Opinion
No. 3-071 / 02-1869
Filed February 12, 2003
Appeal from the Iowa District Court for Hamilton County, James A. McGlynn, Associate Juvenile Judge.
A mother appeals an order terminating her parental rights to two children. AFFIRMED.
Douglas Cook, Jewell, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attoeny General, and Patrick B. Chambers, County Attorney, for appellee State.
Kevin Fors, Harcourt, guardian ad litem for minor children.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Susan appeals an order terminating her parental rights to two sons, ten-year-old Brandon and nine-year-old Nathaniel. She claims the termination order violated her rights to due process, and also claims termination was not in the best interests of the children. We affirm.
Susan and William are the parents of Brandon and Nathaniel. Susan is also the mother of fifteen and thirteen-year-old daughters and a fourteen-year-old son. Susan has been using methamphetamine for some four to five years. Her children were removed from her care in February 2000 because she was homeless. They were returned about a month later. On July 13, 2000, the juvenile court adjudicated the children to be children in need of assistance (CINA). They were again removed from Susan's physical custody in mid-October 2000 when she was again homeless. They have remained in out-of-home placements since then.
The State filed a petition for termination of Susan's and William's parental rights to Brandon and Nathaniel on August 14, 2002. Following a September hearing the juvenile court entered an order October 28, 2002, terminating both parents' parental rights pursuant to Iowa Code section 232.116(1)(e) (2001) (child four or older, adjudicated CINA, removed from physical custody of parents at least twelve of last eighteen months, cannot be returned to custody of parents at present time). Susan appeals.
Susan first claims that termination is invalid because it violated due process in terminating her parental rights under factors not alleged by the termination petition. The State urges that Susan did not preserve error on this issue.
Iowa Code section 232.111(4)(c) requires that a petition for termination of parental rights include, "A plain statement of those facts and grounds specified in section 232.116 which indicate that the parent-child relationship should be terminated." Only numbered paragraph ten of the petition contains information arguably relevant to this pleading requirement. It states:
10. Pursuant to Iowa Code Section 232.116, the parent-child relationship should be terminated because:
a. The child was adjudicated a Child In Need of Assistance on July 13, 2000, after finding the children were voluntarily placed in foster care because the mother was homeless.
b. The child's mother has been offered services through the Department of Human Services, but the mother has chosen not to participate in the services.
In an understatement of some magnitude the juvenile court stated in its ruling, "Unfortunately, the petition is poorly drafted. It does not clearly specify the particular ground alleged by the State." It went on to note there were no objections to the form of the petition, and to state a belief the petition at least minimally alleges the ground in section 232.116(1)(e) and to find that ground proved by the evidence.
We question whether the petition sufficiently states, "facts and grounds specified in section 232.116." It does not identify by numerical designation any one or more of the numerous statutory grounds for termination contained in section 232.116. It also does not set forth all of the elements of any one or more of those statutory provisions, even in summarized form. However, we agree with the State that Susan has not preserved error on her present claim of a due process violation.
An issue not presented in the juvenile court may not be raised for the first time on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). 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). By not presenting her due process claim in the juvenile court Susan has waived it. See id. We conclude Susan's claim of a due process violation has not been preserved for our review and we do not address it.
Susan also claims termination is not in the best interests of Brandon and Nathaniel. She argues they are older children bonded to their mother, and they love her and have three half-siblings as to whom Susan's parental rights have not been terminated. She suggests they are not necessarily adoptable, and termination will likely permanently separate them.
Beginning in 1989 and continuing through late 2001 there have been eleven confirmed or founded incidents of child abuse or neglect involving one or more of Susan's five children as victims. The perpetrators have been Susan, Susan's mother, Susan's older children's father, and William. The incidents have included (1) Denial of critical care-Failure to provide proper supervision (five incidents), (2) Denial of critical care-Failure to provide shelter, (3) Denial of critical care-Medical care, (4) Physical abuse-Bruise, (5) Sexual abuse-Indecent contact with a child, and (6) Sexual abuse-2nd degree (two incidents). Susan has been methamphetamine addicted for four to five years and had done nothing to deal with her substance abuse when arrested in mid-August 2002 and charged with felony manufacturing of methamphetamine and other drug-related offenses. She is currently unemployed, has not had her own housing for over two years, and lives with a man who was arrested on the same drug charges she currently faces. Brandon and Nathaniel have been and are in separate foster homes, at least partly because of sexual perpetration on each other. Each boy's foster parents have expressed an interest in adopting him.
In its findings the juvenile court stated in part:
In summary, while these unfortunate children were in the custody of their parents, they were subjected to neglect and physical and sexual abuse. They were left homeless. They were exposed to drugs and drug use. They were left without supervision on many occasions. They have now been out of the custody of the parents for about two years. DHS has made reasonable efforts. Neither parent can resume custody at this time or at any time in the future.
These findings are fully supported by the record and we adopt them.
Concerning best interests, the juvenile court stated:
The Court further finds that termination of parental rights is in the best interest of the children in interest so that they may have permanency in their life, be safe from abuse and neglect from the parents, and be freed for adoption. It is true that termination will separate siblings, which is unfortunate. However, Nathaniel and Brandon have been separated into two different foster homes for over a year now due to their inability to get along with each other ever since Nathaniel reported the sexual abuse by the father. In addition, it appears likely that Nathaniel may need to be placed in a PMIC facility which would further extend the separation. Both of these children have been separated from their half-siblings, but there is no evidence that their relationship is so close as to adversely affect these children. In any event, it appears that the separation would continue to exist whether termination was ordered or not. . . . The mother promises that she will quit using drugs, that she will participate with treatment, and that she will get her life back together, but as the appellate courts have recognized, the best predictor of the future is past performance. The mother's problems have been so serious and so chronic so as to destroy any reasonable hope that she will ever be able to resume custody of the children. When the Court uses the parents' past performance to gauge the future for these children, the Court can only envision a poor quality of life should the parental rights remain intact. It is therefore the Court's finding that the best interests of the children require the termination of the parental rights of the mother and the father.
We fully agree with the juvenile court that the best interests of Brandon and Nathaniel will be served by termination of Susan's parental rights and affirm on this issue.