Opinion
No. 5-688 / 05-1029
Filed February 15, 2006
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. AFFIRMED.
Thomas P. Lenihan, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Annette Stanley, Assistant County Attorney, for appellee.
Nancy L. Pietz, Des Moines, for father.
Michael Sorci, Youth Law Center, Des Moines, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
A mother appeals from the juvenile court order terminating her parental rights to her youngest two daughters. She contends: (1) a State requirement that transfers responsibility for payment of services to an indigent parent, as a condition of the exercise of a fundamental right, violates established principles of due process of law; (2) a disabled parent is entitled to accommodations, including an extension of time limitations, where delays in response to reunification services is caused by known manifestations of the parent's disability; and (3) the juvenile court's decision to terminate mother's parental rights, given mother's prior success with appropriate services, is not supported by clear and convincing evidence of record. On de novo review, we affirm.
I. Background facts and proceedings.
Tomma K. is the mother of Elesha, born in 1985, Anna, born in 1986, Beth, born in 1988, Edward, born in 1993, Tomma J., born in 1999, and Tristin, born in 2000. Edward is the father of the four oldest children. Paul is Tomma J.'s father. Chris is the father of Tristin. The Department of Human Services (Department) became involved with the family in 2000 because of child protective concerns regarding the mother's substance abuse, domestic violence, and child neglect. Tomma K. participated in services and the juvenile court case was closed in May of 2003. The Department became involved again in December of 2003 when the mother was arrested for drug possession following a consent search of her home. Anna, Tomma J., and Tristin were present during the search. Although the mother was arrested, Tomma J. and Tristin were allowed to remain in the home in the care of their older half-sibling, Anna. Following the mother's consent to removal, the Department placed Tomma J. and Tristin with Tomma J.'s paternal grandparents in January of 2004. Later that month, the mother completed a substance abuse evaluation, which recommended an extended outpatient relapse prevention program.
Edward and Tomma divorced in 1995. Tomma had primary physical care of their four children until a voluntary modification at the end of 1999 placed the children with Edward.
The court found the children to be in need of assistance in March. It ordered the mother to complete substance abuse treatment and to provide drug screens. The Department began in-home services. Because the mother lost her driving privileges due to her drug-related conviction, the Department arranged for the grandparents to bring the children to visitation and to supervise visitation. It also provided bus tokens to the mother to assist her with transportation. In April the Department reported to the court that the mother was not participating in substance abuse treatment, was not providing drug screens, was sporadic in meeting with the in-home service provider, and was not taking advantage of opportunities for visitation. Following a dispositional hearing later in April, the court ordered the mother to complete a psychiatric evaluation.
Between February 20 and June 4, the mother did not show up for any of the thirty-two requested drug screens. She tested negative twice in June and positive in July and August.
The mother completed the psychiatric evaluation in August, and was prescribed medication for severe depression. She did not obtain the medication until October, when she also reported she was seeing a therapist. At the October review hearing, the mother requested dual-diagnosis services. The court ordered her to comply with dual-diagnosis services. As part of the initial intake for dual-diagnosis services, the mother was tested for tuberculosis. She did not return so the test results could be checked, so she was not allowed to begin dual-diagnosis services.
Because the State indicated its intent to file a petition to terminate parental rights, a permanency hearing which had begun in late December was continued to coincide with the later termination hearing. The order found dual diagnosis, visitation, drug screens, protective daycare, and other services among the reasonable efforts made to eliminate the need for removal. The December case permanency plan stated that the mother had won $11,000 at a casino, but the in-home service provider reported she had only $1,500 left. The in-home service provider also reported the mother stated that she did not provide drug screens as requested because she cannot urinate in front of others and she feared prescribed medications would skew the results.
In mid-February of 2005, the mother moved to modify the dispositional order and to consolidate the hearing on the motion with the permanency hearing set for the end of February. In the motion she alleged reasonable efforts requirements had not been satisfied for the reasons she raises now on appeal. Furthermore, she alleged she had not been given the opportunity to participate in joint preparation of case plan requirements and that the Department had provided no services to address her needs for housing, employment, and transportation.
The mother did not appear personally at the termination hearing. The court received exhibits from the State and the mother. No witnesses were called. The court terminated her parental rights under Iowa Code sections 232.116(1)(d) (child CINA for physical abuse or neglect, circumstances continue despite receipt of services), (e) (child CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), (f) (child four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), and ( l) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time) (2005).
The mother filed a motion to amend or enlarge the juvenile court's order, including a request for the court to address the issues raised in her mid-February motion to modify the dispositional order. The court amended and enlarged several paragraphs of its findings, providing additional findings that support the statutory grounds for termination, and summarily denied the rest of the motion.
II. Scope and standards of review.
Our review of the juvenile court's termination of parental rights is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The State must prove the grounds for termination by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our review of claimed violations of constitutional rights is de novo.
III. Claims on appeal.
The mother presents three issues on appeal.
1. A State requirement that transfers responsibility for payment of services to an indigent parent, as a condition of the exercise of a fundamental right, violates established principles of due process of law.
2. A disabled parent is entitled to accommodations, including an extension of time limitations, where delays in response to reunification services are caused by known manifestations of the parent's disability.
3. The juvenile court's decision to terminate mother's parental rights, given mother's prior success with appropriate services, is not supported by clear and convincing evidence of record.
The State grouped issues one and two under the rubric of reasonable efforts, and first contends the mother did not preserve error because these claims were raised too late. It also contends the mother did not preserve error on her evidentiary claim because she did not specify how the evidence was lacking.
IV. Discussion.
A. Error preservation.
We first examine whether error is preserved before moving to the merits of the claims. The State contends neither of the mother's claims concerning reasonable efforts is preserved for our review because she raised them too late. On February 18, 2005, the mother filed a motion to modify the dispositional order and to consolidate hearings. In this motion, the mother complained about the services offered and asked that the hearing on the motion be held concurrently with the permanency and termination hearing on February 28.
The State has an obligation to provide reasonable reunification services. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Iowa appellate courts "have repeatedly emphasized the importance for a parent to object to services early in the process so appropriate changes can be made." In re C.B., 611 N.W.2d 489, 493-94 (Iowa 2000); see, e.g., In re B.K.K., 500 N.W.2d 54, 57 (Iowa 1993); In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997); In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993). "Parents should demand services prior to the termination hearing." J.L.W., 570 N.W.2d at 781. "We recognize a parent suffering from mental illness suffers a disability and may need special accommodations. This issue, too, should be raised at the removal or review hearing." In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994).
The mother requested dual-diagnosis services in October, which the court ordered. She did not challenge the services or demand additional or other services until just ten days before the termination hearing. She did not appear at the termination hearing to pursue her challenges. She raised the challenges again in a posttrial motion to amend and enlarge. In refusing to modify its order, the juvenile court noted the arguments "existed at the time originally scheduled for permanency in December and at the time of the review hearing in October." The issues were raised in the juvenile court and not for the first time on appeal. Therefore we address them. But in doing so we give consideration, among other things, to the time they were filed.
B. Reasonable efforts.
The mother raises claims she was denied due process by having the burden of paying for services placed on her while she was indigent, and the State did not make reasonable accommodations because of her disability.
I. Indigency and the burden of paying for services.
The mother contends "a state requirement that transfers responsibility for payment of services to an indigent parent, as a condition of the exercise of a fundamental right, violates established principles of due process of law." She contends she did not provide drug screens because she could not afford them. We find evidence the mother won $11,000 at a casino. She told her in-home service provider from Silver Linings that she did not provide the drug screens because she could not urinate in front of other people and she was afraid her prescription medications would skew the test results. Financial problems with obtaining medications were resolved in October 2004 once the mother filled out the appropriate paperwork. She obtained the prescribed medications, but apparently did not continue them after a month because she took only a month's supply and did not refill the prescriptions, even though they were available to her. "We have long held we will not consider a constitutional question on appeal when another question is decisive." In re Chad, 318 N.W.2d 213, 219 n. 2 (Iowa 1982) ( quoting Ehlinger v. Mardorf, 285 N.W.2d 27, 28 (Iowa 1979)). We find no merit in the mother's claim she did not participate in services because of her indigency.
2. Reasonable accommodation of the mother's disability.
The mother also contends the State's efforts were not reasonable because it did not allow her additional time or accommodate her tardiness at visitation or failure to participate in services as manifestations of her depression. She argues she needs medical care and support, and assistance in planning and coordinating employment, housing, transportation, and education.
The mother has had a substance abuse problem for several years. When the juvenile court was involved before the current case, she received support and treatment. In the current case, she was offered medication, substance abuse treatment, mental health treatment, and visitation. She routinely was thirty to ninety minutes late for visitation, but blamed her tardiness on oversleeping or not remembering the visit, not on a lack of transportation. Even so, the State continued providing visitation. She had a year during which she could have participated in services, but did not to any significant degree. By the time of the termination hearing, the children had been out of her care for over a year. The juvenile court found that the mother " may respond to treatment and improve after a six-month effort," but concluded "there is nothing to indicate that the improvement would be sufficient to appropriately parent her two children even after that period of time." (Emphasis added). We find the reunification efforts made by the State were reasonable under the circumstances of this case and gave the mother more than enough time and opportunity to respond, even considering manifestations of her depression.
3. Evidence supporting termination.
The State contends the mother did not preserve error on the claim clear and convincing evidence does not support termination because she "did not state how the grounds for termination of her parental rights were not met." It is the State's burden to prove termination is proper by clear and convincing evidence. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). We conclude this claim is preserved for our review.
The mother contends the State did not prove the grounds for termination by clear and convincing evidence, given her past success in caring for her children with appropriate services. She argues she has a history of substance abuse issues. She has successfully battled these issues in the past and was capable of independently parenting her children until she was arrested on a simple possession of marijuana and drug paraphernalia charge in December of 2003. [She], as a consequence of the convergence of the subsequent criminal proceedings, loss of driving privileges, and juvenile court proceedings found herself in a very difficult legal, personal and financial situation. Her arrest resulted in the loss of her children, the loss of her home, the loss of the companionship of a child's father, loss of income, loss of transportation, and loss of moral support.
Although "earlier cases with her two youngest [children] were closed when it was deemed successful reunification had occurred," in the four years before the termination of the mother's parental rights, "the children in interest in this case ha[d] only been outside juvenile court jurisdiction for about nine months." The mother had some success in the past, but it was not lasting — even with nearly constant juvenile court involvement. We note the mother was not successful in being reunited with her older children in earlier proceedings. In the case before us, in contrast to earlier proceedings, the mother has not participated regularly in services offered and has not made any significant progress in resolving her substance abuse and mental health problems.
The juvenile court terminated her parental rights under Iowa Code sections 232.116(1)(d), (e), (f), and ( l). When the juvenile court terminates a parent's rights on more than one statutory ground, we need only find evidence supporting one of the grounds cited by the juvenile court in order to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
Section 232.116(1)(f).
At the time of the termination hearing in February of 2005, Tomma and Tristan were five and four years old respectively. They were found to be children in need of assistance in March of 2004 after their removal from the mother's custody in January of 2004. They were not returned to the mother's care for any trial periods after their removal. At the time of the termination hearing, the mother still was not participating actively in substance abuse or mental health therapy. She was not taking her medications as prescribed. The mother urges her "prognosis is favorable" and "there is no reason to conclude that her improvement would not be sufficient to permit her to appropriately parent her children again. The mother's arguments point to a future possibility of being able to parent Tomma and Tristan. Iowa Code section 232.116(1)(f)(4) provides for termination if the children cannot be returned to the parent at the time of the termination. We find clear and convincing evidence supports termination under section 232.116(1)(f) and affirm.
Section 232.116(1)(e).
The mother does not challenge the termination of her parental rights under section 232.116(1)(e). We affirm the termination also under this section.