Opinion
No. 4-889 / 04-1840
Filed January 26, 2005
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, District Associate Judge.
A father and mother appeal from a juvenile court order terminating their parental rights to two children. AFFIRMED.
John P. Heithoff, Council Bluffs, for appellant-mother.
William F. McGinn of McGinn, McGinn, Jennings and Springer, Council Bluffs, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Matthew Wilber, County Attorney, and J. Joseph Narmi, Assistant County Attorney, for appellee-State.
Troyce A. Wheeler, Council Bluffs, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Mark and Tina appeal from the juvenile court order terminating their parental rights to their two children, Austin, born in 1999, and Sadi, born in 1995. Tina contends the Department of Human Services did not make reasonable efforts to reunite the family and the juvenile court should have continued the termination hearing until after her release from prison. Mark contends he should have been given more time to work at reunification. On de novo review, we affirm on both appeals.
The children were removed from Tina's care in April 2003 after Tina was arrested for possession of methamphetamine and child endangerment. She pled guilty to the charges in Iowa. She was at the time on probation in South Dakota, having been convicted there of third offense of driving while intoxicated. Her arrest in Iowa and subsequent failure of a drug screen was a violation of her South Dakota probation. She was not immediately sentenced on the Iowa charges but was sent to South Dakota to serve her sentence there.
Two weeks prior to the children's removal Mark had been arrested on a felony charge in Nebraska and was absent from the parties' home. During the pendency of this child-in-need-of-assistance case, Mark was arrested at least twice more on drug and other criminal charges, spent time in jail in Iowa, and spent time in a work-release program in Nebraska.
In August 2004 the State petitioned to terminate the parental rights of both parents under Iowa Code sections 232.116(1)(e), (f), and (l) (2003). It also sought termination of Tina's parental rights under section 232.226(1)(b). Both parents moved to continue the termination hearing. The court overruled both motions to continue and, following a contested hearing, terminated both parents' rights on all the statutory grounds pled. Neither parent challenges the statutory grounds for termination cited by the court.
Tina was still incarcerated at the time of the termination hearing in October 2004 and had been for the preceding seventeen months in South Dakota. She also was awaiting sentencing for possession of methamphetamine and two counts of child endangerment in Iowa. She asserts the sentences will be concurrent with the time she served in South Dakota. Mark had been released from the Nebraska program in September 2004. He admitted using methamphetamine after his release.
Mark. Mark contends the juvenile court should have continued the termination hearing to give him more time to pursue reunification. He also claims termination is not in the best interest of the children. When we consider what the future might hold for children if reunited with their parents, we can gain insight from case records and a parent's past performance. In re A.J., 553 N.W.2d 909, 913 (Iowa Ct.App. 1996). Before their removal from their parents' home, the children were exposed to an apparent methamphetamine lab. Mark's continued criminal activities and substance abuse prevent him from providing the children with adequate shelter, supervision, and care. Mark has had time to change. There is nothing here that convinces us that in an additional six months Mark would be able to be reunified with his children. We affirm the juvenile court's refusal to continue the termination proceedings and the termination of Mark's parental rights.
It does not appear that Mark raised the "best interest" claim in the juvenile court. We do not consider claims raised for the first time on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994).
We note that Mark mentions Iowa Code section 232.116(1)(c) briefly in his argument, but as that was not one of the sections under which his parental rights were terminated, we do not consider it.
Tina. Like Mark, Tina challenges the juvenile court's refusal to continue the termination proceedings to allow her more time to pursue reunification with her children. In contrast, however, she frames her argument primarily in terms of the State's failure to make reasonable efforts to unify her with her children. She faults the Iowa Department of Human Services for not providing additional services while she was incarcerated in South Dakota. She faults South Dakota for not releasing her earlier "in enough time to finish her efforts at reunification" in Iowa. She asserts the time frames of the Adoption and Safe Families Act and its Iowa counterpart are not realistic or fair to a parent who has been incarcerated for seventeen of the eighteen months of the children's removal.
The Adoption and Safe Families Act of 1997, Pub.L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.).
Tina does not cite to any Iowa statute. In response to the federal act, the Iowa legislature amended Iowa Code section 232.102 to permit waiver of reasonable efforts when aggravating circumstances exist. See 1998 Iowa Acts ch. 1190, § 17 (codified at Iowa Code § 232.102(12) (1999)).
The services required to be supplied to an incarcerated parent, as with any other parent, are those that are reasonable under the circumstances. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.App. 2000). The reasonable efforts requirement is not viewed as a strict substantive requirement of termination; instead, the scope of the efforts by the Department of Human Services to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent. Id. When assessing reasonable efforts, the safety and health of the children "shall be the paramount concern." Iowa Code § 232.102(10)(a) (2003). A parent's incarceration does not automatically relieve the State of its obligation to make reasonable efforts, and it must still supply any services that are reasonable under the circumstances. In re S.J., 620 N.W.2d at 525. Yet while the State had the obligation to make reasonable efforts, it is the parents' 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); In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993).
While the family lived in Nebraska, before the current Child In Need of Assistance proceedings, the children were removed and placed in foster care from December 2001 to December 2002. When the family came to Iowa and the children were returned, Iowa provided intensive family services. Yet four months later, the children were removed again, resulting in the current case. The case plan here directed the Department to identify and access resources and support services within the community to support reunification. Tina was incarcerated in another state. Her own actions led to her unavailability for some services. See In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991). While incarcerated in South Dakota, Tina participated in parenting classes and substance abuse classes. She did not request additional services from Iowa. As of the permanency hearing on March 29, 2004, Tina had not been in contact with the Iowa Department of Human Services for nearly nine months. Reasonable efforts were made to reunite Tina with her children. We affirm the juvenile court's refusal to continue the termination proceedings and the termination of Tina's parental rights. We consider any claims concerning South Dakota and the Adoption and Safe Families Act to be waived. See Iowa R. App. P. 6.14(1)( c).