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In re E.T.C.6/15/2004
t provide any financial support and had not fulfilled the terms of his written service plan.
Ms. Moore explained that she had never met Mother. Ms. Moore testified that Mother had been living in Ireland since March 2003 and that, when in the United States, Mother could not provide adequate housing for Child. Pursuant to the court's October 25, 2001 Order, Mother could only visit Child when recommended by her therapist and then, only under the supervision of DFS. However, because Mother never entered therapy she never visited Child. Ms. Moore further testified that although Mother provided occasional gifts for Child, records indicate that she never provided any financial support for Child. Mother also failed to fulfill her obligations under the written service plan.
Father testified and explained that he could care for and parent Child. Father admitted that he had not sent much money for Child. Father claimed that he filled out and signed his service agreement and waited to be contacted. Father complained that no referral was made for any services for him. Father's attorney asserted that no evidence indicated that Father was a danger to Child and DFS had not made any efforts to assist Father in becoming the primary parent for Child.
When given an opportuntity to present evidence on behalf of Mother, Mother's counsel stated that he did not have any evidence to present because his client was not present. However, Mother's attorney admitted Mother's mental disability and asserted that DFS failed to accommodate this disability as required by the Americans with Disabilities Act ("ADA").
The Guardian ad Litem recommended that the best interest of Child necessitated the termination of parental rights. On October 2, 2003, the court entered its order terminating the parental rights of both Mother and Father concluding: (1) Child has been adjudicated abused or neglected as required by section 211.447.4(2); (2) Child has been under the court's jurisdiction for a period of one year as required by section 211.447.4(3); and (3) Child has been in foster care for at least fifteen of the most recent twenty-two months as required by section 211.447.2(1). The court likewise addressed the findings required by sections 211.447.4(2)(a-d), 211.447.4(3)(a-d) and 211.447.6(1-7). Both Mother and Father separately appealed the termination of their respective parental rights. Standard of Review Our review of a trial court's decision to terminate parental rights is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the judgment of the trial court unless no substantial evidence supports the decision, it is against the weight of the evidence, or it erroneously declares or applies the law. In Interest of K.O., 933 S.W.2d 930, 934 (Mo.App.E.D. 1996). We view facts and reasonable inferences in the light most favorable to the trial court's decision and defer to the trial court's superior ability to determine the credibility of witnesses. Id.
The court's primary concern in cases involving the termination of parental rights is the best interest of the child. Id. Accordingly, a trial court may terminate parental rights only when it finds clear, cogent and convincing evidence to support the termination. Id. "Clear, cogent, and convincing evidence is that evidence which tilts the scales in the affirmative and leaves the fact finder's mind with an abiding conviction that the evidence is true." In the Interest of D.C., 49 S.W.3d 694, 698 (Mo.App.E.D. 2001).
Mother's Appeal
A. Motion for Continuance
In her first point on appeal, Mother contends that the trial court erred when it denied her oral motion for continuance to allow h
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