Editor:Shawn R. McCarver, Esquire
Termination of parental rights (TPR) for abuse/neglect on
aggravating factors of mental condition and repeated or continuous
neglect is affirmed where child was adjudicated for failure to thrive
while in custody of another when mother was incarcerated; mother had
mental condition rendering her unable to care for child without at
least one to two years of intensive therapy; and mother failed to
provide a relationship and support for the child. In Interest of J.S.W., No. 95390 (Mo. App. E.D., May 31, 2011), Romines, J.
Child was born in May 2006. The court assumed jurisdiction over the
child in November 2006 for abuse/neglect due to failure to thrive while
child was in custody of the person with whom mother placed the child
while mother was incarcerated. Mother was released in May 2007, and a
service agreement was established. Mother failed to comply with the
bulk of the service agreement. In December 2009, a petition for TPR was
filed. Trial was held in March 2009, and judgment terminating
mother's rights was rendered in June 2009. Rights were terminated for
abuse/neglect and failure to rectify. Mother appeals alleging
insufficient evidence supports TPR.
Child was adjudicated abused or neglected in November 2006. Mother
was incarcerated at the time of the adjudicatory hearing, but, by
counsel, admitted the allegations. On the four aggravating factors,
the court found that two applied: mental condition and repeated and
continuous neglect. As to mental condition, the court found the
condition was ongoing, that it rendered mother unable to care for child
and that it could be perhaps diminished or controlled, but only after
at least one or two years of intensive psychotherapy or treatment. The
court found mother's past behavior indicated little likelihood of
engaging in such future services.
As to repeated or continuous neglect, mother had dubious employment
status and income stability. Although she claimed to be employed, she
did not produce verification. She failed to provide other than a few
Christmas gifts in 2007, and this does not discharge her duty to
support, especially when mother claims to have earned a steady income
throughout the five years prior to termination.
Mother claims the court erroneously relied on outdated information,
but such information is predictive of future behavior. In addition, the
court made an affirmative finding that mother's past behavior
indicates future similar failures.
Termination is in the best interests of the child because there are
no emotional ties, mother failed to maintain contact with the child
when possible, her support was minimal and there was little hope of
addressing her mental issues in time to prevent unnecessary delay to the
child's future adjustment in a permanent home.
Adoption without consent for six months of abandonment is
affirmed where father failed to support or visit child during the six
months prior to the filing of the petition. Findings requirements of
Chapter 211 are not applicable to a Chapter 453 adoption where
petitioners did not invoke Chapter 211 in the petition. Matter of H.N.S. and K.J.S., No. 30826 (Mo. App. S.D., May 26, 2011), Bates, J.
Child was taken into protective custody at age 3 when a newborn
half-sibling and mother tested positive for methamphetamine. Child and
half-sibling were placed in protective custody with adoptive parents
by the Children's Division. Father refused to sign a treatment plan.
On January 7, 2009, adoptive parents filed a petition for adoption
without consent on grounds of six months of abandonment and six months
of neglect. From May 2007 to March 2008, father had six visits, and
did not visit child after March 2008. Father sent two cards and was
over $5,000 in arrears in child support. The six month period before
filing was July 7, 2008 to January 7, 2009. During that period, father
had no visits, sent no cards and the only support credited to him was
as a result of an involuntary tax refund intercept in June 2009.
Father appeals the judgment granting the adoption. Father was arrested
on DWI and assaulting an officer. In December 2008, father violated his
probation by theft of a firearm, and father was thereafter
incarcerated, where he remained throughout the proceedings. Father
made no voluntary support payments despite an order to pay $206 per
Father claims petitioners did not properly plead failure to rectify
under Chapter 211. The requirements of Chapter 211 have no
applicability to a Chapter 453 adoption proceeding where petitioners do
not invoke Chapter 211. Thus, the findings and other requirements of
Chapter 211 have no applicability to this case.
Father also claims the Division failed to arrange visits while father
was in prison, that he paid support (the tax intercept) and that
adoptive parents blocked father's calls after May 2007. Father was not
incarcerated for much of the six month period, so his attempt to blame
others, such as the Division, for his lack of a relationship with
child is to no avail. Likewise, father's argument that he provided
support for the child is to no avail as it was involuntary and after the
Father's argument that although mother's rights were also terminated
in this adoption proceeding, mother's relationship with child would
continue since adoptive parents are mother's parents is rejected where
the court properly focused on the best interests of the child in a
stable and permanent home as required by Chapter 453.
Held: Judgment granting adoption affirmed.
Termination of parental rights (TPR) for failure to rectify
is affirmed where father failed to comply with the vast majority of his
treatment plan, and where both original conditions leading to
assumption of jurisdiction as well as other harmful conditions still
persisted making early reunification unlikely. In Interest of A.L.M., K.M.M., M.J.C.M., and R.K.M., Nos. 30837, 30838, 30839 and 30840 (Mo. App. S.D., May 25, 2011), Francis, Jr., J.
In July 2008, children were placed with father's sister after reports
that father abused his own mother and one of the children. In August
2008, the children were placed in protective custody due to father's
inadequate housing, physical and verbal abuse, domestic violence,
medical and hygiene neglect and parental drug abuse.
A treatment plan with 16 items was made. Father failed to provide
verification of a substance abuse assessment, although he completed
some treatment while incarcerated. Father failed one drug test, and
admitted drug use rather than be tested on three other occasions.
Father used methamphetamine and marijuana almost one year after the
children were taken into custody. Father violated laws by having two
DWI convictions, a probation violation, and by not consistently
reporting to his parole officer. Father failed to attend a support
group such as Narcotics Anonymous except while he was incarcerated.
Father's psychological assessment revealed him to have antisocial
personality and the evaluation revealed he did not have a sufficiently
long clean drug history. Father went months without attending
therapy. Despite inheriting $28,000 which he said he would use to
obtain suitable housing for the children, father did not have suitable
housing either before or after the inheritance. Father attended only
some of the team meetings. Father did sign release forms.
Father failed to provide proof of income or any explanation as to why
he did not support the children. Father was not asked to attend
appointments with the children as the team felt he had not made enough
progress. Father was dismissed from the parenting class program and
attended only about half of the visits with the children when not
incarcerated, although while incarcerated, he sent 37 letters. Father's
inconsistent visitation had a negative impact on the children.
In August 2009, a TPR petition was filed. Trial was held in June
2010, and in August 2010, father's parental rights were terminated for
abuse/neglect and failure to rectify. Father appealed, alleging the
judgment was not supported as to either ground or as to the finding that
TPR was in the best interests of the children.
The children had been under the jurisdiction of the court for one
year, and the trial court also found that original conditions still
persisted and that conditions of a harmful nature continued to exist,
and that there was little likelihood of early remedy allowing
reunification. As to the four aggravating factors, the opinion notes
that proof of only one is needed to support termination.
Father's failure to complete the treatment plan provides suitable
indication of father's predicted future behavior. The mere fact that he
had employment five weeks before the TPR trial, and that he inherited
$28,000 and promised to use it to obtain suitable housing, when he had
not done so was insufficient to defeat termination. Father had
previous employment as a roofer and remodeler and had not provided
suitable housing. In addition, in the absence of evidence showing
father is unable to support the children or obtain employment, father
is to be considered financially able to support the children.
It is not required that all seven factors in Section 211.447.7 must
weigh in favor of termination to find best interests, and there is no
minimum number necessary for termination. That TPR was in the best
interests of the children was supported by evidence of father's poor
visitation record, his continued volitional criminal activity and his
lack of support of the children.
Termination of parental rights (TPR) for abuse/neglect and
failure to rectify is reversed where the trial court's findings were
not supported by substantial evidence of a convincing link between
mother's past behavior, her conduct at the time of the termination
trial, and the trial court's prediction of the likelihood of future harm
to child. In Interest of X.D.G., No. 30866 (Mo. App. S.D., April 26, 2011), Per Curiam.
Mother had no explanation for seven week old child's broken left leg
other than child had been fussy and parents had been pumping child's
legs to relieve gas. According to mother, child had been in parents'
care during the two weeks before the child was taken to the hospital.
Father said no others were around the child, except that during the
three weeks before the child was taken to the hospital, child had one
visit with maternal grandparents for 3 to 4 hours, and that several
other people had been around child. Mother later provided a list of
several people who had been around the child in the two weeks before
the hospitalization, but the Children's Division investigator did not
know which ones on the list she had talked with, nor did the
investigator talk with each of the doctors that mother claimed had seen
the child in the weeks before the hospitalization.
The doctor said the break happened within a week prior to the
hospitalization and that the explanation given by parents was not
consistent with the injury. Subsequent examination by another doctor
confirmed the broken left leg and revealed that the child's right leg
and left arm had also been broken. The second doctor thought the left
leg fracture was ten days to two weeks old, and that the left leg break
was caused by a combination of twisting and direct force.
Mother denied harming the child intentionally or accidentally, stated
that she had taken the child to the doctor on four occasions, and that
she had contacted the nurse on call several times. She was never told
that the child had any broken bones. Mother acknowledged the
injuries, stated she would do a better job to protect the child in the
future and said she had learned much in counseling. The case worker
was not sure the child would be one hundred percent safe if returned to
mother. Termination was granted for abuse/neglect and failure to
rectify. Mother appeals the termination of her parental rights.
TPR must be based on verifiable facts, not speculation. In this case
there is insufficient evidence of the likelihood of future abuse, even
assuming mother injured the child. The caseworker was not completely
sure the child would be safe, and the psychologist was cautiously
optimistic about a gradual reunification, and stated that the lack of
an admission of fault does not prevent treatment from being effective.
Taken together, the testimony of the case worker and the psychologist
are too speculative to constitute clear and convincing evidence on the
issue of the likelihood of future harm. There was no evidence that a
failure to admit harming the child or to adequately explain the source
of the injury constituted evidence of future danger to the child.
Held: Reversed. Evidence upon which TPR is based
fails to establish a convincing link between past behavior and
likelihood of future harm as required by K.A.W.,133 S.W.3d 1 (Mo. banc 2004).
Termination of parental rights (TPR) is reversed where
Father, who failed to appear for protective custody, adjudication and
disposition hearings, requests counsel and is denied appointed counsel
for review, permanency and post-permanency hearings, but is given
appointed counsel for TPR trial because a party is entitled to counsel
at all proceedings under Section 211.211, RSMo. In Interest of C.F. and A.K., No. 95633 (Mo. App. E.D., April 12, 2011), Cohen, J.
Father appeals the termination of his parental rights alleging that
he did not receive appointed counsel as required by Section 211.211,
RSMo for review, permanency and post-permanency hearings.
Father was on probation for manufacturing methamphetamines. Mother
reported Father for operating a meth lab, and gave permission to search
the residence. In addition to an active meth lab, police found
deplorable conditions. Father tested positive for methamphetamine and
marijuana. The children were taken into protective custody.
Father did not appear for protective custody, adjudication or
disposition hearings because he absconded after being released from
jail. Father first appeared in the juvenile case for a review
hearing. In February, and again in May, 2009, Father requested
appointed counsel by writing the Children's Division worker and the
juvenile officer. The Children's Division worker told father his
request had been denied. Father thereafter appeared at six hearings
pro se. Father was allowed to testify, present evidence and question
The juvenile officer then filed a TPR petition in 2010, and father
again requested appointed counsel. Counsel was appointed April 21,
2010, and trial on the TPR petition was held on May 6 and 13, 2010. At
the beginning of the hearing, father moved to dismiss the TPR petition
on the grounds he had requested and not received appointed counsel at
the earlier hearings in the juvenile case. TPR was granted on June 4,
Section 211.211 provides that a party is entitled to counsel at all
proceedings. A trial court commits reversible error where it fails to
comply with Section 211.211 even if a parent is given an opportunity
to participate in the proceedings and cross-examine witnesses.
Held: Reversed and remanded.
Section 491.075 applies to child protection order cases, and
therefore, admission of child's hearsay statements was not authorized
under Marriage of P.K.A. hearsay exception without compliance
with procedures set forth in Section 491.075 requiring that the court
find, after hearing, that the statements have sufficient indicia of
reliability and that the child testifies or is either unavailable or
would be traumatized if required to testify. E.G.D. v. S.L.D., No. 94767 (Mo. App. E.D., April 5, 2011), Richter, C.J.
In a child protection order case, mother and a police officer
testified as to hearsay statements made by the child. A full order of
protection was entered. Father appeals. Respondent argues that the
hearsay exception set forth in Marriage of P.K.A., 725 S.W.2d
78 (Mo.App.S.D., 1987) authorized the testimony. Section 455.516,
enacted after the P.K.A. case, makes Section 491.075 applicable to
child protection order cases. Since the court admitted the hearsay
statements without holding the hearing required by Section 491.075,
admission of the statements was error.
Held: Reversed and remanded.
Where mother challenges adoption granted under Chapter 453,
the findings and procedural requirements of Chapter 211 are not
applicable. Mother's claims are reviewed for plain error, and the
adoption granted for both abandonment and neglect is affirmed because
mother challenges only the abandonment ground. Adoption of H.D.J.K., No. 72885 (Mo. App. W.D., March 29, 2011), Pfeiffer, P.J.
Mother used illegal drugs while pregnant and exposed the child, born
in 2004, to drugs. The child was placed in care and mother regained
custody in 2008 after completing all tasks required of her. Shortly
thereafter, mother was convicted as a persistent offender of an alcohol
offense, and her earlier parole was revoked and mother was
incarcerated. Thereafter, the probate division held a contested
guardianship hearing between maternal grandparents and the former
foster care provider, L.M. L.M. was awarded guardianship. One year
after receiving guardianship, L.M. filed a petition for termination of
parental rights and for adoption. The petition was granted and mother
Granting an adoption under Chapter 453 does not trigger the findings
and procedural requirements of Chapter 211, as mother argues. In this
case, the petition pleaded the language of Chapter 453 to grant an
adoption without consent because of abandonment and neglect. The
judgment issued by the trial court was a judgment of adoption, not a
judgment terminating parental rights. Neither the petition nor the
judgment refers to any provision of Chapter 211. Mother's parental
rights were, therefore, terminated and the adoption was granted under
Section 453.040(7). Thus, Section 211.447 is not applicable to the
Even when mother's claims are reviewed for plain error, the court
notes that the adoption was granted for both abandonment and neglect,
and mother does not challenge the neglect ground.
The trial court should have required Department of Social
Services (DSS) to disclose hotline records to mother in contested motion
to modify, but its failure only requires reversal if mother can
demonstrate prejudice. Mother does not demonstrate prejudice because
the record shows the trial court did not admit the records or rely on
the contents thereof in reaching its decision. While the court made
findings on certain issues in the records, the court did so after
hearing the information from other witnesses. Young v. Pitts, No. 71794 (Mo. App. W.D., February 15, 2011), Mitchell, J.
Parents were awarded joint legal and physical custody of child.
Mother remarried, and in January 2008, a hotline call alleged child was
sexually abused by mother or her new husband. The hotline was
unsubstantiated. In May 2008, the allegation was made again. This
time, the allegations were substantiated against mother's husband.
Mother filed a motion to modify alleging father made repeated
unsubstantiated hotline calls. Father also moved to modify claiming
mother's new husband abused the child and that mother failed to protect
the child. Mother's visitation was modified to supervised pending
trial, and after trial, the court changed custody to father and ordered
mother to pay support.
Mother subpoenaed DSS records concerning the hotline, and despite a
motion to compel and a motion for contempt DSS refused to produce the
records. Mother sought the records under
Section 210.150.2(4) which allows a parent, not a perpetrator, access
to the records, unless disclosure would endanger a person, in which
case identifying information shall be redacted. The trial court
denied mother's motions to require disclosure. The denial was improper,
but only requires reversal if mother was prejudiced. Mother did not
explain how failure to cross-examine any DSS worker would have harmed
her case. Mother claims the trial court considered the contents of the
records, thus requiring that she have access to the records.
The trial court stated the records were not admissible. Instead, the
trial court relied on evidence admitted at the temporary hearing to
support its finding that the second allegation had been substantiated.
At trial, several witnesses either stated or implied that the
allegations against mother's husband had been substantiated. Mother
cannot elect to put in such evidence, and then use it to bolster her
claim that the trial court improperly relied on records not received
into evidence thereby justifying her claim that failure to disclose the
records prejudiced mother.
A main concern of the court and the guardian ad litem was that mother
did not ask her spouse if the allegations had occurred. Mother took
inadequate steps to protect her child. It is not an abuse of
discretion to fault mother for all but ignoring the allegations. Mother
did not demonstrate prejudice by the court's erroneous failure to
require DSS to disclose the records since the trial record does not
disclose that the court relied on said records.
Judgment assuming jurisdiction and placing child with grandmother instead of father is affirmed in Section
211.031 proceeding for neglect despite the fact that first amended
petition made no allegation against father. Evidence on disposition
showed father had drug history, was homeless, unemployed and unable to
support child. No constitutional violation occurred as father had
adequate notice and opportunity to defend allegations. In Interest of A.R., No. 73107 (Mo. App. W.D., February 1, 2011), Howard, J.
The first amended petition sought jurisdiction of the child for
abuse/neglect under Section 211.031. Count 1 contained allegations
against mother. Count 2 contained allegations against father. At the
hearing, Count 2 was dismissed, and the trial court assumed
jurisdiction based upon Count 1, which sought jurisdiction because of
mother's mental health and her use of illegal drugs. At the
disposition hearing, the Children's Division reports were admitted over
father's hearsay objection. The report noted father's use of drugs,
that he had agreed to participate in a substance abuse program, that he
had not done so, that there had been two unsuccessful attempts to test
father's hair for drugs, that father was homeless, unemployed, and
unable to support the child.
Father appeals alleging the court had no authority to deny him
custody and place the child with grandmother since no allegation
against him had been proven. Father also alleges the court erred by
not applying Section 211.037, the non-offending parent statute.
The adjudication phase of a juvenile hearing is a determination of
whether the court should assume jurisdiction over a child, while in the
second phase, the disposition, the court determines the disposition or
treatment that should be ordered. Once the court assumes jurisdiction,
it has inherent jurisdiction to award custody as it deems will
preserve and protect the child's welfare.
Father does not meet the requirements of the non-offending parent
statute as evidence at the disposition hearing shows he has a history
of drug abuse in violation of Section 211.037.1(3). Father's
constitutional challenges are not preserved for review. Regardless,
the first amended petition sufficiently notified father of the
proceedings. Father, with counsel, appeared and fully participated and
had the opportunity to cross-examine witnesses and present evidence.
The placement with grandmother occurred only after father's history of
drug use was heard in the disposition hearing. No constitutional
The presence of special and extraordinary circumstances
exist where experts testify that child is bonded to guardians and
removal would be traumatic, thus placement with a third party is
authorized, but guardianship is not authorized where the court did not
find that father was unwilling, unable or unfit as required by Section
475.030.4(2). The court of appeals directs the trial court to require
the child be relocated to Missouri one week after the end of school and
that reunification is the permanency plan, to be carried out
deliberately and with all available assets, not later than the
beginning of the school year. In Interest of C.L., No. 71971 (Mo. App. W.D., February 1, 2011), Welsh, J.
The first attempt to adopt the child was reversed by the Supreme
Court because unwed father should have been allowed to present evidence
of parental fitness even though father did not qualify as a person
from whom consent was required for an adoption. On remand, the
adoption was again granted and that decision was likewise reversed by
the Western District because the trial court relied on the same
evidence held by the Supreme Court to be insufficient in the first
appeal. In addition, it was held by the Western District on the second
reversal that failure to support the child during the appeal could not
be used as a ground where father was actively fighting in court to
regain the right to care for child. This second reversal, however,
invited the trial court to consider whether extraordinary circumstances
justified placement of child with someone besides father. On remand,
the trial court so determined, granting guardianship, rather than an
adoption as authorized by Section 453.101, to the same persons who had
previously sought adoption. In its decision, the trial court failed
to find that father is unwilling, unable or unfit as required by Section
475.030.4(2). Father now appeals that decision.
To the extent a guardianship was granted solely on best interests,
the trial court committed error by not following Section 475.030.4(2).
The court then considered whether Missouri's judicially created
exception to the presumption that granting custody to a parent will
serve the best interests of a child had been met because of special or
extraordinary circumstances favoring vesting custody of child in a
third party even where evidence does not establish unfitness or
incompetence of the parent.
At trial, several experts testified that child is bonded to
guardians, that removal would be traumatic, that child considers
himself part of guardians' family and a sibling to guardians' children
and that it was not in child's best interests to spend part of his life
with guardians and part of his life with father. One expert also
testified as to concerns about father's parenting and that father does
not understand child's needs. This is substantial evidence of special
or extraordinary circumstances justifying placement with a third party.
Thus, granting the guardianship was error, but placement with
guardians because of special or extraordinary circumstances was not.
Thus, the child will remain in legal custody of Children's Division, in
placement with guardians (not under a guardianship, however) and
father shall have visitation. The permanency plan is reunification with
father. The permanency plan shall be pursued deliberately consistent
with the best interests of the child, utilizing all assets available
to the court. The court shall require the child be relocated back to
the Kansas City area within one week after the end of school, and that
reunification with father occur by the beginning of the school year.
Given that reunification is the plan, the name change granted by the
trial court is reversed as it is not in the child's best interests.
Held: Reversed. Guardianship awarded to third party
reversed. Placement with guardian with visitation by Father upheld;
permanancy plan to be reunification with Father.
Termination of parental rights (TPR) for neglect affirmed
where father had no intention of leaving mother, who suffered from
multiple permanent mental illnesses; failed to recognize danger to child
in allowing mother to continue to act as primary caregiver; where
father had anger issues, failed to participate in counseling, and would
require long term assistance with parenting; where father failed to
recognize safety issues to protect the child, failed to provide
support, and was unable to provide appropriate unassisted supervision
of child. In Interest of K.L.C., No. 30632 (Mo. App. S.D., January 31, 2011), Burrell, J.
Intensive in-home services were provided to the family prior to
removal of child in January 2008. The trial court found that child had
been neglected by parents, assumed jurisdiction and approved a
treatment plan. Services were provided until a TPR petition was filed
in September 2009. Father appeals the termination of his parental
rights, which was granted on the basis of neglect and failure to
rectify. Initially, both parents had problems with basic parenting
techniques, and the home was infested with cockroaches.
Mother suffered from a multiple permanent mental illnesses,
discontinued her treatment with five counselors and required long term
help. Evidence showed the parents had no plans to separate and no
plans to move. Thus, mother's mental illness and father's response to
it is a factor considered in termination of father's rights. The
trial court's findings were supported by substantial evidence. Father
neglected child by failing or refusing to recognize the danger to child
in allowing mother to continue to act as child's primary caregiver.
Father's anger issues prevented reunification. Father failed to
participate meaningfully in counseling. Despite parenting classes and
parent aide services father would require assistance with parenting
into the foreseeable future.
Although visitation had been increased and peaked at 16 hours per
week, child's behavior regressed after visits. Father failed to fix a
hole in the bathroom ceiling that leaked water and permitted mold to
grow, and the home remained infested with cockroaches at two different
times. Father failed to recognize safety limitations of the child, one
example being father's failing to put up a gate or barrier to protect
child from falling into a hot furnace grate. Father said child (two
years old) would "just know" not to go near the grate. Father's
unassisted supervision of child was inadequate, and ongoing full-time
supervision would be required.
Father also failed to provide support because he chose to remain
unemployed, worked only sporadically at temporary jobs, failed to
provide documentation of those, and had job skills that could be put to
use if father were willing to work. Termination for neglect was
The finding that termination was in the child's best interests was
also supported by substantial evidence where child had emotional ties
to both father and the foster family, where a continuation of the
parent-child relationship would greatly diminish child's prospects for
early integration into a stable home and where the guardian ad litem
(GAL) recommended termination. GAL recommendation is not binding on the
court but is entitled to respectful consideration.
Where the trial court delayed starting the trial for 20
minutes while father's appointed counsel called father; where notice was
mailed to father which included a warning that parental rights would
likely be terminated if father failed to appear; where the termination
of parental rights (TPR) trial had been set for several months; where
father was aware of the date, but thought it was at an earlier time and
did not appear at the earlier time; where father had failed to appear
at previous hearings and did not state his intent to appear at this
hearing when his lawyer called him; and where the father's motion for
continuance did not comply with Rule 65.03, the trial court did not
abuse its discretion in denying the continuance and holding the TPR
trial. In Interest of R.M.K., No. 95241 (Mo. App. E.D., January 25, 2011), Gaertner, Jr., P. J.
Jurisdiction was assumed over child in November 2008. Father had a
service plan with certain requirements in order to regain custody.
Father did not appear for hearings in February 2009 and December 2009.
Children's Division filed a TPR petition alleging abandonment. Father
was served and failed to appear, although his appointed counsel
appeared. Counsel requested a continuance after the court waited 20
minutes to begin the hearing. Counsel called Father, who said he was
at work, that he thought the hearing was at 9:00 a.m. rather than at
1:00 p.m.. Father did not appear at 9:00 a.m. either, and told counsel
he "may" leave work to come to court within the next 30 to 45
minutes. The court began the trial 20 minutes after the scheduled time
after denying the motion for continuance. The court noted the above
facts as well as the fact that the motion for continuance did not
comply with Rule 65.03. Father's parental rights were terminated and
father appeals, alleging error in the failure to grant the continuance.
The court of appeals holds that the trial court did not abuse its
discretion. The trial court, prior to denying the continuance,
confirmed that notice was mailed; that the trial had been set for
several months; that the notice had a warning that a failure to appear
would likely result in rights being terminated; that father was aware
of the date, but that he thought it was in the morning instead of the
afternoon; that father did not appear at the time that morning that he
thought the hearing had been set; that father had not appeared at
several previous hearings and that father did not state a definite
intention to appear at the TPR hearing even after his attorney called
In addition, the court noted that the motion for continuance did not
comply with Rule 65.03, and that failure to comply with the Rule is a
sufficient ground to deny a motion for continuance.
The Missouri Bar Courts Bulletin, 11-Jun