Opinion
No. 05-1031
Filed August 31, 2005
Appeal from the Iowa District Court for Benton County, Patrick R. Grady, Judge.
A mother appeals from the juvenile court order terminating her parental rights to one child. AFFIRMED.
Mary E. Chicchelly of Seidl Chicchelly, Cedar Rapids, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, David C. Thompson, County Attorney, and Anthony Janney, Assistant County Attorney, for appellee-State.
Robert Davison, Cedar Rapids, guardian ad litem for minor child.
John Mossman, Vinton, for father.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Jodi appeals from the juvenile court order terminating her parental rights to her daughter, Tia, who was born in March 2001. The order also terminated the parental rights of Tia's father, Christopher, but he is not a party to this appeal. We affirm.
Tia came to the attention of the Iowa Department of Human Services (DHS) in September 2003 as the result of a report she may have been sexually abused. The report of sexual abuse was investigated and determined to be "unfounded." However, the DHS worker investigating the report found the conditions in the home in which Tia was residing, the home of Jodi's mother and stepfather, to be unfit. Jodi had at times left Tia with her mother and stepfather. These times included two times during 2003 when Jodi was incarcerated in Illinois on methamphetamine charges.
The State filed a petition alleging Tia was a child in need of assistance (CINA). In December 2003 Tia was adjudicated a CINA pursuant to Iowa Code section 232.116(2)(6)(c)(2) (2003) (failure of parent to exercise reasonable degree of care in supervision). At a March 2, 2004 dispositional hearing the juvenile court by order approved an agreement of the parties to a voluntary placement of Tia in family foster care, and continued the dispositional hearing to April 20, 2004, to allow Jodi additional time to obtain Inn Circle housing and to follow through with other case requirements.
In an April 20, 2004 dispositional order the juvenile court ordered legal custody of Tia placed with the DHS for foster family care. Jodi had moved into an apartment at the Inn Circle, was participating in the Inn Circle program, and had secured part-time employment. She subsequently left the Inn Circle program without completing it. In June 2004 she entered the Heart of Iowa program sponsored by the Area Substance Abuse Council, where she was to receive treatment for her substance abuse.
In early November 2004 Jodi gave birth to a daughter, whose father is DeWayne. Jodi had been making some progress with her many issues that had been identified early in the CINA proceeding, and on November 16, 2004 the juvenile court ordered that Tia "be placed with [Jodi] on a trial home placement." Jodi was still residing in an apartment under the supervision of the Heart of Iowa program. By late December, however, she was discharged from that program and removed from the apartment for repeated violations of program rules. Jodi thereafter resided with a married couple from late December 2004 until late January 2005. When the couple moved out Jodi was again homeless. On January 31, 2005, both Tia and Jodi's younger daughter were placed in foster family care. A February 8 juvenile court order confirmed Tia's return to foster care and formally rescinded her trial placement with Jodi.
On March 15, 2005, the State filed a petition seeking termination of Jodi's and Christopher's parental rights to Tia. Following a June 3 hearing the juvenile court filed a ruling on June 15 terminating Jodi's and Christopher's parental rights pursuant to Iowa Code section 232.116(1)(f) (2005) (child four or older, adjudicated CINA, "removed from the physical custody of the child's parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days," and cannot be returned to parents at present time). Jodi 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).
Jodi first claims the juvenile court erred in finding Tia had been removed for the period of time required by the third element of section 232.116(1)(e) as Tia had been in a trial home placement with Jodi for more than thirty days. She argues, as she did in the juvenile court, that under the statutory language quoted above a child has not been removed for the requisite period not only if a trial period at home of thirty days or more has occurred within "the last twelve consecutive months" but also if a trial period at home of thirty days or more has occurred within the period of "twelve of the last eighteen months."
The State's petition for termination specified sections 232.116(1)(a), (b), (c), and (e) as the statutory provisions relied on. However, the facts alleged and language used in the petition in conjunction with the cited statutory provisions make clear that the State was relying on the provisions that, following an April 24, 2001 amendment to section 232.116(1), see 2001 Acts ch. 67, §§ 9, 13, became sections 232.116(1)(a), (b), (d), and (f) respectively. See Iowa Code § 232.116(1) (Supp. 2001). In its ruling the juvenile court terminated parental rights pursuant to present section 232.116(1)(f) and not pursuant to present section 232.116(1)(e). We thus read Jodi's first claim as directed at the third element of present section 232.116(1)(f).
For three reasons we disagree with Jodi's interpretation of the third element of section 232.116(1)(f). First, statutory words and phrases are to be construed "according to the context and the approved usage of the language. . . ." Iowa Code § 4.1(38) (2005). When the word "or" is used it is presumed to be disjunctive unless a contrary legislative intent appears. Kearney v. Ahmann, 264 N.W.2d 768, 769 (Iowa 1978). No such intent appears. We thus conclude that the language "and any trial period at home has been less than thirty days" applies to and qualifies only the phrase within which it appears following the word "or." Second, qualifying words and phrases ordinarily refer only to the immediately preceding antecedent. State v. Kluesner, 389 N.W.2d 370, 371 (Iowa 1986). The presence of a comma before the phrase containing the qualifying language in question suggests that those qualifying words were intended to modify only the preceding words of the phrase within which they appear. See id. at 371-72 (stating the absence of a comma following certain words suggests that the remainder of the phrase within which the words appear was intended to modify only those certain words and was not intended to travel further forward in the sentence to modify earlier phrases as well). Finally, we agree with the juvenile court's reasoning that applying the qualifying language "and any trial period at home has been less than thirty days" to the phrase "for at least twelve of the last eighteen months" would effectively read that phrase out of the statute because by its terms that phrase allows the State to pursue termination even when a child may have been in a parental home for up to six of the last eighteen months.
Jodi also argues that section 232.116(1)(f) is unconstitutionally vague concerning whether the thirty-day trial period at home applies to only the twelve consecutive month alternative or also applies to the twelve of he last eighteen months alternative. The State asserts Jodi has not preserved error on this issue.
"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). Even issues of constitutional magnitude will not be addressed on appeal if not presented in the trial court. In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990). "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 properly submitted to it for adjudication." State v. 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).
Jodi did not present any issue concerning unconstitutionality of section 232.116(1)(f)(3) to the juvenile court, nor did the court pass upon any such issue. Jodi did not file any post-ruling motion asking the court to address such an issue. We conclude Jodi did not preserve error concerning the asserted unconstitutionality of section 232.116(1)(f)(3).
Jodi claims the juvenile court erred in finding Tia had been removed for the requisite time at the time of trial, under either of the two statutory alternatives. She argues that Tia was voluntarily placed in foster care from March 2, 2004 to April 20, 2004, and from January 31, 2005 to February 8, 2005, and that with those time periods excluded Tia was not out of her care for the required twelve-month period. The State responds that error was not preserved on this issue, as the juvenile court's termination order does not address the issue.
The juvenile court's order clearly shows that it did not address or pass upon this issue. Further, Jodi makes no claim or showing that she thereafter requested, by filed motion or otherwise, that the court address such an issue. Finally, and most importantly, the transcript of the termination hearing shows that the issue was not presented to the juvenile court. Following presentation of evidence, in closing arguments Jodi argued that the State had not proved that (1) Jodi had abandoned or deserted Tia, (2) Jodi had voluntarily consented to termination of parental rights to Tia, (3) the circumstances which led to Tia's adjudication as a CINA continued to exist, or (4) Tia had been out of Jodi's custody for either of the two section 232.116(1)(f)(3) time periods "at the time that the termination of parental rights was filed by the State." She also made the argument addressed above, concerning interpretation of section 232.116(1)(f)(3). Jodi did not present this issue which she now for the first time presents on appeal. We conclude she has not preserved error on this issue.
This issue had also been discussed by the court and the parties at a break during the presentation of evidence.
We have agreed with the juvenile court that the language "and any trial period at home has been less than thirty days" applies to and qualifies only the second of the two phrases in section 233.116(1)(f)(3). Jodi argued in the juvenile court that Tia had been out of her custody "for just over 10 months as of the filing of [the] termination of parental rights." This filing occurred March 15, 2005, just over two and one-half months before the June 3 termination hearing. The result of Jodi's argument in the juvenile court is thus that Tia had been out of her custody for more than twelve and one-half months at the time of the termination hearing. Her argument on appeal is not only not the same argument she made in the juvenile court, but instead is contrary to that argument and its result.
Jodi also claims the State did not prove it made reasonable efforts to reunify Tia with her. She also clams the juvenile court erred in finding Tia could not be returned to her at the time of the hearing, the fourth element of section 232.116(1)(f). The State asserts that because Jodi gives no indication of how the State failed to make reasonable efforts she has thus failed to preserve error on the first of these two issues. We choose to address both issues, and will discuss them together.
Jodi was nineteen years of age during most of the CINA and termination cases involving Tia. Jodi had herself been a CINA and spent part of her minority in out-of-home placements due to the physical conditions in her mother and stepfather's home and her sexual abuse by a male relative while in that home. Issues and concerns at the start of Tia's CINA case included Jodi's lack of any stable housing, lack of employment, lack of parenting skills, history of substance abuse, and mental health problems. Tia had been the subject of two prior founded child abuse reports, in 2002, while living with Jodi and Jodi's mother and stepfather, with those three persons as the perpetrators. Jodi had been incarcerated in Illinois for two periods of time in 2003 in connection with criminal drug charges, which resulted in her being placed on probation.
Services were provided to Jodi beginning early in Tia's CINA case and continuing through the termination case. As testified to by the DHS social worker who had worked on Tia's case since its inception:
There was several different services that have been offered to Jodi throughout the entire case. Protective child care, many different housing referrals, shelters, Catherine McAuley Center. YPN program. Part of the YPN is a part called PAT, Parents As Teachers. Inn Circle. ASAC inpatient and outpatient services, probation services, family centered services. In-home services. Parent education, parent skill. She also did attend a parenting group while she was involved in the Heart of Iowa program at ASAC. We've had several family team meetings, family conferences, staffings, referrals for therapy, for mental health therapy for Jodi herself and also for Tia.
There is no evidence that Jodi at any time requested different or additional services.
Jodi made some progress with some of her issues while in Heart of Iowa program, leading to an August 2004 DHS request that she be given an additional six months to work toward reunification, and resulting in Tia being placed with her in mid-November 2004. However, following Jodi's December 2004 discharge from the Heart of Iowa program for rules violations her progress essentially ended and according to her social worker "she really backslid." In early 2005 Jodi was without housing and returned to the home of her mother and stepfather. She associated with a convicted felon, the person with whom she had been associated in the Illinois drug charges, in violation of her probation. She refused to participate in recommended substance abuse aftercare and did not keep scheduled appointments. She missed appointments with her probation officer. She missed scheduled visitations with Tia. She used marijuana despite the pending termination case. She associated with and lived with a male who was a party to a pending CINA case for physical abuse of a child.
At the time of the termination hearing Jodi had held a part-time job and maintained an apartment for about a month or a little longer. However, ten days before the termination hearing she refused to allow her social worker to inspect her apartment. Further, Jodi had had no earlier stability in employment or housing and had not demonstrated any continuing ability to maintain stability in either. She had scheduled a substance abuse evaluation for later in June, but had done so only under the pressure of the pending termination action and after refusing to do so for many months. Tia's CINA case had been extended once for six months, and the combined CINA and termination case had been pending for over one and one-half years. In the opinion of Jodi's family therapist a minimum of an additional six months of supervised services would be required before Tia could be tentatively returned to Jodi's care. Although a bond existed between Tia and Jodi, Tia needed stability and permanency and was thriving in a pre-adoptive foster family home.
We find the State made reasonable efforts and provided reasonable services in attempting to reunify Tia with Jodi. We further find Tia could not be returned to Jodi's custody at the time of the termination hearing without being subject to the threat of neglect in the form of lack of appropriate supervision, lack of appropriate shelter, and/or other probable adjudicatory harm. See In re M.M., 482 N.W.2d 812, 814 (Iowa 1992) (holding the threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's removal from the home).
We affirm the juvenile court's termination of Jodi's parental rights to Tia.