2004. Other potential biological fathers of the children were served via publication pursuant to Section 506.160, RSMo.

Father, represented by counsel, filed the only answer to the petition. Mother did not file an answer or any other sort of response to the petition. In the course of discovery, Respondents served Father with interrogatories that he only partially answered. Respondents filed a motion on June 30, 2004, seeking to compel responses to that discovery. The trial court granted Respondent’s motion to compel on July 5, 2004, ordering Father to respond to the discovery within fifteen days or be found in default. It is not clear from the record whether Father made any additional response, but Respondents apparently filed a motion for sanctions based on the lack of adequate response. The trial court granted this motion on July 30, 2004, striking Father’s answer and entering an interlocutory order of default against him.

The matter proceeded to trial on September 2, 2004, before Commissioner Payne of the Jackson County Circuit Court. Father appeared in person and through counsel. Mother appeared in person, though she was apparently also represented by counsel for some portion of the trial. While Appellants were permitted to participate in the trial in the form of cross-examining witnesses and making recommendations, they were not permitted to present affirmative evidence at trial, based upon Mother’s failure to file responsive pleadings and Father’s refusal to comply with discovery.

On September 21, 2004, the Commissioner entered findings and recommendations which found grounds for termination of Appellants’ parental rights on the basis that the children had been abused and neglected; that the children had been under the jurisdiction of the Juvenile Court in excess of one year and that the conditions that resulted in the assertion of jurisdiction continued to exist with little likelihood that they would be remedied in the near future to an extent to permit reunification; and that the children had been in the Respondents’ care since March 2000, except for the period from February 9, 2003, to April 8, 2003. The Commissioner also found that termination of the Appellants’ parental rights was in the best interest of the children. The Commissioner further recommended the approval of the Respondents petition for adoption.

The Commissioner’s findings and recommendations were adopted and confirmed by judgment entered by the Honorable Jon Gray, as the Family Court Administrative Judge, on September 22, 2004. Appellants allegedly sought rehearing pursuant to Rule 129.13, but this motion was apparently overruled.

The present appeal follows, with both Appellants proceeding pro se.

Discussion

Appellants attempt to raise a number of issues on appeal. First, they argue that the trial court erred by refusing to appoint counsel to represent Mother at trial. Second, Appellants contend that the trial court erred in barring them from presenting affirmative evidence at trial. Third, they argue that they were provided inadequate notice of the trial. Prior to addressing those issues, however, this Court must consider the Appellant’s noncompliance with Supreme Court Rule 84.04 in briefing this case and their failure to file a complete record on appeal under Rule 81.12.

Noncompliance with Supreme Court Rule 84.04

Appellants’ first brief was ordered stricken due to multiple violations of Supreme Court Rule 84.04. The specific violations noted were: failure to provide a detailed table of contents (Rule 84.04(a)(1)); failure to provide a table -of cases (Rule 84.04(a)(1)); lack of a statement of facts with specific page references to the record on appeal (Rules 84.04(e), 84.04(i)); failure to provide a jurisdictional statement (Rule 84.04(b)); absence of a Points Relied On section (Rule 84.04(d)); and lack of both argument or conclusion sections (Rules '84.04(e), 84.04(i), and 84.04(a)(6)).

Appellants’ amended brief remedies only a few of these deficiencies. One of the most glaring deficiencies is the lack of any citations to the record on appeal within the Appellants’ statement of facts. Also of great concern is that none, of the Points Relied On set forth in the Appellants’ brief comply with Missouri Supreme Court Rule 84.04(d).

Rule 84.04(d) sets forth the requirements for a point on appeal:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The rule also provides an example of the form in which a point on appeal should be drafted. Id. The purpose of the Rule is to provide notice to the opposing party and to inform the appellate court of the issues to be addressed on appeal. Foster v. Village of Brownington, 140 S.W.3d 603, 607 (Mo.App.2004) (quoting Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App.2000)). Failure to comply with that Rule renders an issue unpreserved for appellate review. Id at 608.

Respondents have filed a motion to strike the Appellants’ petition for the numerous violations of Rule 84.04 that Appellants have failed to remedy. We recognize that the Appellants are proceeding pro se, without representation by counsel. However, we are not permitted to hold pro se litigants to a different standard than those who have benefit of counsel. Manning v. Fedotin, 64 S.W.3d 841, 846 (Mo.App.2002).

Appellants’ failure to comply with Rule 84.04 constitutes more than a mere procedural deficiency. By failing to include citations to the record on appeal in their statement of facts, the Appellants have failed to provide this Court with any support for their claims on appeal. In improperly setting forth their points on appeal, it is essentially impossible to determine the specific court rulings or legal issues that Appellants seek to contest without searching their argument on appeal. We may not do so, however. See Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). Taking such action would essentially place this court in the role of advocate for the Appellants. Id. That would not only be inconsistent with our function as a court of review but would also be unfair to the opposing parties. Id.

That said, appellate courts are reluctant to dispose of claims of error merely due to procedural deficiencies. Buckley v. Gen. Motors Corp., 865 S.W.2d 429, 431 (Mo.App.1993). This caution is amplified when the matter under appeal concerns child custody matters. Ludwig v. Ludwig, 126 S.W.3d 466, 471 (Mo.App.2004). We exercise even greater care when the issue concerns termination of an appellant’s parental rights.

Although we can detect and understand some portion of Appellant’s stated points on appeal, we are not provided a sufficient record to review those claims on them merits. The record on appeal consists of a “legal file” and a transcript. Rule 81.12(a). It is the responsibility of the appealing party to assemble and file the record on appeal. Rule 81.12(c). This includes ordering the transcript of the proceedings below. Id. Here, a legal file has been provided for this court’s review, but no transcript has been filed.

This failure to provide a transcript is more than a procedural deficiency. Our review of the issues on appeal is limited to the information contained in the record presented. “If a matter complained of is not present in the record on appeal, there is nothing for the court to review.” Brancato v. Wholesale Tool Co., 950 S.W.2d 551, 554 (Mo.App.1997). For example, Appellants complain about the sufficiency of the evidence to support the judgment, but they do not provide us with the evidence to review. And although they complain about Mother’s lack of counsel, the court’s order reflects that she had counsel for part of the trial with no further explanation. In sum, without a complete record on appeal we cannot disregard the other numerous deficiencies of their brief.

One matter remains for disposition by this court. Appellants filed a “Motion Entering Proof of Native American Heritage” with this court on April 1, 2005. Said motion contends that the Indian Child Welfare Act (ICWA), 25 U.S.C. Section 1901, et seq., applies to the children, on the basis that the death certificate of Father’s paternal grandfather, a copy of which is attached to the motion, listed the grandfather’s race as “American Indian.”

Even assuming, for purposes of discussion, that the trial court could properly consider the motion and its attachment (which, we note, indicates no familial relationship between Father and the individual described in the death certificate), Appellants have failed to establish that the ICWA would be triggered in this situation. “[T]he act ‘is not applicable where an Indian child is not being removed from an Indian cultural setting, where the natural parents have no substantive ties to a specific tribe, and where neither of the parents nor their families have resided or plan to reside within a tribal reservation.’ ” In the Interest of D.C.C., 971 S.W.2d 843, 846 (Mo.App.1998). Nothing in Appellants’ motion establishes that any of these factors would be met, in the present matter. Appellants’ motion, therefore, is overruled.

Appellants’ appeal is dismissed.

THOMAS H. NEWTON and LISA WHITE HARDWICK, Judges, concur.

      . The record on appeal does not appear to contain any additional discovery responses and does not contain Respondents’ motion for sanctions or any responses thereto.

      . The copy of the judgment included in the legal file appears to be missing page four. A complete copy of the judgment is included in the Appendix to Respondents' brief; however, an Appendix is not part of the legal file or otherwise part of the record on appeal. See Jos. A. Bank Clothiers, Inc. v. Brodsky, 950 S.W.2d 297, 301 (Mo.App.1997).

      . Neither the motion for rehearing nor any order flowing therefrom is included in the legal file.

      . Appellants filed a motion for appointment of counsel, but this motion was denied as it failed to present facts establishing that the Appellants were proceeding in fonna pauper-is.


author: GARY M. GAERTNER, Presiding Judge.

text:
    Frank FORSHEE, Respondent, v. LANDMARK EXCAVATING AND EQUIPMENT, Appellant, and Treasurer of Missouri, Custodian of the Second Injury Fund, Respondent.
    No. ED 85582.
    Missouri Court of Appeals, Eastern District, Division One.
    June 28, 2005.

      Heidi A. Jennings, Kortenhof & Ely, P.C., St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Laura C. Wagener, Asst. Attorney General St. Louis, MO, for respondent.
   GARY M. GAERTNER, Presiding Judge.

Appellant, Landmark Excavating and Equipment (“Employer”), appeals the final award of the Labor and Industrial Relations Commission (“the Commission”) granting Respondent, Frank Forshee (“Claimant”), permanent total disability benefits and future medical care. We affirm.

Claimant was born on January 14, 1940, and completed the eighth grade, but never attended high school nor did he obtain a GED. Claimant’s only adult work has been as a mechanic and a carpenter. Claimant started working as a carpenter performing residential construction for Employer in or about 1993. On November 21, 2000, while working at a new home construction site, Claimant stepped in a hole in the floor causing him to fall into a stairwell and hang by his left leg. He was taken to the emergency room at St. Anthony’s Hospital. Claimant was diagnosed with a dislocated left shoulder. An MRI of Claimant’s knee was prescribed by Dr. Herbert Haupt, an orthopedic surgeon. On December 7, 2000, Dr. Haupt noted that the MRI revealed evidence of tears of the medial collateral and anterior cruciate ligaments, and a probable tearing of both the medial and lateral meniscus. Claimant also suffered nerve damage as a result of the left shoulder injury. Claimant later had arthroscopic surgery performed on his left knee, and underwent physical therapy for his shoulder and his knee.

Claimant returned to perform part-time light duty work for Employer from June 1, 2001 until September 14, 2001. During the time he performed light duty work, Claimant ran errands for materials, and cleaned the barbecue grill, tables, and chairs at the Employer’s clubhouse. Claimant was fired on September 14, 2001 as a result of a lack of light duty work for him to perform.

On May 7, 2001, Claimant filed a workers’ compensation claim against Employer alleging that while working for Employer on November 21, 2000 he injured his left knee and left shoulder as a result of stepping in a hole and falling. Claimant also filed a workers’ compensation claim against the Second Injury Fund.

On November 24, 2003, a hearing was conducted before Administrative Law Judge Leslie Brown (“the ALJ”). Claimant testified that he did not have any problems with his left knee or left shoulder before the November 21, 2000 accident. Claimant admitted that, before the accident, he had suffered from almost total blindness in his left eye, sleep apnea, bilateral carpal tunnel syndrome, and high blood pressure. Claimant also had endured trigger finger repair and bilateral hernia repairs. However, Claimant stated that after receiving treatment for these setbacks, he never had any work restrictions upon returning to work.

On July 1, 2004, the ALJ issued her decision finding Employer liable for permanent total disability benefits and future medical care. On November 24, 2004, the Commission affirmed the award of the ALJ and incorporated her award by reference into the final award allowing for compensation. Claimant was found to be permanently and totally disabled.as result of the work injuries suffered on November 21, 2000. Employer was ordered to pay Claimant permanent total disability benefits at the rate of $435.77 per week beginning March 6, 2002 and continuing throughout Claimant’s life. Further, Claimant was awarded future medical care as a result of his work injury. The Second Injury Fund was found to be not liable for any payments to Claimant. This appeal followed.

We will uphold the award of the Commission if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo.banc 2003). An award is not supported by competent and substantial evidence if it is contrary to the overwhelming weight of the evidence. Id. at 223.

We address Employer’s second point on appeal before addressing Employer’s first point on appeal. In its second point on appeal, Employer asserts the Commission erred in determining that Claimant is permanently and totally disabled due to the November 21, 2000 injuries alone.

The test for permanent total disability is the claimant’s ability to compete in the open labor market. Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App. E.D.2000). The critical question is whether an employer could reasonably be expected to hire the claimant, considering his present physical condition, and reasonably expect him to successfully perform the work. Id. The credible testimony of a claimant concerning work-related functioning can constitute competent and substantial evidence. Hampton, 121 S.W.3d at 223-24. .

Claimant stated that, as a result of pain in his left knee, he has a difficult time sitting for more than 30 or 45 minutes consecutively and he also has difficulty standing in one place for a little less time than that. Claimant testified that he can only walk a couple of blocks without having to stop because of aching pain in his knee. Claimant further revealed that, as a result of his left shoulder pain, he cannot even raise his left hand to his ear. Claimant was found to be a credible witness. In addition, Dr. David Volarich testified that Claimant is permanently and totally disabled as result of his November 21, 2000 work injuries standing alone. Mr. Timothy Lalk, a vocational rehabilitation counselor, testified that Claimant is unable to secure and maintain full-time employment in the open labor market as a result of the November 2000 injuries. Therefore, the Commission’s finding that Claimant is permanently and totally disabled as a result of the November 2000 injuries is supported by sufficient competent and substantial evidence. Point denied.

In its first point on appeal, Employer argues that the Commission erred in determining liability of the Second Injury Fund before determining liability of Employer. Employer claims that section 287.220 RSMo 2000 requires the Commission to first determine Employer liability before determining Second Injury Fund liability.

In determining whether the Second Injury Fund has any liability, the first finding is the degree of disability from the last injury considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.banc 2003). If the last injury in and of itself renders the employee permanently and totally disabled, then the Second Injury Fund has no liability and the employer is responsible for the entire amount of compensation. Id. Until the degree of disability from the last injury is established, Second Injury Fund liability cannot be determined. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App. E.D.2000), quoting Stewart v. Johnson, 398 S.W.2d 850, 854 (Mo.banc 1966). Harmless error is not considered a ground for reversal. Mirth v. Regional Bldg. Inspection Co., 93 S.W.3d 787, 789 (Mo.App. E.D.2002), quoting Fowler v. SH-S Motor Sales Corp., 560 S.W.2d 350, 358 (Mo.App. W.D.1977).

In this case, the Commission did format their decision in such a way that its finding that the Second Injury Fund was not liable came before determining the degree of disability from the November 2000 injuries alone. However, the Commission did subsequently make the relevant finding that Claimant was permanently and totally disabled as result of the November 2000 work related accident considered alone. Because the Commission determined that the November 2000 inju-ríes alone caused permanent and total disability, the Commission properly found that only Employer was liable for the disability. Therefore, even though the Commission erred in finding that the Second Injury Fund was not liable before determining the degree of disability from the November 2000 injuries alone, this error was harmless because the Commission’s next finding was that Claimant was permanently and totally disabled as a result of the November 2000 injuries alone. Point denied.

In its third point on appeal, Employer contends the Commission erred in utilizing the “industrial disability” standard in determining liability of Employer and the Second Injury Fund. Employer contends that the “industrial disability” standard was superseded by the 1993 amendment to section 287.220.1.

Under the old “industrial disability” standard, if a claimant could not establish that he had a preexisting disability which was either “industrial” or related to his “loss of earning capacity,” the claimant could not collect from the Second Injury Fund. Leutzinger v. Treasurer, 895 S.W.2d 591, 592 (Mo.App. E.D.1995). The judicial construction of the “industrial disability” standard was superseded on August 28, 1993, when section 287.220.1 was amended to make it clear which pre-existing conditions would be considered serious enough to trigger Second Injury Fund liability. Id. at 592-93. However, pre-existing disabilities are irrelevant until the employer’s liability for the last injury is decided. Landman, 107 S.W.3d at 248. If the last injury in and of itself renders the employee permanently and totally disabled, then the Second Injury Fund has no liability and the employer is responsible for the entire amount of compensation. Id.

Employer does not point to even one reference to the old “industrial disability” standard or to any case-law defining this now extinct standard within the Commission’s decision. Regardless, as was stated above, the Commission made the finding that Claimant is permanently and totally disabled solely as a result of the November 21, 2000 injury. This finding eliminates any potential liability of the Second Injury Fund. Thus, even assuming arguendo that the Commission improperly used the “industrial disability” standard in analyzing Claimant’s pre-existing disabilities, this is irrelevant because pre-existing injuries do not need to be examined if the last injury, considered alone, causes permanent and total disability. Therefore, the court did not err in determining liability of Employer and the Second Injury Fund. Point denied.

In its fourth point on appeal, Employer maintains the Commission erred in finding that Claimant is entitled to unlimited future medical care for his left shoulder and left knee injuries suffered as a result of the November 21, 2000 accident.

In order to prove entitlement to an award of future medical care, the claimant must establish a reasonable probability that he will need future medical care. Chatmon v. St. Charles County Ambulance, 55 S.W.3d 451, 459 (Mo.App. E.D.2001). ,A claimant does not have to provide evidence of specific medical treatments or procedures which will be necessary in the future in order to receive an award of future medical care. Polavarapu v. General Motors Corp., 897 S.W.2d 63, 66 (Mo.App. E.D.1995).

Employer admits that the evidence supports, at the least, liability for future medical care consisting of anti-inflammatories and braces. Furthermore, Dr. Volarich testified, to a reasonable degree of medical certainty, that the arthritis and instability in Claimant’s knee will worsen over time, and, in the future, he will need medications, physical therapy, and possibly even surgery. Therefore, sufficient competent and substantial evidence exists to support the award of future medical care. Point denied.

SHERRI B. SULLIVAN and BOOKER T. SHAW, JJ., concur.

      . Employer’s motion to strike is hereby denied.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    Alvena G. CLEMENTS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 84954.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 28, 2005.
    Robert Lundt, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen. Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The movant, Alvena Clements, appeals the motion court’s judgment denying her Rule 24.085 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties’ briefs and the record on appeal and find no clear error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b)(2).