Opinion
No. 5-246 / 05-0188.
March 31, 2005.
Appeal from the Iowa District Court for Dubuque County, Jane Mylrea, Judge.
A mother and father appeal from the order terminating their parental rights to their daughter. AFFIRMED.
Stuart Hoover of Blair Fitzsimmons, P.C., Dubuque, for appellant-father.
Timothy Goen of the Goen Law Offices, Dubuque, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean Becker, Assistant County Attorney, for appellee State.
Brannon Burroughs, Dubuque, guardian ad litem for child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Jessica and Travis are the parents of Vivian, who was born in October 2003. The juvenile court removed Vivian from her parents' care in July 2004 after a hair test revealed the presence of marijuana in Vivian and the parents' home was found to be "unsanitary, chaotic and unsafe." In addition, Jessica and Travis initially refused to inform the Iowa Department of Human Services (DHS) of Vivian's whereabouts. Authorities later located her at the home of her paternal grandparents, one of whom was a registered sex offender. On September 21, 2004, Vivian was adjudicated to be in need of assistance (CINA). On January 7, 2005, the State filed a petition to terminate Jessica's and Travis's parental rights, and following a subsequent hearing, the court terminated their rights under section 232.116(1)(h) (2005). Both Jessica and Travis appeal.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child. 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 2001).
Travis.
On appeal, Travis maintains (1) the court erroneously concluded he made no reasonable efforts to resume care of Vivian, (2) "he was never given the opportunity to resume care of [Vivian] and [Vivian] never should have been removed," (3) the court erred by overruling his objection to giving self-incriminating testimony, and (4) the court erred in refusing his request to call his father as a witness. We will address each in turn.
We first conclude clear and convincing evidence supports the termination under Iowa Code section 232.116(1)(h). The record amply supports the juvenile court's conclusion that Vivian could not be returned to Travis's care at the time of the termination hearing. Our de novo review of the record shows that Travis is an immature individual who regularly uses drugs, lives a reckless lifestyle in a chaotic environment, and is focused primarily on his own immediate desires. Travis has been offered drug and mental health treatment but failed to avail himself of them. Moreover, despite numerous chances, Travis has rarely visited Vivian since her removal.
While the State sought termination under section 232.116(1)(h), and the juvenile court's order appears, by its language, to grant the termination under section 232.116(1)(h), Travis argues on appeal as though the court terminated his parental rights under section 232.116(1)(e) (child CINA, removed six months, parent has not maintained significant and meaningful contact).
We next conclude Travis has not properly preserved for appellate review his contention that Vivian should not been removed from his care in the first place. The record does not reflect that Travis ever appealed from the CINA proceedings or, more particularly, from the order removing Vivian from his custody. His failure to do so precludes our review. See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct.App. 1997) (citing In re Marriage of Guyer, 522 N.W.2d 818, 821 (Iowa 1994)).
We next address Travis's claim "the court erred by overruling [his] objection to giving testimony that was self-incriminating." The following exchange occurred between the State and Travis:
Q. Can you tell us when you started using marijuana? A. When I was about 13 years old.
Q. And between the age of 13 and today, what kind of history of abuse do you have with the drug? A. What do you mean?
Q. How often do you use it?
[TRAVIS' COUNSEL] I'm going to object to this. Mr. Manning is advised not to answer that it would be admitting criminal activities.
THE COURT: Overruled. Answer.
A. Maybe twice every month or so.
Assuming for sake of argument that this constituted error, we conclude any such error is harmless in that Travis's admission to the use of drugs was merely cumulative of a substantial amount of similar evidence already allowed into the record without objection. See State v. Gartin, 271 N.W.2d 902, 914 (Iowa 1978).
Finally, we find without merit the claim that the court erred in refusing to allow Travis's father to testify. When Travis's attorney requested that Travis's father be allowed to testify, he stated "I think the idea is that he has come up in this conversation and he might be able to shed some light on it." However, after the court's ruling, counsel made no offer of proof as to what Travis's father's testimony might be. Without such an offer, we have nothing to review. See Iowa R. Evid. 5.103( a); State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995) (noting an offer of proof serves to give the trial court an adequate basis for its evidentiary ruling and to make a record for appellate review). We affirm the termination of Travis' parental rights to Vivian.
Jessica.
Jessica's sole contention on appeal is that the State failed to make reasonable efforts to reunite her with Vivian. Our de novo review shows the record clearly and convincingly supports the contrary.
In particular, Jessica claims that although she "does not object to the type of services provided, she [did need] additional time to work with the services. . . ." While we question whether she has preserved this issue for our review, see In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999) (parent must request other or additional services in order to preserve the issue of services for appeal), we nonetheless address the contention. We conclude Jessica was offered a variety of services; however, she either failed to take advantage or simply failed to attend them. During the period immediately following Vivian's removal, Jessica attended therapy sessions and visitations, although her performance in both was lacking. Later, however, she began to miss appointments, either without explanation or with a poor excuse. In fact, Jessica missed ten consecutive visits at one point. Accordingly, we find Jessica's contentions in this regard to be without merit. We therefore affirm the termination of her parental rights.