Opinion
No. 2-293 / 02-0177.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, DONNA L. PAULSEN, Judge.
Father appeals from an order of the juvenile court terminating his parental rights. AFFIRMED.
Todd E. Babich, of Babich, Goldman, Cashatt Renzi, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, John Sarcone, County Attorney, and Celene Coffman, Assistant County Attorney, for appellee-State.
Barbara Romar, Des Moines, guardian ad litem for minor children.
Elias Gastelo, Des Moines, for mother.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Derby, the father of Jacob, born in 1996, and Joseph, born in 1988, appeals from an order of the juvenile court terminating his parental rights to the two boys. He contended in a petition on appeal that (1) the State did not use reasonable efforts to preserve his family, and (2) his attorney at the termination hearing was ineffective. We affirm.
The birth mother of the children, whose parental rights were also terminated, is not a party to this appeal.
This case came before us on Derby's request to reverse the termination or to enter an order setting this case for full briefing. We found the summary briefs inadequate to allow us to address the issues raised and remanded for further briefing. The requested briefs have now been filed.
The scope of review in termination cases is de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The grounds for termination must be shown by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa Ct.App. 1997).
The birth mother of the children has had a longstanding problem with alcohol and drug abuse. She and Derby never married. On October 1, 2000, she left the boys with her mother and didn't return for seventeen days. There was evidence during her absence that she was abusing drugs and alcohol, and on October 5, 2000 an order was entered temporarily removing the boys from their mother's care and putting them in the custody of their maternal grandmother. On October 11 Derby, who also has problems with drug abuse and has admitted to cocaine use, consented to the removal and placement. Services were provided to both parents.
A petition for termination of parental rights was filed November 28, 2001. The matter was heard on December 10, 2001. On January 22, 2002 the juvenile court terminated Derby's parental rights under Iowa Code section 232.116(1)(c), (e) and (k).
Derby first contends the State failed to prove by clear and convincing evidence that his parental rights should be terminated. He contends the most the State has shown is that he failed to strictly comply with the case plan and that this is not sufficient.
We agree with Derby and the juvenile court that he made efforts to comply with the plan. Among other things, he sought treatment and help for his mental health and substance abuse issues. He communicated with his caseworker. He visited his children.
Derby also advances that he tried to meet program requirements, even though the services offered did not adequately consider the fact that his IQ was between 66 and 68 and that he suffers from a closed head injury. He contends, and we agree, that a mental disability is not, standing alone, a sufficient basis to terminate his parental rights. The State contends that the issue of clear and convincing evidence to support the termination was not preserved for appellate review because it was not raised in Derby's petition on appeal, and our remand limited further briefing to those issues raised in Derby's initial petition. We agree with the State that an issue not presented in the initial petition cannot be raised in response to a full briefing request unless specifically requested by this court. See Iowa R. App. P. 6.154. That said, we find that even if the issue had been properly raised, Derby would not have been successful in this challenge. On our de novo review we find clear and convincing evidence supporting the termination under one or more grounds found by the juvenile court. We need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
At the time of the termination hearing Derby had spent the last three months in the Polk County jail. He had pled guilty to theft in the first degree and apparently had violated his probation. He was unable to assume the children's care. After the children were removed there was at least one occasion when he used illegal substances. He has also exhibited signs of extreme anger over several occasions and threatened to kill a Department of Human Services worker.
We next address whether the services offered Derby were reasonable. We recognize that Derby has mental handicaps. A parent's mental handicap is a factor that must be considered in structuring a service offered to assist the parent in correcting problems that have led to his or her children being found to be children in need of assistance.
Contrary to Derby's argument, we find that his mental handicap was considered in structuring services. Furthermore, Derby has not shown that he challenged the Case Permanency Plan when it was entered, nor that he requested specific additional services. Therefore, this issue was not preserved for appellate review. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). We affirm on this ground.
Derby contended in his petition that his trial counsel was not effective. Appellate counsel, while having raised the issue in Derby's petition in response to our order for full briefing, says that after having an opportunity to review the trial transcript he finds no legal basis for this argument and believes this issue is frivolous. We affirm.
AFFIRMED.