S.M. v. E.M.B.R.
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Opinions
PATRICIA BRECKENRIDGE, Judge.
E.M.B.R. (Mother) appeals a judgment terminating her parental rights to her son, C.M.B.R. (Child), and granting M.M. and S.M.’s petition to adopt Child because the trial court found she willfully abandoned [801]*801him. The failure to investigate and file reports prior to the trial on the petition as mandated by sections 211.455, 453.070.1 and 453.077.1 is plain error and requires reversal of the judgment of termination of Mother’s parental rights and the grant of adoption.1 The cause is remanded and, on remand, the court shall order compliance with the reporting requirements of those statutes before retrial on the claims in the petition as they pertain to Mother’s parental rights under section 211.447.2(2) (b), whether her consent was required under section 453.040(7), and the adoption of Child by S.M. and M.M.2
I. Factual and Procedural Background
This Court -views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000); Rule 73.01(c). Viewing the evidence in the light most favorable to the judgment, the evidence adduced at the trial was that Mother is a citizen of Guatemala. Mother entered the United States in 2006, when she was pregnant with Child. The father was not involved with Mother at the time of Child’s birth. Mother never has revealed the name of Child’s biological father.
During her pregnancy, she did not receive prenatal care. She did receive educational services from Laura Davenport, a parent educator for Parents As Teachers in Carthage.3 Child was born October 17, 2006. A few days later, Ms. Davenport provided a crib for Child because Mother and Child were sleeping on the floor of the apartment of two acquaintances. Mother was not working at the time, and her roommates provided her with food. The living conditions in the home were poor.
Approximately two to three months later, Ms. Davenport visited Mother and Child again. At this time, they were living with Mother’s brother, his wife, and their three sons. The conditions of the brother’s home also were poor. The brother and his family all lived in one bedroom. At this time, Ms. Davenport noticed that Child “seemed developmentally delayed and a little weak.” He had slow muscle development and did not have good head support. Because developmental delays can be the result of poor nutrition, lack of attention, and lack of exercise, she instructed Mother about exercises and “sitting up practice” for Child. At this time, Mother had not obtained a birth certificate for Child, and Ms. Davenport instructed Mother that, without a birth certificate, she could not receive social services including WIC for Child. Child was being fed whole milk, not infant formula, which concerned Ms. Davenport because babies need the extra nutrition that formula provides to be able to develop normally. At the time, Mother was employed, and the family members traded child care.
On May 22, 2007, the United States Department of Homeland Security — Immigration and Customs Enforcement conducted a raid on a poultry processing plant in Barry County, where Mother was working. She was arrested in the raid. At the time of the raid, Child was 7 months old, [802]*802and Mother and Child were still living with Mother’s brother and his family. As a result of Mother’s arrest, Child was left in the care and custody of Mother’s brother. Her brother placed Child in the care and custody of Mother’s sister because he could not take care of Child. Mother’s sister and her husband have two children, who were then 3 and 1/2 years old and approximately 7 months old. They lived in a one-bedroom apartment, and both worked full-time.
While Child was living with Mother’s sister, Ms. Davenport referred Mother’s sister to Jennifer and Oswaldo Velasco, a local clergy couple, for babysitting services. Initially, the Velascos provided child care for Child while Mother’s sister and her husband worked. Child occasionally would spend the night with the Velas-cos. When the Velascos began watching Child, he had received some immunizations but was behind schedule. He still was having developmental problems in that he was slow to sit up and crawl. After a couple of weeks, the child-care arrangement evolved into almost a fulltime placement with the Velascos watching Child all day and night during the week and Mother’s sister watching Child on the weekends. After a few weeks, Child only spent a few hours with Mother’s sister and her family on Sundays. At some point, Mother’s sister asked the Velascos to take care of Child as she and her husband were unable to do so.
On September 9, 2007, Ms. Davenport visited Mother at the St. Clair County jail, where she was being held. A purpose of her visit was to ask if Mother would agree to Child’s adoption. Mother refused. In the course of their conversation, Ms. Davenport informed Mother that Child was staying with Mother’s sister. Mother told Ms. Davenport that “[she] was surprised that the baby had not stayed with her brother ... [bjecause she felt like [her brother and his- wife] would have been willing to take care of [Child].” Mother did not give any letters to Ms. Davenport to transport to her sister, brother, or Child.
The Velascos were acquainted with M.M.’s relatives. The Velascos knew that S.M. and M.M. (Adoptive Parents), a married couple, wanted to adopt a child because they were unable to have children and they had applied to become foster parents. On September 24, 2007, the Ve-lascos asked the Adoptive Parents if they were interested in adopting Child. On that day, the Adoptive Parents began visiting with Child in the presence of others. Child had his first overnight visit with them on October 3, 2007.
On October 5, 2007, the Adoptive Parents filed a petition in the Circuit Court of Jasper County for transfer of custody, termination of Mother’s parental rights, and adoption. At the time they filed the petition, Child was 11 months old. Mother still was incarcerated in the St. Clair County jail in Osceola and had been charged by the federal government with aggravated identity theft.4 On October 11, 2007, Mother pleaded guilty to one count of aggravated identity theft. She then was sentenced to two years of incarceration and ordered to be deported following her release from prison.5 Eleven days later, [803]*803on October 16, 2007, she was served with the summons and petition in this case by the St. Clair County sheriff. From the time the pleadings were served, Mother would have known the location of Child and how to contact Adoptive Parents.
On October 17, 2007, the trial court set a hearing for the next day on the request for transfer of custody and issued a notice of that hearing to Joseph Hensley, Adoptive Parents’ counsel, and Jamey Garrity, the Child’s appointed guardian ad litem. Mother was not listed on the notice of the hearing to transfer custody, and the notice was not sent to her. Sometime thereafter, Mother was taken into federal custody and transferred to the United States penitentiary in Bruceton Mills, West Virginia.
On October 18, 2007, a hearing was held on Adoptive Parents’ request to transfer legal custody of the Child to them. Mother was not present at the hearing, and no counsel had been appointed for her. Following the hearing, the trial court transferred legal custody of Child to the Adoptive Parents.
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PATRICIA BRECKENRIDGE, Judge.
E.M.B.R. (Mother) appeals a judgment terminating her parental rights to her son, C.M.B.R. (Child), and granting M.M. and S.M.’s petition to adopt Child because the trial court found she willfully abandoned [801]*801him. The failure to investigate and file reports prior to the trial on the petition as mandated by sections 211.455, 453.070.1 and 453.077.1 is plain error and requires reversal of the judgment of termination of Mother’s parental rights and the grant of adoption.1 The cause is remanded and, on remand, the court shall order compliance with the reporting requirements of those statutes before retrial on the claims in the petition as they pertain to Mother’s parental rights under section 211.447.2(2) (b), whether her consent was required under section 453.040(7), and the adoption of Child by S.M. and M.M.2
I. Factual and Procedural Background
This Court -views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000); Rule 73.01(c). Viewing the evidence in the light most favorable to the judgment, the evidence adduced at the trial was that Mother is a citizen of Guatemala. Mother entered the United States in 2006, when she was pregnant with Child. The father was not involved with Mother at the time of Child’s birth. Mother never has revealed the name of Child’s biological father.
During her pregnancy, she did not receive prenatal care. She did receive educational services from Laura Davenport, a parent educator for Parents As Teachers in Carthage.3 Child was born October 17, 2006. A few days later, Ms. Davenport provided a crib for Child because Mother and Child were sleeping on the floor of the apartment of two acquaintances. Mother was not working at the time, and her roommates provided her with food. The living conditions in the home were poor.
Approximately two to three months later, Ms. Davenport visited Mother and Child again. At this time, they were living with Mother’s brother, his wife, and their three sons. The conditions of the brother’s home also were poor. The brother and his family all lived in one bedroom. At this time, Ms. Davenport noticed that Child “seemed developmentally delayed and a little weak.” He had slow muscle development and did not have good head support. Because developmental delays can be the result of poor nutrition, lack of attention, and lack of exercise, she instructed Mother about exercises and “sitting up practice” for Child. At this time, Mother had not obtained a birth certificate for Child, and Ms. Davenport instructed Mother that, without a birth certificate, she could not receive social services including WIC for Child. Child was being fed whole milk, not infant formula, which concerned Ms. Davenport because babies need the extra nutrition that formula provides to be able to develop normally. At the time, Mother was employed, and the family members traded child care.
On May 22, 2007, the United States Department of Homeland Security — Immigration and Customs Enforcement conducted a raid on a poultry processing plant in Barry County, where Mother was working. She was arrested in the raid. At the time of the raid, Child was 7 months old, [802]*802and Mother and Child were still living with Mother’s brother and his family. As a result of Mother’s arrest, Child was left in the care and custody of Mother’s brother. Her brother placed Child in the care and custody of Mother’s sister because he could not take care of Child. Mother’s sister and her husband have two children, who were then 3 and 1/2 years old and approximately 7 months old. They lived in a one-bedroom apartment, and both worked full-time.
While Child was living with Mother’s sister, Ms. Davenport referred Mother’s sister to Jennifer and Oswaldo Velasco, a local clergy couple, for babysitting services. Initially, the Velascos provided child care for Child while Mother’s sister and her husband worked. Child occasionally would spend the night with the Velas-cos. When the Velascos began watching Child, he had received some immunizations but was behind schedule. He still was having developmental problems in that he was slow to sit up and crawl. After a couple of weeks, the child-care arrangement evolved into almost a fulltime placement with the Velascos watching Child all day and night during the week and Mother’s sister watching Child on the weekends. After a few weeks, Child only spent a few hours with Mother’s sister and her family on Sundays. At some point, Mother’s sister asked the Velascos to take care of Child as she and her husband were unable to do so.
On September 9, 2007, Ms. Davenport visited Mother at the St. Clair County jail, where she was being held. A purpose of her visit was to ask if Mother would agree to Child’s adoption. Mother refused. In the course of their conversation, Ms. Davenport informed Mother that Child was staying with Mother’s sister. Mother told Ms. Davenport that “[she] was surprised that the baby had not stayed with her brother ... [bjecause she felt like [her brother and his- wife] would have been willing to take care of [Child].” Mother did not give any letters to Ms. Davenport to transport to her sister, brother, or Child.
The Velascos were acquainted with M.M.’s relatives. The Velascos knew that S.M. and M.M. (Adoptive Parents), a married couple, wanted to adopt a child because they were unable to have children and they had applied to become foster parents. On September 24, 2007, the Ve-lascos asked the Adoptive Parents if they were interested in adopting Child. On that day, the Adoptive Parents began visiting with Child in the presence of others. Child had his first overnight visit with them on October 3, 2007.
On October 5, 2007, the Adoptive Parents filed a petition in the Circuit Court of Jasper County for transfer of custody, termination of Mother’s parental rights, and adoption. At the time they filed the petition, Child was 11 months old. Mother still was incarcerated in the St. Clair County jail in Osceola and had been charged by the federal government with aggravated identity theft.4 On October 11, 2007, Mother pleaded guilty to one count of aggravated identity theft. She then was sentenced to two years of incarceration and ordered to be deported following her release from prison.5 Eleven days later, [803]*803on October 16, 2007, she was served with the summons and petition in this case by the St. Clair County sheriff. From the time the pleadings were served, Mother would have known the location of Child and how to contact Adoptive Parents.
On October 17, 2007, the trial court set a hearing for the next day on the request for transfer of custody and issued a notice of that hearing to Joseph Hensley, Adoptive Parents’ counsel, and Jamey Garrity, the Child’s appointed guardian ad litem. Mother was not listed on the notice of the hearing to transfer custody, and the notice was not sent to her. Sometime thereafter, Mother was taken into federal custody and transferred to the United States penitentiary in Bruceton Mills, West Virginia.
On October 18, 2007, a hearing was held on Adoptive Parents’ request to transfer legal custody of the Child to them. Mother was not present at the hearing, and no counsel had been appointed for her. Following the hearing, the trial court transferred legal custody of Child to the Adoptive Parents. On October 28, 2007, Mother sent Mr. Hensley, Adoptive Parents’ attorney, a letter written in English and Spanish stating that she did not want her child adopted, she wanted her child placed in foster care, and she requested visitation.
On December 3, 2007, the trial court appointed James Calton to represent Mother. Notice of appointment of counsel was sent to Mother at the St. Clair County jail; however, service was refused.
After several months, the Adoptive Parents authorized their attorney to find an attorney for Mother who was fluent in Spanish. Aldo Dominguez agreed to represent Mother “when contacted by Joe Hensley, attorney for Petitioners [S.M. and M.M.], in June of 2008.” The Adoptive Parents agreed to pay Mr. Dominguez’s attorney’s fees. On June 13, 2008, the trial court appointed Mr. Dominguez to represent Mother.6
Mr. Dominguez first attempted to contact Mother by sending her a letter on July 29, 2008. He then spoke with her by telephone on August 12, 2008. He did not visit her while she was in the federal penitentiary in West Virginia.
Because Mr. Calton had not filed an answer, on September 3, 2008, Mr. Dominguez moved for an extension of time to file an answer to the termination of parental rights, transfer of custody, and adoption petition. In that motion, it is alleged that he was contacted by Mr. Hensley to represent Mother. It asserts that he located Mother within the federal bureau of prisons. It states that Mother did not want her child adopted. Leave was granted to file the answer out of time.
The trial on the petition was held October 7, 2008. Mother was not present, but her attorney, Mr. Dominguez, appeared on her behalf. Mr. Garrity, the Child’s GAL, also appeared. Counsel for the juvenile officer, Belinda Elliston, was present. At the trial, M.M., S.M., and Ms. Davenport testified on behalf of the Adoptive Parents.
M.M. testified to the facts surrounding the couples’ introduction to Child by the Velascos. She testified that Child was underweight, developmentally delayed, and behind in his immunizations at the time they assumed custody. M.M., who has a limited ability to speak and read Spanish, testified that Mother never attempted to contact them or Child and they never contacted Mother or anyone else in her fami[804]*804ly. They lived openly with Child, taking him on errands around town, to family functions, and on vacation. She stated that Child became a part of the family, making friends and strong connections with their extended families.
On cross examination, Mr. Dominguez asked M.M. about the safety of their basement apartment. He also questioned M.M. about her childhood sexual abuse by her brother. She stated that her brother was still in her life, he saw Child, and that children’s services did not find her brother to be a threat to Child’s safety.
S.M. testified about the bonding that had taken place between the Child and him, his wife, and their extended families. On cross-examination by Mr. Dominguez, he testified about his criminal record when he was a teenager and his drug use during that time.
Ms. Davenport testified about the Mother and Child’s living conditions and the Child’s physical condition before and after Mother’s arrest. She stated that he was malnourished and developmentally delayed. She testified that she educated Mother about infant nutrition and developmental exercises. She visited Mother at both the acquaintances’ apartment and her brother’s apartment. The living conditions at both were poor. Ms. Davenport stated that Mother’s brother was unable to care for Child. Because she also provided services to Mother’s sister, she saw Child at the sister’s home after Mother had been arrested. Mother’s sister and her husband worked full-time and were unable to care for Child in addition to their two children. She also stated that she assisted Mother’s sister in obtaining the aid of the Velascos in caring for Child and that, after a few weeks, the Velascos cared for Child virtually full time. Ms. Davenport testified about her September 2007 jail visit with Mother, during which she said Mother expressed surprise that her brother was not caring for Child and that she did not want Child to be adopted.
Mr. Dominguez did not call any witnesses on Mother’s behalf, but he did cross-examine the Adoptive Parents’ witnesses. He proffered into evidence a letter stating that Mother had a person who was willing to care for Child in Guatemala. In his closing argument, he argued that the Mother’s incarceration does not alone justify a finding of abandonment. He also argued that because the legal documents served to Mother had not been translated into Spanish, she did not understand the gravity of the situation.
After closing arguments, the trial court terminated Mother’s parental rights and approved the adoption. In its oral pronouncement of the judgment, the trial court stated that, from the date of her arrest through the trial, “mother appeared to put forth no effort to locate the child and, in fact, should have known where the child was.” The trial court issued its written judgment October 9, 2008. In the written judgment, it found that Mother’s consent was not necessary because she willfully had abandoned the Child pursuant to section 458.040(7). The trial court also terminated Mother’s parental rights pursuant to section 211.447.2(2)(b), which requires a finding of abandonment. The trial court found that it was in the best interests of the Child to terminate Mother’s parental rights and to grant the Child’s adoption by M.M. and S.M.7
Mother appealed after being granted leave to appeal out of time. After opinion [805]*805by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.
II. Mother’s Claims of Error
Mother raises 14 points of trial court error on appeal that she asserts warrant reversal of the judgment and remand for dismissal of the petition and return of the custody of Child to her. Several of her points contain multiple claims of error. These claims of error most easily are understood and addressed by grouping them by the nature of the claim. Her claims are that:
1) The termination and adoption proceedings failed to strictly comply with governing statutes:
• The placement was improper under section 453.014.
• The transfer was improper under section 453.110.
• There was a lack of notice of the hearing to transfer custody of Child pursuant to Rule 44.01(d).
• The Court failed to ensure compliance with the investigation and reporting requirements of sections 211.455, 453.026, 453.070, 453.077, 453.080, and 453.110.
2) The trial court’s findings under section 211.447.7 are formulaic and con-clusory, contrary to the law, and not supported by the evidence.
3) The trial court misapplied the best interest of the child standard in terminating Mother’s parental rights under section 211.447, because the trial court focused on her immigration status, the Adoptive Parents’ fitness, and the Child’s bonding with Adoptive Parents, instead of her constitutional rights.
4) The findings of abandonment do not comply with the law and are not supported by clear, cogent, and convincing evidence.
5)Mother’s due process rights were violated:
• She did not receive notice of the custody hearing or the petition.
• She does not speak or read English. The petition and all process served to her were in English and not her native language, Spanish.
• She was not appointed counsel for the transfer of custody hearing.
• Adoptive Parents were involved improperly in the selection of her appointed counsel, Mr. Dominguez.
• The guardian ad litem and the juvenile officer failed to investigate Mother and to undertake an investigation independent of the Adoptive Parents.
• The combining of the TPR proceeding and the adoption proceeding in the same trial improperly injected the issue of the Adoptive Parents’ fitness into the TPR proceeding.
• She did not receive a fair hearing because her immigration status and criminal record were injected into the hearing while the trial court ignored the criminal past of S.M. and the molestation history of M.M.’s brother.
• Her appointed attorneys were ineffective.
III. Failure to Comply with Statutes
Mother alleges that the trial court failed to strictly comply and “scrupulously adhere to” the statutory mandates of chapters 211 and 453. She argues that because of the failure to strictly comply with these statutes, the termination of her parental rights and resulting adoption proceedings are void, so the judgment should be reversed and the adoption petition should be [806]*806dismissed. In Mother’s claims, she conflates the two chapters and ignores the legislative mandate on how to construe each chapter.
A. Interaction between Chapter 211 and Chapter 453
This case is a private action for termination of parental rights and adoption. The prerequisite to any adoption is the consent of natural parents or involuntary termination of parental rights. In re J.F.K., 853 S.W.2d 932, 934 (Mo. banc 1993). Adoptive Parents petitioned for termination of parental rights under section 211.447 and adoption without consent under section 453.040(7). Specifically, count I of the petition requests transfer of custody and “termination of parental rights under chapter 453;” count II seeks termination of parental rights under section 211.447, subsections 2(2)(b), 5(l)(b), 5(2)(d), and 5(3);8 count III seeks adoption of the Child as being in the Child’s best interest. Because Adoptive Parents pleaded a right to termination of parental rights under chapter 211 and adoption without consent under chapter 453, both chapters are applicable to this case, and the differences between the chapters must be explored.
Chapter 211 is utilized primarily by state actors, that is, the division of children’s services or the juvenile officer, to take children into protective custody and terminate parental rights. See In re J.F.K, 853 S.W.2d at 934. Prospective parents seeking adoption, however, may seek to terminate parental rights based on chapter 211 provisions in an adoption petition. Section 211.447.6.
Prospective parents also may request a termination of parental rights incident to an adoption action under chapter 453. In re J.F.K, 853 S.W.2d at 934. Chapter 453 does not speak to termination of parental rights; rather, it authorizes adoption without consent or with consent that has the effect of terminating parental rights. Section 453.040 sets out the scenarios in which the consent of a parent to adoption is not required. The Adoptive Parents pleaded that Mother’s consent was not required under subsection 7 of section 453.040:
The consent to the adoption of a child is not required of:
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(7) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection[.]
When a person alleges that consent of the parent is not required for the adoption under section 453.040, the statutory mandates of chapter 211 are irrelevant to the chapter 453 proceeding unless specifically cross-referenced and mandated by chapter 453. In re S.L.N., 167 S.W.3d 736, 740-41 [807]*807(Mo.App.2005); e.g., section 453.040(7) (making no mention to chapter 211); see also section 453.040(1) (specifically cross-referencing chapter 211). However, if the prospective parents plead termination of parental rights under chapter 211 in a chapter 453 petition, all statutory requirements for chapter 211 must be met for each chapter 211 claim. See In re S.L.N., 167 S.W.3d at 740-41.
B. Chapter 211 and Chapter 453 Are Construed Differently
The legislature has created different rules for construing the provisions of chapter 211 and chapter 453. Chapter 453, which governs the procedures for the adoption and foster care of Missouri children, has an express rule of statutory construction. Section 453.005 states that the chapter is to be construed “to promote the best interests and welfare of the child in recognition of the entitlement of the child to a permanent and stable home.” This Court has noted that
[Chapter 453] is to be liberally construed with a view to promoting the best interests of the child, but such liberal construction is obviously not to be extended to the question of when the natural parents may be divested of their rights to the end that all legal relationship between them and their child shall cease and determine^]
In re Adoption of R.A.B., 562 S.W.2d 356, 360 (Mo. banc 1978).
Provisions in chapter 211 govern the termination of parental rights. In section 211.443, the legislature explicitly stated how the termination of parental rights provisions of chapter 211 should be construed:
The provisions of sections 211.442 to 211.487 shall be construed so as to promote the best interests and welfare of the child as determined by the juvenile court in consideration of the following:
(1) The recognition and protection of the constitutional rights of all parties in the proceedings;
(2) The recognition and protection of the birth family relationship when possible and appropriate; and
(3) The entitlement of every child to a permanent and stable home.
Unlike chapter 453, which only discusses the best interest of the child in the construction of its provisions, chapter 211 requires a court to consider and protect both the best interest of the child and the constitutional rights of all the parties when construing its termination of parental rights provisions.
C. Deficiencies in Pre- and Post-Transfer-of-Custody Proceedings under Chapter 453
Mother claims there were multiple failures to comply with the statutes and one court rule applicable to the proceedings for the placement and transfer of custody of Child to Adoptive Parents. She claims a failure to comply with section 453.014.1(4) (who may place a minor for adoption), section 453.026 (requirement of a written report regarding child before adoptive parents accept physical custody), section 453.110, (transfer of custody requirements), and Rule 44.01(d) (requirement of five days notice before any hearing on a motion). Specifically, she asserts that: (1) the Velascos do not fall within the authorized “intermediaries” under section 453.014.1(4), and, therefore, they did not have the statutory authority to place Child in the Adoptive Parents’ custody; (2) the record does not contain a written report about Child that was created before the Adoptive Parents accepted custody, as required by section 453.026; (3) custody of Child was surrendered and taken before a petition was filed and an order entered [808]*808pursuant to section 453.110.1;9 and (4) she did not receive any notice of the hearing to transfer custody of Child in violation of Rule 44.01(d). She argues that these deficiencies render the proceedings void and require reversal of the judgment, dismissal of the Adopted Parents’ petition, and return of custody of Child to her.
Mother quotes from In re Baby Girl, 850 S.W.2d 64 (Mo. banc 1993), in support of her claim that Adoptive Parents’ failure to comply with all statutory requirements in the judicial proceedings in this case makes the court’s order transferring custody void. She asserts that because judicial approval of the transfer of custody of the child was not obtained, “all acts thereafter regarding custody were void from any legal perspective.” Id. at 68.
She reads In re Baby Girl too broadly. In that case, this Court found the transfer of custody from birth mother to prospective adoptive parents “illegal from its inception” because the prospective adoptive parents took custody of the child from the hospital where she was born and transported the child to their home state of Arkansas without any person seeking and obtaining judicial approval of the transfer of custody. Id. The Court found that this was “precisely the type of action that the legislature sought to avoid when it enacted [section] 453.110.1.” Id.
In contrast, in this case, Adoptive Parents filed their petition for transfer of custody in the circuit court sitting as a juvenile division of the county in which Child was located, and that court entered an order transferring custody of Child to them pursuant to section 453.110.1. Mother challenges the proceedings and resulting order transferring custody because there were deficiencies in those proceedings. She does not claim that no judicial action was filed or that there was no order transferring custody. The proceedings and resulting court order for transfer of custody, even if defective, are not void. While each statute and rule serves a valid purpose, such as to prevent the indiscriminate placement and transfer of custody of the child, see id. at 68 (discussing section 453.110’s purpose), a party aggrieved by noncompliance with statutes and rules still must timely raise the error. In re P.G.M., 149 S.W.3d 507, 516 (Mo.App.2004). See also In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 345 (1947); In re Z.L.R., 306 S.W.3d 632, 638 (Mo.App.2010).
The errors Mother asserted occurred in October 2007 when the Velascos surrendered custody of Child to the Adoptive Parents and the proceedings on the Adoptive Parents’ request for transfer of custody occurred. Mother first objected to the proceedings and claimed error in the order transferring custody approximately two years later on appeal after entry of the judgment terminating her parental rights and granting adoption of Child by Adoptive Parents. She did not timely protest the lack of investigation and filing of reports, the lack of notice of the transfer-of-custody hearing, or the allegedly improper transfer of custody when the case was pending in the trial court; therefore, her claims of error are not preserved.10 Because Mother failed to properly preserve her claims, they only can be reviewed for plain error. Rule 84.13(c).
Despite the failure to raise the issue, this Court, in its discretion, may [809]*809review these claims for plain error. In re Duren, 200 S.W.2d at 345; In re Z.L.R., 306 S.W.3d at 638. “In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether there facially appears substantial grounds for believing that the trial court committed error that is evident, obvious and clear, which resulted in manifest injustice or a miscarriage of justice.” In re R.S.L., 241 S.W.3d 346, 351 (Mo.App.2007). Even statutory errors that are evident, obvious, and clear, must result in a manifest injustice or miscarriage of justice. In re Z.L.R., 306 S.W.3d at 638 (noncompliance with section 211.447 had the effect of shifting burden of proof to natural parent and resulted in a manifest injustice).
Here, the statutory errors are evident, obvious, and clear from the record, so the issue is whether they resulted in manifest injustice or a miscarriage of justice. While custody of Child was surrendered and taken before a court order in violation of section 453.110.1 and no investigation and report was ordered and completed as required by section 453.110.2 before the court ordered the transfer of custody, Mother has failed to show a manifest injustice or a miscarriage of justice occurred.
The record shows, and Mother does not dispute, that a transfer of the Child’s custody urgently needed to occur. The record shows that Child was in need of food, clothing, shelter, and medical care at the time the trial court ordered transfer of custody to Adoptive Parents. It also shows that the trial court reviewed a report prepared after an extensive investigation of whether Adoptive Parents were qualified to be foster parents, and the content of the report was relevant to their qualifications to take custody of Child. Although Mother’s circumstances were not investigated or addressed in any report, she does not contest that she was incarcerated or that her family members’ scarce resources and work schedules limited their ability to care for her Child. Moreover, Mother does not claim that Adoptive Parents have not provided appropriately for Child during the time he has been in their custody. She asserts, instead, that she should have had the opportunity three years ago to argue that the Child should have been placed in foster care with someone who would have allowed visitation.
While the record supports Mother’s claim that Child’s placement with Adoptive Parents had a negative impact on her relationship with Child, that negative impact has been exacerbated significantly by Mother’s delay in challenging the transfer-of-custody proceedings. She asserts that she was not accountable for the delay because of her initial lack of counsel, her then ineffective counsel, and her failure to have notice of the transfer-of-custody hearing, all which precluded her from asserting her rights at an earlier time.
As a threshold issue, Mother never requested counsel. Although Missouri recognizes a statutory right to counsel in actions brought to terminate parental rights, the parent must assert that statutory right. Section 211.462.2; section 453.030.12. Section 211.462.2 states:
2. The parent or guardian of the person of the child shall be notified of the right to have counsel, and if they request .counsel and are financially unable to employ counsel, counsel shall be appointed by the court. Notice of this provision shall be contained in the summons.
(Emphasis added). Section 453.030.12 states:
12. A birth parent, including a birth parent less than eighteen years of age, shall have the right to legal representa[810]*810tion and payment of any reasonable legal fees incurred throughout the adoption process. In addition, the court may appoint an attorney to represent a birth parent if:
(1) A birth parent requests representation;
(2) The court finds that hiring an attorney to represent such birth parent would cause a financial hardship for the birth parent; and
(3) The birth parent is not already represented by counsel.
(Emphasis added). The record shows that the summons gave Mother the required statutory notice that she had the right to request appointment of counsel, but she failed to make any request. While the court of appeals has stated that section 211.464 requires that “[a] parent must make a clear and unequivocal waiver on the record of his or her decision to proceed to trial [on the merits of a TPR petition] without a court appointed attorney,” In re B.L.E., 728 S.W.2d 917, 920 (Mo.App.1987), no statute or case has imposed the requirement of an affirmative waiver of counsel for transfer of custody proceedings. So, under sections 453.030.12 and 211.462.2, when Mother learned of the proceedings to transfer custody and had the required statutory notice of her right to counsel, she needed to request appointment of counsel. Despite her failure to do so, the trial court not once, but twice appointed counsel to represent her.
The record also refutes her claim that she did not have notice and could not assert her rights absent appointed, competent counsel. The October 28, 2007, letter Mother sent to Adoptive Parents’ counsel shows that she had knowledge of the proceeding and who was involved in it 22 days after the petition was filed and that she was able to send correspondence to Adoptive Parents’ counsel despite her incarceration and language barriers.11
The prejudice to Mother was exacerbated by the lateness of her claims. As discussed below, her claims of error in failure to comply with sections 453.014.1(6), 453.026, and 453.110, and Rule 44.01(d) would not result in dismissal of the petition but would, instead, require rehearing of the transfer of custody matter, which is not in Child’s best interest at this point in the proceeding. Mother has failed to prove a miscarriage of justice or manifest injustice.
Mother’s next three claims of error, however, warrant relief under plain error review. She claims there was noncompliance with the mandatory investigations and reporting requirements of sections 211.455, 453.070, and 453.077. Those sections require examination of the fitness of the natural parents, the child’s condition before and after placement, the fitness of the adoptive parents, and the filing of written reports to aid the court in adjudicating the propriety of terminating parental rights and the best interests of the child.
D. Failure to Comply with Section 211.455
Mother asserts that the trial court did not comply with section 211.455 and, therefore, the judgment must be reversed, the adoption petition must be dismissed, and the custody of Child must be returned to her. Section 211.455 mandates an investigation and written report after a petition to terminate parental rights is filed [811]*811under chapter 211 to help the court determine if termination is in the best interest of the child. The relevant portions of section 211.455 state:
1. Within thirty days after the filing of the petition, the juvenile officer shall meet with the court in order to determine that all parties have been served with summons and to request that the court order the investigation and social study.
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3. The court shall order an investigation and social study except in cases filed under section 211.444. The investigation and social study shall be made by the juvenile officer, the state division of family services or a public or private agency authorized or licensed to care for children or any other competent person, as directed by the court, and a written report shall be made to the court to aid the court in determining whether the termination is in the best interests of the child. It shall include such matters as the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child’s home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination. Parties and attorneys or guardians ad litem or volunteer advocates representing them before the court shall have access to the written report. All ordered evaluations and reports shall be made available to the parties and attorneys or guardians ad litem or volunteer advocates representing them before the court at least fifteen days prior to any dispositional hearing.
The requirements of section 211.455 are mandatory, and the investigation and social study must be ordered after the termination petition is filed. In re C.W., 211 S.W.3d 93, 98 (Mo. banc 2007). When a court fails to strictly comply with applicable provisions of chapter 211, the failure constitutes reversible error. Id. at 98; In re K.A.W., 133 S.W.3d 1, 19-20 (Mo. banc 2004). The judgment is not void; jurisdiction over the child is not removed from the trial court.12 In re D.O., 315 S.W.3d 406, 408 (Mo.App.2010); In re T.A.L., 328 S.W.3d 238, 253-54 (Mo.App.2010).
Because the Adoptive Parents sought termination of Mother’s parental rights under section 211.447, the trial court was required to order a section 211.455 investigation and social study, but no written report was made to the court prior to its termination of Mother’s parental rights under section 211.447.13 The trial court’s failure is reversible error that amounts to a manifest injustice because the reports educate the trial court as to “the parental background, the fitness and capacity of the parent to discharge parental responsibilities, the child’s home, present adjustment, physical, emotional and mental condition, and such other facts as are pertinent to the determination.” Section 211.455.2. Without these reports, Mother’s and Child’s circumstances were not briefed fully for the trial court. Its judgment, entered without this information, was manifestly unjust.
[812]*812The termination of Mother’s parental rights under section 211.447 is reversed because of the trial court’s failure to comply with section 211.455. The case is remanded for compliance with section 211.455 and then a new trial. Because of this finding of plain error, Mother’s other claims regarding compliance with section 211.447 are moot.
E. Failure to Comply with Sections 453.070 and 453.077
Mother claims that the trial court plainly erred by failing to order and review investigations and written post-placement assessments of the Child and the Adoptive Parents as required by sections 453.070 and 453.077. She asserts that because the trial court did not strictly comply with the statutory requirements, custody of the Child should be returned to her and the adoption petition should be dismissed.
Under section 453.070.1, an adoption decree may not be entered until the juvenile division receives and reviews written reports about the adoptive parents and the child’s suitability for adoption. This section mandates an investigation and written report. It states:
[N]o decree for the adoption of a child under eighteen years of age shall be entered for the petitioner or petitioners in such adoption as ordered by the juvenile court having jurisdiction, until a full investigation, which includes an assessment of the adoptive parents, an appropriate postplacement assessment and a summary of written reports as provided for in section 453.026, and any other pertinent information relevant to whether the child is suitable for adoption by the petitioner and whether the petitioner is suitable as a parent for the child, has been made.14
Section 453.070’s investigation and report may be waived if the child is the natural child of one of the adoption petitioners or the natural parents have consented to the adoption. Section 453.070.5. In all other cases, the trial court shall order the division of family services, a juvenile officer, a licensed child-placement agency, a social worker, or any “other suitable person appointed by the court” to conduct the investigation and create a written report. Section 453.070.2. The written report “shall be submitted to the court within ninety days of the request of the investigation.” Id.
Section 453.077 mandates a post-placement assessment to be conducted six months after the child has been placed in the custody of the adoptive parents. Any person authorized under section 453.070 or the person who conducted the section 453.026 pre-placement assessment may conduct the post-placement assessment. Section 453.077.1. “[T]he postplacement assessment shall include an update of the preplacement assessment which was submitted to the court pursuant to section 453.070, and a report on the emotional, physical, and psychological status of the child.” Id.
The purpose of the reports mandated by sections 453.070 and 453.077 is to provide the trial court with adequate information to determine whether “the child is suitable for adoption” and whether it is in the best interest of the child to finalize the adoption. In re Adoption of G., 389 S.W.2d 63, 66 (Mo.App.1965). Although these reports do not adjudicate the issues, In re K.K.J., 984 S.W.2d 548, 554 (Mo.App.1999), the trial court cannot make an in[813]*813formed decision in their absence. Completion and review of these reports post-decree is futile. In re Adoption of G., 389 S.W.2d at 66.
In this case, the trial court was provided with an extensive report prepared about the Adoptive Parents’ fitness to be foster parents, not adoptive parents, and a one-paragraph “update to adoptive home study” furnished by the GAL, Mr. Garrity. Neither document complies with either section 453.070 or section 453.077. Neither document examines whether Child was suitable for adoption, including whether circumstances warrant termination of parental rights or adoption without the Mother’s consent. Neither document accesses the Adoptive Parents’ fitness to be adoptive parents, nor do they evaluate the Adoptive Parents after Child was placed with them.
The trial court did not comply with these mandatory investigations and written reports. The record shows that the trial court was not briefed fully about the best interests of the Child, his suitability for adoption, and the suitability of the Adoptive Parents. The importance of this information is apparent from the legislature’s express statement that no adoption decree should be entered without complying with the investigation and reporting requirements. Section 453.070.1. In this case, those reports would have provided information about Mother that was not otherwise before the trial court. It was manifestly unjust for the trial court to enter its judgment without the essential information in these reports.
IY. Remedy
Mother believes that a failure to strictly comply with any of the statutes at issue in her case warrants an outright reversal, dismissal of the adoption petition, and a return of Child to her custody. Generally, “[a]n appellate court should reverse a plaintiffs verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. The preference is for reversal and remand.” Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 818 (Mo. banc 2003) (internal citations omitted); McClain v. Kelley, 247 S.W.3d 19, 22 (Mo.App.2008). A failure to comply with the statutory mandates of chapter 211 or chapter 453 may require a reversal of the termination of parental rights, but it does not require an outright reversal unless the evidence is insufficient to support the judgment. In re C.W., 211 S.W.3d at 98 (reversing and remanding); In re C.A.L., 228 S.W.3d 77 (Mo.App.2007) (reversing after finding there was insufficient evidence to support the trial court’s conclusions that a father neglected his child and failed to rectify the conditions that brought the child under the court’s authority); In re R.M., 234 S.W.3d 619, 625 (Mo.App.2007) (reversing termination of parental rights and dismissing adoption petition because of insufficient evidence to establish neglect). When an appellate court remands a case for a new trial, all issues are open to consideration, and pleadings may be amended and new evidence may be produced. Butcher v. Main, 426 S.W.2d 356, 357 (Mo.1968).
In this case, the complete failure to comply with the mandatory provisions of sections 453.070 and 453.077 requires that the judgment be reversed. Whether the cause is remanded depends on whether Adoptive Parents presented sufficient evidence to make a submissible case on their claims that Mother abandoned Child.
V. Sufficient Evidence of Abandonment Under Section 211.447
Mother argues that the evidence adduced at trial was insufficient to prove [814]*814by clear, cogent, and convincing evidence that she willfully abandoned Child and, therefore, the trial court erred in terminating her parental rights. She contends that if the Adoptive Parents failed to present sufficient evidence to prove by clear, cogent, and convincing evidence that she abandoned Child, the judgment must be reversed outright and custody must be returned to her.
Mother has filed with this Court what she characterizes as an offer of proof, which is evidence outside the record because it was not evidence at trial, to show that she did not abandon Child and that her counsel was ineffective. She asks this Court to review this evidence when considering the sufficiency of Adoptive Parents’ evidence. In her argument in support of her claim that the evidence is insufficient, Mother relies on this evidence outside the record to show that there is not clear, cogent, and convincing evidence of abandonment. These materials were not offered at trial, where the issue of abandonment was adjudicated. Therefore, no evidentiary foundation was provided for the proffer, the trial court did not determine the materials’ admissibility, the materials were not subject to cross-examination, and the trial court did not determine their credibility or weight. Moreover, none of the materials was made a part of the record on appeal by stipulation of the parties.15 “Appellate courts are merely courts of review for trial errors, and there can be no review of a matter which has not been presented to or expressly decided by the trial court.” Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo.1959) (internal citations omitted). See also section 512.160(1); State v. Tokar, 918 S.W.2d 753, 762 (Mo. banc 1996) (denying motion to supplement record on appeal because the information in the supplement was not before the trial court and the opposing party did not have an opportunity to respond to the information). Mother’s request is contrary to law, and this Court should not look beyond the record in examining sufficiency of evidence at trial.16 See State v. Strong, 142 S.W.3d [815]*815702, 729 (Mo. banc 2004); State v. Sumowski 794 S.W.2d 643, 646 (Mo. banc 1990).
Mother’s claim regarding the admission of hearsay evidence must be addressed before her claims of insufficient evidence are reviewed. She contends that the trial court relied substantially on Ms. Davenport’s testimony to support its finding that she abandoned Child. She asserts that Ms. Davenport’s testimony is largely inadmissible hearsay that should be stricken from the record. Mother concedes that she did not object to the testimony and requests plain error review. Hearsay admitted without objection may be considered as evidence by the trier of fact. State v. Crawford, 68 S.W.8d 406, 408 (Mo. banc 2002); State v. Goodwin, 43 S.W.3d 805, 818 (Mo. banc 2001); State v. Thomas, 440 S.W.2d 467, 470 (Mo.1969). As Mother did not object to Ms. Davenport’s testimony, the trial court did not err in considering Ms. Davenport’s hearsay testimony. This Court will review this evidence with all other evidence in the record on appeal when considering Mother’s sufficiency of evidence claims.
In terminating parental rights, “the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exist under subsections 2, 3, or 4 of section 211.447, and 2) the trial court must find that termination is in the best interests of the [child].” In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). “The clear, cogent, and convincing standard of proof is met when evidence ‘instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.’ ” In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984).
This Court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In re P.L.O., 131 S.W.3d at 788-789. Therefore, the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. The judgment will be reversed “only if we are left with a firm belief that the order is wrong.” In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005).
Conflicting evidence will be reviewed in the light most favorable to the trial court’s judgment. Id. at 362. Appellate courts will defer to the trial court’s credibility assessments. In re Adoption of W.B.L., 681 S.W.2d at 455. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court’s assessment of the evidence. Washington v. Barnes Hasp., 897 S.W.2d 611, 615 (Mo. banc 1995). “Greater deference is granted to a trial court’s determinations in custody and adoption proceedings than in other cases.” In re S.L.N., 167 S.W.3d at 741.
After this Court determines that one or more statutory ground has been proven by clear, convincing, and co-[816]*816gent evidence,17 this Court must ask whether termination of parental rights was in the best interest of the child. In re P.L.O., 131 S.W.3d at 789. At the trial level, the standard of proof for this best-interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion. Id.
In this case, the trial court terminated Mother’s parental rights on the ground of abandonment pursuant to section 211.447.2(2)(b). Section 211.447.2(2)(b) states:
(2) A court of competent jurisdiction has determined the child to be an abandoned infant. For purposes of this subdivision, an “infant” means any child one year of age or under at the time of filing of the petition. The court may find that an infant has been abandoned if:
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(b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so;
(Emphasis in original). Section 211.447.2(2)(b) specifies no particular period that the court must examine to make a finding of abandonment of an infant. Cfi Section 211.447.5(1) (the court must find abandonment for a period of six months or longer if the child is over one year of age at the time of filing the TRP petition).
Abandonment is defined as “a willful delivery of the child with intention that the severance be permanent [or] a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of parent or perform the duties of a parent.” In re Adoption of H.M.C., 11 S.W.3d 81, 87 (Mo.App.2000). “Abandonment can be proven by showing that, without just cause or excuse, a parent has intentionally withheld his presence, care, love, protection, maintenance and the opportunity for display of filial affection from the child.” In re E.F.B.D., 245 S.W.3d 316, 327 (Mo.App.2008). Abandonment is largely a matter of intent. In re Adoption of W.B.L., 681 S.W.2d at 455.
In this case, Mother was incarcerated. Incarceration alone does not constitute abandonment. In re D.S.G., 947 S.W.2d 516, 519 (Mo.App.1997). While the trial court may consider incarceration, there must be additional evidence that the parent intentionally withheld his or her presence, care, love, protection, maintenance and the opportunity for display of filial affection from the child. For example, if the incarcerated parent fails to maintain a continuing relationship with the child, abandonment can be found. Id. Normally, “a finding of abandonment is not compatible with a finding that custody has ended involuntarily.” In re N.R.W., 112 S.W.3d 465, 469 (Mo.App.2003). However, the court may still find abandonment when “a parent’s lack of involvement goes beyond what is attributable to the estrangement and discouragement caused by the enforced separation.” Id. at 469-70. If a temporary placement of the child is made, the parent must continue to show “parental interest and concern” for the child. In re C.M.D., 18 S.W.3d 556, 562 (Mo.App.2000).
Mother’s arrest caused an involuntary end to her custody of Child. After her arrest and incarceration, the evidence at trial showed no involvement by Mother in [817]*817Child’s life. Ms. Davenport testified that Mother’s sister cared for Child without assistance for only a short period. Mother’s sister sought Ms. Davenport’s help to resolve her inability to care for Child when Child was younger than 9 months old. Because of that need, Ms. Davenport and then the Velascos were involved in Child’s life. Mother’s sister asked the Velascos to care for Child because she and her husband were not able to do so. When Child went to live with Adoptive Parents, they told the Velascos to give their name and address to anyone who asked questions about Child or “came looking” for him. The Adoptive Parents did not “hide” Child. From October 3, 2007, when they took custody to the date of trial, the Adoptive Parents have provided all care for Child. No one, including Mother or her family, has contacted them to inquire about Child or offered assistance with Child, even though Mother had their name and address from the time she was served with the petition on October 16, 2007. M.M. speaks and reads Spanish, and there were no letters that the Adoptive Parents received in Spanish about Child. There were no inquires by Mother about Child’s welfare, no expressions of interest in Child, or any effort to have any involvement in Child’s life. Adoptive Parents’ attorney sent two letters to Mother when she was incarcerated in the St. Clair County jail. One letter was returned because delivery was refused.
The evidence before the trial court was that, although Mother’s custody of Child ended involuntarily, thereafter she took no action to show parental interest and concern until after the petition was served. On October 28, 2007, she wrote a letter to Mr. Hensley, Adoptive Parents’ attorney, in English and Spanish requesting that her Child not be adopted, that her Child be placed in foster care, and that she receive visitation with the Child while she was incarcerated. A request for visitation while incarcerated can show an intent to maintain contact with a child. In re M.L.K., 804 S.W.2d 398, 402 (Mo.App.1991). However, one post-petition gesture does not outweigh the substantial evidence of abandonment on the record. See In re J.B.D., 151 S.W.3d 885, 889 (Mo.App.2004) (finding abandonment even though the incarcerated father sent letters, cards, and tapes of himself reading books to his children only after the termination petition had been filed). Her lack of action to maintain contact with the persons she thought were caregivers of Child to assure that he was in a safe environment and receiving adequate care and her failure to take action to maintain a relationship with him shows a lack of maternal affection for and involvement with her Child. While Mother was incarcerated and does not speak English, she told Ms. Davenport that there was someone who could read English in her cell or area. She also could have taken action to make contact with Child, her sister, or her brother in Spanish. Her expression of surprise about her child’s whereabouts on September 9, 2007, shows that she had not been in contact with her brother or sister about Child.18
The evidence also showed that Mother did not seek Ms. Davenport’s assistance, who is fluent in Spanish, to deliver a note or any type of communication to her sister, brother, or Child. The record further shows her ability to communicate by letter, in that she communicated with Mr. Hens[818]*818ley.19 In that communication and in her conversation with Ms. Davenport, she stated that she did not want Child adopted. These two expressions of desire that Child not be adopted are not sufficient to show maternal concern or an effort to care for Child and could be construed by the trial court as token gestures. Section 211.447.8; In re C.M.D., 18 S.W.3d at 562.
There is a reasonable inference from the evidence at trial that Mother did not place Child with her brother at the time she was arrested and, instead, Child was at his home when she was arrested only because that is where he lived with Mother. This Court recognizes that when difficulties arise within the nuclear family, children often are raised with assistance from other family members. In re A.S.W., 137 S.W.3d 448, 453 (Mo. banc 2004). The record at trial supports a finding that Mother’s difficulties and reliance on her family to aid in Child’s care did not excuse Mother from not trying to contact him in any manner and maintain some type of relationship with him. As such, the record contains clear, cogent, and convincing evidence of abandonment under section 211.447.
VI. Adoption without Consent Pursuant to Section 453.040(7)
Mother also challenges the trial court’s finding that her consent was not necessary to proceed with the adoption of Child under section 453.040(7). Section 453.040 states:
The consent to the adoption of a child is not required of:
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(7) A parent who has for a period of at least six months, for a child one year of age or older, or at least sixty days, for a child under one year of age, immediately prior to the filing of the petition for adoption, willfully abandoned the child or, for a period of at least six months immediately prior to the filing of the petition for adoption, willfully, substantially and continuously neglected to provide him with necessary care and protection[.]
In the Adoptive Parents’ petition, they alleged that Mother’s consent was not necessary because she abandoned and neglected Child. The petition alleged that “[pjursuant to § 453.040(7) RSMo [2000], the consent of the biological parents is not necessary because the biological mother and father of the child have for a period of at least sixty days immediately prior to the filing of the Petition for Adoption, willfully abandoned child and have willfully, substantially and continuously neglected to provide the child with necessary care and protection.” The trial court expressly found that “[p]ursuant to § 453.040(7) R.S.M.o., the consent of the biological parents is not necessary because the biological mother ... [has] for a period of at least sixty days immediately prior to the filing of the Petition for Adoption, willfully abandoned the child and have willfully, substantially and continuously neglected to provide the child with necessary care and protection.”20 Accordingly, the trial [819]*819court’s judgment contains express and consistent findings of abandonment.
Consent of the natural parents or involuntary termination of parental rights is a prerequisite to adoption under chapter 453. In re J.F.K., 853 S.W.2d at 934. The clear, cogent, and convincing standard of proof applies in chapter 453 termination cases and adoptions. In re Adoption of W.B.L., 681 S.W.2d at 454. Also, under chapter 453 adoptions, “the court may hear and determine the issues raised in a petition for adoption containing a prayer for termination of parental rights filed with the same effect as a petition permitted pursuant to subsection 2, 4, or 5 of [section 211.447].” Section 211.447.9.
The adoption petition was filed October 5, 2007.21 As such, the relevant 60-day period began August 5, 2007. To determine abandonment, a court examines a parent’s intent by considering all the evidence of the parent’s conduct “including that before and after the statutory period.” In re Adoption of W.B.L., 681 S.W.2d at 455. “The greatest weight is given to conduct within the statutory period, and the least weight is given to conduct after the petition for adoption is filed.” In re I.D., 12 S.W.3d 375, 377 (Mo.App.2000).
As stated above, the record shows that after Mother’s arrest, she made no effort to make accommodations for Child’s care and custody. Although immediately following Mother’s arrest it may have been difficult for her to contact her brother or sister for updates about the Child’s well-being, the evidence at trial, as discussed above, shows that Mother made no effort from August 5, 2007, to October 5, 2007, to contact her family or friends. The record contains clear, cogent, and convincing evidence that Mother abandoned Child. Because the petition contains this claim and there is sufficient evidence to support the claim, a remand is the required remedy. The issue of abandonment may be adjudicated on remand.
Because the judgment is reversed for failure to comply with statutes mandating investigation and reporting, the entire judgment is reversed as to all findings pertaining to Mother, which includes the trial court’s finding of abandonment under section 453.040(7). Butcher, 426 S.W.2d at 357. The cause is ordered remanded for a new trial on all issues pertaining to Mother contained within the petition. On remand, the investigations and reports required pursuant to sections 453.070 and 453.077 must be made prior to such trial.
VII. Ineffective Assistance of Counsel Claim
Mother also alleges her due process rights were violated because the attorneys [820]*820appointed to represent her were ineffective. In support of her claim, she asserts that the record shows that her first appointed attorney, Mr. Calton, did nothing on her behalf during the six months he represented her. She also claims that her second attorney, Mr. Dominguez, did not make contact with her for six weeks after he was appointed, did not move to continue the trial setting or otherwise attempt to secure additional time to prepare adequately, did not serve any discovery or depose anyone, and did not make arrangements for her to participate at the trial or present her testimony in another form. She has proffered in this Court evidence that she asserts her attorneys should have discovered through investigation or communication with her.22 She further asserts that she was prejudiced by her counsel’s failure to present this evidence at the trial on the petition. She also claims that Mr. Dominguez had a conflict of interest because he was hired and was to be paid by the Adoptive Parents.
Because the Court is reversing and remanding for a new trial on all issues within the adoption petition, this claim of error, as well as her other due process claims, are moot. Mother will be represented in the trial court by the attorneys that she has obtained, who have represented her competently in this Court. During the proceedings in the circuit court after remand, she will have the opportunity to present the evidence she believes is relevant to her defense, which may include the information in her appendix, if admissible. The Adoptive Parents will have the opportunity to again present the evidence they adduced at the first trial, as well as any additional evidence they believe is relevant to the issues contained within the adoption petition.
VIII. Issues that May Arise on Remand
A. GAL’s and Juvenile Officer’s Failure to Investigate and Discharge Duties
Mother also claims she was denied due process by the GAL’s and the juvenile [821]*821officer’s failure to investigate her and to act independently of the Adoptive Parents. Like her claim of ineffective assistance of counsel, this claim is mooted by the reversal of the judgment against her on other grounds. Because the GAL and juvenile officer will be required to participate in the proceedings on remand, their roles merit discussion.
Section 211.462.3 states that a “guardian ad litem shall, during all stages of the proceedings: (1) Be the legal representative of the child ... (2) Be an advocate for the child ... (3) Protect the rights of a minor or incompetent parent.” Because Mother is not a minor nor was she adjudicated as incompetent, she did not require the appointment of GAL under section 211.462.2. Mr. Garrity was appointed to represent Child. A GAL is not appointed to advocate for the natural parent; therefore, Mother cannot be denied due process on the ground that her Child’s attorney failed to represent her interests. Nevertheless, it is in the best interests of the child for a GAL to discharge his or her duties diligently and to be an advocate during the TPR and adoption proceedings. In re 647 S.W.2d 852, 861 (Mo.App.1983) (“The role of guardian ad litem involves more than perfunctory and shadowy duties.... The guardian ad litem is supposed to collect testimony, summon witnesses and jealously guard the rights of infants, which is the standard duty in this state.”)
In addition, if Adoptive Parents continue to rely on chapter 211 as is pleaded in their petition, section 211.447.2(2)(b) requires the juvenile officer to be joined as a party to any proceeding when the petition to terminate parental rights is filed by someone other than the juvenile officer.23 The juvenile officer was represented by Ms. Elliston, who was present at the trial. Although present, Ms. Elliston did not actively participate in the proceedings. On remand, the juvenile officer is required by section 211.447.2(2)(b) to seek joinder as a party so long as chapter 211 is pleaded in the petition. Just as it is in the child’s best interest for the GAL to discharge his or her duties diligently, it also is in the child’s best interest for the juvenile officer to participate actively in chapter 211 proceedings.
B. Propriety of Combining Termination Proceeding and Adoption Proceedings
Mother asserts that combining the TPR hearing and the adoption hearing into the same proceeding improperly injected evidence relevant to the adoption into the TPR hearing. TPR hearings under chapter 211 and adoption hearings under chapter 453 can proceed simultaneously before the same judge. See State ex rel. Womack v. Rolf, 173 S.W.3d 634, 639 (Mo. banc 2005); see also Blackburn v. Mackey, [822]*822131 S.W.Bd 392, 396-98 (Mo.App.2004). The quality of the adoptive home is not a part of the termination inquiry; rather, the focus is on the natural parent’s interactions and relationship with the child. See section 211.447; section 453.040(7). The issue of termination must be considered first in contested chapter 453 adoptions to avoid confusing the quality of the adoptive home with the grounds for terminating parental rights. In re M.O., 70 S.W.3d 579, 588 (Mo.App.2002).
The trial court is presumed to know the law. Lane v. Lensmeyer, 158 S.W.3d 218, 224 (Mo. banc 2005). Moreover, “[t]he presumption is that the court, in weighing the evidence, was governed by correct rules of law.” Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 234 (1947); see also Hodel v. Dir. of Revenue, 61 S.W.3d 274, 280 (Mo.App.2001) (stating that appellate courts “presume the trial court will sort out the incompetent and irrelevant and base its decision upon the competent and relevant evidence.”). In this case, this Court presumes that the trial court considered and applied the evidence appropriately in first adjudicating termination of parental rights and then the adoption and will do so again on remand.
IX. Adoptive Parents’ Motions
A. Motion to Strike Mother’s Statement of Pacts
The ■ Adoptive Parents move to strike Mother’s statement of facts in her appellant brief. They allege that the statement of facts is argumentative and casts the evidence in the light most favorable to appeal as opposed to the judgment. They also assert that the statement references evidence outside the record on appeal. They request that this Court strike the brief in its entirety and dismiss the appeal or, in the alternative, strike the statement of facts and require that Mother to resubmit her brief so that it comports with Rule 84.04(c).
Rule 84.04(c) requires that the statement of facts be fair and concise, relevant to the questions presented, and without argument. Mother’s appellate brief does not comply with Rule 84.04(c). Her statement of facts is long and argumentative. Nevertheless, her brief is not so deficient to require this Court to become an advocate for Mother, which is generally the basis for an appellate court’s dismissal of an appeal. Brown v. Hamid, 856 S.W.2d 51, 53 (Mo. banc 1993). “Cases should be heard on the merits if possible, construing the court rules liberally to allow an appeal to proceed.... While not condoning noncompliance with the rules, a court will generally, as a matter of discretion, review on the merits where disposition is not hampered by the rule violations.” Id. The motion to strike Mother’s brief or, in the alternative, her statement of facts, is overruled.
B. Motion to Strike Mother’s Appendix
The Adoptive Parents move to strike Mother’s appendix because it does not comport with Rule 84.04(h) in that it contains evidence outside the record on appeal. The relevant portions of Rule 84.04(h) state:
A party’s brief shall contain or be accompanied by an appendix containing the following materials, unless the material has been included in a previously filed appendix:
(1) The judgment, order, or decision in question, including the relevant findings of fact and conclusions of law filed in a judge-tried case or by an administrative agency;
(2) The complete text of all statutes, ordinances, rules of court, or agency [823]*823rules claimed to be controlling as to a point on appeal; and (B) The complete text of any instruction to which a point relied on relates.
An appendix also may set forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new cases or other pertinent authorities.
Rule 84.04(h) does not authorize inclusion of evidence outside the record on appeal. “The mere inclusion of documents in an appendix to a brief does not make them part of the record on appeal.” Washington v. Zinn, 286 S.W.3d 828, 831 (Mo.App.2009). As discussed above, this Court will not consider documents and testimony outside the record on appeal.24 Strong, 142 S.W.3d at 728-29; see also Sumowski, 794 S.W.2d at 646; see also Washington, 286 S.W.3d at 831.
Mother’s appendix contains approximately 100 pages of statutes, regulations, and the judgment that all may be included under Rule 84.04(h). She added an additional 200 pages of evidence not contained in the record on appeal, largely to support her claim of ineffective assistance of counsel. She asserts that she should be able to raise her claim of ineffectiveness of counsel in the termination of parental rights on appeal and that it is essential that she be able to file evidence to support such a claim. The reversal of the judgment against Mother on grounds rendering her claim of ineffective assistance of counsel moot makes it unnecessary to establish a mechanism for hearing evidence regarding her ineffective assistance of counsel claim. Because the proffered evidence is outside the record and may not be considered properly on the other issues she raises on appeal, the evidence will not be considered.
C. Motion to Dismiss Appeal for Failure to Timely File Notice of Appeal
The Adoptive Parents move to dismiss Mother’s appeal for failure to file a timely notice of appeal. This Court, in its discretion, rendered a decision on the merits of this issue in State ex rel E.M.B.R v. Missouri Court of Appeals, Southern District, SC90226, (Order issued July 23, 2009) and allowed Mother to file her appeal out of time. This Court’s ruling on this issue is the law of the case. The law of the case doctrine states that a previous holding in a case is “the law of the case” and bars relitigation of issues “not only expressly raised and decided on appeal, but also those that could have been raised but were not.” Walton v. City of Berkeley, 223 S.W.3d 126, 129 (Mo. banc 2007). The doctrine governs successive adjudications involving the same issues and facts. Shahan v. Shahan, 988 S.W.2d 529, 533 (Mo. banc 1999). The motion to dismiss the appeal is overruled.
X. Conclusion
The trial court plainly erred by entering judgment on the adoption petition and terminating Mother’s parental rights without complying with the investigation and reporting requirements of sections 211.455, 453.070, and 453.077. The trial court’s judgment terminating Mother’s parental rights, allowing the adoption to proceed without Mother’s consent to the adoption, and granting of the adoption, although supported by clear, cogent, and convincing evidence on the record, is reversed. The cause is remanded for a new trial in which Adoptive Parents and Mother will have the opportunity to present evidence on all claims in all counts of the petition that [824]*824pertain to Mother. On remand, the trial court shall compel expeditious compliance with the investigation and reporting requirements of sections 211.455, 453.070, and 453.077. The trial court further is ordered to set the trial date no more than 90 days after the reports have been received.
In respect to the termination of putative father’s parental rights, the judgment is affirmed.25
WOLFF, J., concurs in part and dissents in part in separate opinion filed.
TEITELMAN and STITH, JJ., concur in opinion of WOLFF, J.
Related
Cite This Page — Counsel Stack
332 S.W.3d 793, 2011 Mo. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sm-v-embr-mo-2011.