dissenting.
I respectfully dissent. The evidence offered by the juvenile officer was insufficient to support the only alleged ground to terminate the parental rights of appellant D.H., the natural mother.
Section 211.447.2(1) RSMo 1986 authorizes a termination where a child has been abandoned. The juvenile officer petitioned the court to terminate parental rights because D.H. abandoned her child for a period of six months preceding March 7, 1988. This section of the statute permits the court to find abandonment if, during a six month period, “(b) [t]he 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 added). The evidence offered to the juvenile court was insufficient to prove this pleading.
The juvenile officer did not allege the ground authorized in § 211.447.2(3) as a ground for termination. It appears that section would have been more appropriate to the facts and the opinion of the majority of this court.
*446There are a number of unsettled problems with termination for abandonment in the present case. First, the juvenile court transferred legal custody of H.M. to the Division of Family Services by order entered on June 4, 1984. That transfer of legal custody has never been altered. This fact creates a serious problem for the juvenile officer who undertook to prove that D.H., the mother, left her son during a six month period prior to March 7,1988, “without any provision for parental support.” The transfer of custody order, in effect throughout that period, makes no mention whatever of a finding of ability to support or an obligation to support. On the contrary, it recites that the mother was in confinement and upon release should secure a source of income, to gain employment.
Second, the evidence of the juvenile officer was that during the period referred to as the period of abandonment the mother was incarcerated. In the absence of evidence of assets or income, and there was none, the juvenile officer failed to prove mother was without good cause in failing to provide support during the abandonment period.
Because of the order changing legal custody, the incarceration and absence of the slightest proof of ability to support the ground for termination was not proven. Given the change in custody order such proof may have been impossible.
Third, the second part of § 211.447.2(2)(b) follows a conjunctive “and” and relates to arrangements to visit or communicate with child, “although able to do so.” The juvenile officer’s evidence proved D.H. was not able to visit with her child during the period of alleged abandonment, she was in custody in Chillicothe, Missouri and the child in St. Louis, Missouri. The evidence of when, if at all, D.H. could have visited with her son, but did not, is naught. Regarding communication, the evidence of juvenile officer confirmed the obvious, H.M., cannot read. Accordingly, communication by letters was of little significance.
There is no apparent explanation why the juvenile officer proceeded under § 211.447.2(1) [abandonment] when the more appropriate ground would have been under .2(3). The foundation of a termination under .2(3) is jurisdiction of the juvenile court for a period of one year. That was established by the court record. Assumption of jurisdiction and transfer of legal custody occurred June 4, 1984. The circumstances requiring such jurisdiction persisted and there was evidence from which the court, under such pleading, could conclude that there was little likelihood conditions would be remedied. There was evidence D.H. may be released from her imprisonment four months after the trial court hearing, in November, 1988, but that would not have been a sure defense.
One problem with an approach under .2(3) is the statutory requirement the court consider and make findings on the success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis. In the present case a social worker representing the Division of Family Services testified. She testified that her duties were “to facilitate the reunification of family members by implementing and carrying out a case plan ... arrange transportation between natural parents and children, so they may visit each other, and refer the family members for needed services.” The witness recognized D.H. was at Chillicothe Correctional Center. She admitted incarceration played a part in a recommendation for termination. She acknowledged that she had made no arrangements for visitation of H.M. with his mother in Chillicothe because “it’s hard to facilitate transportation that far.” When asked what efforts during the six month abandonment period were used to rehabilitate or reunite mother and child, the answer was “I’ve just written her a letter.” The next question and answer are very troublesome:
Q. No service has been provided to attempt to reunite her with the child?
A. No.
On the one hand, the juvenile officer supported the petition for termination of parental rights because D.H. failed to write *447letters to a four year old. On the other hand, the evidence is a single letter was sent to the mother, who was known to be incarcerated within the State of Missouri, and no other efforts were expended “to facilitate reunification”. It is understandable the petitioner did not desire court findings on the success or failure of the juvenile officer or the division.
Perhaps D.H. has forfeited her favored position as a parent. Perhaps she was entirely responsible for all of her own troubles. Certainly she has never been a mother for H.M. But much more is at stake in enforcing a termination of parental rights statute. Termination may be permitted only as authorized by the legislature. The legislature has never stated habitual criminal conduct is or should be, a ground for termination. The opinion of the majority appears to create that as a common law ground for termination of parental rights and excuses proof of the alleged ground of abandonment. I would reverse and remand for further proceedings under the continuing jurisdiction of the Juvenile Court.