Opinion
No. 3-174 / 03-0213
Filed April 4, 2003
Appeal from the Iowa District Court for Woodbury County, Patrick McCormick, District Associate Judge.
A mother appeals the termination of her parental rights to her minor child. AFFIRMED.
Lori Ubbinga, Sioux City, for appellant.
Alexander Estaves, Sioux City, for the father.
Randy Hisey, South Sioux City, for the mother of B.K.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas Mullin, County Attorney, and Cindy Weber, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Dewey Sloan, Jr., LeMars, for minor children.
A mother appeals the termination of her parental rights to her minor child. She claims: (1) separate counsel should have been appointed to represent her; (2) the State did not present sufficient evidence to warrant termination of her parental rights; and (3) reasonable efforts were not provided to reunite her with her child. We affirm.
Background Facts and Proceedings. Staci is the mother of Kayla, born July 9, 1991; Rachel, born July 30, 1993; and Autum, born October 11, 1998. Staci's parental rights were terminated as to all three children, but her appeal concerns only Autum. The children were born to different fathers. The fathers have not appealed. In June 2000 Staci married Brad. Brad has two children from a previous marriage: Danielle, born March 15, 1984, and Brandon, born December 3, 1985. Brad voluntarily consented to the termination of his parental rights and does not appeal.
Between 1997 and 2000, the Department of Human Services (DHS) conducted ten child protective assessments (CPS) on Staci's children and Brad's children. The ninth assessment alleged Staci and Brad were producing pornographic videos in the home while the children were present. Danielle and Brandon watched one of the videos. The video was of Brad, Staci, and other men and women engaging in sex acts. Staci also left a "to do" list on the refrigerator that said "give Brad the best blow job he's ever had." Brandon and Autum began acting out sexually, and Brandon put his penis in Autum's mouth. On November 7, 2000, the juvenile court adjudicated Danielle, Brandon, and Autum children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(c)(2) (1999).
DHS offered Staci and Brad an array of services in an attempt to reunify them with their children; however, their participation has been very inconsistent. In December 2000 Staci and Brad had psychosocial evaluations. It was found that financial problems and marital conflict permeate the family. Staci's MMPI indicated that she wants acceptance, is anxious, manipulative, has a poor memory, cannot make decisions, and is obsessive. Her parenting index indicated that she lacked age appropriate expectations of normal children, lacked nurturing skills, and is unable to handle parenting stress.
At the dispositional hearing, the juvenile court noted that the family was in constant crisis. It was reported that Brad, Staci, and another female were engaged in sex while the three children were home and Brandon walked in on them. After this occurred, Staci and Brad both blamed each other and separated for two days. On May 2, 2001, the children were removed from the home, and Staci and Brad were allowed visitation. Autum was placed with her aunt and uncle. She began having a hard time adjusting after visits with both Staci and Brad. As a result, only Staci was allowed to continue visitation with Autum.
In December 2001 DHS began the reunification process, and the children had their first overnight visit with Staci and Brad. The couple allowed Danielle's boyfriend to spend the night, and they slept in the living room along with Brandon and Autum. DHS felt this was a poor decision on the parent's part, and the reunification process slowed. Over the next several months, Staci and Brad attended marriage counseling. Initially, the counseling went well, and Staci and Brad were again allowed overnight visitation. However, the overnight visitation ceased when the couple began fighting during the children's visits. Staci and Brad have separated at least twice since February 2002. At one point, Staci even asked for police assistance to obtain her belongings from Brad.
In September 2002 the State filed a petition to terminate Staci's parental rights to Autum and Brad's parental rights to Danielle and Brandon. As mentioned previously, Brad voluntarily consented to the termination of his parental rights. At the hearing Autum's foster mother, Diane, testified Staci had missed several visits with Autum. She also testified that Autum was acting out sexually with her dolls and masturbating. Diane further stated Autum did not want to attend visits with Staci. The juvenile court terminated Staci's parental rights under Iowa Code sections 232.116(1)(e), (f), and (h). Staci appeals.
Standard of Review. We review termination proceedings de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R. App. 6.14(6)( g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). Our primary concern is the best interests of the child. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
Appointment of Separate Counsel. Initially, Staci and Brad were both represented by the same attorney. In June 2002 the couple was provided separate counsel. Staci claims separate counsel should have been appointed as early as December 2000 due to the conflict of interest between her and Brad. The State points out and we agree Staci failed to raise this matter before the juvenile court. An issue not presented to and passed on by the juvenile court may not be raised on appeal for the first time, even one of constitutional dimensions. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). We accordingly decline to address this issue on appeal.
Sufficiency of the Evidence. Staci contends the State did not present sufficient evidence to warrant termination of her parental rights. We disagree. The future can be gleaned by the mother's past performance. See In re T.B., 604 N.W.2d 660, 662 (Iowa 2000). Staci has engaged in inappropriate sexual acts in the presence of Autum. As a result, Autum has acted out sexually. Further, Staci has not followed through with counseling or the services ordered. She continues to have marriage turmoil and financial problems. Meanwhile, Autum has benefited from being in a comfortable and stable environment. Children should not be forced to endlessly await the maturity of a natural parent. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). Autum deserves the right to establish permanency and stability in her life. At some point, the rights and needs of the child rise above the rights and needs of the parent. J.L.W., 570 N.W.2d at 781. Accordingly, we affirm the district court's order terminating Staci's parental rights.
Reasonable Efforts. Staci alleges the State did not engage in reasonable efforts to reunite her with her child. We find no merit in this argument. In addition, Iowa Code section 232.102(7) requires DHS to make reasonable efforts to return a child to their parent; the reasonable efforts requirement is not a strict substantive requirement for termination. C.B., 611 N.W.2d at 493. Instead, the services provided by DHS to reunify parent and child after removal impacts the State's burden of proving the child cannot be safely returned to the care of a parent. Id. Here, overwhelming evidence supports the juvenile court's determination that Autum cannot be safely returned to her mother's care. Accordingly, we affirm the district court on this issue.