Opinion
No. 3-920 / 03-1805.
Filed December 24, 2003.
Appeal from the Iowa District Court for Pottawattamie County, Kathleen Kilnoski, Associate Juvenile Judge.
Appellant-father appeals the permanency order of the juvenile court ordering the commencement of proceedings to terminate his parental rights to his daughter. AFFIRMED.
Scott D. Strait of Shanks Law Firm, Council Bluffs, for appellant-father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Matthew Wilber, County Attorney, and Jon Narmi, Assistant County Attorney, for appellee-State.
Roberta Megal, Public Defenders Office, Council Bluffs, for appellee-mother.
Troyce Wheeler, Council Bluffs, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellant-father James appeals the permanency order of the juvenile court ordering the commencement of proceedings to terminate his parental rights to his daughter, Jessmyn. On appeal James argues (1) the juvenile court was in error to denying his motion to continue the permanency hearing, and its failure to grant the motion violated his due process rights; (2) the juvenile court erred in ordering the county attorney to file a petition for termination; (3) the juvenile court erred in refusing to grant his request for an additional six months due to the short period of established paternity; (4) the juvenile court erred in refusing to grant him an additional six months due to the possibility of appropriate family placement; and (5) he did not receive sufficient family reunification services to justify the court's ordering termination proceedings. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Jessmyn was born on June 12, 2001 to Kriste, who was married to another man at the time but living with James, the appellant in this matter. James was not listed as father on the birth certificate, but blood tests determined his paternity on June 20, 2003. Kriste has a history of prescription drug abuse and mental health problems. Four of her children have been placed with her parents: two were adopted and two were placed under their guardianship. Kriste's oldest son committed suicide. Kriste is physically disabled due to the amputation of one of her legs.
Due to Kriste's inability to supervise Jessmyn adequately, on July 26, 2001 it was determined that Jessmyn could only remain in the home if James were present as well. On November 21, 2002, James left the home. Jessmyn was removed from Kriste's home that day and placed in the care of her maternal grandparents.
Jessmyn was adjudicated a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) (2003) and 232.2(6)(n) on February 26, 2003. As part of the CINA order, the court ordered James to participate in paternity testing. James's paternity was established on June 20, 2003.
Jessmyn's maternal grandparents decided they were unable to care for Jessmyn, and she was placed in foster care on April 16, 2003. She remains in that pre-adoptive foster home.
A CINA permanency hearing was held on October 2, 2003. James's attorney requested a continuance because James was not present, and he had heard James was ill. The court denied the motion. The court found that James had a history of drug abuse, that he had tested positive for drug use on the day of his paternity test and four times in August and September 2003. In its October 12 order, the court ordered the county attorney to file a petition for termination of James's parental rights.
II. SCOPE OF REVIEW
We review a permanency order de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995), cited in In re K.C., 660 N.W.2d 29, 32 (Iowa 2003). We review both the facts and the law and adjudicate rights anew. In re K.C., 660 N.W.2d at 32. Although we give weight to the juvenile court's findings of fact, we are not bound by them. Id., (citing In re N.M., 528 N.W.2d at 96). There is a rebuttable presumption that the child's best interests are served by parental custody. In re K.C., 660 N.W.2d at 32. The best interests of the child are paramount to our decision. Id.
III. ANALYSIS
A. Denial of Motion for Continuance
James's first argument on appeal is that the juvenile court was in error to deny his motion to continue the permanency hearing. James's attorney requested a continuance on behalf of James, who was not present at the hearing. James's attorney believed James was ill because counselor Nikki Wemhoff, who apparently spoke with James the day before the hearing, told him James had been sick all week. James's attorney, however, was not in direct contact with James, and the evidence does not indicate James indicated to anyone he was ill the day of the hearing. It is pure speculation, therefore, that granting a continuance would have allowed James to recover from an illness and attend the permanency hearing. The facts in this case indicated James is not necessarily reliable. Denial of a motion to continue must be unreasonable under the circumstances before we will reverse. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996). We find no error in the court's refusing to grant James's motion for a continuance.
James next argues the court's failure to grant his continuance denies him his due process rights. The district court did not address James's due process claim, and James did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) requesting the court enlarge or amend its judgment. Issues must ordinarily be presented to and passed upon by the trial court before they can be raised and adjudicated on appeal. H Z Vending v. Iowa Dept. of Inspections and Appeals, 593 N.W.2d 168, 171 (Iowa 1999). We decline to address this claim.
B. Order for Termination Proceedings
James next argues, based on Iowa Code section 232.111, that the juvenile court erred in ordering the county attorney to initiate termination proceedings because Jessmyn had been in foster care for fewer than six months. Although Jessmyn was in foster care since April of 2003, she had been removed from her home since November of 2002. Her transfer to foster care was due to her maternal grandparents' belief they could not adequately care for her.
Although section 232.111 requires a county attorney to file for termination in cases where a child has been in foster care for fifteen months, a child is not required to remain in foster care for fifteen months before termination proceedings may begin. Under Iowa Code section 232.116(1)(h), a child under the age of three must only have been removed from her parents' physical custody for six of the last twelve months to meet the temporal requirements for termination. As our supreme court has confirmed the power of the juvenile court to order the county attorney to begin termination proceedings, see In re K.C., 660 N.W.2d at 35-36 (2003), we affirm the permanency order on this issue.
C. Denial of Request for Additional Six Months
Paternity.
James argues his newly-discovered paternity is grounds for granting him an additional six months to gain control over his life and prove himself suitable to care for Jessmyn. The juvenile court denied James his requested six months. Even since discovering his paternity, James has tested positive for illegal substances. Furthermore, case worker Nikki Wemhoff testified to her concerns that James did not seem likely to overcome his drug problems, and that even if he did, his lack of employment and apparent motivation would make it difficult for him to provide for Jessmyn. We are unconvinced the fact of paternity will change James's lifestyle or that tolling these proceedings for an additional six months will do anything but delay Jessmyn's finding permanence and stability. We affirm on this issue.
Family placement.
James also argues the juvenile court erred in failing to grant him an additional six months to establish placement for Jessmyn with his family. Although James's uncle Ed has been evaluated as a suitable potential caregiver, Ed is currently apparently legally responsible for his brother, Michael. Michael has a criminal background, and it was determined Michael's presence in the same home as Jessmyn would not be appropriate. There are apparently also sanitation concerns about Ed's residence, where James also lives. At the time of the permanency hearing Jessmyn was doing well in foster care, where she had been since April of 2003. Given Ed's responsibility for Michael, and Jessmyn's interest in achieving permanency, we affirm the juvenile court's refusal to grant James an extra six months to find appropriate relative placement.
D. Provision of Services
James's last argument is that the juvenile court erred in ordering termination proceedings because the State did not offer him adequate reunification services. The Department of Human Services has offered James supervised visitation, family-centered services, parent skill development services, in-home therapy, outpatient substance abuse treatment, and drug screens. Furthermore, the adequacy of services and James's response to them is more an issue of whether termination of parental rights is appropriate than whether the court may order the initiation of termination proceedings at all. Further still, James has not requested any additional services. We find unpersuasive James's claim that services offered were not adequate to allow for the court's ordering the county attorney to initiate termination proceedings.