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In re E.T.C.6/15/2004
er time to appear and participate at the hearing. In her appeal, Mother contends that the trial court's denial of her motion for continuance was arbitrary and an abuse of discretion.
Mother appeared at the June 24, 2003, court hearing on the Petition to Terminate Parental Rights through counsel. Mother's counsel orally moved for a continuance on the grounds that Mother was in Ireland and could not be present at the hearing. The court denied the motion stating that "Mother was granted a continuance on April 7, 2003. And at that time the court noted that neither parent would be granted any further continuances."
"The denial of a request for a continuance rarely is reversible error; yet the trial court enjoys neither an absolute nor an arbitrary discretion, and the trial court's action will be reversed if there has been an abuse of discretion." D.C., 49 S.W.3d at 698-99. The court's decision to deny Mother's request for continuance was not an arbitrary decision in light of the fact that, months before this hearing, the court warned the parties that neither Mother nor Father would be granted additional continuances. We also note, as an additional ground that, in the absence of consent from opposing counsel, Rule 65.03 of the Missouri Rules of Civil Procedure requires that an application for continuance be made by written motion and accompanied by an affidavit. Mo.R.Civ.P. 65.03; In the Interest of M.P.W., 983 S.W.2d 593, 599 (Mo.App.W.D. 1999). Here, Mother's counsel orally moved for continuance at the hearing, without consent from opposing counsel. Accordingly, Mother's request for continuance did not comply with Rule 65.03. Point denied.
B. Section 211.447.2(1)
In her second point on appeal, Mother argues that the trial court erred in terminating her parental rights based on the fact that Child was in foster care for at least fifteen of the most recent twenty-two months. Mother and the juvenile officer agree that in light of the recent Supreme Court decision, In the Interest of M.D.R., 124 S.W.3d 469 (Mo. banc 2004), the trial court erred in holding that foster-care custody for at least fifteen of the twenty-two previous months is a ground for terminating parental rights. However, because the trial court found several other statutory bases for termination, the trial court's error does not support reversal of the judgment. Id. at 476.
C. Section 211.447.4(1)
In her third point on appeal, Mother argues that the trial court erred in terminating her parental rights because there was insufficient clear, cogent and convincing evidence to support the findings made pursuant to section 244.447.4(1). In support of this contention, Mother claims that she did not abandon Child. Rather, because she did not receive adequate treatment, her mental disability rendered her unable to comply with the service plan and maintain regular contact with Child. Because resistance to treatment is one of the symptoms of her disability, Mother asserts that the Children's Division of the DFS should have done more to ensure that appropriate treatment continued. Finally, Mother asserts that her actions were the result of her untreated mental illness and her "words and conduct never evinced an intent to abandon or neglect [Child]."
Section 211.447.4(1)(b) provides, a child has been abandoned if, for a period of six months or longer: "the 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." At the hearing, the juvenile officer proved that Mother failed to maintain any sort of contact with Child.
Admittedly, the court o
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