Opinion
No. 2-376 / 02-0072.
Filed May 15, 2002.
Appeal from the Iowa District Court for Plymouth County, ROBERT J. DULL, District Associate Judge.
The mother appeals the termination of her parental rights. AFFIRMED.
Dewey P. Sloan, Jr. of Dewey P. Sloan, Jr., P.C., LeMars, for appellant-mother.
Joseph Flannery, LeMars, for father.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, Darin J. Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for Appellee-State.
John Polifka of Juvenile Law Center, Sioux City, for minor child.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Angela, the mother of Taylor and Dreysen, appeals the termination of her parental rights. She contends the State did not make reasonable efforts to reunify her with her children, the court's findings do not support termination under the code sections cited, and termination is not in the children's best interest. The court also terminated the parental rights of Dreysen's father, who has not appealed. We affirm.
Angela and Chad are the parents of Dreysen, born in October 1998. Angela and Michael are the parents of Taylor, born in September 1993. The children were removed from Angela's care in December 2000, when she was incarcerated for theft and the police found drug paraphernalia in her home. Angela had left both children with Taylor's paternal grandparents before her arrest. The Department of Human Services (DHS) continued that placement throughout the pendency of this case. At all times pertinent to this case, Michael was incarcerated on drug convictions. Chad, other than paying child support, has neither sought nor had any involvement in Dreysen's life.
The court adjudicated the children in need of assistance in February 2001. Angela did not appear at the disposition hearing in April or the review hearing in October, but was represented by counsel. The State petitioned to terminate all the parents' rights in October. Angela did not appear at the pretrial conference in early November or at the termination hearing on November 15. The court terminated Angela's parental rights under Iowa Code section 232.116(1), paragraphs (c), (d), (h), and (k) (2001).
An amendment to section 232.116(1) effective April 2001 caused the redesignation of paragraphs (c) through (m) as (d) through (n). Iowa Code § 232.116 (Supp. 2001). Both the petition and the order used the old paragraph designations, as do the briefs of the parties. We use the new designations in our discussion of the merits.
Our review is de novo. Iowa R. App. P. 6.4; In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct. App. 2001). The State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence. See Iowa Code § 232.116; In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Reasonable efforts . Angela first contends DHS did not make reasonable efforts to reunite her with her children. Reasonable efforts is not "a strict substantive requirement of termination. Instead, the scope of the efforts by the DHS to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts." C.B., 611 N.W.2d at 493. Under the case permanency plan, Angela was to complete substance abuse treatment, cooperate with random UAs, maintain a stable and safe home, complete a parenting class, and participate in visitation at the discretion of DHS and the guardian ad litem. Angela was in jail from her arrest in late December 2000 until her release on or about March 26, 2001. She was arrested again on July 31, 2001 and released on or about October 1. She failed to meet with her probation officer on October 15 and an arrest warrant was issued. We find her repeated, brief stays in jail made the offer of services difficult. However, DHS arranged for Angela to be placed at a women and children's center, to obtain a substance abuse assessment, to receive inpatient substance abuse treatment, and to have visitation with her children as she requested. Angela could not be found when the opening at the women and children's center was available. She tested positive for amphetamine use at her substance abuse assessment. The inpatient substance abuse program discharged Angela for noncompliance before she completed the program. Angela did not attend two of the three visitations scheduled at her request. Given the circumstances of this case, we find the State made more than reasonable efforts to reunite Angela with her children.
Angela raises a statutory claim under Iowa Code section 232.99(3), contending the court failed to inquire of her concerning the adequacy of services and whether additional services were needed. In its termination order, the court concluded it failed to inquire of Angela concerning the adequacy of services at hearings subsequent to the adjudicatory hearing. Angela did not attend the dispositional hearing in April 2001. Because she was in jail when the review hearing was scheduled, the court continued the hearing until after her release. She did not attend the hearing, contact her attorney, or contact DHS. The court also continued the termination hearing so Angela could attend, but she did not attend. We determine Angela has waived this claim by making herself unavailable to the court so that it could make the statutory inquiry.
Iowa Code section 232.99(3) provides, in pertinent part:
. . . the court shall inquire of the parties as to the sufficiency of the services being provided and whether additional services are needed to facilitate the safe return of the child to the child's home. . . . The court shall advise the parties that failure to identify a deficiency in services or to request additional services may preclude the party from challenging the sufficiency of the services in a termination of parent-child relationship proceeding.
Statutory grounds for termination . The court terminated Angela's parental rights under Iowa Code section 232.116(1), paragraphs (c), (d), (h), and (k). If the court orders termination on more than one statutory ground, we need only find grounds to terminate on one ground to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). In this case, we find clear and convincing evidence supports termination under Iowa Code section 232.116(1), paragraphs (d), (e), (i) and (l) (Supp. 2001).
First we note Roger claims the termination order is facially defective because the judge, merely recites those portions of the transcript in record which he finds applicable and then uses them to reach his termination conclusion. Unfortunately, [the judge] fails to tie the facts as set forth into his analysis with the Code Sections.
We find nothing in the record to show Roger filed a motion for enlargement or amendment under Iowa Rule of Civil Procedure 1.904(2). Consequently, he has not preserved this claim for our review. See J.J.S., Jr., 628 N.W.2d at 29.
Section 232.116(1)(d). The original adjudication was based on Iowa Code section 232.2(6), paragraphs (b), (c)(2), and (n) (2001). The State provided Angela with the opportunity for substance abuse evaluation and treatment. Angela tested positive for drugs at her evaluation. She did not successfully complete inpatient treatment. We find clear and convincing evidence Angela was "offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services." Iowa Code § 232.116(1)(d) (Supp. 2001).
Formerly paragraph (c), see footnote 1.
These paragraphs encompass physical abuse or neglect, failure of a reasonable degree of care in supervision, and inadequate care due to substance abuse.
Section 232.116(1)(e). "Parental responsibilities include more than subjectively maintaining an interest in a child. The concept requires affirmative parenting to the extent it is practical and feasible in the circumstances." In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996). Angela requested visitation with her children. DHS scheduled three visitations during a time when Angela was not in jail. Angela failed to attend two of the three visitations. We find nothing in the record to show Angela has provided support for her children. She continues to have substance abuse problems which lead to her repeated times in jail. We find clear and convincing evidence Angela has not made "reasonable efforts to resume care of" her children or "a genuine effort to complete the responsibilities prescribed in the case permanency plan." Iowa Code § 232.116(1)(e).
Section 232.116(1)(i). This section requires, in part, that "the offer or receipt of services would not correct the conditions which led to the abuse or neglect of the child within a reasonable period of time." The majority of Angela's problems revolve around her substance abuse. It leads to other illegal activity, which leads to jail. The State provided Angela with services targeting the main problem. She either did not participate or did not benefit from the services. While we recognize that the law requires a "full measure of patience with troubled parents who attempt to remedy a lack of parenting skills," Iowa has built this patience into the statutory scheme of chapter 232. In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993) (quoting In re A.C., 415 N.W.2d 609, 613-14 (Iowa 1987), cert. denied sub nom, A.C. v. Iowa, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 702 (1988)). We find clear and convincing evidence supports termination on this ground.
Section 232.116(1)(l). Angela's chronic substance abuse problem prevents her from caring adequately for her children. She has been offered or received services to correct the problem, but it has not been corrected. She appears to be unwilling or unable to deal with this issue. From the record before us, we find no reasonable likelihood the children could be returned to Angela's custody within a reasonable period of time. Consequently, clear and convincing evidence exists to support termination on this ground.
Best interest . Finally, Angela claims the court "failed to even address the issue" of termination being in the best interest of the children. She has not preserved this issue for our review, because the trial court did not rule on it and she did not file a motion under Iowa Rule of Civil Procedure 1.904(2).
AFFIRMED.