Opinion
No. 5-242 / 04-1936
Filed April 28, 2005
Appeal from the Iowa District Court for Cerro Gordo County, Gerald W. Magee, Associate Juvenile Judge.
Jenny appeals an order terminating her parental rights. AFFIRMED.
Cynthia J. Foos, Mason City, for mother-appellant.
Richard Tompkins, Mason City, for father-appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Paul L. Martin, County Attorney, and Gregg R. Rosenbladt, Assistant County Attorney, for appellee.
Mark Young, Mason City, guardian ad litem for the children.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Jenny appeals the termination of her parental rights to Jode, born in 2002, and Jenna, born in 2003. She contends (1) the State "did not apply a Clear and Convincing Standard of Proof to reach its conclusions of Fact and Conclusions of Law," (2) the Department of Human Services did not make reasonable efforts to reunite the family, and (3) the State added a ground for termination "not contained in either the original CINA petition or the Petition for Termination of Parental Rights."
I. Clear and Convincing Standard
The State must prove its case for termination by clear and convincing evidence. Iowa Code § 232.117(2) (2003). Contrary to Jenny's assertion, the juvenile court applied this standard, stating "the Court FINDS the evidence is clear and convincing that these children cannot be returned to the care of either parent at this time." Assuming Jenny's challenge is really to the merits of this finding, we proceed to a de novo review of the record. Id. § 232.133(1).
The children were removed from Jenny's home after Jenna was born with marijuana in her system. A subsequent test of Jode revealed that he also was exposed to marijuana as well as methamphetamine. In the months following the removal, Jenny made progress toward meeting Department expectations for return of the children. She participated in addiction treatment services, regularly attended bi-weekly supervised visitation sessions, and was receptive to parenting assistance. In an interim order, the juvenile court cited evidence showing Jenny's rate of progress toward reunification "as `6' on a 10 point scale."
Despite this progress, the record is mixed on the question of sobriety. Drug tests in one month were "positive/diluted" for methamphetamine. Although several subsequent test results were negative, two urine samples tested positive for the presence of benzodiazepines. Because this substance appears in some legal drugs, a Department social worker asked Jenny to obtain an explanatory letter from her physician. At the time of the termination hearing, he had yet to receive such a letter. Jenny testified that the positive test could have been triggered by an over-the-counter drug she was taking, a migraine tablet given to her by a coworker, or an indigestion tablet given to her by a friend. She did not furnish documentation that any of these drugs contained benzodiazepines. We believe this questionable progress towards sobriety supports the juvenile court's decision to terminate Jenny's parental rights to Jenna and Jode. The State proved, by clear and convincing evidence, that Jenny's parental rights should be terminated under section 232.116(1)(h).
Jenny introduced a printout from a British website containing an explanation of the drug. The therapeutic actions listed in the document do not include relief of migraines or indigestion.
II. Reasonable Efforts
The Department has an obligation to make reasonable efforts toward reunification. In re C.B., 611 N.W.2d 489, 493-94 (Iowa 2000). The Department satisfied this obligation. As the juvenile court noted in an interim order, Jenny received "Family Centered Services, supervised visits, substance abuse and psychological evaluations, individual therapy, substance abuse counseling, relationship counseling, placement with suitable persons and AEA services." But for the two positive drug tests for benzodiazepines, Jenny likely would have graduated to unsupervised visitation.
As for Jenny's contention that six hours per week of visitation was insufficient, the Department social worker testified that more visits would have been disruptive to the children. Under the circumstances of this case, we agree with this assessment.
We are also persuaded that the Department made reasonable efforts to administer drug tests to Jenny, despite short-term confusion as to who would perform those tests.
III. Added Ground for Termination
Jenny contends the State raised a ground for termination that was not pled. The record does not support this contention.
IV. Disposition
We affirm the juvenile court order terminating Jenny's parental rights to Jenna and Jode.