Opinion
No. 4-278 / 04-0384
May 14, 2004.
Appeal from the Iowa District Court for Cerro Gordo County, Gerald Magee, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her son. AFFIRMED.
Letitia Turner, Assistant Public Defender, Mason City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Paul L. Martin, County Attorney, and Gregg Rosenbladt, Assistant County Attorney, appellee-State.
Mark Young, Mason City, guardian ad litem for minor child.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Mendy S. appeals a juvenile court order which terminated her parental rights to her son. She claims she did not receive proper notice of the termination hearing. She also contends: (1) the State failed to prove the statutory grounds necessary for termination by clear and convincing evidence, (2) reasonable efforts were not made to reunite her with her son, and (3) it is not in her son's best interests to terminate her parental rights. We affirm the juvenile court's termination order.
I. Background Facts Proceedings
Mendy is the mother of Dakota, born in August 1995. Dakota's father is deceased. Dakota was removed from Mendy's care on May 15, 2002, after drugs and drug paraphernalia, including items used in the manufacture of methamphetamine, were found in his mother's home. On May 21 and May 23, 2002, Mendy tested positive for methamphetamine. A city inspector found the family home was unfit for human habitation. Following an uncontested adjudicatory hearing, which Mendy did not attend despite receiving notice, the juvenile court adjudicated Dakota as a child in need of assistance (CINA). Dakota has been out of his mother's care ever since.
Initially, Mendy made some progress. As a result, in July 2002, the Department of Human Services recommended that Mendy be considered for reunification with her son in sixty days. Unfortunately, Mendy's progress did not last long. On August 27, 2002, Mendy again tested positive for methamphetamine. Mendy failed to attend a review hearing on October 2, 2002.
On May 7, 2003, the juvenile court held a review and permanency hearing. Mendy did attend this hearing. The juvenile court found that Mendy had not had contact with Dakota for five months and had not complied with several court orders.
On September 24, 2003, a contested permanency review hearing was held. Evidence presented at the hearing revealed that Mendy had not obtained housing, had attended substance abuse counseling sporadically, and had not participated in individual therapy since November 2002.
On November 12, 2003, the State filed a petition to terminate Mendy's parental rights to Dakota based on Iowa Code section 232.116(1)(f) (child is four years of age or older, child has been adjudicated a CINA, child has been removed from home for the last twelve consecutive months, and child cannot be returned home). Mendy was served with notice of the State's petition by personal service. The notice informed the mother that hearing on the termination petition would be held December 3, 2003. Mendy was also informed of her right to be represented by counsel at public expense during the termination proceedings. She did not make application for court appointed counsel.
Mendy failed to appear for the termination hearing. Due to Mendy's absence, the hearing was continued to January 16, 2004. Mendy was notified of the new hearing date. The January 16 hearing was continued until February 23, 2004, because Mendy was hospitalized and had contacted providers and advised that she would not be able to attend the hearing. Mendy failed to attend the February 23 hearing, and on February 25, 2004, the juvenile court entered an order terminating her parental rights. Mendy appeals.
II. Scope of Review
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Discussion
In her petition on appeal, Mendy claims she did not receive proper notice of the rescheduled termination hearing. She contends handwritten information in the order setting the new hearing date was unclear. According to Mendy, she believed the hearing had been continued until February 25, 2004, instead of February 23, 2004. Mendy claims she did not discover her mistake until she called the clerk's office on February 25, 2004, to check about the time of the hearing, and was told that the hearing had already taken place. The State claims that it is clear from the continuance order that the termination hearing was rescheduled to February 23, 2004, not February 25, 2004. For the reasons which follow, we find it unnecessary to address the merits of Mendy's claim that she did not receive proper notice of the termination hearing.
The district court's termination order indicates that all interested parties except Mendy appeared for the termination hearing on February 23.
The record reveals Mendy did not challenge the adequacy of notice for the termination hearing in district court. She claims her petition on appeal is the first opportunity she had to address this issue. We disagree. Wendy acknowledges she received notice of the order terminating her parental rights on February 27, 2004. Among other things, the juvenile court's termination order informed Mendy of her right to "file a Motion for New Trial pursuant to Iowa Rules of Civil Procedure 1.1004 through 1.1007 or a Motion for Findings and Conclusions to be enlarged, amended, modified, or reconsidered pursuant to Iowa Rule of Civil Procedure 1.904(2) all within 10 days after this Order is filed." Mendy filed no post-trial motions addressing her claim of lack of proper notice. Generally, an issue must be presented to and passed upon by the trial court before it may be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). We determine this issue has not been preserved for our review.
Mendy also makes several other claims. She contends: (1) the State failed to prove the statutory grounds necessary for termination by clear and convincing evidence, (2) reasonable efforts were not made to reunite her with her son, and (3) it is not in the best interests of her son to terminate her parental rights. Because Mendy failed to attend the termination hearing, she did not preserve error on any of these claims. Moreover, even if error had been preserved on these issues, Mendy would not prevail on any of them.
We find the State proved by clear and convincing evidence that Mendy's parental rights should be terminated. The record discloses ample evidence which supports the conclusion that Dakota could not be safely returned to Mendy's care at the time of the termination hearing. Additionally, we conclude that the State made reasonable efforts to reunite Mendy with her son. The juvenile court stated:
Services offered Mendy have included: supervised visits, telephone contact, individual therapy, Family Centered Services, psychological evaluation and substance abuse treatment. She was discharged unsuccessfully from substance abuse treatment and has resisted mental health treatment even when the family therapist assisted in making appointments for such. Substance abuse treatment facility assisted in obtaining subsidized housing, but Mendy did not follow through. Permanency Order afforded Mendy another six months of treatment and expected behavior changes to allow reunification. Ms. Meek testified Mendy has "done nothing" she was ordered to do.
Nothing in the record suggests additional services would alleviate the problems which led to Dakota's removal from Mendy's care. Dakota should not have to wait any longer for responsible parenting. Termination of Mendy's parental rights is clearly in the best interests of Dakota. Accordingly, we affirm the juvenile court.