Opinion
No. 4-591 / 04-1052.
August 26, 2004.
Appeal from the Iowa District Court for Tama County, Susan Flaherty, Associate Juvenile Judge.
T.M. appeals from the termination of her parental rights to C.M. AFFIRMED.
Deborah Skelton of White Johnson, P.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Brent Heeren, County Attorney, for appellee-State.
Michael Lindeman, Cedar Rapids, for father.
Thomas Grabinski, Grinnell, guardian ad litem for minor child.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
I. Background Facts Proceedings
Tammy is the mother of Charles, who was born in March 2003. Charles was removed from Tammy's care shortly after his birth because he was born with cocaine in his system. Tammy has a history of substance abuse, and her parental rights to three older children were previously terminated. She is legally blind and mildly mentally retarded. Tammy also suffers from depression.
The father of Charles voluntarily agreed to termination of his parental rights, and he is not a party to this appeal.
Charles was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) (2003) (parent is imminently likely to neglect child) and (n) (parent's mental capacity or drug abuse results in child not receiving adequate care). Charles has acid reflux problems. He also needs special exercises for his neck muscles. Tammy did not follow through on recommendations from service providers on ways to assist Charles.
Tammy was not consistent in participating in services. In July 2003 she left the state for more than a month without informing service providers. In August 2003 the State filed a petition seeking termination of her parental rights. A termination hearing was held in October 2003. The juvenile court determined the State should have done more to accommodate Tammy's blindness. The court found:
Tammy's eleventh hour motivation may be short lived. If that is the case, justification for termination will come into clear focus. On the other hand, if Tammy's new motivation represents a real commitment on her part, she will demonstrate that she has separated from her mother's control and will benefit from the reasonable accommodation which the Department should have offered in the original permanency plan.
The case was then continued to give Tammy additional time to comply with services. Tammy remained inconsistent in participating in services. She again left the state for a period of time, making her unavailable for services and visitation.
After a further hearing, in June 2004, the juvenile court terminated Tammy's right to Charles under sections 232.116(1)(d) (child CINA for neglect, conditions continue despite the receipt of services) and (h) (child is three or younger, child CINA, removed for at least six of last twelve months, and cannot be returned home). The court found there was not "the necessary level of improvement in the areas of providing stable housing, development of parent skill, or overall stability to assure that the child's physical and emotional health and safety will be provided for. . . ." Tammy appeals.
II. Standard 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).
III. Sufficiency of the Evidence
Tammy contends the State did not present clear and convincing evidence to show her parental rights should be terminated. We must reasonably limit the time for parents to be in a position to assume care of their child because patience with parents can soon translate into intolerable hardship for the child. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997).
We determine there is sufficient evidence in the record to support termination of Tammy's parental rights. Tammy was inconsistent in attending visitation and parenting sessions. She was inconsistent in providing drug tests and only attending a few substance abuse counseling meetings. Tammy did not have stable housing or a consistent means of transportation. Tammy did not accept recommendations to assist her to meet Charles's physical needs. Due to all of these problems, despite the receipt of services, Tammy is still not able to care for Charles and he could not be safely returned to her care.
IV. Reasonable Efforts
Tammy claims the State did not engage in reasonable efforts to reunite her with Charles. In particular, she claims that under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (1993), the State was required to reasonably accommodate her blindness in providing services. She asserts the State should have helped her get into assisted living housing for disabled people.
Reasonable efforts to reunite a parent and child are required prior to the termination of parental rights. In re M.B., 595 N.W.2d 815, 818 (Iowa Ct.App. 1999). The State has the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997). The ADA requires a public entity to make "reasonable accommodation" to allow a disabled person to participate in services. In re C.M., 526 N.W.2d 562, 566 (Iowa Ct. App. 1994).
We first question whether Tammy has preserved error on this issue. The juvenile court decision is silent on the issue of the ADA, and Tammy did not file any post-trial motions seeking a ruling on the issue. See In re N.W.E., 564 N.W.2d 451, 455 (Iowa Ct.App. 1997) (noting an issue which has not raised before the trial court may not be raised for the first time on appeal). Prior to this appeal, Tammy did not seek an assisted living arrangement.
Furthermore, we determine the services which were offered to Tammy were reasonable under the facts of the case. Tammy was inconsistent in attending the services which were offered to her. She told service workers she preferred to do things on her own, but then did not follow through. Tammy was reluctant to follow the recommendations of service providers.
We affirm the decision of the juvenile court terminating Tammy's parental rights to Charles.