Opinion
No. 5-777 / 05-1436
Filed November 9, 2005
Appeal from the Iowa District Court for Warren County, Richard B. Clogg, District Associate Judge.
A mother appeals the district court's order terminating her parental rights. AFFIRMED.
Margery L. Pierce of Pierce Law Office, Ankeny, for appellant-mother.
Cynthia Schoenfeld, Des Moines, for appellee-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Gary Kendall, County Attorney, and Alyssa Kenville, Assistant County Attorney, for appellee-State.
Thomas Graves, Des Moines, attorney for child.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Danielle appeals the district court's order terminating her parental rights to her daughter, A.K. We affirm.
Background Facts and Proceedings.
A.K. is the infant daughter of Danielle and Kurt, who was voluntarily removed from their care in July 2004 due to a domestic conflict. A.K. was adjudicated a child in need of assistance in September 2004 pursuant to Iowa Code sections 232.2(6)(b), 232.2(6)(c)(2) and 232.2(6)(n) (2003). At the time of adjudication, A.K. was placed with Danielle under the supervision of the Iowa Department of Human Services (DHS), while Danielle resided at Heart of Iowa residential substance abuse treatment facility. Danielle abused pain medication on her way to Heart of Iowa, and A.K. was subsequently placed with her paternal grandparents.
Danielle spent the next months in and out of substance abuse treatment programs. While she completed the Mid-Eastern Council on Chemical Abuse's (MECCA) residential treatment program in October 2004, Danielle either refused to follow recommended prevention treatments or failed to follow recommendations consistently. She completed intake for the day-treatment program at Broadlawns Hospital in November 2004, which offers dual mental health/substance abuse treatment. Danielle only attended on six occasions until December 2004 and was discharged for noncompliance with the program in January 2005. Danielle refused DHS requests to submit to urine analysis (UA) in November 2004 and admitted to using methamphetamine that month. She continued to refuse to submit to UAs until January 2005 when a UA was positive for methamphetamine. In February 2005, Danielle was ordered by the court to treatment for substance abuse, residing first at Broadlawns Medical Center and then the dual-diagnosis unit at the Mental Health Institute at Mt. Pleasant. While at Mt. Pleasant, Danielle only reluctantly participated in treatment and resisted the recommendation for discharge placement at a halfway house. She received a "maximum benefits" discharge from Mt. Pleasant and was discharged to the Bernie Lorenz Recovery halfway house. Danielle stayed at Bernie Lorenz for less than one week and subsequently stayed for less then one week at MECCA inpatient treatment. The district court issued an order in April 2005, ordering Danielle's participation in the Bernie Lorenz Recovery Program and psychiatric outpatient treatment through Broadlawns. She participated in these programs for approximately five weeks, until her discharge from Bernie Lorenz for noncompliance in July 2005.
Danielle was diagnosed at Broadlawns with mood disorder, polysubstance abuse, prescription medication abuse, nicotine dependency, and borderline personality disorder.
The State filed a petition to terminate Danielle's parental rights in July 2005, pursuant to Iowa Code sections 232.116(1)(d) (2005) (child CINA for physical or sexual abuse or neglect, circumstances continue despite receipt of services); 232.116(1)(e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child); 232.116(1)(h) (child is three or younger, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home); and 232.116(1)( l) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). The termination hearing was held August 11, 2005, which Danielle did not attend. Her attorney made an oral motion for a continuance, which the district court overruled. The district court also admitted four exhibits by the State, over the objection of Danielle's counsel that she had not had an opportunity to review the exhibits with Danielle. The State requested and the district court found Danielle to be in default. The district court proceeded to hear testimony from DHS caseworker Beth Luewerke and CASA worker Vicki Olsen pertaining to termination of Kurt's parental rights, whom Danielle's counsel had the opportunity to cross-examine. The district court entered its written order terminating Danielle and Kurt's parental rights on August 22, 2005. Danielle appeals.
I. Scope of Review.
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
II. Due Process and Denial of Continuance.
Danielle alleges that the district court violated her due process rights when denying a motion to continue the termination hearing. The parties do not dispute that Danielle had notice of the termination hearing, as verified by her trial attorney's professional statement to the court at the hearing. Accordingly, Danielle's due process rights were not violated for lack of proper notice. Danielle contends that the district court abused its discretion by denying her motion to continue the termination hearing. However, nothing was presented to the court to justify a good cause finding to warrant a continuance. Iowa R. Juv. P. 8.5 (2005); In re K.A., 516 N.W.2d 35, 36-37 (Iowa Ct.App. 1994). The court reviewed the notice to Danielle as well as the court calendar. With the only reason given to the court for the continuance was Danielle failing to appear, the court found no reason to justify continuing the hearing. In the Interest of C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996) (stating that denial of a motion to continue must be unreasonable under the circumstances and injustice result to the party desiring the continuance before we will reverse). We find the district court did not abuse its discretion in denying the motion to continue the termination hearing.
III. Termination.
Danielle next asserts that the district court erred in entering a default judgment against her, terminating her parental rights. While the district court stated on the record and in the order terminating Danielle's parental rights that she was in default, the court addressed the merits of termination and found clear and convincing evidence supporting termination in A.K.'s best interests. Upon our de novo review, we need not address the finding of default against Danielle and may look to the whole of the record itself to determine the merits of Danielle's issues on appeal.
A. Admission of State's Exhibits.
Danielle alleges that the district court improperly admitted certain State's exhibits over her counsel's objection at the termination hearing. Ordinarily, we review the district court's rulings concerning admission of evidence for correction of errors at law, Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 265 (Iowa 1998), and will only reverse the district court's decision to admit evidence for an abuse of discretion. State v. Kios, 524 N.W.2d 195, 196 (Iowa 1994). The State offered four exhibits at the hearing: State's #1-DHS report, State's #2-Bernie Lorenz discharge report on Danielle, State's #3-CASA report, and State's # 4-Bruett Counseling report. There is no indication in the record as to when Danielle's attorney actually received the exhibits. Moreover, Danielle's attorney did not make any specific objection to the exhibits, simply objecting on the grounds that she did not have an opportunity to review them with Danielle. See State v. Mulvany, 603 N.W.2d 630, 632 (Iowa Ct.App. 1999) (citing State v. Taylor, 310 N.W.2d 174, 177 (Iowa 1981)) ("It is incumbent upon the objecting party to lodge specific objections so the trial court is not left to speculate whether the evidence is in fact subject to some infirmity that the objection does not identify."). We also note that the authors of two of the four reports introduced at the termination hearing testified and were available for cross-examination by Danielle's attorney. We find that the district court did not abuse its discretion in admitting the four exhibits offered by the State at the termination hearing.
The State also requested the district court take judicial notice of the CINA file.
B. Clear and Convincing Evidence.
Danielle also contends that the State failed to present clear and convincing evidence supporting termination of her parental rights to A.K. Under our de novo review, we find the record supports termination under Iowa Code sections 232.116(1)(h) and ( l). A.K. was adjudicated CINA and is less than three years of age. She was removed from the home due to domestic abuse concerns, but also because of Danielle's chronic and severe substance abuse problems. Although Danielle has made some efforts to undergo treatment, these attempts have been sporadic and largely unsuccessful, preventing the safe return of A.K. to Danielle's care within a reasonable time. It is in A.K.'s best interests for Danielle's rights to be terminated so that A.K. can have permanency and stability in her life. We find that clear and convincing evidence in the record supports termination of Danielle's parental rights to A.K. and that termination is in A.K.'s best interests.