Opinion
No. 2-290 / 02-0307
Filed April 10, 2002
Appeal from the Iowa District Court for Muscatine County, James A. Weaver, District Associate Judge.
Appellant mother appeals the order terminating her parental rights to her son. AFFIRMED.
William F. Creasey of Goedken Creasey, Muscatine, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Richard Phillips, County Attorney, and Korie L. Shippee, Assistant County Attorney, for appellee-State.
Jeffrey M. Johnson, Muscatine, for minor child.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Pansy, the mother of Glen, appeals from the February 19, 2002 order terminating her parental rights to her son. Glen, born November 28, 1987, was fourteen years old at the time of the termination hearing on February 7, 2002. On appeal Pansy contends that (1) the juvenile court did not give sufficient weight to the wishes of Glen, who has spent more than a decade of his life in her care and who is fourteen years old; (2) the State failed to make reasonable efforts to return Glen to her care after she was released from prison in December of 2001; (3) the State did not present clear and convincing evidence to show Glen could not be returned to her care; (4) termination is not in Glen's best interest; and (5) the current rules of termination of parental rights cases violate Pansy's constitutional rights, as they do not provide sufficient time to review the record and do the necessary research. We affirm.
This case involves the application of well-settled rules of law. The petition on appeal, together with the transcript of proceedings and copies of exhibits, is sufficient for us to address adequately the issues Pansy raises on appeal. Further briefing is not necessary and would only delay the disposition of this case.
See Iowa R. App. 6.154.
We review the termination de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984). However, we give weight to the juvenile court's findings of fact, especially the credibility of the witnesses. Id. at 491-92.
In August of 1999 Glen was found to be a child in need of assistance. Pansy, Glen's custodial parent, was found delinquent in providing Glen adequate supervision or appropriate necessities. Glen was placed in Pansy's custody, and services were offered. In December of 1999 the dispositional order was modified, as Pansy was incarcerated and there was not an available relative to assume Glen's custody. Glen was subsequently placed in family foster care. In December of 2000 Glen was returned to Pansy's care. In March of 2001 the State filed a petition to modify his placement, as Pansy was incarcerated for a parole violation. He was placed in family foster care, and in September of 2001, after a review hearing, the placement was continued because Pansy was still incarcerated.
On November 19, 2001, while Glen was yet thirteen years of age, the State filed this petition to terminate. In December Pansy was released from prison, and Glen remained in foster care. Pansy appeared and testified at the February hearing.
The juvenile court's February 19, 2002 termination order found that Pansy had not maintained a home for her child and had a chronic problem with drug abuse. The court further found that after she was paroled in December of 2001, she immediately returned to the use of drugs and committed herself to treatment. The court also noted Glen expressed an interest in his mother being given one more chance to meet the requirements of the case plan. The court then concluded the State had proved termination under Iowa Code section 232.116(1)(d), (e), and (k) (2001) by clear and convincing evidence.
We first address Pansy's claim that the State failed to make reasonable efforts to return Glen to her care after she was last released from prison. There is a requirement that reasonable services be offered to preserve the family unit. See In re A.L., 492 N.W.2d 198, 201 (Iowa Ct.App. 1992); In re B.L., 491 N.W.2d 789, 791-93 (Iowa Ct.App. 1992); In re A.W., 464 N.W.2d 475, 478 (Iowa Ct.App. 1990); In re M.H., 444 N.W.2d 110, 113 (Iowa Ct.App. 1989). The State had the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993).
Pansy has failed to show that services were requested. Preserving families is the underlying principle behind these proceedings. In re H.H., 528 N.W.2d 675, 678 (Iowa Ct.App. 1995). A parent's challenge to services should be made when they are offered. C.D., 508 N.W.2d at 101. The foster family did give Pansy an opportunity to see Glen. We affirm on this issue.
We next address Pansy's claim that there was not clear and convincing evidence to support a finding that Glen could not be returned to her care, which she contends is an element of section 232.116(1)(e). We disagree. Pansy has continued to have substance abuse issues preventing her from assuming care of Glen. We find this claim to be without merit.
Pansy argues that the State failed to show sufficient evidence that Glen could not be returned to her care. This is an element of section 232.116(1)( f) (Supp. 2001), rather than section 232.116(1)(e) (2001), as Pansy argues. The district court cited sections 232.116 (1)(d), (e), and (k) as authority for termination. Given its reasoning, it appears the district court was actually referring to sections 232.116 (1)(e), (f), and (l), which have been renumbered in the Supplement to the 2001 Code, the applicable law in this termination proceeding. In her appeal Pansy does not challenge the applicability of sections 232.116(1)(d) or 232.116(1)(k) (2001), nor does she argue, under 232.116 (1)(e) (Supp. 2001), that the State failed to show lack of reasonable efforts on her part to resume care. For these reasons we do not address the merits of this apparent mistake.
We next address Pansy's contentions that the juvenile court did not give sufficient weight to Glen's wishes and that termination of parental rights was not in his best interest. In addition to meeting the statutory requirements for termination set forth in section 232.116, the termination must be in the best interest of the child. In re T.Q., 519 N.W.2d 105, 106 (Iowa Ct.App. 1994) (citing In re B.G.C., 496 N.W.2d 239, 245 (Iowa 1992) and In re D.W.K., 365 N.W.2d 32, 34-35 (Iowa 1985)).
Susan Morford, a social worker with the Iowa Department of Human Services, testified for the State. She was asked if she thought Glen would suffer negative effects if the termination was ordered. She answered,
I think that initially it would be difficult; but I think because of the situation with his mom's incarceration, we've dealt a lot with Glen through therapy on his kind of separation and loss of his mother. I think he's prepared to deal with it. I think it would require therapy; but he's already in a qualified therapist, as well as we're giving him in-home therapy, so I think he could make it through it.
On cross examination Morford was asked her opinion as to why termination and adoption were preferable for Glen rather than another legal arrangement or a long-term alternative where Glen stayed in the foster care home he was in. She answered,
I think that Glen's behavior in the last, you know, month and a half, almost two months that his mom's been released has really solidified my decision to follow the path of termination, because what termination and adoption does is give that child permanency. . . . Where Glen's been these last two months is Am I going home? Is my mom getting better? . . . So termination and adoption provides him that permanency. . . .
Glen has been in his current foster home in excess of six months. The foster mother's son was a friend of Glen's, and she took Glen into her home. Apparently she wishes to adopt Glen. Being adopted by the right person or persons would give Glen security he does not now have. It would also cut off the legal ties connecting him with Pansy, with whom he is bonded, but it would not cut off the biological ties. The issue of whether or not to sever legally the biological ties between parent and child is an issue of grave importance with serious repercussions to the child as well as the biological parents. In re D.A.W., 552 N.W.2d 901, 903 (Iowa Ct.App. 1996). To be adopted Glen would have to consent. Section 600.7(d) requires consent by the person to be adopted if that person is fourteen years of age or older.
While Glenn testified and was asked if he wanted his parental rights terminated, he was not asked if he would consent to an adoption by his current foster mother. Only Glen, the attorneys, and the judge were in the courtroom at the time Glen testified. The following exchange occurred:
(Mother's attorney):
Q. . . . you know why we're here in court today; right?
A. . . . About the extermination about parents' rights, I think.
Q. Do you have a feeling or opinion about what you want to see happen to you?
A. Yeah. My mom had some-had chances to prove that she was going to do good, and she kind of messed those up. But I wanted to just try again and see if she wasn't going to mess up like she said, and I wanted to go back and live with her and see how everything went. If it didn't go good, then kind of not go anymore, and then go on with my life.
Q. Okay. So your own . . . feeling right now is that you don't want to have your mom's parental rights to you terminated; am I right?
A. No. Yeah, I don't want it to be terminated.
Q. Do you think your mom's putting pressure on you now to say that to us or the Court?
A. No. I'm saying this by myself. And people's been saying, like, say it from the heart; and I'm saying like I want it to be -like I want it to be.
Q. And you've been doing a lot of thinking about it over the last weeks?
A. Yeah.
(State's attorney):
Q. . . . You've been talking with . . . Andria Bayer at Family Resources?
A. Yeah.
Q. . . . have you been kind of going back and forth on . . . how you feel about this whole thing?
A. Yeah.
Q. Is that a fair statement?
A. Yeah.
Q. How do you feel about the home where you're staying right now?
A. I — It's going okay. I like it there, but I just wanted —
Q. Okay . . .
The State argues that Glen is best served by termination and adoption. Glen will have to consent to adoption. Pansy has failed her son in a number of ways, but he is bonded to her and feels a certain responsibility for her behavior. The State's witness was of the opinion that termination and adoption would benefit Glen. Glen's testimony reveals he has strong feelings for his mother and feels responsible for her in part, and he is upset that she has been unable to help herself. While termination of parental rights may mute his conflicting concerns, it will not erase them. There is no clear answer as to whether Glen would be better off in the foster care home as a foster child or as an adoptive son. There is no clear answer as to whether Glen will be willing to consent to his own adoption. Glen is lucky to have found a foster home where he is wanted and has adjusted.
The juvenile court judge heard Glen testify. Giving the required deference to the juvenile court on this issue, we affirm.
The last issue we address is Pansy's claim that her due process rights were violated by the short time limits provided for appealing parental termination cases.
The parent-child relationship is constitutionally protected. In re D.E.D., 476 N.W.2d 737, 739-740 (Iowa Ct.App. 1991) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 231-33, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15, 34-35 (1972)). The State has the right to terminate the legal relationship between a parent and a child, but the constitution limits its power to do so. D.E.D., 476 N.W.2d at 739 (citations omitted). The State must meet due process requirements in a termination of parental rights procedure. Id. (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599, 606 (1982)).
There is, however, no federal constitutional basis for the right of appeal. State v. Hinners, 471 N.W.2d 841, 843 (Iowa 1991) (citing Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651, 657-58 (1977)). In Iowa the right of appeal is statutory and not constitutional. Id.; Farmers Trust Sav. Bank v. Manning, 359 N.W.2d 461, 463 (Iowa 1984). However, once the right of appeal has been established, "these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts." Hinners, 471 N.W.2d at 843 (citing Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577, 581 (1966)).
The challenged provision provides equal and open access to the appellate courts. The appellant argues that this provision required her to operate with greater speed than would a traditional appeal, but this is not necessarily true. While the time to file a notice of appeal and a petition on appeal is shorter than the time to file the traditional notice of appeal and briefs, the rules do not initially require the appellant to prepare and file an appendix, nor are proof briefs required, among other things. Furthermore, if the court of appeals determines that the issues need to be addressed more completely, additional briefing time is provided. We find no basis to grant relief on this ground.
AFFIRMED.