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In re M.F

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)

Opinion

No. 5-691 / 05-1325

Filed October 12, 2005

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

A mother appeals from a juvenile court order terminating her parental rights to three children. AFFIRMED.

Cathleen Siebrecht of Siebrecht Siebrecht Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee.

Rachael Seymour, Juvenile Public Defender, Des Moines, guardian ad litem for minor children.

Considered by Sackett, C.J., and Mahan and Miller, JJ.


Gail appeals from an August 2005 juvenile court order terminating her parental rights to her daughters, Kaylianna, born in 1996, Marguerita, born in 1997, and Mesha, born in 1999 (the children). The order also terminated the parental rights of the girls' father, Anthony, but he has not appealed. Upon our de novo review, we affirm.

The children were removed from the physical custody of Gail and her husband, David, and placed in the temporary legal custody of the children's paternal grandparents in late March 2004. They were continued in that status after an early April 2004 removal hearing. The children were adjudicated children in need of assistance (CINA) in early August 2004 and were then placed in the legal custody of their paternal grandmother. The adjudication was pursuant to Iowa Code sections 232.2(6)(b) (2003) (child whose parent has physically abused or neglected the child, or is imminently likely to abuse or neglect the child) and 232.2(6)(c)(2) (child who has suffered or is imminently likely to suffer harmful effects as a result of failure of parent to exercise a reasonable degree of care in supervising the child).

Following a dispositional hearing, in September 2004 the juvenile court continued the children in the legal custody of their paternal grandmother where they have thereafter remained. In April 2005 the State filed a petition seeking termination of parental rights. The court held an extended hearing and subsequently terminated Gail's parental rights pursuant to Iowa Code sections 232.116(1)(d) (2005) (child adjudicated CINA for physical abuse or neglect as a result of acts or omissions of one or both parents, circumstance which led to adjudication continues to exist despite services) and 232.116(1)(f) (child four or older, adjudicated CINA, removed from parents for twelve of last eighteen months, cannot be returned to parents at present time). Gail appeals.

We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.

In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).

Gail first claims termination was improper because the children were in relative placement at the time of the permanency/termination hearing. She urges that the parties anticipated continuing contact between her and the children despite termination, and that she could have contributed toward the financial support of the children. As supporting authority Gail cites Iowa Code section 232.116(3). Her claim implicates Iowa Code section 232.116(3)(a), which provides that the juvenile court need not terminate the parent-child relationship if the court finds a relative has legal custody of the child. The State asserts error was not preserved on this claim.

"Issues must ordinarily be presented to and passed upon by the trial court before they may be raised and adjudicated on appeal." Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). "It is well settled that [an Iowa Rule of Civil Procedure] 179(b) [now rule 1.904(2)] motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory submitted to it for adjudication." State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984). This rule has been held to apply to termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994).

The evidence shows that the children had been in the legal custody of their paternal grandmother fourteen months as of the conclusion of the termination hearing. However, the termination order did not address any section 232.116(3) issue, and Gail did not file a motion to enlarge or modify the juvenile court's findings, conclusions, or judgment. Gail has thus not preserved error on this claim and we do not further address it.

Gail also claims the juvenile court erred in not granting her additional time for reunification. She argues the court recognized she had fully complied with services, her participation in services had improved her parental abilities, further services could be provided, and the children would not suffer if additional time were allowed. For the reasons that follow we agree with the juvenile court and affirm on this issue.

The children first came to the attention of the Iowa Department of Human Services when their then three-year-old stepbrother was brought to a hospital emergency room suffering from severe and life-threatening hypothermia as a result of Gail punishing him by forcing him to endure a cold shower for a lengthy period of time. Gail's stepson also had multiple bruises over much of his body. Gail pled guilty to a class "C" felony as a result of her abuse of this child. Evidence presented during the juvenile court proceedings revealed that Gail and David had also each, with the knowledge of the other, subjected the children to frequent, ongoing, abusive corporal punishments.

Throughout the juvenile court proceedings, and to some extent even earlier, Gail participated in and complied with various services. However, Gail had a psychosocial evaluation, with resulting diagnostic impressions of generalized anxiety disorder and mixed personality disorder (with avoidant traits, paranoid traits, and sadistic features). The evaluator recommended that Gail see a psychiatrist for further assessment of her anxiety symptoms. Gail's therapist felt she needed ongoing medication, therapy, and support, and needed to further disclose and be accountable for her abuse of her stepson and the children.

A licensed marriage and family therapist who had extensively observed Gail and the children while supervising visitation believes Gail still has limited ability to recognize the needs of the children, and rapidly becomes overwhelmed and frustrated with trying to parent them. This therapist is firmly of the opinion that Gail is not yet able to care for the children.

In findings of fact fully supported by the opinions of Gail's therapist and the marriage and family therapist the juvenile court found, in part:

Unfortunately, all these services have served more to reveal the magnitude of the problems with this family than to address same. Though all these services have been helpful to [Gail] and have improved [her] parenting abilities, it has become apparent that (1) [she is] so lacking in fundamental parenting skills (particularly with regard to recognizing and addressing the needs of the children and especially in the area of discipline) and (2) [she has] done so much damage to the children mentally and emotionally by [her] physical abuse that [she is] simply not yet ready to resume parenting these children and won't be ready for a significant period of time.

These findings are also supported by Gail's own acknowledgement she is not yet ready to have the children returned to her and it will probably be six months or more before she will be ready to have them returned.

A parent does not have unlimited time in which to correct her deficiencies. In re H.L.R.B., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). "At some point, the rights and needs of the [children] rise above the rights and needs of the parent." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). "[P]lans which extend the . . . period during which parents attempt to become adequate in parenting skills should be viewed with a sense of urgency." In re A.C., 415 N.W.2d 609, 614 (Iowa 1987), cert. denied sub. nom. A.C. v. Iowa, 485 U.S. 1008, 108 S. Ct. 1474, 99 L. Ed. 2d 702 (1988). "The judge considering [an extension of time] should however constantly bear in mind that, if the plan fails, all extended time must be subtracted from an already shortened life for the children in a better home." Id.

The children have been in the legal custody of their paternal grandmother, and in the physical custody of her and their paternal grandfather, for fourteen months. They are doing very well. They need and deserve permanency. Their paternal grandparents are committed to caring for them permanently, and are willing to adopt them.

Upon our de novo review we find termination of Gail's parental rights is in the children's best interest in order that they may secure the permanency and stability they need and deserve. We fully concur in the juvenile court's implicit denial of additional time for reunification, and its termination of Gail's parental rights.

AFFIRMED.


Summaries of

In re M.F

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)
Case details for

In re M.F

Case Details

Full title:IN THE INTEREST OF M.F., M.F., and K.F., Minor Children, G.S., Mother…

Court:Court of Appeals of Iowa

Date published: Oct 12, 2005

Citations

707 N.W.2d 336 (Iowa Ct. App. 2005)