                                         In the
                         Missouri Court of Appeals
                                  Western District
 IN THE INTEREST OF: A.R.B.;                 )
                                             )
 JUVENILE OFFICER,                           )   WD82162
                                             )
                 Respondent,                 )   OPINION FILED:
                                             )   September 3, 2019
 E.R. and M.R.,                              )
                                             )
                Respondents,                 )
                                             )
 v.                                          )
                                             )
 T.B.,                                       )
                                             )
                  Appellant.                 )

              Appeal from the Circuit Court of Jackson County, Missouri
                         The Honorable J. Dale Youngs, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and
                                Alok Ahuja, Judge


         T.B. ("Mother") appeals from the trial court's judgment terminating her parental

rights to A.R.B. ("Child"). Mother argues on appeal that the trial court's judgment

constituted error in seven respects: (1) the commissioner who presided over the termination

of parental rights trial and made findings and recommendations to the trial court was
obligated to recuse himself pursuant to Rule 121.01;1 (2) Mother was never served with a

summons for the petition filed on July 16, 2015; (3) Mother was not properly served with

the first amended petition filed on August 19, 2016, because the officer making the return

did not comply with Rule 54.20(b)(1); (4) in the underlying juvenile proceedings, Mother

was not given notice of her right to counsel, Mother was not provided an application for

appointment of an attorney, and Mother went unrepresented for over two and a half years;

(5) Mother was not given notice of her right to counsel and was not appointed counsel for

nearly six months after the petition to terminate parental rights was filed, and once Mother

was appointed counsel, she was denied effective assistance of counsel; (6) the trial court

improperly considered Mother's "mental condition" as a basis for terminating parental

rights; and (7) the guardian ad litem failed to discharge her duties to act diligently in the

best interests of the child and to undertake a diligent independent investigation. We affirm

the trial court's judgment, but remand this matter to the trial court for consideration of

Mother's pending motion for attorney's fees in excess of the regulatory maximum.

                                   Factual and Procedural History2

        Mother is the biological mother of the Child, born on April 29, 2011. On June 27,

2013, the Juvenile Officer of Jackson County filed a petition ("abuse and neglect petition")

in case number 1316-JU000703 ("underlying juvenile matter") alleging that the Child was

without the proper care, custody, or support necessary for his well-being because Mother

exhibited a pattern of neglect toward the Child. In particular, the abuse and neglect petition


        1
         All rule references are to the Missouri Supreme Court Rules (2017), unless otherwise noted.
        2
         On appeal from a judgment terminating parental rights, we view the facts in the light most favorable to the
judgment. In Interest of K.S., 561 S.W.3d 399, 401 n.1 (Mo. App. W.D. 2018).

                                                         2
alleged that, in or around January 2013, Mother left the Child in the care of a friend without

providing the friend authority to seek medical treatment for the Child despite knowing that

the Child required special medical treatment due to a heart condition. The abuse and

neglect petition further alleged that Mother had not provided any emotional or financial

support for the Child since January 2013 and had failed to have any contact with the Child

since April 2013. The abuse and neglect petition noted Mother's criminal record and the

fact that Mother had two other children, one of whom was in the custody of E.R. as a result

of a paternity action, and one of whom was in the custody of E.R. as a result of a

guardianship action.3 At the time the abuse and neglect petition in the underlying juvenile

matter was filed, William R. Jackson was the Juvenile Officer of Jackson County

("Juvenile Officer"). An attorney for the Juvenile Officer signed the petition.

       The same day the abuse and neglect petition was filed, the trial court entered an

order for temporary protective custody, placing the Child in the temporary protective

custody and in the temporary legal custody of the Children's Division. The trial court held

a protective custody hearing on July 2, 2013. Following the hearing, the trial court ordered

that the Child remain in protective custody and in the temporary legal custody of the

Children's Division, and ordered that the Children's Division investigate E.R. as a possible

kinship placement for the Child. The trial court further ordered that E.R. have visitation

with the Child.




       3
           E.R. is the biological father of one of Mother's other two children and the guardian of the other.

                                                            3
       Mother was served with a summons for the abuse and neglect petition on July 11,

2013, while she was incarcerated in the Henry County jail. The first hearing on the abuse

and neglect petition in the underlying juvenile matter was held on July 24, 2013. Mother

did not appear. The trial court set an adjudication hearing in the underlying juvenile matter

for August 20, 2013, and reiterated its order that E.R. have visitation with the Child.

       The adjudication hearing was held as scheduled on August 20, 2013. Mother did

not appear, as she was still incarcerated in the Henry County jail. Commissioner Geoffrey

E. Allen ("Commissioner Allen") presided over the adjudication hearing, during which

evidence was received. Commissioner Allen entered findings and recommendations

sustaining the allegations in the abuse and neglect petition and finding that the Child was

in need of care and treatment. The findings and recommendations ordered the Child to be

committed to the custody of the Children's Division for placement. The findings and

recommendations further ordered Mother to submit to a psychological evaluation; that

Mother complete a substance abuse assessment; that the Children Division place the Child

with E.R. if justified by a home study; that Mother have closely supervised visits with the

Child if the guardian ad litem agrees; that E.R. have supervised and unsupervised visits

with the Child; and that the Children's Division provide a parent aid. The trial court

adopted the findings and recommendations on August 22, 2013.

       Following a case review hearing in December 2013, Commissioner Allen ordered

that the Children's Division place the Child in the home of E.R. and M.R. (collectively

"Prospective Adoptive Parents") in Sturgeon, Missouri. The trial court adopted these



                                             4
findings and recommendations on December 20, 2013. The Child has remained in the

Prospective Adoptive Parents' home since that time.

       On April 7, 2014, another case review hearing took place. Commissioner Allen

entered findings and recommendations that ordered the Child to remain in the custody of

the Children's Division and in the placement of the home of the Prospective Adoptive

Parents, and that ordered adoption planning to commence. The April 7, 2014 findings and

recommendations scheduled a permanency hearing for July 29, 2014. The trial court

adopted these findings and recommendations on April 10, 2014.

       The permanency hearing was held on July 29, 2014, and was presided over by

Commissioner Allen. The findings and recommendations continued the court's previous

orders and stated that the goal for the Child should be adoption. The trial court adopted

these findings and recommendations on August 1, 2014.

       Additional case review hearings were held in November 2014, April 2015, and June

2015, and in each of these instances, the trial court adopted Commissioner Allen's findings

and recommendations to continue all previous orders, including the order that adoption

remained the goal. The June 2015 case review hearing was the final hearing over which

Commissioner Allen presided in the underlying juvenile matter.

       On July 16, 2015, the Prospective Adoptive Parents filed a petition to adopt the

Child ("adoption petition") in case number 1516-FC06455 ("termination of parental rights

action"). The adoption petition alleged that Mother was the Child's natural mother and that

the Child's natural father was unknown. The adoption petition further alleged that Mother

"willfully abandoned, and willfully, substantially, and continuously neglected to provide

                                            5
the [C]hild with the necessary care and protection for a period of at least six months

immediately prior to the filing of the Petition for Adoption" so that "her consent to adoption

is not required." The adoption petition made the same allegations about the Child's

unknown natural father. The Prospective Adoptive Parents served the Child's unknown

natural father by publication but otherwise took no other action in the termination of

parental rights action.

       While the termination of parental rights action was initially assigned to

Commissioner Allen, Commissioner William R. Jackson ("Commissioner Jackson"),

former Juvenile Officer of Jackson County, was appointed to the case on September 1,

2015. Commissioner Jackson also replaced Commissioner Allen in the underlying

juvenile matter. On October 27, 2015, at a case review hearing for the underlying juvenile

matter, Commissioner Jackson asked the parties present (the attorney for the Juvenile

Officer and the guardian ad litem) whether either party wanted Commissioner Jackson to

recuse himself based on his prior role as the Juvenile Officer of Jackson County. Neither

the attorney for the Juvenile Officer nor the guardian ad litem requested recusal. Mother

was not present at the hearing.

       On November 5, 2015, a Children's Division caseworker met with Mother while

Mother was incarcerated in the Chillicothe Correctional Center to discuss adoption of the

Child. The caseworker testified that the purpose of her visit was to introduce herself, to

advise Mother about steps she could be taking if she wished to retain parental rights, and

to complete the necessary paperwork if Mother wanted to consent to the termination of her



                                              6
parental rights. Mother conveyed to the caseworker that she wanted to request an attorney,

and on December 29, 2015, the caseworker forwarded those documents to Mother.

         On January 6, 2016, Mother submitted her request for an attorney to the trial court

in the underlying juvenile matter. The trial court appointed counsel to represent Mother in

both the underlying juvenile matter and in the termination of parental rights action on

January 8, 2016. In February 2016, Mother's appointed counsel for the termination of

parental rights action ("appointed counsel") filed a motion for leave of court to file an

answer to the adoption petition out of time. The trial court granted the motion, but

appointed counsel never filed an answer to the adoption petition.

         On August 19, 2016, the Prospective Adoptive Parents filed their first amended

petition for termination of parental rights and adoption ("first amended petition"). The first

amended petition alleged that terminating Mother's parental rights to the Child was

appropriate because (1) pursuant to section 211.447.5(1)(b),4 Mother had abandoned the

Child for a period of at least six months; (2) pursuant to section 211.447.5(2)(d), the Child

had been abused or neglected in that Mother has repeatedly or continuously failed, although

physically or financially able, to provide the Child with adequate food, clothing, shelter, or

education as previously determined in the underlying juvenile matter; (3) pursuant to

section 211.447.5(3), the Child had been under the jurisdiction of the juvenile court for a

period of one year and the conditions that led to the assumption of jurisdiction still persist,



         4
           None of the statutes referenced in this Opinion were amended between the filing of the adoption petition,
the filing of the first amended adoption petition, and the second amended petition. As such, all statutory references
are to RSMo 2000 as supplemented through July 16, 2015, the date the adoption petition was filed, unless otherwise
indicated.

                                                          7
and there is little likelihood that those conditions will be remedied so that the Child can be

returned to the care of Mother in the near future; and (4) pursuant to section 211.447.6,

Mother is unfit to be a party to the parent-child relationship. The first amended petition

also requested that the trial court enter a judgment approving the adoption of the Child by

the Prospective Adoptive Parents. Mother was personally served with a summons and the

first amended petition on September 13, 2016, in DeWitt, Arkansas, where she resided

after being released from incarceration in August 2016.

       On September 16, 2016, Commissioner Jackson presided over a case management

conference in the termination of parental rights action during which Mother's appointed

counsel, an attorney for the Prospective Adoptive Parents, an attorney for the Juvenile

Officer, and the Child's guardian ad litem were present. Following the case management

conference, Commissioner Jackson ordered that the Juvenile Officer be joined as a party

pursuant to section 211.447, and ordered that the Children's Division conduct a termination

of parental rights study.

       Appointed counsel filed an answer to the first amended petition on Mother's behalf

on October 13, 2016. The answer to the first amended petition denied the allegations that

a basis for terminating parental rights existed, and asserted the following affirmative

defenses: (1) that the Prospective Adoptive Parents failed to state a cause of action upon

which relief could be granted; (2) that should the trial court find that Mother abandoned

the Child, she successfully repented any period of abandonment or neglect; and (3) that

termination of Mother's parental rights is not in the best interests of the Child. The answer



                                              8
to the first amended petition then "reserve[d] the right to assert additional affirmative

defenses that may become known during this litigation."

       Appointed counsel continued her representation of Mother, including responding to

discovery requests, propounding discovery upon the Prospective Adoptive Parents, and

filing a motion to quash the pending deposition of Mother, through March 27, 2017. On

March 27, 2017, appointed counsel withdrew as counsel for Mother, and two attorneys

("trial counsel") entered their appearance on behalf of Mother in both the termination of

parental rights action and in the underlying juvenile matter. Trial counsel continued to

represent Mother through trial in the termination of parental rights action.

       On May 24, 2017, the Prospective Adoptive Parents filed their second amended

petition for termination of parental rights and adoption ("second amended petition"), which

added G.W., the Child's alleged natural father, as a defendant, and which alleged that

terminating his parental rights to the Child was appropriate. The second amended petition

included the same bases for termination of Mother's parental rights as the first amended

petition and asked that the trial court enter an adoption decree approving the adoption of

the Child by the Prospective Adoptive Parents.

       Trial counsel filed an answer to the second amended petition on Mother's behalf on

June 26, 2017. The answer to the second amended petition denied that there was a basis to

terminate Mother's parental rights and asserted seven affirmative defenses: (1) that the

Prospective Adoptive Parents failed to state a cause of action upon which relief could be

granted; (2) that, if the trial court should find that Mother abandoned the Child, she

successfully repented any period of abandonment or neglect; (3) that termination of

                                             9
Mother's parental rights and adoption of the Child by the Prospective Adoptive Parents is

not in the Child's best interests; (4) that Mother was never served with the adoption petition

so that notice was never given to Mother, which constituted a violation of her constitutional

right to due process; (5) that the termination of parental rights action should be dismissed

for failure to issue a summons as required by Rule 54.21; (6) that the termination of parental

rights action should be dismissed for failure to obtain service on Mother under Rule 54.21

so that the trial court lacks personal jurisdiction over Mother; and (7) that the Children's

Division failed to comply with legal requirements regarding the suitability of the proposed

adoption.

       On October 8, 2017, shortly before trial was set to begin, Mother filed a motion to

dismiss the termination of parental rights action ("motion to dismiss"). The motion to

dismiss argued that dismissal was appropriate for lack of prosecution because the

Prospective Adoptive Parents never completed or attempted service of the adoption petition

on Mother for over a year after it was filed. The motion to dismiss also claimed that the

Prospective Adoptive Parents failed to obtain proper service of the first amended petition

on Mother because the requirements for out-of-state service were not met. Finally, the

motion to dismiss argued that a violation of due process occurred because the notice did

not give Mother an adequate opportunity to defend herself and because she received

ineffective assistance of counsel from appointed counsel.

       On October 12, 2017, Commissioner Jackson issued an order denying all of

Mother's pending motions. The order also indicated that the trial in the termination of

parental rights action would be bifurcated so that the trial court "[would] not entertain

                                             10
issues regarding the appropriateness of the adoptive placement until all issues regarding

termination of parental rights and need for consent in the adoption have been determined."

The order also indicated that a review of the case file revealed that one of Mother's trial

counsel had previously represented the Juvenile Officer in the case but that no written

waivers of conflicts had been filed. The order directed the parties to inform the trial court

in writing of their understanding of the apparent conflict. The Juvenile Officer filed a

waiver of the conflict of interest on October 17, 2017.

           Commissioner Jackson then presided over a fourteen-day trial that took place over

the course of nine months, spanning from October 19, 2017, to June 29, 2018. Witnesses

included the Prospective Adoptive Parents, the Child's therapist, the Children's Division

caseworker, the clinical psychologist who conducted a psychological evaluation of Mother,

Mother's therapist, Mother and the Child's family therapist, the guardian ad litem, a

Children's Division alternative care worker, a Children's Division service worker, and a

police officer who investigated an allegation of child abuse against E.R. Mother did not

testify.

           On August 24, 2018, Commissioner Jackson filed his findings of fact, conclusions

of law, and recommendation of termination of parental rights of Mother ("proposed

judgment").5 The proposed judgment concluded that Mother had willfully abandoned and

had willfully, substantially, and continuously neglected to provide the Child with necessary

care and protection for a period of at least six months prior to the filing of the adoption


           5
         Commissioner Jackson's findings of fact, conclusions of law, and recommendations also included his
recommendation to terminate the parental rights of G.W., the child's putative father, and John Doe. Those findings,
conclusions, and recommendations are not at issue in this appeal.

                                                        11
petition so that, pursuant to section 453.040(7), her consent to adoption was not required.

The proposed judgment also concluded that the following bases existed to support

terminating Mother's parental rights: (1) Mother abandoned the Child pursuant to section

211.447.5(1); (2) the Child had been abused or neglected by Mother pursuant to section

211.447.5(2); (3) the Child had been under the jurisdiction of the juvenile court for more

than a year, the conditions that led the assumption of jurisdiction still persist, and

conditions of a potentially harmful nature continue to exist pursuant to section

211.447.5(3); and (4) Mother was unfit to be a party to the parent-child relationship

pursuant to section 211.447.5(6).                  The proposed judgment further concluded that

termination of Mother's parental rights was in the Child's best interests. The proposed

judgment ordered that the Child's custody would remain as ordered in the underlying

juvenile matter. The trial court adopted Commissioner Jackson's proposed judgment on

August 24, 2018.

         Commissioner Jackson later issued nunc pro tunc findings of fact, conclusions of

law, and recommendation of termination parental rights of Mother ("nunc pro tunc

proposed judgment") in order to correct the findings to include a court date previously

omitted. The trial court adopted the nunc pro tunc proposed judgment as its judgment

("Judgment") on October 11, 2018.

         Mother appeals.6 Additional facts are discussed in the analysis portion of this

Opinion as necessary.


         6
          Mother's appeal is timely. Though the Judgment adopting the nunc pro tunc proposed judgment related
back to the date of the trial court's adoption of the initial proposed judgment (August 24, 2018), there was an after-

                                                          12
                                            Standard of Review

        "'Termination of parental rights is an exercise of awesome power, and therefore we

review such cases closely.'" In Interest of G.M.G., 525 S.W.3d 162, 164-65 (Mo. App.

W.D. 2017) (quoting In re C.F. & A.K., 340 S.W.3d 296, 298 (Mo. App. E.D. 2011)). Our

review of a judgment terminating parental rights is in accordance with the standard for

court-tried cases set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id.

at 164. "'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.'" Id. (quoting In Interest of G.E.R. v. B.R., 441 S.W.3d 190, 195 (Mo. App. W.D.

2014)).

        However, if a point on appeal has not been preserved, "[w]e will 'review [it] for

plain error only if there are substantial grounds for believing that the trial court committed

error that is evident, obvious and clear and where the error resulted in manifest injustice or

miscarriage of justice.'" In Interest of S.E., 527 S.W.3d 894, 901 (Mo. App. E.D. 2017)

(quoting Mayes v. Saint Luke's Hosp., 430 S.W.3d 260, 269 (Mo. banc 2014)).

                                                    Analysis

        Mother sets forth seven points on appeal, none of which challenge the sufficiency

of the evidence to support the Judgment's conclusions that several bases exist for

terminating Mother's parental rights and that terminating Mother's parental rights is in the

best interests of the Child. Instead, Mother asserts that she was denied due process during



trial motion pending at the time the nunc pro tunc proposed judgment and Judgment were issued. Mother's appeal
was thus timely as her notice of appeal was filed within ten days after her after-trial motion was deemed denied.

                                                        13
the termination of parental rights action, argues that the trial court considered a ground for

termination of Mother's parental rights that was not pleaded, and claims that the guardian

ad litem failed to discharge her duties to act diligently in the best interests of the Child.

We discuss Mother's points separately.

Point One: Commissioner Jackson's Obligation to Recuse

       Mother's first point on appeal challenges the neutrality of Commissioner Jackson.

Mother argues that the trial court erred in terminating her parental rights because

Commissioner Jackson presided over the trial and made findings and recommendations to

the trial court despite serving as the Juvenile Officer at the time the underlying juvenile

matter was initiated. Mother claims that Rule 121.01 obligated Commissioner Jackson to

disclose to Mother that he was the former Juvenile Officer and to recuse himself. Mother

asserts that the failure to do so resulted in a denial of her right to due process in that she

was not given a fundamentally fair and meaningful hearing before a neutral arbiter. Mother

acknowledges that she did not preserve this issue for appeal and asks us to review

Commissioner Jackson's failure to recuse himself for plain error.

       "Family court commissioners are obligated to conduct themselves as judicial

officers" and are obligated to follow the standards for judicial conduct. In Interest of

K.L.W., 131 S.W.3d 400, 404 (Mo. App. W.D. 2004). Rule 121.01, which applies to

juvenile proceedings, provides that "[a] judicial officer shall recuse when the judicial

officer is interested, related to a party, has been counsel for a party in any proceeding, or

is recused for any other reason." Mother's position on appeal is that Commissioner

Jackson's service as the Juvenile Officer rendered him an interested party such that Rule

                                             14
121.01 required Commissioner Jackson to recuse himself in the termination of parental

rights action. Mother claims that it was plain error for Commissioner Jackson to fail to

recuse himself.

       Mother is correct that a judicial officer is required to recuse himself "when

impropriety or the appearance of impropriety appears" and that "[w]hen cause to recuse

appears, a judge must do so." Ham v. Wenneker, 609 S.W.2d 240, 241 (Mo. App. W.D.

1980). The standard for recusal requires a judicial officer to recuse when "a reasonable

person would have factual grounds to doubt the impartiality of the court." In re D.C., 49

S.W.3d 694, 698 (Mo. App. E.D. 2001). "If, on the record, a reasonable person would find

an appearance of impropriety, [Rule 2, Canon 3(C) of the Code of Judicial Conduct]

compels recusal." Id. Further, Rule 2-2.11(A)(5) of the Code of Judicial Conduct provides

that "[a] judge shall recuse himself . . . in any proceeding in which the judge's impartiality

might be reasonably questioned, including" a case in which "[t]he judge . . . served as a

lawyer in the matter in controversy" or a case in which "[t]he judge . . . served in

government employment, and in such capacity participated personally and substantially as

a lawyer or public official concerning the proceeding."

       Here, the record indicates that, at the time the abuse and neglect petition in the

underlying juvenile matter was filed, William R. Jackson was the Juvenile Officer. His

name and title appeared above the signature line on the abuse and neglect petition.

Immediately below his name and title, an attorney for the Juvenile Officer signed the abuse

and neglect petition. Other than the identification of William R. Jackson as the Juvenile

Officer, nothing in the record indicates that he was in any way personally interested in, or

                                             15
even aware of, the underlying juvenile matter. At no time in the underlying juvenile matter

did William R. Jackson personally appear before the trial court or personally submit any

filings. Instead, the record establishes that William R. Jackson was merely the named

office holder. As such, we cannot conclude that Commissioner Jackson was compelled to

recuse himself. The record does not establish that he was "interested, related to a party, [or

had] been counsel for a party in any proceeding" so as to compel recusal under Rule 121.01.

Further, the record does not establish that Commissioner Jackson, as Juvenile Officer,

personally served as counsel for the Juvenile Officer in the underlying juvenile matter so

as to require recusal under the Code of Judicial Conduct.

       Despite being simply the named office holder for the entity that filed the abuse and

neglect petition against Mother, Commissioner Jackson began the first case review hearing

after he was appointed to the underlying juvenile matter by asking the parties present (the

attorney for the Juvenile Officer and the guardian ad litem) whether either party wanted

Commissioner Jackson to recuse himself based on his prior role as the Juvenile Officer.

Both parties responded, "No, Your Honor." The issue of Commissioner Jackson's prior

service as the Juvenile Officer was never raised again, by either the parties or

Commissioner Jackson, during the pendency of the termination of parental rights action.

       Mother claims that Commissioner Jackson had an obligation to disclose to Mother

that he had served as the Juvenile Officer when the abuse and neglect petition was filed

and to obtain her informed consent to adjudicate the termination of parental rights action.

Mother does not support her claim with citation to authority so that it is not preserved for

review.   Wallace v. Frazier, 546 S.W.3d 624, 628 (Mo. App. W.D. 2018) ("'Mere

                                             16
conclusions and the failure to develop an argument with support from legal authority

preserve nothing for review.'" (quoting Nicol v. Nicol, 491 S.W.3d 266, 271 (Mo. App.

W.D. 2016))). Further, given that one of Mother's trial counsel previously worked as an

attorney for the Juvenile Officer at the time Commissioner Jackson was the named office

holder, it is unreasonable for Mother to argue that she was not aware of the purported

conflict and was thus denied a fundamentally fair and meaningful hearing before a neutral

arbiter.

       Because neither Rule 121.01 nor the Code of Judicial Conduct required

Commissioner Jackson's recusal, we cannot conclude that Commissioner Jackson's failure

to recuse himself was plain error.

       Point One is denied.

Points Two and Three: Failure to Issue Summons for the Adoption Petition and
Improper Service of the First Amended Petition

       Mother's second and third points on appeal challenge whether the trial court had

personal jurisdiction over Mother. In her second point on appeal, Mother argues that the

trial court did not have personal jurisdiction over her because "the [Prospective Adoptive

Parents] failed to obtain proper service and provide notice to [Mother] since no summons

was ever issued for the [adoption petition] that was filed on July 16, 2015." [Appellant's

Brief, p. 26] Mother's third point on appeal challenges the service of the first amended

petition. Mother asserts that service of the first amended petition was defective in that it

did not comply with the requirements set forth in Rule 54.20(b)(1) for service of a summons




                                            17
out of state.7 Thus, Mother claims that the service of the first amended petition did not

confer personal jurisdiction over her.

         "[P]ersonal jurisdiction refers . . . to the power of a court to require a person to

respond to a legal proceeding that may affect the person's rights or interests." J.C.W. ex

rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). "'[W]hen a court says that

it lacks personal jurisdiction, it means simply that the constitutional principle of due

process bars it from affecting the rights and interests of a particular person, whether such

a 'person' be an individual or an entity such as a corporation." Id. "Only by service of

process authorized by statute or rule (or by appearance) can a court obtain jurisdiction to

adjudicate the rights of a defendant." Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc

2000). A defendant must raise any challenges to the trial court's personal jurisdiction, the

sufficiency of process, and the sufficiency of service of process in either a pre-answer

motion or as a defense in the answer. Rule 55.27(g)(1); Worley, 19 S.W.3d at 129. The

failure to raise these issues at the first opportunity results in waiver of any challenges to

the trial court's personal jurisdiction, the sufficiency of process, and the sufficiency of

service of process. Rule 55.27(g)(1); see also Stiens v. Stiens, 231 S.W.3d 195, 199 (Mo.

App. W.D. 2007).

         Mother asserts on appeal that she "promptly" raised the issue of the trial court's lack

of personal jurisdiction in her answer to the second amended petition. While we agree that



         7
          Mother's point on appeal states that the service failed to comply with the requirements of "section
54.20(b)(1)." No such provision exists, but it is clear from the substance of Mother's brief that she intended to
reference Rule 54.20(b)(1) and that any reference to section 54.20(b)(1) was inadvertent. As such, we will refer to
Rule 54.20(b)(1) while discussing Mother's third point on appeal.

                                                         18
the answer to the second amended petition included challenges to the trial court's personal

jurisdiction over Mother, to the sufficiency of process, and to the sufficiency of the service

of process, we disagree with Mother's characterization of the timing of her challenges as

prompt in light of the other actions Mother took in the trial court.

         "A defendant waives personal jurisdiction when he is before the court and fails to

properly raise the issue." Campbell v. Francis, 258 S.W.3d 94, 98 n.1 (Mo. App. W.D.

2008). The defendant will have been deemed to have waived the issues of personal

jurisdiction, sufficiency of process, and sufficiency of service of process when "the

defendant takes or agrees to some step or proceeding in the suit, other than contesting

jurisdiction, that is beneficial to the defendant." Id. In other words, "[i]f a party acts so as

to recognize that a cause of action is pending and then takes steps that are clearly

inconsistent with a lack of personal jurisdiction, the party waives his claim of lack of

personal jurisdiction." Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 679 (Mo. App. S.D.

2002).

         Here, Mother filed an answer to the first amended petition in October 2016. The

answer to the first amended petition made no reference to the trial court's lack of personal

jurisdiction, to the sufficiency of process, or to the sufficiency of the service of process.

Mother continued to participate in the termination of parental rights action following her

answer to the first amended petition. Through her attorney, Mother responded to discovery

requests, propounded discovery upon the Prospective Adoptive Parents, filed a motion to

quash a pending deposition of Mother, applied for a continuance of the trial date, and

sought sanctions against the Prospective Adoptive Parents prior to the filing of the second

                                              19
amended petition. Only in her answer to the second amended petition did Mother challenge

the trial court's personal jurisdiction, the sufficiency of process, and the sufficiency of

service of process. At that point, Mother had already participated in the litigation,

recognizing that the termination of parental rights action was pending and taking steps that

were clearly inconsistent with a lack of personal jurisdiction. Thus, Mother waived her

complaints as to the trial court's personal jurisdiction, the sufficiency of process, and the

sufficiency of service of process.

       Points Two and Three are denied.

Point Four: Right to an Attorney in the Underlying Juvenile Matter

       Mother's fourth point on appeal asserts that the trial court erred in terminating her

parental rights because, in the underlying juvenile matter, she was not given notice of her

right to counsel, she was not given an application for appointment of an attorney, she was

not appointed an attorney for over two and a half years, and she went unrepresented to the

adjudication hearing and subsequent case and permanency review hearings. Mother asserts

that, as a result of these failures, she was denied due process of law in the underlying

juvenile matter, which led to the termination of parental rights action. Mother's complaints

regarding her right to an attorney are limited to the underlying juvenile matter and do not

concern the termination of parental rights action.

       Mother's fourth point on appeal is an impermissible collateral attack on the

underlying juvenile matter.    "'Where a judgment is attacked in other ways than by

proceedings in the original action to have it vacated or reversed or modified or by a

proceeding in equity to prevent its enforcement, the attack is a collateral attack.'" In the

                                             20
Interest of K.R.T., 505 S.W.3d 864, 868 (Mo. App. W.D. 2016) (quoting Reimer v. Hayes,

365 S.W.3d 280, 283 (Mo. App. W.D. 2012)). "Generally, a judgment must be challenged

via direct appeal and not by a collateral attack." Id. If the judgment was rendered by a

court that had both subject-matter jurisdiction and personal jurisdiction, then the judgment

is not open to attack. Id.

       Mother's fourth point on appeal does not challenge the trial court's subject matter

jurisdiction or personal jurisdiction in the underlying juvenile matter. Instead, she simply

objects to the trial court's alleged reluctance to appoint her an attorney. As such, Mother's

fourth point on appeal is an impermissible collateral attack on the underlying juvenile

matter, case number 1316-JU000703.

       Point Four is denied.

Point Five: Ineffective Assistance of Counsel in the Termination of Parental
Rights Proceeding

       Mother's fifth point on appeal argues that she was denied due process of law because

she did not receive effective assistance of counsel in the termination of parental rights

action. Mother's complaint is twofold. She first asserts she was denied due process of law

and was materially prejudiced when the trial court failed to issue a summons for the

adoption petition because it resulted in the failure to give Mother notice of her right to

counsel in the termination of parental rights action and in the failure to appoint counsel for

Mother until nearly six months after the adoption petition was filed. Mother then argues

that, when she was finally appointed counsel by the trial court, she received ineffective




                                             21
assistance of counsel from appointed counsel. Mother's claim of ineffective assistance of

counsel does not extend to the representation she received from trial counsel.

       Section 211.462.2 provides, in relevant part:

       The parent . . . 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. . . .

"Failure to appoint counsel to represent the natural parents or to obtain an affirmative

waiver of that right has been held to be reversible error." In Interest of J.C., Jr., 781 S.W.2d

226, 228 (Mo. App. W.D. 1989). This statutory right to counsel includes an implied right

to effective assistance of counsel. In Interest of J.P.B., 509 S.W.3d 84, 97 (Mo. banc 2017).

The test for effectiveness is "'whether the attorney was effective in providing his client with

a meaningful hearing based on the record.'" Id. (quoting In re W.J.S.M., 231 S.W.3d 278,

283-84 (Mo. App. E.D. 2007)).

       Mother's position in the first part of this point on appeal is that it is reversible error

for the trial court not to inform a parent of the right to counsel and not to appoint counsel

immediately upon the initiation of the termination of parental rights action. Mother argues

that the failure to issue a summons for the adoption petition resulted in a violation of section

211.462.2 so that the trial court committed reversible error. What her argument fails to

appreciate is that, while the trial court failed to issue summons upon the filing of the

adoption petition, no action was taken by the Prospective Adoptive Parents until after

Mother was appointed counsel in January 2016. An additional seven months passed before

the Prospective Adoptive Parents took any additional action in the termination of parental


                                              22
rights action by filing the first amended petition. Mother asserts, without explaining how,

that she was "materially prejudiced" as a result of the trial court's belated notice of the right

to counsel and belated appointment of counsel in the termination of parental rights action.

[Appellant's Brief, p. 45] We cannot fathom how Mother suffered material prejudice when

no action took place in the termination of parental rights action until after the appointment

of appointed counsel. While the trial court's failure to issue a summons that notified

Mother of her right to counsel for the adoption petition may have been in violation of

section 211.462.2, it was not reversible error, as the trial court's error did not materially

affect the merits of the action. Rule 84.13(b) ("No appellate court shall reverse any

judgment unless it finds that error was committed by the trial court against the appellant

materially affecting the merits of the action.").

       The second half of Mother's fifth point on appeal focuses on the assistance of

counsel she received after the trial court appointed Mother's appointed counsel. Mother

argues that appointed counsel was ineffective in that appointed counsel failed to object to

the trial court's lack of personal jurisdiction due to improper out-of-state service; appointed

counsel failed to file an answer to the adoption petition; and appointed counsel failed to

engage diligently in discovery.

       In In the Interest of J.C., Jr., we found the following representation of parents in a

termination of parental rights action to be ineffective:

       There was no oral testimony. At the hearing, their attorney was entirely
       passive. He stipulated to the wholesale admission of all reports and records
       despite the fact that there were many objections that could have been made
       to the reports and records. He waived the right to cross-examine the authors
       of the reports. He called no witnesses despite the fact that there were two

                                               23
       witnesses there on the parties' behalf that expected to testify. Neither of the
       parents testified. They were not present in the courtroom, but were in the
       courthouse. He offered no medical reports or other evidence on behalf of the
       natural parents. The transcript of the hearing regarding termination consists
       of only eight pages. Regarding the attorney's fee, the attorney testified that
       he had spent only eight and a half hours on the case from start to finish. . . .
       It seems that it was a foregone conclusion to everyone involved at the
       termination hearing that the result would be the termination of [the father's
       and mother's] parental rights. This conclusion comes from a statement by the
       parents' attorney in which he stated: "I have talked to the father, . . . and he
       understands what we are doing. We explained to him the other alternative is
       the children would be put up for adoption, and they will never see the
       children. He understands that and I think to get them all in the courtroom
       would be disruptive to the [c]ourt and we wouldn't get anywhere." The right
       to counsel means nothing if the attorney does not advocate for his client and
       provide his client with a meaningful and adversarial hearing.

781 S.W.2d at 228-29.       Essentially, we held that, while the parents were assigned

representation, their assigned attorney was effectively absent during the proceedings so

that the parents did not receive a meaningful hearing. Id.

       Similarly, the Eastern District held in In Interest of J.M.B. that a mother did not

receive effective assistance of counsel when "counsel did little . . . beyond appear for the

hearing." 939 S.W.2d 53, 56 (Mo. App. E.D. 1997). In particular, the mother's counsel

said nothing in response to the juvenile officer's insistence that the trial take place despite

the mother's absence; made no objections during the direct examination of juvenile officer's

only witness; asked that witness less than twelve questions on cross-examination, with only

a few questions designed to elicit information favorable to the mother; presented no

evidence on behalf of the mother, explaining that she had failed to contact him prior to

trial; and offered no argument on the mother's behalf, explaining that he agreed that the

mother's parental rights should be terminated. Id.


                                              24
       The representation the parents received in In Interest of J.C., Jr. and In Interest of

J.M.B. is vastly different from the representation Mother received. While Mother may

quarrel with the decisions that appointed counsel made while representing Mother, nothing

in the record indicates that Mother did not receive a meaningful hearing as a result. In

contrast, the record we were provided indicates that appointed counsel was an active

participant in the litigation upon her appointment. While appointed counsel never filed an

answer to the adoption petition despite obtaining leave to file to an answer the out of time,

that failure resulted in no prejudice to Mother. Appointed counsel was otherwise an active

participant in the termination of parental rights action on Mother's behalf. Appointed

counsel timely filed an appropriate answer to the first amended petition, (the filing of which

replaced the original petition). Appointed counsel then continued her representation of

Mother through March 27, 2017. During that time, appointed counsel responded to

discovery requests, propounded discovery upon the Prospective Adoptive Parents, and

filed a motion to quash the pending deposition of Mother. On March 27, 2017, trial counsel

took over as Mother's counsel and represented her through the fourteen-day trial that took

place over the course of nine months, spanning from October 19, 2017, to June 29, 2018.

Trial counsel had approximately six months before the commencement of trial to remedy

any alleged deficiencies in appointed counsel's representation of Mother. During the

course of the trial, trial counsel zealously cross-examined each of the Prospective Adoptive

Parents' witnesses and the Juvenile Officer's witness, and trial counsel called several

witnesses to support their position that terminating Mother's parental rights was not



                                             25
appropriate. As such, we cannot conclude, based on the record, that Mother did not receive

a meaningful hearing, or that appointed counsel's representation of Mother was ineffective.

        Point Five is denied.

Point Six: Trial Court's Consideration of Mother's Mental Condition as a Basis for
Terminating Her Parental Rights

        Mother's sixth point on appeal argues that the trial court improperly considered

Mother's "mental condition" as a basis for terminating her parental rights because it was

not pleaded as a basis for termination in the second amended petition.8 Mother asserts that,

because her mental condition was not pleaded as a basis for terminating her parental rights,

the trial court's consideration of that basis deprived her of the right to be informed of the

allegations against her. Mother claims that, because she was not put on notice that her

mental condition was a potential basis for terminating her parental rights, she was ill

prepared to respond to the testimony of Dr. Gregory Sisk ("Dr. Sisk"), the clinical

psychologist who conducted a psychological evaluation of Mother.

        Mother is correct that "'[d]ue process requires that [t]he petition in a termination of

parental rights case should contain allegations likely to inform those persons involved of

the charges, to the end that objection may be prepared.'" In re S.M.H., 160 S.W.3d 355,

366 (Mo. banc 2005) (quoting In Interest of H.R.R., 945 S.W.2d 85, 88 (Mo. App. W.D.

1997)). A trial court commits reversible error if it terminates a parent's parental rights on



          8
            Mother's point on appeal argues that her mental condition was not pleaded in the adoption petition, the
first amended petition, or the second amended petition. Mother's point on appeal is unnecessarily broad because
"[o]nce an amended pleading is filed, any prior pleadings not referred to or incorporated into the new pleading are
considered abandoned and receive no further consideration in the case for any purpose." State ex rel. Bugg v. Roper,
179 S.W.3d 893, 894 (Mo. banc 2005). As such, our review of this point on appeal will be limited to the allegations
set forth in the second amended petition.

                                                        26
a basis not pleaded in the petition. Id. at 365-66. "An exception exists to the rule that

parental rights cannot be terminated on grounds not contained in the petition, where the

additional grounds are tried by consent," meaning that "the evidence bears solely on an

unpleaded issue and is admitted without objection." Id. at 366.

       It is true that the second amended petition did not allege Mother's mental condition

as an independent basis for terminating her parental rights. However, the trial court did

not terminate Mother's parental rights on this basis. The trial court's findings on Mother's

mental condition were made in the required context of the pleaded bases for termination.

The second amended petition alleged four bases for terminating Mother's parental rights:

(1) that, pursuant to section 211.447.5(1)(b), Mother had abandoned the Child for a period

of at least six months; (2) that, pursuant to section 211.447.5(2), the Child has been abused

or neglected; (3) that, pursuant to section 211.447.5(3), the Child has been under the

jurisdiction of the juvenile court for a period of one year and the conditions that led to the

assumption of jurisdiction still persist, and there is little likelihood that those conditions

will be remedied so that the Child can be returned to the care of Mother in the near future;

and (4) that, pursuant to section 211.447.6, Mother is unfit to be a party to the parent-child

relationship.   The Judgment's findings and conclusions referencing Mother's mental

condition simply followed the mandate of sections 211.447.5(2) and (3), two of the bases

for terminating Mother's parental rights alleged in the second amended petition.

       Sections 211.447.5(2) and (3) provide, in relevant part:

       The juvenile officer or the division may file a petition to terminate the
       parental rights of the child's parent when it appears that one or more of the
       following grounds for termination exist:

                                             27
       ...

       (2) The child has been abused or neglected. In determining whether to
       terminate parental rights pursuant to this subdivision, the court shall
       consider and make findings on the following conditions and acts of the
       parent:

       (a) A mental condition which is shown by competent evidence either to be
       permanent or such that there is no reasonable likelihood that the condition
       can be reversed and which renders the parent unable to knowingly provide
       the child the necessary care, custody and control;

       ...

       (3) The child has been under the jurisdiction of the juvenile court for a period
       of one year, and the court finds that the conditions which led to the
       assumption of jurisdiction still persist, or conditions of a potentially harmful
       nature continue to exist, that there is little likelihood that those conditions
       will be remedied at an early date so that the child can be returned to the parent
       in the near future, or the continuation of the parent-child relationship greatly
       diminishes the child's prospects for early integration into a stable and
       permanent home. In determining whether to terminate parental rights under
       this subdivision, the court shall consider and make findings on the
       following:

       ...

       (c) A mental condition which is shown by competent evidence either to be
       permanent or such that there is no reasonable likelihood that the condition
       can be reversed and which renders the parent unable to knowingly provide
       the child the necessary car, custody and control . . . .

Sections 211.447.5(2) and (3), if pleaded as a basis for terminating parental rights, require

the trial court to consider and make findings on a parent's mental condition. See In re B.H.,

348 S.W.3d 770, 774 (Mo. banc 2011) ("Section 211.447.5(2) requires the trial court to

make specific findings regarding the conditions or acts listed in the statute when

determining whether or not the statutory ground of abuse or neglect for termination of

parental rights exists."). However, those factors enumerated in section 211.447.5(2) about


                                              28
which that the trial court must make findings "'are simply categories of evidence to be

considered along with other relevant evidence, rather than separate grounds for termination

in and of themselves.'" In Interest of J.A.F., 570 S.W.3d 77, 83 (Mo. App. W.D. 2019)

(quoting T.T.G. v. K.S.G., 530 S.W.3d 489, 495 (Mo. banc 2017)). Similarly, the factors

set forth in section 211.447.5(3) simply "provide an organizational framework through

which the trial court examines much of the evidence in order to determine whether the

parent has failed to remedy a condition, and whether that failure is likely to continue." In

re L.J.D., 352 S.W.3d 658, 674 (Mo. App. E.D. 2011).

       Sections 211.447.5(2) and (3) clearly required the trial court to make explicit

findings on Mother's mental condition based on the evidence it had before it. Here, Dr.

Sisk testified about the findings of the psychological examination he conducted on Mother

without objection by Mother challenging the relevance of Dr. Sisk's testimony. By failing

to object to his testimony, Mother consented to the trial court's consideration of and

subsequent findings on the subject as required by sections 211.447.5(2) and (3). More to

the point, as Mother was on notice that sections 211.447.5(2) and (3) had been pleaded as

bases to terminate her parental rights, she was equally on notice of the statutory categories

of evidence deemed relevant to those bases for termination.

       Point Six is denied.

Point Seven: Performance of the Child's Guardian Ad Litem

       Mother's seventh and final point on appeal argues that the trial court erred in

terminating Mother's parental rights because the Child's guardian ad litem failed to

discharge her duty to conduct a diligent and independent investigation on behalf of the

                                             29
Child's best interests. To support her position, Mother cites the guardian ad litem's failure

to investigate the friend with whom Mother had initially left the Child, Mother's family

members, and the Prospective Adoptive Parents before the Child's placement with the

Prospective Adoptive Parents; the guardian ad litem's failure to interview Mother; the

guardian ad litem's failure to visit the Child in the Prospective Adoptive Parents' home

more than two times; the guardian ad litem's failure to inform the trial court of E.R.'s

criminal background prior to the Child's placement or prior to the trial court's ruling on

Mother's motion for drug testing of the Prospective Adoptive Parents; the guardian ad

litem's failure, after the Prospective Adoptive Parents tested positive for marijuana use, to

ask the Child whether he felt safe in the home or whether he witnessed the Prospective

Adoptive Parents engage in drug use; and the guardian ad litem's failure to preserve the

Child's relationship with Mother until he said he wanted to see Mother. Mother asserts that

the guardian ad litem's failure to discharge her duties constitutes reversible error.

       Section 211.462.1 provides that "[i]n all actions to terminate parental rights, if not

previously appointed [in an abuse and neglect proceeding], a guardian ad litem shall be

appointed for the child as soon as practicable after the filing of the petition." During the

course of termination of parental rights actions, the guardian ad litem must:

       (1) Be the legal representative of the child, and may examine, cross examine,
       subpoena witnesses and offer testimony. The guardian ad litem may also
       initiate an appeal of any disposition that he determines to be adverse to the
       best interests of the child;

       (2) Be an advocate for the child during the dispositional hearing and aid in
       securing a permanent placement plan for the child. To ascertain the child's
       wishes, feelings, attachments, and attitudes, he shall conduct all necessary


                                              30
       interviews with persons, other than the parent, having contact with or
       knowledge of the child and, if appropriate, with the child;

       (3) Protect the rights, interest and welfare of a minor or incompetent parent
       by exercising the powers and duties enumerated in subdivisions (1) and (2)
       of this subsection.

Section 211.462.3. The statutory authority and duties of the guardian ad litem are set forth

in section 211.462 "in order to make clear that the guardian ad litem is not limited to being

a mere observer who bases a recommendation only upon what he or she has observed." In

Interest of J.P., 947 S.W.2d 442, 446 (Mo. App. W.D. 1997).

       First, we observe that some of Mother's allegations regarding the guardian ad litem's

representation of the Child are not applicable to the termination of parental rights action

and are instead a challenge to the guardian ad litem's representation of the Child in the

underlying juvenile matter. Any complaints Mother has about the guardian ad litem's

failure to investigate the friend with whom Mother initially left the Child, Mother's family

members, and the Prospective Adoptive Parents before the Child's placement; about the

guardian ad litem's failure to inform the trial court of E.R.'s criminal background prior to

placement; and about the guardian ad litem's actions after the Prospective Adoptive Parents

tested positive for marijuana are complaints that relate to placement of the Child, not to the

termination of Mother's parental rights. See In re M.O., 70 S.W.3d 579, 588 (Mo. App.

W.D. 2002) ("[T]he court is not to consider the quality of a particular adoptive home" when

terminating parental rights.). We have already explained that the underlying juvenile

matter addressing placement of the Child cannot be collaterally attacked in this proceeding.




                                             31
       Further, to the extent that Mother's remaining complaints about the guardian ad

litem's representation of the Child pertain to the termination of parental rights action and

are supported by the record, Mother has not explained how she was prejudiced. We have

previously concluded that a guardian ad litem's complete failure to conduct any

investigation or interviews with people who have contact with a child and a failure to make

a recommendation to the trial court deprives the court of "complete information on which

the trial court could base its decision" so that reversal is necessary. Baumgart v. Baumgart,

944 S.W.2d 572, 579 (Mo. App. W.D. 1997). Mother makes no such allegation here.

Instead, Mother expresses her dissatisfaction with the guardian ad litem's representation of

the Child without explaining what evidence, if any, the trial court would have had before

it had the guardian ad litem conducted her investigation as Mother believes was necessary.

As such, even if we accept Mother's premise that the guardian ad litem for the Child did

not satisfy the requirements set forth in section 211.462.3, we would not be permitted to

reverse the Judgment. See Rule 84.13(b) ("No appellate court shall reverse any judgment

unless it finds that error was committed by the trial court against the appellant materially

affecting the merits of the action.").

       Point Seven is denied.

                       Motion for Attorney's Fees Pending Appeal

       Local Rule 29 requires that "[a]ny party claiming an amount due for attorney's fees

on appeal pursuant to contract, statute or otherwise and which this Court has jurisdiction

to consider, must file a separate written motion before submission of the cause." Mother

has done so here, filing a motion pursuant to 13 CSR 40-30.020(2)(D), for attorney's fees

                                             32
in excess of the regulatory maximum. The regulatory maximum compensation for a

contested trial is $7,000, and the regulatory maximum for representation in an appellate

court is $3,500. 13 CSR 40-30.020(2)(B). While it is appropriate for an appellate court to

consider the issue of attorney's fees, we may only do so when the record is sufficiently

developed. In re C.W., 257 S.W.3d 155, 159 (Mo. App. E.D. 2008). There is no evidence

in the record that would allow us to evaluate the value of services Mother's counsel

provided. As such, "[t]he trial court is better positioned to receive the arguments and

evidence we currently lack, and is considered an expert on the question of attorney fees."

In the Interest of I.K.H., 566 S.W.3d 629, 633 (Mo. App. S.D. 2018). Though we affirm

the trial court's Judgment, we remand this case to the trial court for consideration of

mother's pending motion for attorney's fees in excess of the regulatory maximum.

                                       Conclusion

      We affirm the trial court's Judgment and remand this matter to the trial court for

consideration of Mother's motion for attorney's fees in excess of the regulatory maximum.




                                         __________________________________
                                         Cynthia L. Martin, Judge

All concur




                                           33
