In the Interest of E.H.

KAROHL, Judge,

concurring in part and dissenting in part.

This case involves the welfare of E.H., the fourteen year-old son of W.H. and R.B. E.H. preserved and argued two errors: (1) the court had no jurisdiction to modify a previous order which placed him under court supervision because the order was not entered by a judge; and, (2) the allegation he violated a term of the Rules of Supervision required by the contested prior order was not proven. As a matter of fact, I concur in the opinion which holds the previous order was legally binding. As a matter of law, I dissent on the second point because the court erred in ruling a violation was proven.

The original judgment was entered on July 9, 1993, in a case where the juvenile and his parents “admitted to the allegations contained in the pleadings” which supported the judgment to assume jurisdiction. The court found it had jurisdiction under § 211.031.1(2)(d) and (3) RSMo 1986. The court placed E.H. under court supervision. It committed him to the custody of the Missouri Division of Youth Services. The commitment was “held in abeyance and the youth placed under Official Court Supervision in the home of father, [W.H.].” The court ordered “the youth [to] meet weekly with assigned Deputy Juvenile Officer.”

On the same day as the judgment, E.H. and his parents signed a Supervision Contract. It described five general conditions and three special conditions. Special condition number three reads:

(3) DJO appointments: REQUIRED FREQUENCY weekly.

On October 6, 1993, a juvenile officer, not the deputy juvenile officer who participated in the July 9, 1993 proceedings, filed a motion to modify the July 9, 1993 judgment. The motion alleged only one ground, a violation of a criminal statute. This was a violation of a general condition, not a violation of special condition three. The charge was withdrawn and not tried.

The hearing involved two charges alleged in a second amended motion. They were part of paragraph 2.(a):

(1) That the Juvenile, in the City of St. Louis, State of Missouri, did fail to meet with his duly assigned Deputy Juvenile Officer for his regularly scheduled office appointments from July 29, 1993, through August 30, 1993.
(2) That the Juvenile did willfully and knowingly absent himself from his court-ordered placement in the home of [R.B.], *938his mother, without the permission or consent of his mother or of the Court and without his mother or the court’s knowledge of his whereabouts from approximately August 9 to 30,1993. (Mother was lined out and “Father” written on margin.)

The Juvenile Court Commissioner ruled there was no proof of the second allegation. The sufficiency of proof issue deals only with failure to meet a DJO at regularly scheduled office appointments.

E.H. correctly argues there was no proof that he “had any notice or knowledge of the dates/day he was scheduled to meet with the DJO.” This is his point on appeal. There is absolutely no evidence the DJO and E.H. had a scheduled appointment to meet. The division opinion does not describe an appointment. The insufficiency of evidence prevents any description of a scheduled appointment. At most, there was evidence the DJO decided to schedule a weekly meeting, on Wednesdays, but there was no evidence the DJO informed E.H. of this decision. Two “missed” meeting were not on Wednesdays, they were Thursdays. The evidence would support a finding that any meeting planned by the DJO was a well kept secret not shared with E.H.

Accordingly, for failure to notify E.H. there could not have been an appointment for E.H. to miss and no evidence to support the finding he breached a special condition to “meet weekly.” He was not empowered to fix the day, time or place of a meeting. The DJO assumed a burden to prove by clear and convincing evidence the specific allegations in paragraph 2.(a)(l) of the Motion to Modify. Rule 117.05(b). As a matter of simple fairness and logic, E.H. was entitled to notice of a proposed meeting before it could be treated as a scheduled appointment. The DJO had the burden of proving there was an appointment as a condition to proving a violation of a special condition which was written in general and indefinite terms of “weekly meetings.” A weekly meeting is not automatically a regularly scheduled appointment. The special condition did not mention or define a “regularly scheduled office appointment.” What may have been easily done, was never done.

The motion to modify did not plead failure to honor the requirement of weekly meetings. The DJO alleged and chose to assume the heavier burden of proving what the commissioner found, failure “to meet with his duly assigned Juvenile Officer for his regularly scheduled office appointments from July 29, 1993 through August 30, 1993.” (Our emphasis).

The only evidence on the issue was in the testimony of the deputy juvenile officer. Some of the testimony is summarized and some quoted:

[E.H.] was to meet with me once a week; he did not make any visits in July of 1993; he did not call to reschedule; he did not attempt to contact me; he was supposed to meet with me July 29 [we notice that was a Thursday]; he was supposed to meet with me on July 15 [we also notice that was a Thursday]:
[[Image here]]
Q. You have a record in your file that indicates that he was supposed to meet with you on July 15?
A Yes. I have an appointment letter.
Q. And who was that mailed to?
A It was mailed to his father.
* * * * * *
The letter was not mailed first class mail; E.H. did not make any visits in August of 1993; he was supposed to meet once a week, “Every Wednesday in August, the first day of the week”;
* * * * * *
Q. Do you have any information in your file that tells you [E.H.’s] knowledge of that he is suppose to meet with you on Wednesday?
A Yes.
Q. And what is that?
A. I talked to his father.

The DJO did not offer the “appointment letter” for July 15, 1993, in evidence. The only specific dates referred to by the DJO, July 15, and July 29, 1993, were not Wednesdays and Wednesday is not the first day of the week. The DJO did not testify as to what she told the father. E.H.’s father was a *939witness on another matter. He was not asked whether he received a letter from the DJO regarding an appointment or that he ever discussed a DJO appointment with E.H.

The Commissioner found proof beyond a reasonable doubt that E.H. failed to meet “for his regularly scheduled office appointments from July 29, 1993 through August 30, 1993.” This finding, adopted by the juvenile court, is wholly unsupported by any evidence. All the evidence on the issue has been set forth and included. It is patently insufficient to support an order placing the juvenile in institutional care.

The failure of proof is obvious for a number of reasons. First, the evidence will not support a finding an appointment was ever established. The special condition to meet weekly was meaningful only after the DJO scheduled a meeting on a fixed day and gave E.H. notice of time and place. No specifics were ever defined and made the subject of notice so as to support a finding that there was a scheduled appointment. Second, there is no evidence that an appointment was ever scheduled in the sense that the DJO and E.H. established a schedule. Third, there is no evidence to support a finding that the DJO informed E.H.’s father of the specifics of an appointment, unless merely selecting a day of the week for a “weekly meeting” is sufficient. It isn’t. The time and place of the “appointment” was never mentioned. Fourth, the most critical failure of proof, there is no reference to notice to E.H. of anything about day of week or time of day or location.

This court is restricted to reviewing the preserved legal issue, sufficiency of proof. It is not our function to determine practical issues of how an appointment could have been established and what could have been proven. There was no proof of the only alleged violation, failure by E.H. to keep a regularly scheduled office appointment. There were no other pleaded and proven grounds to justify determining a violation of general or special conditions. The judgment of November 16, 1993 should be reversed.