author: HOWARD, Judge.

text:
    In the Interest of T.A.S. Juvenile Officer, Boone County, Respondent, v. P.S.L. (Natural Mother), Appellant, B.R.S. (Natural Father), Defendant.
    No. WD 58229.
    Missouri Court of Appeals, Western District.
    Dec. 12, 2000.

      Susan M. Venturella, Columbia, for appellant.
    Elizabeth K. Magee, Columbia, for respondent.
    Glen R. Ehrhardt, Columbia, for guardian ad litem.
    Before BRECKENRIDGE, P.J., and ULRICH and HOWARD, JJ.
   HOWARD, Judge.

P.S.L., natural mother (“mother”) appeals from the trial court’s termination of her parental rights to T.A.S., a minor child. In her seven points on appeal, the mother contends the trial court erred in terminating her parental rights on the grounds of failure to rectify and parental unfitness, and in finding that termination was in T.A.S.’s best interests.

We reverse and remand.

Facts

T.A.S. was born on January 16, 1990. Her natural mother is P.S.L., and her natural father is B.R.S., Sr. The mother and the father had a son, B.R.S., Jr., born November 24, 1988. On April 17, 1991, B.R.S., Jr. was made a ward of the court. On November 6, 1995, the court entered an order terminating the mother’s and father’s parental rights to B.R.S., Jr. On appeal, this court reversed the termination order and remanded the case to the Boone County Circuit Court. In Interest of B.R.S., 937 S.W.2d 773 (Mo.App. W.D.1997). On February 14, 1997, the court again entered an order terminating parental rights, and the order was affirmed by this court on appeal. In Interest of B.R.S., Jr., 950 S.W.2d 335 (Mo.App. W.D.1997). In the case at bar, the court took judicial notice of the orders of termination in the proceeding involving B.R.S., Jr.

The mother has a son, F.D., Jr., born in September 1991, while the mother and father were separated. The mother and the father were divorced in February 1993. The mother married L.L. in October 1993, and they separated in January 1994. While the mother was incarcerated, she gave birth to a daughter in September 1994, and the daughter died in October 1994 while in the custody of her father, S.B. The mother married S.B. in December 1994 after her divorce from L.L.

The mother has been incarcerated since the inception of juvenile court proceedings involving T.A.S. On December 13, 1995, T.A.S. was found to be within the jurisdiction of the court. On February 26, 1996, the court entered an order of disposition continuing T.A.S. in the custody and under the supervision of the Division of Family Services (“DFS”) for placement with the father. On July 22, 1996, the court terminated its jurisdiction over T.A.S.

On February 27, 1997, the juvenile officer filed a petition alleging that T.A.S. was in need of care and treatment pursuant to § 211.031.1(1) RSMo. The trial court took judicial notice of proceedings in the present case beginning on February 27, 1997, with the protective custody order of that date. The court also took judicial notice of the March 26, 1997 and July 21, 1999 orders finding the allegations of the February 27, 1997 petition, as amended by the juvenile officer, to be true. On March 26, 1997, based on the February 27, 1997 petition, T.A.S. was found to be within the jurisdiction of the court and was made a ward of the court. On May 12, 1997, the court entered an order of disposition continuing T.A.S. in the custody and under the supervision of DFS for placement in foster care.

On June 19, 1998, the juvenile officer filed a petition to terminate the parental rights of the mother and the father to T.A.S. On November 23, 1998, the juvenile officer filed a first amended petition for termination. The termination petition was further amended by the juvenile officer at a hearing on July 19, 1999.

The juvenile officer presented two witnesses: Wendy Morgan, a licensed clinical social worker who had worked with T.A.S. since October 1995, and Michelle Croner, the DFS case manager for T.A.S. from March 1997 to June 1998. The mother also testified. The witnesses’ testimony will be discussed as warranted by the points on appeal.

On December 6, 1999, the trial court entered a judgment terminating the parental rights of the mother and father on the grounds of failure to rectify and parental unfitness. This appeal follows.

Standard of Review

We will affirm the trial court’s judgment terminating parental rights unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re J.W., 11 S.W.3d 699, 703 (Mo.App. W.D.1999). We view the facts and all reasonable inferences arising therefrom in the light most favorable to the trial court’s order. Id. We defer to the trial court on issues of witness credibility and choosing between conflicting evidence. In Interest of T.H., 980 S.W.2d 608, 611 (Mo.App. W.D.1998).

Argument

An order of termination must be supported by clear, cogent and convincing evidence that at least one of the grounds set out in § 211.447 exists, and the termination is in the child’s best interests. Id. “Clear, cogent and convincing evidence in an action for termination of parental rights is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In Interest of J.M., 815 S.W.2d 97, 101 (Mo.App. W.D.1991).

Point I

The mother’s first point on appeal is that the trial court erred in terminating her parental rights for failure to rectify, because the court did not comply with the termination of parental rights statute in that 1) the court’s finding as to the terms of a social service plan entered into by DFS and her and the extent to which the parties have made progress in complying with those terms is erroneous and confusing such that it is tantamount to a failure to make a finding on this factor as required by § 211.447.2(3)(a); 2) the court faded to make a finding as to the success or failure of the efforts of the juvenile officer, DFS, or other agency to aid her on a continuing basis in adjusting her circumstances or conduct to provide a proper home for T.A.S., as required by § 211.447.2(8)(b); 3) the court failed to make a finding as to the existence of a chemical dependency which prevents her from providing the necessary care, custody and control over T.A.S., as required by § 211.447.2(3) (d); 4) although the court determined that her contact with T.A.S. was a factor which was appropriate and applicable to the case, the court failed to make a finding as to the extent to which she has maintained visitation with T.A.S., as required by § 211.447.3(2); 5) although the court determined that the extent of her payment for the cost, care and maintenance of T.A.S. was a factor which was appropriate and applicable to the case, the court failed to make a finding as to her financial ability to pay such costs, as required by § 211.447.3(3).

We first address the mother’s arguments concerning § 211.447.2. Section 211.447.2 provided, in relevant part, as follows:

The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer, or in adoption cases, by a prospective parent, if the court finds that the termination is in the best interests of the child and when it appears by clear, cogent and convincing evidence that one or more of the following grounds for termination exist:
(3) The child has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child’s prospects for early integration into a stable and permanent home. In determining whether to terminate parental rights under this subdivision, the court shall consider and make findings on the following:
(a) 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;
(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;
(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;
(d) Chemical dependency which 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....

“The court is required to make specific findings on each of these four factors. If a factor is not relevant to the case, the court should state why the given factor is not relevant.” In Interest of H.R.R., 945 S.W.2d 85, 89 (Mo.App. W.D.1997) (citations omitted). Strict and literal compliance with the statutory requirements is necessary in termination of parental rights cases. Id. at 87. “Statutory mandates to make findings may not be overlooked on appeal.” In re A.P., 988 S.W.2d 59, 62 (Mo.App. S.D.1999).

The mother argues that the court’s finding regarding § 211.447.2(3)(a) is so insufficient that it is tantamount to a failure to make a finding on that factor. The trial court stated in its conclusions of law that “[t]here was no additional evidence, other than the previous findings by the Court regarding the mother’s lack of cooperation with the terms of the social service plan entered into between the mother and the Division of Family Services.” Apparently the “previous findings” the court refers to are its findings regarding the mother’s lack of cooperation with a court-ordered plan entered on June 24, 1991. We find that this finding is arguably minimally sufficient.

The mother next argues that the court failed to make a finding pursuant to § 211.447.2(3)(b). The court did not make a finding on this factor in the same section of its conclusions of law where it entered its conclusions regarding § 211.447.2(3)(a), (c), and (d). Our review of the trial court’s judgment indicates that the only findings directly related to the Division’s efforts to aid the mother are that 1) the mother failed to cooperate with parent aide services as arranged by DFS and ordered by the court on June 24, 1991; 2) since November 1990, DFS has referred and offered the mother a variety of additional services to facilitate her reunification with T.A.S., including, but not limited to parents as teachers services, city health nurse visits, individual counseling, GED, job training services, and parenting classes; and 3) the mother initially informed DFS of her desire to receive these services, but failed to follow through with and complete said services. We find that the court’s finding with regard to § 211.447.2(3)(b) is also arguably minimally sufficient.

In regard to § 211.447.2(3)(e), the trial court found that “[t]here was no evidence presented that the mother has a mental condition which renders her unable to provide proper care, custody and support to the juvenile.” The mother does not contest the sufficiency of the court’s finding under this factor, and we conclude that this finding is sufficient.

The mother further argues that the court faked to make a sufficient finding pursuant to § 211.447.2(3)(d). The court found that “[t]here was no additional evidence presented regarding the mother’s chemical dependency other than the testimony of [T.A.S.’s] therapist, as noted above.” The evidence to which the court refers is the testimony of Wendy Morgan that based on the mother’s history of chemical dependency, she would expect the mother to remain sober for at least one year outside of the Department of Corrections facility and to work through the recovery program at the halfway house before she would be ready to work on issues of parenting T.A.S. We find that this finding is sufficient.

We next discuss the mother’s arguments in regard to § 211.447.3. Section 211.447.3 provided as follows:

When considering whether to terminate the parent-child relationship pursuant to subdivision (1), (2), (3), (4) or (5) of subsection 2 of this section, the court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:
(1) The emotional ties to the birth parent;
(2) The extent to which the parent has maintained regular visitation or other contact with the child;
(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;
(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;
(5) The parent’s disinterest in or lack of commitment to the child;
(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;
(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

Section 211.447.3 “leaves to the trial court’s discretion the decision to make findings on the factors it deems applicable to the case. The scope of appellate review is limited to an abuse of that discretion.” In Interest of R.H.S., 737 S.W.2d 227, 238 (Mo.App. W.D.1987).

The mother argues that although the court determined that her contact with T.A.S. was a factor which was appropriate and applicable to the case, the court failed to make a finding as to the extent to which she has maintained visitation with T.A.S., as required by § 211.447.3(2). We agree. In In re N.M.J., 24 S.W.3d 771, 783 (Mo.App. W.D.2000), we recently held that the trial court erred in not making findings on certain factors in § 211.447.6 RSMo Supp. 1998, where “they were appropriate and applicable in that there was evidence presented on them, which arguably would favor the mother.” We stated that “without such findings we cannot be assured that the juvenile court properly considered these ... factors in deciding whether to terminate the mother’s parental rights.” Id. In the present case, the only finding the trial court made in regard to this factor is that the mother writes to T.A.S. approximately one time per month. There was evidence that the mother has maintained regular visitation with T.A.S., which would, if believed, favor the mother. Therefore, this factor was appropriate and applicable, and absent any finding on this factor, we cannot determine whether the trial court properly considered this factor in its decision to terminate the mother’s parental rights.

The mother next argues that although the court determined that the extent of her payment for the cost, care and maintenance of T.A.S. was a factor which was appropriate and applicable to the case, the court failed to make a finding as to her financial ability to pay such costs, as required by § 211.447.3(3). The trial court found that the mother “has failed to contribute financially towards the care and maintenance of [T.A.S.] while [T.A.S.] has been in foster care.” However, the trial court did not make a finding as to whether the mother was financially able to contribute to the cost of the care and maintenance of T.A.S. We find that the trial court was required to make a finding on this, and on remand is directed to do so.

Point I is granted in part and denied in part.

Point II

The mother’s second point on appeal is that the trial court erred in terminating her parental rights because termination was not supported by clear, cogent and convincing evidence, in that the record reflects that 1) termination under failure to rectify was improperly based on past events which did not exist as conditions at the time of the assumption of jurisdiction in this case; 2) her incarceration was the only condition that existed at the time of the assumption of jurisdiction over T.A.S.; 3) her incarceration is likely to be rectified in the near future so that T.A.S. can be returned to her; 4) continuation of the parent-child relationship does not greatly diminish T.A.S.’s prospects for an early integration into a stable and permanent home; and 5) the juvenile officer did not adduce sufficient evidence to prove that any of the statutory factors exist in this case.

In regard to § 211.447.2, the trial court found as follows: 1) T.A.S. had been under the jurisdiction of the juvenile court for a period in excess of one year prior to the filing of the petition for termination of parental rights; 2) the conditions which led to the assumption of jurisdiction still persist and there is little likelihood that these conditions will be remedied at an early date so that T.A.S. can be returned to the parents in the near future, and continuation of the parent-child relationship greatly diminishes T.A.S.’s prospects for early integration into a stable and permanent home; 3) there was no additional evidence, other than the previous findings by the court, regarding the mother’s lack of cooperation with the terms of the social service plan entered into between the mother and DFS; 4) there was no evidence presented that the mother has a mental condition which renders her unable to provide proper care, custody and support to T.A.S.; and 5) there was no additional evidence presented regarding the mother’s chemical dependency other than the testimony of the juvenile’s therapist, as noted above.

The mother does not dispute that T.A.S. was under the jurisdiction of the juvenile court for a period in excess of one year prior to the filing of the petition for termination of parental rights, nor does she dispute that one of the conditions that led to the assumption of jurisdiction, namely her incarceration, still existed. However, the mother argues that an analysis of the factors the court is required to consider, the absence of which mitigates against termination, reveals that there is not clear, cogent and convincing evidence to support the termination on the basis of failure to rectify.

The mother argues that the only “condition” that led to the assumption of jurisdiction that still exists is her incarceration. The mother contends that she did not have the ability to rectify this condition, and incarceration cannot serve as the only basis for termination. She further contends that termination was based on events that occurred before the assumption of jurisdiction over T.A.S.

Section 211.447.2(3) provides that a court may find either that the conditions which led to the assumption of jurisdiction still persist or conditions of a potentially harmful nature continue to exist. However, in the present case, the trial court found only that “[t]he conditions which led to the assumption of jurisdiction still persist.” It did not make a finding that conditions of a potentially harmful nature continue to exist. The trial court did not state in its judgment, and it is unclear to this court, which conditions the trial court found led to the assumption of jurisdiction, and which of those conditions the trial court found still persisted. Therefore, it is impossible for us to address the mother’s argument. On remand, the trial court is directed to make a finding as to what conditions that led to the assumption of jurisdiction still persist.

The mother next argues that there was no evidence that her incarceration was not likely to be remedied at an early date, as she was scheduled to be released in 2000. However, as previously discussed, we cannot address this argument because we cannot determine from the judgment what conditions the trial court determined led to the assumption of jurisdiction, and which of those conditions the trial court found still persisted.

The mother further argues that there was no evidence that continuation of the parent-child relationship greatly diminished T.A.S.’s prospects for early integration into a stable and permanent home. However, Wendy Morgan testified that keeping T.A.S. in her current placement while allowing the mother to prepare herself to provide a stable home to T.A.S. would “threaten and hamper potential adoptive situations.” She also testified, and reiterated later in her testimony, that she believes T.A.S. is adoptable. We find that there was sufficient evidence to support the trial court’s finding.

The mother next argues that the juvenile officer has failed to prove by clear, cogent and convincing evidence that any of the factors in § 211.447.2(3) exist, and the absence of all four factors should preclude termination on the basis of failure to rectify. We discuss the four factors in order. To the extent the mother argues that the findings themselves are insufficient, this argument has already been addressed in Point I.

The mother contends that the trial court made an erroneous finding in regard to “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,” pursuant to § 211.447.2(3)(a). We have already discussed the sufficiency of this finding. Furthermore, a social service plan is no longer mandatory, nor will its absence require a reversal in a termination of parental rights case. In Interest of D.B. v. L.B.A., 916 S.W.2d 430, 434 (Mo.App. E.D.1996).

The mother next claims that there was not clear, cogent and convincing evidence that § 211.447.2(3)(b) weighs in favor of termination. We find that the trial court’s findings in this regard, as discussed in Point I, are supported by the evidence. In any case, “absence of treatment or services is no defense to a termination proceeding.” Id.

Concerning the “mental condition” factor in § 211.447.2(3)(c), as previously stated, the court found that there was no evidence that the mother had a mental condition.

As for the court’s findings concerning chemical dependency under § 211.447.2(3)(d), the court found that there was no evidence of chemical dependency, other than the testimony of T.A.S.’s therapist, Wendy Morgan. Ms. Morgan’s testimony, as set forth in Point I, constitutes sufficient evidence for the trial court to find that § 211.447.2(3)(d) weighed in favor of termination.

Point II is granted in part and denied in part.

Point III

The mother’s third point on appeal is that the trial court erred in terminating her parental rights on the basis of parental unfitness because she was not presumed to be unfit to be a party to the parent and child relationship in that her parental rights to another child were not involuntarily terminated within the three-year period immediately preceding the adjudication in the instant case.

Section 211.447.2 provided, in relevant part, as follows:

The juvenile court may terminate thé rights of a parent to a child upon a petition filed by the juvenile officer, or in adoption cases, by a prospective parent, if the court finds that the termination is in the best interests of the child and when it appears by clear, cogent and convincing evidence that one or more of the following grounds for termination exist:
(6) The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse, including but not limited to, abuses as defined in section 455.010, RSMo, child abuse or drug abuse before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child. It is presumed that a parent is unfit to be a party to the parent-child relationship upon a showing that within a three-year period immediately prior to the termination adjudication, the parent’s parental rights to one or more other children were involuntarily terminated under subdivision (1), (2), (3) or (I) of this section or similar laws of other states.

(Emphasis added.)

The mother’s parental rights to her son, B.R.S., Jr., were originally terminated by order of the Circuit Court of Boone County on November 6, 1995. The mother appealed to this court, which reversed and remanded on February 4, 1997, with instructions that the trial court make additional findings. In Interest of B.R.S., 937 S.W.2d 773 (Mo.App. W.D.1997). On remand, the trial court made findings in compliance with this court’s mandate, in an order dated February 14, 1997. The mother appealed that order, which terminated her rights pursuant to § 211.447.2(3), and we affirmed on September 2, 1997. In Interest of B.R.S., Jr., 950 S.W.2d 335 (Mo.App. W.D.1997).

In the case at bar, the trial court found that the mother’s parental rights to B.R.S., Jr. were involuntarily terminated on February 14, 1997. Section 211.447.2(6) provided that for the presumption of parental unfitness to apply, there must be a showing that “within a three-year period immediately prior to the termination adjudication, the parent’s parental rights to one or more other children were involuntarily terminated....” The mother contends that November 6, 1995 is the date on which the three-year period in § 211.447.2(6) began. We disagree.

“Reverse” is defined as “[t]o overthrow, vacate, set aside, make void, annul, repeal, or revoke.... To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.” Black’s Law Dictionary 1319 (6th ed.1990). Thus, on February 4, 1997, when this court reversed the November 6, 1995 order, that order was no longer a valid termination of the mother’s parental rights. We find that the date on which the three-year period in § 211.447.2(6) began is February 14,1997, the date the trial court terminated the mother’s parental rights after remand by this court.

The judgment terminating parental rights in the present case was entered on December 6, 1999, within three years of the February 14, 1997 termination of the mother’s rights in regard to B.R.S., Jr.

Point III is denied.

Point IV

The mother’s fourth point on appeal is that the trial court erred in terminating her parental rights on the basis of parental unfitness because the court did not comply with § 211.477.5, regarding the contents of an order of termination, in that the court did not make the required statutory finding that she was unfit to be a party to the parent-child relationship, nor did it identify upon which of the statutory bases it found unfitness.

In regard to the mother’s unfitness, the trial court found that the “mother is presumed unfit to be a party to the parent-child relationship in that ... mother’s parental rights to her son, [B.R.S., Jr.], were involuntarily terminated on February 14, 1997.” “The presumption of unfitness is rebuttable and can be overcome by evidence that the circumstances that led to the termination of the parent’s parental rights in the other child no longer exist or that the parent is no longer unfit.” In re A.H., 9 S.W.3d 56, 61 (Mo.App. W.D.2000). Aside from any finding that the parent is presumed unfit, § 211.447.2(6) clearly requires the trial court to determine that the parent is currently unfit. On remand, the trial court is directed to enter a finding as to whether the mother is currently unfit to be a party to the parent and child relationship. Such a determination clarifies that the presumption of unfitness was not overcome.

Point IV is granted.

Point V

The mother’s fifth point on appeal is that the trial court erred in terminating her parental rights on the basis of parental unfitness by statutory presumption because she successfully rebutted the presumption, in that 1) she has maintained visitation and contact with T.A.S., 2) she has completed a parenting class; 3) she has taken an anger management class; 4) she has received treatment for problems with alcohol and no longer drinks; and 5) she is scheduled to be released from incarceration in the near future.

Because we are remanding for further findings on termination on the ground of unfitness, we do not yet reach the issue of whether the mother successfully rebutted the presumption of unfitness.

Point VI

The mother’s sixth point on appeal is that the trial court erred in terminating her parental rights because the court’s finding that termination was in T.A.S.’s best interests is against the weight of the evidence in that the record reflects, among other things, that 1) T.A.S. has emotional ties to her; 2) she has maintained regular visitation and written contact with T.A.S.; 3) she has contributed to the care and maintenance of T.A.S. to the extent of her financial ability to do so; 4) she is committed to T.A.S.; 5) her felony conviction is not of such a nature that T.A.S. will be deprived of a stable home for a period of years; and 6) there are services available which could bring about her parental adjustment to enable T.A.S.’s placement with her within an ascertainable time.

“The court may reach the issue of the best interests of the child[ ] only after it has made a determination that one or more of the statutory grounds for termination exists.” In Interest of J.A.R., 968 S.W.2d 748, 750 (Mo.App. W.D.1998), quoting In Interest of M.H., 859 S.W.2d 888, 896 (Mo.App.1993). As in Point V, because we remand for further findings on both grounds of termination, we do not yet reach the issue of whether the termination was in T.A.S.’s best interests.

Point VII

The mother’s seventh point on appeal is that the trial court erred in terminating her parental rights because the court ordered termination solely based upon her incarceration in violation of § 211.447.3(6), in that the record reflects, among other things, that 1) she has fulfilled her obligation to provide T.A.S. with a continuing relationship through communication and visitation; 2) the DFS case manager based her recommendation to terminate her parental rights on her incarceration; 3) her incarceration is preventing her from contributing more to the cost, care and maintenance of T.A.S.; 4) her incarceration is preventing her from having more regular contact with T.A.S.; and 5) her incarceration is preventing her from starting the clock to run on any post-institutional time limits necessary to achieve a stable recovery.

As previously discussed, the trial court’s judgment is unclear as to the basis for termination on the ground of failure to rectify. Therefore, because we remand for clearer findings on which “conditions which led to the assumption of jurisdiction still persist,” we do not address this point.

The trial court’s judgment terminating the mother’s parental rights to T.A.S. is reversed and remanded, with directions that the trial court consider the record herein and enter findings upon the record consistent with this opinion.

BRECKENRIDGE, P.J., and ULRICH, J., concur.

      . This refers to § 211.447.2(3) RSMo Cum. Supp.1997.

      . Section 211.447 was amended effective July 1, 1998, between the filing of the petitions for termination and the entry of the judgments. The trial court correctly made its findings of fact and conclusions of law under § 211.447 RSMo Cum.Supp.1997, and we conduct our review of the mother’s appeal under that version of the statute. In re C.M.D., 18 S.W.3d 556, 561 (Mo.App. W.D.2000); In re S.L.J., 3 S.W.3d 902, 906 (Mo.App. S.D.1999).

      . We also note that if we were to agree with the mother that her parental rights were terminated on November 6, 1995, there would actually be two dates of termination: November 6, 1995 and February 14, 1997. We find that the legislature would not have intended to cause such uncertainty and ambiguity.

      . Section 211.477.5 RSMo 1994 provides, in relevant part, that "[o]rders of the court issued pursuant to sections 211.442 to 211.487 shall recite the jurisdictional facts, factual findings on the existence of grounds for termination and that the best interests of the child are served by the disposition stated in the order.”


source: Caselaw Access Project

author: SPINDEN, Chief Judge.

license: Public Domain

text:
    Charles and Brenda ROGERS, Appellants, v. Lavern M. and Joyce F. AUSTIN, Respondents.
    No. WD 57508.
    Missouri Court of Appeals, Western District.
    Dec. 12, 2000.
    Bradley Constance, Independence, for appellants.
    Daniel Franco, Kansas City, for respondents.
   SPINDEN, Chief Judge.

Charles and Brenda Rogers asked the circuit court to enjoin Lavern and Joyce Austin from interfering with their construction and placement of a boat dock on Prairie Lee Lake. The circuit court granted their request for an injunction, but it ordered the Rogerses to reconfigure the dimensions and placement of the boat dock. The Rogerses appeal. They contend that the circuit court erred in restricting the size and placement of the boat dock because such restrictions were not supported by substantial evidence. We agree and reverse the circuit court’s judgment.

The Rogerses own land in a Lee’s Summit subdivision, George Addition’s, on Prairie Lee Lake. The Rogerses own “Lot 47A, replat of Lots 46, 47, and part of Lot 48[.]” The Rogerses’ property was originally platted in the late 1930s. At that time, a 150-foot strip of land separated the Rogerses’ lots from Prairie Lee Lake. According to the original plat, the 150-foot strip was intended to be used as a road and parkway, but the land was never put to its intended use and was eventually sold. The Austins own part of that original 150-foot strip, and their land is between the lake and the Rogerses’ property.

When the Rogerses’ property was first sold by Todd George, the developer of George’s Addition, George granted boat and dock privileges on the shoreline of the lake “of same width and directly in front of’ Lots 46, 47 and part of Lot 48. George also granted the owners the right of ingress and egress over the parkway.

On March 11, 1997, in prior litigation between the parties, the Jackson County Circuit Court granted to the Rogerses a defined ingress and egress easement across the Austins’ property to give the Rogerses access to Prairie Lee Lake. Specifically, the circuit court ordered that the easement be on:

A strip of land 10 feet in width running from the northeasterly corner of Lot 47A, REPLAT OF LOTS 46, 47 and PART OF LOT 48, GEORGES ADDITION, a subdivision in Lee’s Summit, Jackson County, Missouri, along and to the southwest of the extension of the northeasterly line of said lot to the shoreline of Prairie Lee Lake; and A strip of land 10 feet in width running along the shoreline of Prairie Lee Lake beginning at the point where the extension of the northeasterly line of said Lot 47A intersects with said shoreline and running westerly therefrom along said shoreline a distance of 30 feet.

The circuit court also ordered that the Rogerses be allowed to anchor a boat and swimming dock to the shoreline and to install and maintain an underground electrical line within the easement to serve a boat and swimming dock.

After the circuit court entered its judgment, the Rogerses began constructing their boat dock. On March 18, 1997, Jackson County, the owner of Prairie Lee Lake, enacted an ordinance regulating the placement of docks on the lake. The ordinance required all prospective dock owners to secure a permit from the Jackson County director of parks and recreation. On April 29, 1997, the Rogerses received a permit to place a dock no wider than 30 feet and projecting into the lake no further than 36 feet. On May 23, 1997, the Rog-erses received an amended permit to increase the width of the dock to 50 feet. On October 30, 1997, the Rogerses completed the construction of the dock. The dock measured 50 feet wide by 30 feet deep and was anchored within the 30-foot easement granted to the Rogerses by the circuit court on March 11, 1997. On October 30, 1997, Jackson County rescinded the ordinance regulating the placement of boat docks on Prairie Lee Lake and the requirement to obtain a permit. The next morning the Rogerses discovered that the boat dock’s anchoring cables had been cut, allowing the dock to float to, the lake’s far shore.

Because the Rogerses felt that the Austins were interfering with their placing a dock on the lake, they filed a petition seeking to enjoin the Austins from interfering with the construction, placement, anchoring, use and enjoyment of their boat dock. In ruling on the Rogerses’ petition, the circuit court noted that it “[felt] constrained to adhere to the judgment entered [on March 11, 1997], by the Honorable William Ely ..., because all parties [had] relied on said [j]udgment and changed their positions[.]” The court ruled:

[The Rogerses] in accordance with the [judgment of March 11, 1997 had the right to construct and install a boat and swim dock, but not in the configuration originally constructed. In addition, [the Rogerses] must attach the cables to the shore within the 30 foot area specified in the March 11, 1997 judgment [e]ntry. The [Rogerses] must reconfigure the boat and swim docks ... within the easement lines as if they were extended into the lake, at a 90 degree angle from the shore line.

The Rogerses appeal.

The Rogerses contend that the circuit court erred in restricting the size and placement of the boat dock because such restrictions were not supported by substantial evidence. In reviewing this decision, we must affirm the circuit court’s judgment in a court-tried case unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The circuit court’s judgment allowed the Rogerses to maintain the 50-foot by 30-foot dock, but rather than keeping the 50-foot side of the dock parallel with the shoreline, it required the Rogers-es to place the dock so that its 30-foot side was parallel to the shoreline. The circuit court’s judgment, therefore, required the Rogerses to keep their dock within, and not extend beyond, the 30-foot shoreline easement granted by the circuit court on March 11, 1997. We agree with the Rog-erses that nothing in the record supports this requirement.

The original grant gave the Rogerses boat and dock privileges on the shoreline of the lake “of same width and directly in front of’ their lot. Recognizing this grant, the circuit court on March 11, 1997, established an easement, which gave the Rog-erses the right of ingress and egress over the Austins’ property and which allowed the Rogerses to anchor a boat dock to the shoreline. "While the original grant may have given the Rogerses the right to build a dock which could span the entire width of their lot, the easement established by the circuit court gave the Rogerses only a 10-foot by 30-foot long strip of land to which they, could anchor a dock. The Rog-erses did not appeal the circuit court’s order establishing this easement.

The evidence in this case, however, established that the Rogerses anchored their 50-foot by 30-foot dock within the 30-foot easement. The circuit court, therefore, erred in requiring the Rogerses to place the dock so that it was located entirely within the 30-foot wide area on the shore line. We reverse the circuit court’s judgment and remand for the circuit court to enter judgment accordingly.

EDWIN H. SMITH and HOWARD, JJ., concur.

      . For a history of the property see Bradley v. County of Jackson, 347 S.W.2d 683 (Mo. 1961).

      . The Rogerses also sought further relief under Counts II through VI of their petition, but they do not appeal the circuit court’s rulings on those counts. The Austins also filed a multi-count counterclaim, and neither they nor the Rogerses appeal the circuit court's rulings on those counts.


author: ELLIS, Judge.

text:
    Jessica PETET and Deanna Bailey, Respondents, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FAMILY SERVICES, Appellant.
    No. WD 58299.
    Missouri Court of Appeals, Western District.
    Dec. 12, 2000.

      Lawrence D. Love, Independence, for appellant.
    Sherrill P. Roberts, Liberty, for respondents.
    Before EDWIN H. SMITH, Presiding Judge, ULRICH, Judge and ELLIS, Judge.
   ELLIS, Judge.

Appellant State of Missouri Department of Social Services, Division of Family Services (“Division”), appeals from a judgment entered by the Circuit Court of Clay County reversing a Child Abuse and Neglect Review Board (“CANRB”) finding that probable cause existed to believe that Respondents Jessica Petet and Deana Bailey had abused or neglected a minor child on August 18, 1993. The Circuit Court held that the Division lacked statutory authority to “re-open” or “continue” an investigation of Respondents over a year after it sent out notification that the investigation had been completed and that no probable cause existed to support charges of neglect. The parties submitted the case to the circuit court on the following stipulated facts.

On August 18, 1993, a hotline report was filed alleging that Michael S_, a minor child, had been abused or neglected. As a result of that report, the Division undertook an investigation of the allegations related to that incident.

After conducting that investigation, on October 5, 1993, the investigator for the Division determined that there was no evidence to substantiate the allegations of abuse and/or neglect against either Petet or Bailey. Later that day, the Division sent a letter to Petet stating, in relevant part, “Our investigation has been completed under Sections 210.110-210.165 RSMo and the Division has determined that ... [tjhere is no evidence to substantiate Child Abuse or Neglect.”

From October 1993 through September 1995, there were no new hot line reports of abuse or neglect related to either Petet or Bailey. However, in September 1995, the Division sent letters to Respondents stating that the Division intended to “continue the investigation” related to the August 18, 1993, report. In the first week of November 1995, the Division sent a letter to Respondents stating that it had determined that probable cause existed that both of them had been involved in child abuse and/or neglect in the August 18, 1993, incident.

As a result of that determination, the Respondents’ names were placed on the list of individuals determined by the Division to have abused or neglected a child. The names of individuals placed on that list are available to potential childcare employers.

Respondents timely requested that the CANRB review the Division’s decision. In their request for review, Respondents asserted that the Division had no jurisdiction to “continue” the investigation in the fall of 1995 and that the Division’s probable cause determination should be deemed a nullity and void ab initio.

On December 2, 1998, the CANRB conducted a hearing on the matter. On December 23, 1998, the CANRB issued its decision upholding the Division’s probable cause determination after a substantive review of the evidence. In the course of its review, the CANRB did not address the procedural or jurisdictional arguments raised by Respondents.

Respondents timely filed a petition for de novo judicial review in the Circuit Court of Clay County, Missouri pursuant to § 210.152.5. On November 24, 1999, the parties appeared by their attorneys and submitted the matter for de novo review to the court upon stipulated facts and briefs filed by the parties. On January 31, 2000, the Circuit Court entered judgment finding that the Division did not have jurisdiction to “continue” or “reopen” its investigation of Respondents where no new hotline complaints had been lodged against either of them and no new evidence had been presented to the Division to prompt further investigation. The Circuit Court held that the Division’s initial finding that there was insufficient evidence to establish probable cause was final and could not be revisited by the Division. The Division appeals from that judgment.

In determining the proper appellate standard of review, we first address the nature of the trial court proceeding. Section 210.152.5 provides, in pertinent part:

If the alleged perpetrator is aggrieved by the decision of the [CANRB], the alleged perpetrator may seek de novo judicial review in the circuit court.... In reviewing such decisions, the circuit court shall provide the alleged perpetrator the opportunity to appear and present testimony. The alleged perpetrator may subpoena any witnesses except the alleged victim or the reporter. However, the circuit court shall have the discretion to allow the parties to submit the case upon a stipulated record.

(emphasis added). When the determination of the CANRB is challenged and the alleged perpetrator seeks de novo judicial review in the circuit court, that court conducts a fresh hearing on the matter and is not limited in any way by the previous decisions of the Division or the CANRB. Williams v. State, Dept. of Social Services, Div. of Family Services, 978 S.W.2d 491, 494 (Mo.App. S.D.1998). In that de novo review proceeding, the alleged perpetrator is afforded the opportunity for a full hearing on all issues. Brown v. Stangler, 954 S.W.2d 707, 708 (Mo.App. W.D.1997). “The case law indicates that the trial de novo, although in theory an appeal of the administrative hearing, is an original proceeding and is not an exercise of review jurisdiction.” Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo.App. W.D.1993). Therefore, we review the decision of the circuit court and not that of the Division.

The circuit court’s decision “will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or misapplies the law.” Davis v. Missouri Division of Family Services, 907 S.W.2d 280, 281 (Mo.App. W.D.1995). When, as here, the parties agree to submit a case to the circuit court upon a stipulation of facts, appellate review is limited to whether the circuit court drew the proper legal conclusions from the stipulated facts. Bakker v. Employee Sav. Plan of McDonnell Douglas Corp., 919 S.W.2d 16, 17 (Mo.App. E.D.1996); Miskimen v. Kansas City Star Co., 684 S.W.2d 394, 398 (Mo.App. W.D.1984).

In its sole point on appeal, the Division claims that the circuit court erred in concluding that the Division lacked jurisdiction to continue or re-open an investigation after making an initial determination that there was insufficient evidence to establish probable cause. The Division argues that it has the implied and inherent power to continue investigations because it is not prohibited from doing so by statute and because it is necessary to carry out its statutory purpose.

The Division states that while § 210.145 provides that the Division must complete all investigations -within thirty days unless good cause is shown, the relevant statutes do not prohibit the Division from continuing or reopening the investigation after that time. The Division also contends that the statutes should be construed broadly to grant it the power to continue or reopen investigations to carry out its statutory

purpose under § 210.109 to “prevent and remedy child abuse and neglect.”

Ultimately, this case depends on statutory interpretation of the provisions of Chapter 210. Issues involving the interpretation of statutory language are questions of law, not.judicial discretion. Hadel v. Board of Educ. of School District of Springfield, R-12, 990 S.W.2d 107, 111 (Mo.App. S.D.1999). Our ultimate purpose in interpreting statutory language is to ascertain and give effect to the intent of the legislature. Id. “Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction.” Id.

“An administrative agency possesses only such jurisdiction or authority as it has been granted by the legislature.” Jenkins v. Director of Revenue, 858 S.W.2d 257, 260 (Mo.App. W.D.1993). Chapter 210 grants the Division authority to investigate hotline reports of abuse or neglect and sets forth the proper procedure to be observed by the Division in conducting such investigations. Section 210.145.6 states that “[t]he local office of the division shall cause a thorough investigation to be initiated immediately or no later than within twenty-four hours of receipt of the report from the division.” Section 210.183.1 provides:

At the time of the initial investigation of a report of child abuse or neglect, the division employee conducting the investigation shall provide the alleged perpetrator with a written description of the investigation process. Such written notice shall be given substantially in the following form:
‘The investigation is being undertaken by the Division of Family Services pursuant to the requirements of chapter 210 of the Revised Missouri Statutes in response to a report of child abuse or neglect.
The division shall make every reasonable attempt to complete the investigation within thirty days. Within ninety days you will receive a letter from the Division which will inform you of one of the following:
(1) That the Division has found insufficient evidence of abuse or neglect; or
(2) That there appears to be probable cause to suspect the existence of child abuse or neglect ... ’

Section 210.145.12 dictates that:

The division shall complete all investigations within thirty days, unless good cause for the failure to complete the investigation is documented in the information system. If the investigation is not completed within thirty days, the information system shall be updated at regular intervals and upon the completion of the investigation.

Section 210.152.2 provides that within ninety days after receipt of a report of abuse or neglect, the Division shall notify the alleged perpetrator in writing of any determination made by the Division based on its investigation and shall advise the alleged perpetrator that either probable cause exists to suspect abuse or neglect or that there is insufficient probable cause of abuse or neglect.

The clear intent of the legislature in enacting §§ 210.145.6 and 210.145.12 was for the Division to immediately investigate hotline calls and to doggedly pursue those investigations to their conclusion. The statutory language simply cannot be read to allow the division to place investigations on the back-burner and to revisit those investigations at its convenience.

Section 210.145.12 clearly states that all investigations shall be completed within thirty days unless a valid reason for keeping the investigation open is set forth in the information system and regular updates are made in the information system. The Division has not asserted, nor does the record reveal, that any reason for keeping this particular investigation open was documented in the information system or that any regular updates were made to the information system regarding this case. Furthermore, the letter that the Division sent to Petet in October 1993 clearly stated that the investigation had been completed, and none of the stipulated facts would support a conclusion that the investigation was kept open for good cause, actively pursued, or that the report was regularly updated from October 1993 through September 1995. Accordingly, the Division has not established that it complied with those provisions of § 210.145.12 for continuing an investigation after the thirty-day limit. And, under the clear and unambiguous language of the relevant statutes, the Division had no authority to re-open the matter in September 1995.

The judgment of the trial court is affirmed.

All concur.

      . The alleged incident was designated "Incident Number 93231001.”

      . All statutory references are RSMo 1994 unless otherwise noted.

      . To the extent Davis v. Missouri Div. of Family Services, 907 S.W.2d 280 (Mo.App. W.D.1995), can be read to the contrary, that case is overruled. In Davis, the court noted that a new hearing was held before the circuit court and that the circuit court had determined that the “evidence comes closer to raising an inference that the child was injured in her own home than at the home of the petitioner.” Id. at 281. Davis stated that the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), applied to the appellate review of the circuit court’s decision, however, Davis then held that the circuit court’s only function under Section 210.152 was to determine whether the Division’s determination of probable cause was supported by competent and substantial evidence. Id. Davis reversed the judgment of the circuit court stating that the circuit court was acting in an appellate capacity and was not allowed to weigh the evidence or determine the credibility of witnesses for itself. Id. In making these statements, Davis completely ignored the phrase “de novo ” contained in the statute and treated the statute as if it merely provided for “judicial review” of the Division’s decision by the circuit court. To the contrary, we find that the Section 210.152.5 clearly provides for the circuit court to conduct a de novo hearing and to make its own findings. See Williams v. State Dept. of Social Services, Division of Family Services, 978 S.W.2d 491, 494 (Mo.App. S.D.1998) and Brown v. Stangler, 954 S.W.2d 707, 708 (Mo.App. W.D.1997).
      Because we are overruling a prior appellate case, in accordance with Supreme Court Operating Rule 22.01 and Western District Court of Appeals Special Rule XXXI, this opinion has been reviewed and approved by order of the court en banc.

      . Consistent with this position, § 210.109(18) also provides: "The division shall complete all investigations or family assessments within thirty days, unless good cause for the failure to complete the investigation or assessment is documented in the information system. If the investigation or family assessment is not completed within thirty days the information system shall be updated at regular intervals and upon the completion of the investigation.”

      . Section 210.152.2 states:
      Within ninety days after receipt of a report of abuse or neglect that is investigated, the alleged perpetrator named in the report and the parents of the child named in the report, if the alleged perpetrator is not a parent, shall be notified in writing of any determination made by the division based on the investigation. The notice shall advise either:
      (1) That the division has determined that there is probable cause to suspect abuse or neglect exists and that the division shall retain all identifying information regarding the abuse or neglect; ... that the alleged perpetrator has sixty days from the date of receipt of the notice to seek reversal of the division’s determination through a review by the child abuse and neglect review board

      (2) There is insufficient probable cause of abuse or neglect.

      . Section 210.150.4 provides that "[a]fter a period of not less than one year following a finding by the division, any person who is the subject of a report where there is insufficient evidence of abuse or neglect may petition the circuit court to order the records removed from the division and destroyed.” If the legislature intended for the Division to be able to re-open its files over a year after issuing a determination that there was insufficient probable cause of abuse or neglect, it most certainly would not have provided a mechanism for destroying those files after one year.


text:
    In the Interest of C.C. Juvenile Officer and Missouri Department of Social Services, Division of Family Services, Respondents, v. S.C. (Natural Mother), Appellant, S.A. (Putative Father) and John Doe (Putative Father), Defendants.
    No. WD 58260.
    Missouri Court of Appeals, Western District.
    Dec. 12, 2000.

      Curtis G. Hanrahan, Jefferson City, for appellant.
    Jeanne M. Gordon, Jefferson City, for respondent Juvenile Officer.
    Roya R. Hough, Elizabeth A. LaF-lamme, Jefferson City, for respondent DFS.
    Kurt P. Valentine, Jefferson City, guardian ad litem.
    Before BRECKENRIDGE, P.J., and ULRICH and HOWARD, JJ.
   HOWARD, Judge.

The natural mother, S.C., appeals from the trial court’s termination of her parental rights to C.C. S.C. raises two points on appeal. She contends that the trial court erred in terminating her parental rights because 1) the juvenile officer did not prove by clear, cogent and convincing evidence that she was unfit to be a party to the parent-child relationship in that there was no showing that the prior termination of parental rights cases relied on by the trial court were cognizable as a presumption of unfitness under § 211.447.4(6); and 2) the juvenile officer did not prove by clear, cogent and convincing evidence that she was unfit to be a party to the parent-child relationship in that there was no appropriate showing of evidence that she was unfit.

We affirm.

Facts

C.C., a girl, was born on August 21, 1999. S.C. is the natural mother of C.C. C.C. was taken into protective custody and placed under court jurisdiction pursuant to a temporary order entered on August 22, 1999 by the Juvenile Division of the Cole County Circuit Court. The order was made permanent by an order on September 2,1999.

On August 31, 1999, the juvenile officer filed a petition for termination of parental rights against S.C. and John Doe, C.C.’s putative father. A motion for termination of visitation by the juvenile officer was granted on September 3, 1999. The court also dispensed with the requirement of reasonable efforts upon motion by the juvenile officer on September 3,1999.

The juvenile officer filed a first amended and second amended petition for termination of parental rights on November 16, 1999, which named S.A. as the putative father of C.C. A third amended petition was filed on December 7, 1999, to include felony child abuse charges filed against S.A.

The termination hearing was held on December 8, 1999. Jason Taylor, a DFS social worker and C.C.’s caseworker, testified that S.C. has not provided any financial support for the cost, care or maintenance of C.C. since C.C. has been in protective custody. He further testified that S.C. has not had any contact with C.C. since C.C. has been in custody. He testified that S.C. has asked for visitation with C.C. and for photographs of her. Taylor further testified that he has not seen S.C.’s residence, although S.C. has requested him to do so. He testified that to his knowledge, S.C. has not been employed at any time since C.C. was born.

Two previous termination of parental rights proceedings involving S.C. became issues in this case. One occurred in Pennsylvania in 1999 and the other was a 1994 West Virginia case. S.C. testified that she was in a Pennsylvania jail from June 19, 1998 until November 24, 1999, when she was put in her mother’s custody and required to go to Missouri. She testified that she was not given an opportunity to have an attorney appointed for her in the Pennsylvania termination case, nor was she ever advised of the termination hearing in that case. She testified that her child, A.R.C., born in January 1998, was taken into custody by the State of Pennsylvania in May 1998. She testified that her parental rights were terminated in regard to D.J. and C.F. When asked if she had her parental rights terminated in regard to her child, T.W., born March 6, 1997, she responded, “not yet.” She testified, “All my kids got taken when they were born. For what, they did not tell me.”

On January 5, 2000, the trial court entered its judgment terminating the parental rights of S.C. and John Doe. The petition as to the allegations concerning S.A. was continued to a later date. This appeal follows.

Standard of Review

We will affirm the trial court’s judgment terminating parental rights unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re J.W., 11 S.W.3d 699, 703 (Mo.App. W.D.1999). We view the facts and all reasonable inferences arising therefrom in the light most favorable to the trial court’s order. Id. We defer to the trial court on issues of witness credibility and choosing between conflicting evidence. In Interest of T.H., 980 S.W.2d 608, 611 (Mo.App. W.D.1998).

Argument

An order of termination must be supported by clear, cogent and convincing evidence that at least one of the grounds set out in § 211.447 exists, and the termination is in the child’s best interests. Id. “Clear, cogent and convincing evidence in an action for termination of parental rights is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” In Interest of J.M., 815 S.W.2d 97, 101 (Mo.App. W.D.1991).

Point I

S.C.’s first point on appeal is that the trial court erred in terminating her parental rights because the juvenile officer did not prove by clear, cogent and convincing evidence that she was unfit to be a party to the parent-child relationship in that there was no showing that the prior termination of parental rights cases relied on by the trial court were cognizable as a presumption of unfitness under § 211.447.4(6).

Section 211.447 provides, in pertinent part, as follows:

4. The juvenile officer or the division may file a petition to terminate the parental rights of the child’s parent when it appears that one or more of the following grounds for termination exist:
(6) The parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse, including but not limited to, abuses as defined in section 455.010, RSMo, child abuse or drug abuse before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child. It is presumed, that a parent is unfit to be a party to the parent-child relationship upon a showing that within a three-year period immediately prior to the termination adjudication, the parent’s parental rights to one or more other children were involuntarily terminated pursuant to subsection 2 or 3 of this section or subdivisions (1), (2), (3) or (h) of subsection k of this section or similar laws of other states.

(Emphasis added.)

There were two prior terminations of mother’s parental rights cited by the court: 1) the termination of rights to D.J., on January 6, 1999, in Pennsylvania; and 2) the termination of rights to C.F., on November 2, 1994, in West Virginia. The court admitted into evidence the judgments of termination in both the cases and found as follows:

Pursuant to § 211.447.4(6) RSMo., [S.C.] is unfit to be a party to the parent-child relationship because [S.C.l’s parental rights to one or more other children were involuntarily terminated within the past three years under Section 211.447 RSMo., or under the similar law in another state in that her parental rights have been terminated on two children in the following cases: In Re: [D.J.], Case No. CYS-98-122, on January 6, 1999 in the Court of Common Pleas of Allegheny County, Pennsylvania; and in State of Missouri [sic] v. [C.F.] and [S.C.] and [C.F.], case no. 94-J-41 (F), on November 2,1994.

Concerning the West Virginia termination judgment, S.C.’s counsel objected to the admission of that judgment on the basis that it was outside the permissible three-year time period. Counsel for the juvenile officer acknowledged that the termination was not within the three-year time period set forth in § 211.447.4(6), and stated that “it is relevant to the termination proceedings in that the court has to make a determination on whether or not the termination of the parental rights of [S.C.] is in the best interest of the child.... [I]t’s relevant in that ... she has had numerous TPRs, which has been consistent behavior, and, therefore, we believe it’s relevant and should be admitted into evidence.” The court stated that it was admitting the judgment subject to S.C.’s objection.

S.C. makes two claims in regard to the West Virginia termination. She claims the trial court erred in admitting this termination judgment into evidence and finding that this termination served as the basis for a presumption of unfitness under § 211.447.4(6) because 1) it took place more than three years before the termination in the present case; and 2) the trial court did not take notice of the West Virginia law that served as the basis for termination to determine whether it was similar to Missouri termination grounds, as required by § 211.447.4(6). She also argues that the trial court could not have properly taken notice of West Virginia law because there was no notice that it intended to rely on West Virginia law. We agree with S.C. that under the plain language of § 211.447.4(6), the West Virginia termination could not have served as a basis for the trial court’s presumption of unfitness because it took place more than three years prior to the termination in the present case.

Concerning the Pennsylvania termination judgment, S.C.’s counsel stipulated to the admission of the judgment into evidence and specifically stated that he did not object to the court’s taking judicial notice of it. He also stated, “I’d like to point out to the court that it does not reflect that [S.C.] was appointed counsel. And, in fact, the mailing certificate on the front does not indicate that she had counsel. We probably intend to make further challenges to this document after [S.C.j’s testimony.” Following S.C.’s testimony, S.C.’s counsel stated as follows:

I would renew an additional objection to the order of January 6th, '99, regarding [D.J.], to the extent that [S.C.], whether or not she was served, is a subject matter jurisdiction question, which obviously we’d raise.
I’d also raise the point that it does not appear either from the face of the order or from the mailing of the order that [S.C.] was ever afforded counsel. In fact, by her testimony, she was compelled to leave the state of Pennsylvania and enter into her mother’s care, which would have obviated her knowledge of the hearing, and not being represented by counsel, she would have no other way to know.
I don’t believe such an order would stand in Missouri, and, therefore, I’d ask that this court refuse to accept that as evidence of prior termination, and, therefore, deny the petition as filed.
⅜ ⅜ ⅝ ⅝ ⅝

No ruling was made on the objection.

S.C. now claims that the trial court erred in admitting the Pennsylvania termination judgment into evidence and finding that this termination served as the basis for a presumption of unfitness because the judgment does not disclose that 1) she had an attorney or that she was advised of her right to counsel; 2) she or counsel was present, appointed or notified; or 3) she was served. She further argues that the Pennsylvania order provides no basis for personal or subject matter jurisdiction. S.C. argues that it would be a denial of her due process rights for an out-of-state proceeding with substantive and procedural defects which would be impermissible in a Missouri proceeding to serve as the basis for a presumption of unfitness.

The Pennsylvania judgment provides as follows:

DECREE
AND NOW, this 6th day of January, 1999, the foregoing Petition for Involuntary Termination of Parental Rights having come on to be heard, upon consideration thereof and of the supporting testimony and of the record, the Court finds that the facts averred in said Petition are true and that twelve months or more have elapsed from the date of removal or placement, and that the conditions which led to removal or placement continue to exist, and that the repeated and continued incapacity, abuse, neglect or refusal of [S.C.] has caused the minor, [D.J.], to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by her and that the services and assistance reasonably available to the mother have not remedied the conditions which necessitated the removal of the minor by the court within a reasonable period of time and that termination of her parental rights would best serve the needs and welfare of the child, and that the prayer of the Petitioner should be granted;
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that all parental rights of [S.C.] to the minor, [D.J.], are hereby terminated, said termination to extinguish the power or the right of [S.C.] to object to or receive notice of adoption proceedings, and that the custody of the minor, [D.J.] is hereby awarded to the County of Allegheny.

In State, Secretary of Social Rehabilitation Services v. Briggs, 925 S.W.2d 892, 898 (Mo.App. W.D.1996), we held as follows:

Article IV, Section 1 of the United States Constitution precludes any inquiry into the merits of the cause of action, the legal consistency of the decision, or the validity of the legal principles upon which a judgment is based, and requires Missouri courts to give full faith and credit to judgments of the courts of sister states, unless it can be shown that there was a lack of jurisdiction over the subject matter, failure to give due notice, or fraud in concoction of the judgment. Estate of Pettit v. Levine, 657 S.W.2d 636, 640-41 (Mo.App.1983).
A judgment entered by a foreign court is presumed to be a judgment in a matter in which the court had jurisdiction over the parties and subject matter, and also that the court followed its laws and entered a valid judgment in accordance with the issues made in the case. Id. at 641. The burden is on the person' resisting recognition of this judgment to present evidence sufficient to rebut that presumption. Kilgore v. Kilgore, 666 S.W.2d 923, 932 (Mo.App.1984).

At the termination hearing, S.C. testified as follows:

Q. Now, during the time you were incarcerated in Pennsylvania did you receive termination papers with regard to [D.J.]?
A. No, I didn’t.
Q. Did you ever — were you ever given the opportunity to have an attorney appointed for you in the termination case regarding [D.J.]?
A. No, I didn’t.
Q. Were you ever advised of the termination hearing in January of 1999 regarding [D.J.]?
A. No, I haven’t.
Q. Now, you said that your parental rights to [D.J.], that that hearing—
A. I never had no papers, no nothing.
Q. Do you have any evidence of where you’ve contacted the court and notified them that you didn’t receive notice?
A. I don’t have anything to contact.
Q. Do you have any evidence at all that you—
A. I don’t have anything.
Q. —that you did contact them?
A. I don’t have anything. Nothing.

The trial court is free to disbelieve all, part or none of the testimony of any witness. In Interest of R.L.N., 886 S.W.2d 15, 19 (Mo.App. W.D.1994). The trial court was free to disbelieve the bare assertions by S.C. that she did not receive notice of the Pennsylvania termination proceeding and that she was not offered counsel in that proceeding.

S.C. further argues that it was incumbent upon the juvenile officer to introduce into evidence the Pennsylvania laws which are similar to the sections referenced in § 211.447.4(6). S.C. raises this claim for the first time on appeal, and therefore she has failed to preserve it for appellate review. In Interest of H.R.R., 945 S.W.2d 85, 89 (Mo.App. W.D.1997). We gratuitously note that the language of the Pennsylvania judgment indicates that S.C.’s parental rights were terminated pursuant to a law similar to § 211.447.4(3).

Point I is denied.

Point II

S.C.’s second point on appeal is that the trial court erred in terminating her parental rights because the juvenile officer did not prove by clear, cogent and convincing evidence that she was unfit to be a party to the parent-child relationship in that there was no appropriate showing of evidence that she was unfit.

“The presumption of unfitness is rebuttable and can be overcome by evidence that the circumstances that led to the termination of the parent’s parental rights in the other child no longer exist or that the parent is no longer unfit.” In re A.H., 9 S.W.3d 56, 61 (Mo.App. W.D.2000). We find that it was S.C.’s burden to present evidence that the circumstances that led to the termination of her rights in regard to D.J. no longer existed, or that she was no longer unfit. S.C. did not present any evidence that she has overcome the problems that led to the termination of her parental rights to D.J., nor did she present evidence to indicate that she was otherwise no longer unfit. We find that the trial court did not abuse its discretion in finding that S.C. did not present sufficient evidence to overcome the presumption of unfitness.

Point II is denied.

The judgment of the trial court is affirmed.

BRECKENRIDGE, P.J., and ULRICH, J., concur.

      . All statutory references are to RSMo Cum. Supp.1999.

      . Although the trial court’s judgment states that this termination took place in Missouri, the record indicates that it took place in West Virginia.