Opinion
No. 3-670 / 03-1260
Filed September 24, 2003
Appeal from the Iowa District Court for Dubuque County, Jane Mylrea, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her child. AFFIRMED.
Timothy Goen, Law Office of Timothy Goen, Dubuque, for appellant mother.
Leslie Blair, Dubuque, for father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean Becker, Assistant County Attorney, for appellee.
Mary Kelley, Assistant Public Defender, Dubuque, for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
A mother appeals the termination of her parental rights to her child. She contends the juvenile court erred in proceeding with the termination hearing without appointing a guardian ad litem for her. She also contends clear and convincing evidence does not support termination. Finally, she contends she was denied due process of law. We review her claims de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
Although the mother contends the juvenile court erred in proceeding to the termination hearing without appointing a guardian ad litem for her, she never requested such appointment be made. Instead, the mother moved to stay the proceedings. An issue not presented in the juvenile court may not be raised for the first time on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). Accordingly, the mother's argument fails.
The mother's parental rights were terminated pursuant to Iowa Code section 232.116(1)(f) (2003). Termination is appropriate under this section where:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.
Iowa Code § 232.116(1)(f). The mother contends clear and convincing evidence does not support termination. In support of her argument, she outlines nine fact findings of the trial court, and disputes those findings are supported by clear and convincing evidence. She notes that some of the evidence supporting these findings came only from documentary evidence rather than testimony, and is hearsay. However, this documentary evidence consists of the State's exhibits, which were admitted without objection. To the extent the mother argues the court improperly considered the State's exhibits, we conclude she failed to preserve error by not objecting to their admission at the termination hearing. Ferguson v. Stilwill, 224 N.W.2d 11, 13 (Iowa 1974) ("Generally evidence introduced without objection cannot later be complained of.")
Upon de novo review, we conclude clear and convincing evidence supports termination under section 232.116(1)(f). The first three elements of the section have undisputedly been met, and clear and convincing evidence shows the child cannot be returned to his mother's care. The mother's mental health issues have not been sufficiently addressed to allow the mother visitation, let alone full-time care of the child. The child's behaviors show he is afraid of his mother and was traumatized by visits with her.
Finally, the mother contends she was denied due process of the law. To the extent she is arguing she did not receive adequate accommodation for her mental disability, we conclude the record establishes otherwise. Multiple services, including mental health treatment by psychiatrists, psychologists, and therapists, as well as medication, have been offered to accommodate the mother's mental health issues. She has been hospitalized, receiving mental health treatment much of the time the child has been in foster care. We recognize the Americans with Disabilities Act (ADA) requires a public entity to make "reasonable accommodation" to allow disabled persons to receive services or to participate in its programs. See In re C.M., 526 N.W.2d 562, 566 (Iowa Ct.App. 1994). However, the juvenile court was correct in concluding the ADA mandates were met with regard to the mother.
To the extent the mother is arguing she was not afforded due process of law, we likewise reject her argument. Due process requires notice of the hearing, the ability to confront and cross-examine adverse witnesses, representation by counsel, an impartial decision maker, and a decision based solely on legal rules and the evidence presented at the hearing. In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994). We conclude the requirements of due process have been met.