Opinion
No. 4-146 / 04-0191
Filed March 10, 2004
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Roberta Megal, Council Bluffs, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Matthew Wilber, County Attorney, and Jon Narmi, Assistant County Attorney, for appellee-State.
John Heithoff, Council Bluffs, for appellee-father.
Troyce Wheeler, Council Bluffs, guardian ad litem for minor child.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Sara, the mother of Jacobb, born April 1, 2002, has filed a petition on appeal following the juvenile's court termination of her parental rights under Iowa code sections 232.116(1)(e), (h) and (l) (2003). The parental rights of Timothy were terminated under section 232.116 (1)(b), (e) and (h) and the parental rights of any unknown fathers were terminated under section 232.116(1)(b). The father of Jacobb had not appealed. The sole issue Sara raises on appeal is stated as follows: "Sara feels she did not receive reasonable time to rehabilitate herself for someone who was so young and addicted." We deny the request for further briefing and affirm.
We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D. Iowa 1975). A parent has the right to have custody of his or her child terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 So. Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972).
There is a requirement that reasonable services be offered to preserve the family unit. See In re A.L., 492 N.W.2d 198, 201 (Iowa Ct.App. 1992); In re B.L., 491 N.W.2d 789, 791-93 (Iowa Ct. App. 1992); In re A.W., 464 N.W.2d 475, 478 (Iowa Ct.App. 1990); In re M.H., 444 N.W.2d 110, 113 (Iowa Ct.App. 1989). A court is required to find reasonable efforts have been made to eliminate the need for removal before a removal is ordered. See Iowa Code § 232.102(5).
The first question we address is whether the issue raised on appeal is preserved for appellate review. Sara contends that it is because her attorney preserved error by denying the allegations contained in the petition for termination of parental rights.
The State had the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993). There is no evidence that Sara, who was born April 15, 1985, ever requested placement in a foster care home with her son. In her petition she admits she refused such a suggestion. She had said she would refuse to cooperate with a foster care placement and said if so placed she would run away. Denying the allegations in a termination petition is not sufficient to preserve this issue for review. Sara has cited no authority that requires the State to provide, as a part of reasonable efforts, a service a parent refuses to take advantage of, even if the parent is not yet of legal age.
Even if error had been preserved, Sara cannot succeed on this argument. Jacobb was found to be a child in need of assistance on the basis that he was born with methamphetamine and amphetamine his body as a result of Sara's use of methamphetamine. The Department of Human Services received a lab report alerting them to the drugs on April 5, 2002, and immediately sought and received an ex parte order removing Jacobb from his parents' care. Jacobb was not found until April 16 and was immediately taken from his parents and placed in foster care. He has not been in their care since. He was found to be a child in need of assistance on July 23, 2002 under section 232.2(6)(o) (2001). It was ordered Jacobb remain in foster care. Sara was offered services, including skill building, and individual and family therapy. Sara was to get a substance abuse evaluation, follow all treatment recommendations, and submit to random drug screens.
Although Sara initially made some attempt to meet requirements for Jacobb's return, at a review hearing in January of 2003 the juvenile court found Sara had failed to follow orders for treating her substance abuse and for family centered services, and she did not keep in contact with the Department of Human Services. The court also found she failed to take advantage of many of the offered services. By the time of the termination hearing Jacobb had been out of his mother's care for some nineteen months during which Sara had sporadic visits with him. She had not, however, seen him for some seven months just prior to the termination hearing. She admitted she had used methamphetamine within weeks of the termination hearing. The juvenile court found the grounds for termination were proved by clear and convincing evidence, and we agree. Sara has not challenged these findings. There is no basis for the issue raised on appeal. We affirm.