dissenting.
I dissent. I would reach the same result the Court of Appeals did, leaving the child in the custody of the Division of Family Services, but not finally terminating the mother’s parental rights. I make use of some portions of the opinion of Judge Shangler in expressing my views.
Under the result reached by the principal opinion an adjudication of abuse or neglect to any sibling serves per se to terminate the rights of the natural parent to a child born subsequent to that adjudication. I do not believe that the legislature intended an automatic severance of the rights of the parent to a child not in being at the time of the prior sibling abuse, without regard to the parent’s home environment at the time of attempted severance.
The ruling as it stands today has the effect of forever barring a parent convicted under § 211.447.2(2)(e), of retaining custody of a child born after the abuse of a sibling, without regard to subsequent rehabilitation. Such a result, as decisional authority suggests, only makes sense when the child is either in the same home environment at the time of the sibling abuse or when the same circumstances of abuse exist at the time of the termination hearing. See In Interest of A.K.S., 602 S.W.2d 848, 851 (Mo.App.1980); In re A.A., 533 S.W.2d 681, 684 (Mo.App.1976); In Interest of J.A.J., 652 S.W.2d 745, 749 (Mo.App.1983). These two situations should be the only ones which establish presumptive proof of imminent danger to a sibling in order to justify termination of parental rights under *915the above statute. It is illogical, however, to apply this presumption in a situation in which the child is not yet born at the time of the incidents of abuse.
In a proceeding seeking to terminate parental rights the state bears the full burden of proof on every element. In the Interest of A.R.S., 609 S.W.2d 490, 491 (Mo.App.1980); In Interest of W.F.J. and H.M.S., 648 S.W.2d 210, 214 (Mo.App.1983). Those elements should not merely relate to past conduct but should also relate to present conditions evincing a home environment which is in the child’s best interests. As expressed in an early neglect proceeding, “[although evidence as to past conduct is material insofar as it may clarify and cast light on the present state of affairs, the right of parents to custody of their children must be determined with respect to existing conditions.” State v. Pogue, 282 S.W.2d 582, 588 (Mo.App.1955).
Here, although the natural mother’s past misconduct is material, it should not be dispositive of the ultimate custody determination. The state, rather, should have been required to adduce evidence of the home environment as it existed at the time of the hearing. Such evidence was notably absent. All questioning at the hearing concerned the neglect of the other children— neglect which transpired almost two years prior to the hearing and for which the mother had served a penitentiary sentence. The mother, as the principal opinion acknowledges, offered strong evidence of changed circumstances rebutting the potential danger to the child. The breach with her former husband, also convicted of abuse, is total, and he claims no parental rights. The state, however, never established that the present home environment was unsuitable or posed imminent danger to D.G.N., Jr. Absent such clear and convincing proof, I would reverse the judgment of the trial court terminating parental rights with custody remaining in the Division of Family Services, until the state meets its burden of proof under the statute.
Quite aside from the situation which existed at the time of the hearing, we must take note of realities. The case has now been in the judicial process for over three years. It is represented to us that the mother is in regular contact with the child. We should not curtly dismiss these representations with the observation that they are outside the record. Problems of child custody are never static. The principal opinion argues that the issue of custody should not be left in limbo. I agree, but I would not disqualify the mother as future custodian. In cases of this kind we should guarantee the child the best contemporaneous judgment as to custody. See In Re Jeremy David Cook—Cook v. Cook, 691 S.W.2d 243 (Mo. banc 1985), Blackmar, J., dissenting.
Inasmuch as no final order of custody has been made, it should be open to the juvenile authorities, even under the principal opinion, to receive an application for restoration of custody by the mother. I would not encumber the procedures with an affirmance of the judgment of the trial court.