Opinion
No. 5-048 / 04-1933
Filed January 26, 2005
Appeal from the Iowa District Court for Scott County, John G. Mullen, Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Robert J. Phelps, Davenport, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, William Davis County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
James Clements, Davenport, for father.
Carrie Coyle of Zamora, Taylor, Alexander, Woods Frederick, Davenport, guardian ad litem for minor child.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
A mother appeals from a juvenile court order terminating her parental rights to one child. Upon our de novo review, we affirm.
Dontae is the father, and Benrecka the mother, of Dontae Jr., born September 18, 2003. At Dontae Jr.'s birth Dontae was fifteen years of age and Benrecka was thirteen years of age. On or about September 20, 2003, the juvenile court ordered Dontae Jr. removed from the physical custody of his parents and placed in the temporary custody of the Iowa Department of Human Services (DHS). The application for removal recited that Benrecka had a "history and diagnosis of using THC with substance relapse prevention, and chronic Hepatitis B, conduct disorder and Borderline Intellectual Functioning." In ordering removal the juvenile court found, among other things, that Benrecka "will be placed in the Juvenile Detention Center due to outstanding warrant on her," and that she was "irresponsible, immature, homeless, dependent, [and] does not have the skills or support to parent."
The State filed a child in need of assistance (CINA) petition. On September 25, 2003, following an uncontested hearing the juvenile court placed Dontae Jr. in the custody of the DHS for foster care or other appropriate relative care. Following a November 6, 2003 uncontested hearing the court adjudicated Dontae Jr. a CINA pursuant to numerous statutory provisions. Benrecka was at that time committed to the Iowa Juvenile Home at Toledo, but was transported to and attended the hearing. The court ordered that Dontae Jr. remain in the custody of the DHS for placement in foster care. He has thereafter remained in DHS custody and foster care placements.
In March 2004 Benrecka was released from the Iowa Juvenile Home. She did well initially for a brief time, but then reverted to old, improper behavior patterns. Benrecka failed or refused to attend school, did not attend Day Treatment as requested by her juvenile probation officer, and was twice placed in juvenile detention, most recently from October 12 to October 28, 2004.
On September 3, 2004, Dontae Jr.'s guardian ad litem filed a petition seeking termination of Dontae's and Benricka's parental rights. A hearing was scheduled for and held on November 5, 2004. At the time of the hearing Benrecka was facing probable return to the Iowa Juvenile Home. On November 15 the juvenile court entered a "Termination Order." The court terminated Dontae's parental rights. It terminated Benrecka's parental rights pursuant to Iowa Code sections 232.116(1)(d), (e), and (h) (2003). Benrecka appeals.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Benrecka claims the juvenile court ignored the testimony of herself, her mother, and her grandmother, that suitable relatives were available for placement of Dontae Jr., and thus the record does not contain clear and convincing evidence supporting each element of the three separate statutory grounds upon which the juvenile court ordered termination of her parental rights. For several reasons we find Benrecka is entitled to no relief on this claim.
First, Benrecka does not identify, argue, or otherwise discuss which one or more of the statutory elements she asserts are not supported by the evidence. She has thus waived this claim of error. See Iowa R. App. P. 6.14(1)( c) (Failure . . . to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
Second, assuming this issue has not been waived, the record does not provide evidence which would support the juvenile court placing Dontae Jr. with a relative. When asked what she wanted to see happen, Benrecka testified she would like to see Dontae Jr. "go live with my Aunt Tudy" (emphasis added), who lived in Rock Island and was a foster parent. Benrecka's mother testified that she would support Dontae Jr.'s placement with her aunt "Tate," who lived in Rock Island and was a licensed foster care provider. Benrecka's grandmother testified only that she had "heard Benrecka say she would like Dontae [Jr.] placed with [Benrecka's] cousin Tate in Rock Island." (Emphasis added). Benrecka acknowledged that she had not previously told anyone about her "Aunt Tudy" or "Cousin Tate" as a possible placement for Dontae Jr. No other relative is identified in the record as a possible placement. Nothing in the record indicates that at any time before the termination hearing the DHS, the service providers, the guardian ad litem, or the juvenile court was informed of this person as a possible placement. This aunt or cousin did not testify at the termination hearing, and nothing in the record indicates any consent or willingness on her part to serve as such a placement. In summary, the record provides no reasonable basis upon which the juvenile court could have ordered Dontae Jr. placed with this relative.
Third, Benrecka has not cited, and we have not found, any authority indicating that, as apparently urged by Benrecka, the possibility of placement with a relative negates one or more of the elements of the statutory provisions relied on by the juvenile court for termination of Benrecka's parental rights.
Benrecka also claims the juvenile court erred in terminating her parental rights because "under Iowa Code Section 232.116(3), the best interests of the child should be served by placing the child with mother's suitable relatives, which does not require termination of mother's parental rights." Again, for two reasons we find Benrecka entitled to no relief on this claim. First, the termination order did not address any section 232.116(3) issues, whether of relative placement or otherwise, and Benrecka did not file a motion to enlarge or modify the juvenile court's findings, conclusions, or judgment. Benrecka has thus not preserved error on this claim. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994) ("As a general rule, an issue not presented in the juvenile court may not be raised for the first time on appeal."). Second, for the reasons previously discussed above, the record provides no reasonable basis upon which the juvenile court could have ordered Dontae Jr. placed with a relative.
Upon our de novo review, we fully agree with and affirm the juvenile court's decision.