Opinion
No. 3-357 / 03-0635
Filed June 13, 2003
Appeal from the Iowa District Court for Decatur County, David L. Christensen, Judge.
A mother appeals from the termination of her parental rights. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
Monty Franklin of Franklin Law Office, Humeston, for appellant.
George Hoffman of Hoffman Law Firm, Leon, for father of G.D.
William Eddy of Booth Law Firm, Osceola, for father of K.O.
Angela Hill, Leon, for father of A.B.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Carol Clark, County Attorney, for appellee-State.
Patrick Greenwood, Lamoni, for minor children.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
I. Background Facts and Proceedings.
Amy appeals the termination of her parental rights to K.O., age nine, A.B., age seven, and G.D., age three.
In September 2000, Amy voluntarily placed her children with relatives so she could obtain treatment for substance abuse and domestic violence issues. A combined child in need of assistance adjudication and dispositional hearing was held on December 15, 2000. The dispositional order entered the same day required Amy to successfully complete substance abuse treatment, a batterer's education program, an anger management course, and parenting classes. K.O. and A.B. were temporarily placed with their maternal grandmother, and G.D. was placed with his father's cousin. The adjudication order was filed on January 26, 2001, finding K.O., A.B., and G.D. to be children in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) (Supp. 1999).
Contrary to the court order placing K.O. and A.B. with their maternal grandmother, K.O. and A.B. began living with Amy in mid-March of 2002. The maternal grandmother supervised some of the children's time with Amy. A March 2002 visitation order increased the amount of time G.D. spent with Amy. On July 25, 2002, a serious domestic violence incident between Amy and G.D.'s father necessitated removal of the children. Amy then sought treatment at the Clarinda Mental Health Institute followed by inpatient treatment at the Powell Chemical Dependency Unit. A subsequent review order left G.D. in the custody of his father's cousin, K.O. was placed with her paternal grandmother, and A.B. was placed with her father.
In November 2002 the State petitioned to terminate Amy's parental rights to K.O., A.B., and G.D. pursuant to Iowa Code sections 232.116(1)(b) (abandonment), (d) (CINA for physical or sexual abuse or neglect, circumstances continue despite receipt of services), (e) (CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), (f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), and (i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions) (Supp. 2001). On March 24, 2002, the Court terminated Amy's parental rights with respect to K.O., A.B., and G.D. pursuant to Iowa Code section 232.116(1)(6)(f).
The termination petitions and resulting court orders cited the provisions that were in effect prior to the amendment of section 232.116(1) on April 24, 2001. We will cite the amended form.
On appeal Amy argues insufficient evidence supports the juvenile court's decision terminating her parental rights to K.O., A.B., and G.D.
II. Standard of Review.
Our review in termination of parental rights cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (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.P. 6.14(6)( g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
III. The Merits.
Amy argues that insufficient evidence supports termination of her parental rights with respect to G.D. because G.D. was not four years old at the time of the termination hearing. Iowa Code section 232.116(1)(f), the only code section under which Amy's parental rights were terminated, specifies that the child is four years of age or older. We accordingly reverse the juvenile court's order terminating Amy's parental rights to G.D. and remand to the juvenile court to allow the State to amend the petition to include the appropriate Iowa Code section, and to allow the court to receive additional evidence if necessary. In re M.T., 613 N.W.2d 690, 693 (Iowa Ct.App. 2000).
Amy argues that the children's placement in her home for more than thirty days from mid-March 2002 until July 25, 2002, precludes termination of her parental rights. See Iowa Code § 232.116(1)(f)(3) ("The child has been 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."). Because Amy failed to raise this issue in the juvenile court, we will not consider it. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding we will not consider a substantive or procedural issue for the first time on appeal).
Finally, Amy argues the State failed to prove by clear and convincing evidence that the children could not be returned to her custody as provided in section 232.102 as required by section 232.116(1)(f)(4). Iowa Code section 232.116(1)(f)(4) provides for termination if: "There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102." The relevant provisions of 232.102 provide:
5. a. Whenever possible the court should permit the child to remain at home with the child's parent, guardian, or custodian. Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that:
(1) The child cannot be protected from physical abuse without transfer of custody; or
(2) The child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance and an adequate placement is available.
The circumstances underlying these children's original adjudication included Amy's substance abuse and domestic violence. These circumstances, in addition to Amy's financial instability and failure to maintain a home, contributed to the children's CINA adjudication. We find the risks of harm resulting in the children's adjudication remain the same because of Amy's failure to successfully address these issues. K.O. and A.B. are doing well in their current placements. The record supports termination of Amy's parental rights with respect to K.O. and A.B. We accordingly affirm the termination of Amy's parental rights with respect to K.O. and A.B. and reverse and remand the termination of Amy's parental rights with respect to G.D.