Opinion
No. 4-330 / 04-0469
May 14, 2004.
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
C.M. appeals from the termination of her parental rights. AFFIRMED.
Amy Evenson of Larson Evenson, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, J. Patrick White, County Attorney, and Deborah Farmer Minot, Assistant County Attorney, for appellee-State.
Rockne Cole of the Mears Law Office, Iowa City, for father.
Shannon Walsh, Iowa City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
I. Background Facts Proceedings
Carrie and Gary are the parents of Lydia, born in April 2002. Lydia was removed from her parents' care at birth because she tested positive for cocaine. Lydia was thereafter adjudicated a child in need of assistance, pursuant to Iowa Code sections 232.2(6)(b) (Supp. 2001) (parent has physically abused or neglected child), (c)(2) (child is likely to suffer harm due to parent's failure to supervise), (n) (parent's drug abuse results in child not receiving adequate care), and (o) (illegal drug present in child).
Carrie's substance abuse continued after Lydia's adjudication. Her visitation with Lydia was suspended in August 2002 because of inappropriate statements made to a social worker. At the State's request, the juvenile court waived reasonable efforts to reunite Lydia and Carrie. Gary cooperated with services, and in November 2002 Lydia was placed in his care.
In April 2003 Carrie pled guilty to two counts of possession of a controlled substance. Her sentence of incarceration was suspended, and she was placed on probation for two years. Carrie's probation was subsequently revoked because of continued substance abuse.
In November 2003 the State filed a petition seeking to terminate Carrie's parental rights. The juvenile court terminated Carrie's rights under sections 232.116(1)(b) (2003) (abandonment), (e) (parent has not maintained significant and meaningful contact with child), (h) (child is three or younger, removed for at least six months, and cannot be returned home), and (l) (parent has substance abuse problem, child cannot be returned within a reasonable time). The juvenile court noted, "The mother continues to engage in severe and chronic use of chemical substances that present a danger to herself and others." Carrie appeals.
II. Standard of Review
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).
III. Continuance
The record below indicates Carrie did not appear at the termination hearing. On the morning of the hearing she left a message on her attorney's answering machine stating she was stranded without transportation in Davenport. Carrie's attorney moved to continue the hearing, but this request was denied by the juvenile court. Carrie contends the juvenile court abused its discretion by denying her motion for continuance.
We review a motion for continuance under an abuse of discretion standard and will only reverse if injustice will result to the party desiring the continuance. In re C.W., 554 N.W.2d 279, 291 (Iowa Ct.App. 1996). We will reverse only if a juvenile court's denial of a motion to continue is unreasonable under the circumstances. Id.
The juvenile court noted that the mother had known since January 7, 2004, that the termination hearing would be held on March 2, 2004. The court concluded, "The mother had had ample opportunity to organize her life in such a way that she could be here for this trial, and therefore I find there's no just cause to continue this matter and deny the request." We find no abuse of discretion in the juvenile court's decision.
IV. Sufficiency of the Evidence
Carrie contends there is insufficient evidence in the record to terminate her parental rights under section 232.116(1)(b), which is abandonment. When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999); In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). Carrie does not appeal the termination of her parental rights under sections 232.116(1)(e), (h), or (l), and she was waived any argument regarding termination on these issues. See Iowa R. App. P. 6.14(1)( c). We affirm the termination of her parental rights on those grounds not appealed.
V. Best Interests
Carrie asserts that under section 232.116(3)(a), termination of her parental rights is not mandatory because a relative, Gary, has custody of Lydia. She claims termination of her parental rights is not in Lydia's best interests.
Under section 232.116(3)(a), the juvenile court need not terminate the parental relationship if a relative has legal custody of a child. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, whether to apply this section. Id. We must consider a child's long-range and immediate best interests. Id.
After Gary obtained custody of Lydia, Carrie repeatedly called him. Gary contacted the police, and Carrie was ultimately convicted of harassment. A no-contact order was entered, but Carrie violated the order. Based on these circumstances, we determine it is in Lydia's best interests to terminate Carrie's parental rights.
We affirm the decision of the juvenile court.
AFFIRMED.
Miller, J., concurs; Sackett, C.J., concurs specially.
I agree with the majority in all respects. I write separately only because I have difficulty with the fact Carrie no longer has responsibility to contribute to Lydia's financial support.