Opinion
No. 5-306 / 05-0355
Filed April 28, 2005
Appeal from the Iowa District Court for Black Hawk County, Alan Allbee, Associate Juvenile Judge.
D.B. appeals from the termination of his parental rights. AFFIRMED.
Paul Shinkle of Gottschalk Shinkle, Cedar Falls, for appellant father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven Halbach, Assistant County Attorney, for appellee-State.
Dawn Newcomb, Waterloo, for mother.
Andrew Thalacker, Assistant Public Defender, Waterloo, guardian ad litem for minor children.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
I. Background Facts Proceedings
Dana and Jessica are the parents of Makayle, born in October 2002. Both parents have a history of substance abuse and mental illness. The parents' relationship involved incidents of domestic violence. Makayle was removed from the parents' care in August 2003, after Dana kicked Jessica out of the home and refused to allow her to take Makayle with her. At the time of the removal Makayle had a hair test which showed positive for methamphetamine. Makayle was placed with a maternal aunt.
Makayle was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(c)(2) (2003) (child is likely to suffer harm due to parent's failure to supervise).
Dana has been diagnosed with depression and attention deficit hyperactivity disorder. In January 2004 he was arrested for driving while barred, possession of stolen property, and possession of drug paraphernalia. Dana was placed in a residential facility, then in a substance abuse treatment half-way house. In June 2004 Dana had a drug test which was positive for marijuana. His probation officer reported, "It appears unrealistic to expect that he could provide care for a child, when he has yet to demonstrate the ability to take care of himself."
In October 2004 the State filed a petition to terminate the parents' rights to Makayle. Dana was discharged from the half-way house in November 2004. He moved in with his sister. Dana had probation violations and was at high risk of probation revocation. He failed to maintain employment or attend a batterer's education program. He also failed to follow through with mental health treatment, or attend NA and/or AA meetings. The probation officer stated that Dana was "not in a position to care for his child at this time." Dana used marijuana about one week before the termination hearing held in February 2005.
The juvenile court terminated Dana's parental rights to Makayle under section 232.116(1)(l) (2005) (child CINA, parent has substance abuse problem, and child cannot be returned within a reasonable time). Jessica's parental rights were also terminated. Regarding Dana, the juvenile court found:
His lengthy history of drug use including that of the extremely addictive drug methamphetamine would indicate he will continue to use if not incarcerated. His probation status is extremely volatile and it may well be that he soon will be again incarcerated. He has only been out of a controlled living environment for three months. He continues to struggle with his mental health, lacks any stable employment, and has virtually never maintained a stable household of his own despite his being nearly 30 years of age. His daughter should not be required to await any longer his much-delayed, if ever to occur, maturity.
Dana appeals the termination of his parental rights.
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). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Sufficiency of the Evidence
Dana contends there is insufficient evidence to show that Makayle was out of the parents' care for six consecutive months. Makayle was with Jessica in a treatment center for mothers and their children until October 2004, when Jessica relapsed into drug use. Dana's parental rights were terminated under section 232.116(1)(l), which does not require that the child be removed from the home for any specific period of time.
Under section 232.116(1)(l), the State must show that the child cannot be returned to the parent's care within a reasonable period of time. Dana also claims that Makayle could be returned to his care. He points out that he lives with his sister, and he states that with her help, he could adequately care for the child. We find clear and convincing evidence in the record to show Makayle could not be returned to Dana's care within a reasonable period of time. The evidence shows Dana is still struggling with substance abuse problems and his mental health. Dana was unable to take care of himself, and is not likely to soon be in a position to care for Makayle.
IV. Constitutional Issue
Dana claims his constitutional rights were violated because he was not given the opportunity to attend a substance abuse program for a parent and their child, as Jessica was. He states, "The fathers are left to fend for themselves while the mothers are given opportunities for care with placement of the child."
We do not believe this issue was raised before the juvenile court. We will not address an issue raised for the first time on appeal. In re N.W.F., 564 N.W.2d 451, 455 (Iowa Ct.App. 1997). Even if this issue was preserved, Dana does not cite any authority to support his position, or even allege which constitutional right was violated. We conclude this issue has been waived. See Iowa R. App P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
We affirm the juvenile court decision terminating Dana's parental rights to Makayle.