In the Interest of P.A.W. v. A.M.W.

GARY M. GAERTNER, Judge.

The mother, A.M.W., appeals from the juvenile court’s order terminating her parental rights to P.A.W., her four-year old son.1 The juvenile court assumed jurisdiction under section 211.031 RSMo 1978, and entered the termination order pursuant to section 211.447.2(2)(e) RSMo 1978.

On appeal, the mother argues that the juvenile court erred in: (1) basing its decision to terminate her parental rights on a statutory provision that was not in effect when the termination petition was filed; (2) overruling the mother’s motion to dismiss the termination petition for failure to state a claim upon which relief could be granted; (3) overruling the mother’s motion to dis*286miss for failure to conduct an investigation and submit a social study prior to termination; and (4) finding against the weight of the evidence that the child’s best interest and welfare required termination of the mother’s parental rights. We affirm.

None of the parties disputes the tragic facts giving rise to this action. P.A.W. was born on March 15, 1982. Immediately prior to the child’s birth, the mother made several bizarre statements to hospital nurses. She denied the pregnancy, claimed that the child was fathered by the devil, and threatened to cut the child up and feed it to the dogs.

On March 18, 1982, proceedings were initiated in the juvenile court for temporary detention of the child due to the mother’s psychiatric illness and erratic behavior. On March 19, 1982, the juvenile court entered a temporary detention order placing the child with the Missouri Division of Family Services (DFS). On March 22, 1982, the juvenile officer filed a neglect petition alleging that the mother had failed to provide the care necessary to the child’s well-being. On May 10, 1982, after a hearing, the juvenile court entered an order granting the mother legal and physical custody of the child under the supervision of DFS. The mother resided with her parents at that time.

On May 31, 1982, the mother stabbed the child in the chest with a butcher knife having an eight-inch blade. The child, then three months of age, survived the assault and was thereafter placed in a foster home, where he has remained for the past four years. His foster parents desire to adopt him.

On April 13, 1983, the mother pled guilty to second degree assault and was sentenced to five years imprisonment. On July 6, 1984, the juvenile officer filed a petition to terminate the mother’s parental rights. The petition alleged that the stabbing incident warranted termination under section 211.447.2(2)(e) RSMo 1978. That provision authorizes termination if “[t]he parent has committed ... a single incident of life threatening or gravely disabling injury or disfigurement of the child ....”

On January 25, 1985, the mother filed a motion to dismiss the petition because it failed to state a claim upon which relief could be granted. In her motion, the mother contended that the petition was fatally defective because the only provision under which termination was sought, section 211.-447.2(2)(e) RSMo 1978, was not in effect when the petition was filed on July 6, 1984. That provision had been amended on August 13, 1982, subsequent to the stabbing incident but prior to the filing of the termination petition.

On February 5, 1985, the juvenile court denied the mother’s motion to dismiss but ordered the juvenile officer to amend his petition to conform to the amended statute, section 211.447.2(2)(e) RSMo Supp.1982. That provision authorizes termination if “[t]he parent has knowingly committed ... a single incident of life threatening or gravely disabling injury or disfigurement of the child_” (Emphasis added.). The juvenile officer subsequently amended his petition to include an allegation that the mother had knowingly stabbed the child within the meaning of the 1982 statute. The allegations under the 1978 statute also remained in the petition.

On March 29, 1985, the juvenile court held an evidentiary hearing on the termination petition. At that hearing, four psychiatrists testified that the mother is afflicted with paranoid schizophrenia. The psychiatrists all agreed that this condition is chronic and will persist for the remainder of the mother’s life. Given this diagnosis, each of the four psychiatrists opined that the mother did not “knowingly” stab her child on May 31,1982. They explained that the mother’s mental disease had prevented her from forming the intention necessary to act knowingly.

On April 2, 1985, the juvenile court issued an order terminating the mother’s parental rights. The court based its decision to terminate exclusively upon the 1978 version of section 211.447.2(2)(e). The court specifically found that the juvenile officer’s *287allegations with respect to the 1982 statute had not been proven by clear, cogent and convincing evidence. The mother appeals from the juvenile court's order.

In her first point on appeal, the mother argues that the trial court erred in terminating her parental rights under the 1978 version of section 211.447.2(2)(e), because that provision was not in effect when the juvenile officer filed the termination petition on July 6, 1984. The mother contends that although the 1978 statute was in effect when the mother stabbed the child, the 1982 statute is nevertheless controlling because it was in effect when the termination petition was filed.

Section 211.487 RSMo 1978 provides as follows:

1. Sections 211.442 to 211.492 apply to all proceedings commenced on or after August 13, 1978.
2. In any action to terminate parental rights pending prior to August 13, 1978, the law in effect at the time of the filing of the petition for termination of parental rights shall govern the hearing on such petition and any appeal therefrom.

When the legislature amended the Juvenile Code in 1985, it enacted a similar “savings” clause protecting all actions commenced on or before September 28, 1985, and again applying the law in effect at the time of the filing of the petition. See section 211.487 RSMo Supp.1985. No such provision was made, however, when the Code was amended in 1982. It is nevertheless apparent that the legislature intended the law in effect at the time of the filing of the petition to control the termination proceeding. In the instant case, it is undisputed that the 1982 version of section 211.447.2(2)(e) was in effect when the juvenile officer filed his petition. We thus hold that the juvenile court erred in terminating the mother’s parental rights under the 1978 statute.

The only other provision under which the juvenile officer’s petition sought termination of the mother’s parental rights was the 1982 version of section 211.447.2(2)(e). That provision differs from the 1978 statute only in that it requires the parent’s life threatening act have been done “knowingly.” In the instant case, the juvenile court specifically found that the juvenile officer’s allegations under that provision had not been proven by clear, cogent and convincing evidence. This finding was based upon the testimony of four psychiatrists, each of whom opined that the mother did not act knowingly when she stabbed her child. The absence of proof on this element of the 1982 statute thus precluded termination under that provision.

We have thus determined that the juvenile court could not properly terminate the mother’s parental rights under either of the statutory provisions set forth in the juvenile officer’s petition. This determination, however, does not necessarily require that we reverse the juvenile court’s decision. It is a well established rule that in reviewing the decision in a bench-tried case the primary concern of this court is the correctness of the result and not the route by which it is reached. Walker v. Walker, 631 S.W.2d 68, 71 (Mo.App.1982). The lower court’s judgment, therefore, is to be affirmed if it is correct under any reasonable theory supported by the evidence. St. Louis County, Mo. v. Oakville Development Co., Inc., 676 S.W.2d 919, 921 (Mo. App.1984). In the instant case, as explained below, we find that the trial court could properly have terminated the mother’s parental rights under section 211.447.-2(2)(g) RSMo Supp.1982.2

*288We are not unmindful of the rule that termination of parental rights requires strict and literal compliance with the applicable statutes. In re W.F.J., 648 S.W.2d 210, 214 (Mo.App.1983). Section 211.452(4) RSMo 1978 provides that a petition to terminate parental rights must include “[t]he reason or reasons why termination of the parental rights is sought.” Due process demands that the petition contain allegations sufficient to inform interested parties of the charges so that they may have an opportunity to present objections. In re D.M.J., 683 S.W.2d 313, 314 (Mo.App.1984); In re W.F.J., 648 S.W.2d at 214. Rule 55.33(b) provides, however, that if issues not raised by the pleadings are tried by the express or implied consent of the parties, those issues shall be treated in all respects as if they had been raised in the pleadings, and the pleadings shall be deemed automatically amended to conform to the evidence. Pike v. Pike, 609 S.W.2d 397, 400 (Mo. banc 1980).3

In In re Dunn, 620 S.W.2d 46 (Mo.App. 1981), the juvenile officer filed a petition to terminate the father’s parental rights exclusively under subsection (b) of section 211.447.2(2) RSMo 1978, which authorizes termination if the parent neglects the child. After a hearing, however, the trial court terminated the father’s parental rights under subsection (f) of section 211.447.2(2) RSMo 1978, which authorizes termination if the parent fails to support the child. On appeal, the father challenged the trial court’s authority to terminate his parental rights under a statutory provision not mentioned in the pleadings. The appellate court found no error on this point. The court noted that evidence regarding the father’s failure to support the child had been received without objection, and the issue was fully tried. The court thus concluded, applying Rule 55.33(b), that the pleadings would be considered amended to conform to the proof. 620 S.W.2d at 48.

In the instant case, the petition filed by the juvenile officer relied exclusively upon subsection (e) of section 211.447.2(2). The petition made no mention of subsection (g), nor did it contain any allegations regarding the mother’s mental condition. At trial, however, extensive expert medical evidence was received regarding the mother’s mental condition, and the juvenile court made specific findings on this issue.4 We thus find that the issue of whether the mother’s parental rights could be terminated under subsection (g) was tried by the implied consent of the parties, and may be considered on this appeal. It remains for us to determine whether the evidence was sufficient to support termination under that subsection.

In reviewing the juvenile court’s findings and decision in a termination proceeding, we must sustain the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. D.G.N. v. S.M., 691 S.W.2d 909, 912 (Mo. banc 1985). In any proceeding to terminate parental rights, however, our primary concern must be the best interest of the child. Juvenile Office of Cape Girardeau County v. M.E.J., 666 S.W.2d 957, 960 (Mo.App.1984). We must liberally construe the provisions of the Juvenile Code in order to achieve its overall purpose, which is to promote the best interest and welfare of the child. See sections 211.011, 211.492 RSMo 1978; Smith v. Harold’s Supermarket, Inc., 685 S.W.2d 859, 863 (Mo.App.1984).

Section 211.447.2(2)(g) RSMo Supp. 1982, as set forth in the margin, provides that the juvenile court in a termination *289proceeding must first find whether termination is in the best interest of the child. In the instant case, the juvenile court specifically found that termination of the mother’s parental rights was in the child’s best interest. The overwhelming weight of the evidence supports this finding. The child has not seen his mother since she stabbed the child at three months of age. The child has resided in the same foster home for the past four years, and has developed close psychological ties to his foster parents and their other children. The juvenile court’s finding that the child’s best interest requires termination of the mother’s parental rights is thus supported by substantial evidence.

After determining that termination is in the child’s best interest, the juvenile court must next find that the parent has a mental condition which meets two requirements. The first requirement is that the parent’s mental condition “[rjenders him unable to form an intent or act knowingly.” Section 211.447.2(2)(g)(a) RSMo Supp.1982. In the instant case, the juvenile court specifically found that the mother could not have acted knowingly when she stabbed the child. This finding was based upon the testimony of four psychiatrists, each of whom testified that the mother suffers from chronic paranoid schizophrenia. We find that this evidence adequately supports the juvenile court’s finding.

The juvenile court must next find that the parent’s mental condition is “permanent or that there is no reasonable likelihood that the condition is reversible, and such parent has substantially and repeatedly neglected the child or failed to give the child necessary care and protection.” Section 211.447.2(2)(g)(b) RSMo Supp.1982. This requirement has two conjunctive components. As to the first component — permanency or irreversibility — the juvenile court specifically found that the mother’s condition will persist for the remainder of her life. This finding was based upon the uncontroverted psychiatric testimony indicating that the mother’s schizophrenia is chronic. This finding was thus supported by substantial evidence.

The second component contains two disjunctive requirements. The second of these requirements — that the parent has “failed to give the child necessary care and protection” — is satisfied in this case. The evidence indicates that immediately prior to the child’s birth the mother not only told hospital nurses that the child was fathered by the devil, but threatened to cut the child up and feed it to the dogs. Three months later, she plunged an eight-inch butcher knife into the child’s chest. We find that these actions constitute a failure to provide necessary care and protection. This provision does not require repeated or continuous acts of neglect. In re Baby Girl D., 651 S.W.2d 195, 198 (Mo.App.1983). Even a single attempt to inflict a mortal wound upon the child undoubtedly proves a failure to give necessary care and protection. This final requirement under subsection (g) is thus supported by substantial evidence in the record.

Given that each of the requirements under section 211.447.2(2)(g) is supported by substantial evidence in the record, we hold that the juvenile court properly terminated the mother’s parental rights. We now consider the mother’s remaining points on appeal.

In her second point on appeal, the mother argues that the juvenile court erred in overruling her motion to dismiss the termination petition for failure to state a claim upon which relief could be granted. The mother contends that because the original petition sought termination exclusively under section 211.447.2(2)(e) RSMo 1978, which was not in effect when the petition was filed, the juvenile court should have granted the motion to dismiss. Instead, the juvenile court denied the mother’s motion, but ordered the juvenile officer to amend his petition to conform to the 1982 amendment to section 211.447.2(2)(e).

We find no error on this point. The basic purpose of a termination petition is to state facts which bring the child within the juris*290diction of the juvenile court. In re D.L.D., 701 S.W.2d 152, 158 (Mo.App.1985). The juvenile officer’s petition in the instant case was sufficient to accomplish this purpose. Accordingly, this point is denied.

In her third point on appeal, the mother argues that the juvenile court erred in overruling her motion to dismiss this action because the juvenile officer failed to conduct an investigation and submit a social study, as required under section 211.472 RSMo 1978. The mother contends that a set of answers to interrogatories submitted by the juvenile officer was insufficient to satisfy the statutory requirements. We have examined the interrogatories, and find that they comply in all respects with section 211.472 RSMo 1978. This point is denied.

In her final point on appeal, the mother contends that the juvenile court erred in finding that the best interest of the child required termination of the mother’s parental rights. The mother contends that this finding was against the weight of the evidence. We have previously determined that this finding was supported by the overwhelming weight of the evidence. Accordingly, this point is denied.

The judgment of the juvenile court is affirmed.

SIMON, J., concurs. KAROHL, P.J., dissents in separate opinion.

. The juvenile court also terminated the natural father’s parental rights. The father, who denied patemity and failed to participate in the hearing, has not appealed.

. Section 211.447.2(2)(g) RSMo Supp.1982 provides, in pertinent part:

The juvenile court may upon a petition filed by the juvenile officer under this section, terminate the rights of a parent to a child if it finds that such termination is in the best interest of the child and ...

(2) When it appears by clear, cogent and convincing evidence that ...

(g) The parent has a mental condition which:

a. Renders him unable to form an intent or act knowingly; and

b. Is shown by competent evidence to be permanent or that there is no reasonable likelihood that the condition is reversible, and such parent has substantially and repeatedly *288neglected the child or failed to give the child necessary care and protection ....

. "[T]he Rules of Civil Procedure control juvenile court proceedings unless provided otherwise by statute." In re RÍL.P., 536 S.W.2d 41, 42-43 (Mo.App.1976). See Rule 110.04.

. In his order terminating the mother’s parental rights, the juvenile court judge found as follows: “The uncontroverted evidence is that [the mother] has been diagnosed as a schizophrenic, paranoid type, which is a chronic condition which will endure for the rest of her life. As a result of this diagnosis, [the mother] will continue to be a threat to the safety of the child.”