Opinion
No. 2-944 / 02-1643.
Filed December 11, 2002.
Appeal from the Iowa District Court for Dubuque County, JANE MYLREA, Associate Juvenile Judge.
Mother appeals the termination of her parental rights to her minor child. AFFIRMED.
Thomas J. Miller, Attorney General, Tabitha Gardner, Asssistant Appellate Defender, Fred H. McCaw, County Attorney, and Jean Becker, Assistant County Attorney, for appellee State.
Kimberly C. Roddick, Dubuque, for appellant mother.
Patricia M. Reisen-Otavi, of Kintzinger Law Firm, Dubuque, guardian ad litem for minor child.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
A mother appeals the termination of her parental rights to her minor child. She raises three claims of trial court error. We affirm.
Stacey, twenty-eight years of age at the time of the September 2002 termination hearing, is the mother of H.P., born in October 1993, and M.M., Jr., born in August 2000. Although the underlying child in need of assistance proceedings and termination hearing involved both children, the trial court ruling from which Stacey appeals dealt only with Stacey's parental rights to M.M., Jr. and this appeal involves only her rights to that child. M.M., Jr.'s father's parental rights were terminated by consent and are not at issue on appeal.
Our scope and standards of review are well established.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
The following facts found by the juvenile court are fully supported by the evidence and upon our de novo review we adopt them as our own:
The juvenile court's reference to the "child" at certain points and to the "children" at others appears to be a result of the fact that although the hearing involved both H.P. and M.M., Jr., the ruling from which Stacey appeals involves only M.M., Jr.
The child, [M.M., Jr.] was removed from his mother's custody due to the parents' use and production of methamphetamine at the family home on November 29th, 2000. The child was placed with [maternal] grandparents, and reasonable effort services ordered including intensive substance abuse treatments for the mother, random U.A.s, in-home family therapy. The child was adjudicated a Child in Need of Assistance pursuant to Iowa Code Section 232.2(6)(c)(2)[,] (n) on February 8th, 2001, and remained with their grandparents; however, they were placed in March 2001 with their mother at the Family Empowerment Program, where she continued to receive family services and continued with substance abuse treatment and U.A.s. After successfully completing the Family Empowerment Program, the mother did move into the community [in] August 2001; however, on October 25th, 2001, the children were again removed from her custody and placed in foster care/relative placement due to her positive methamphetamine test with probation in Jo Daviess County, Illinois. Reasonable effort services continued with the addition of Parents as Teachers, Cornerstone, employment, psychological evaluation and treatment, and by this time, the child was placed in foster care placement with [Mr. and Mrs. B.], friends.
The mother has extensive history of substance abuse with alcohol and drugs. History includes May 1996, denial of critical care for failure to provide proper supervision of [H.P.] due to mother's substance abuse; March 2000, confirmed denial of critical care of [H.P.] by mother driving drunk with child with BAC of .17; denial of critical care in November 2000 by mother and [M.M., Sr.] of [H.P.] due to parents' use and abuse of methamphetamine in the family home; and October 2001, denial of critical care due to mother's use of methamphetamines while she was responsible for childcare.
Since the early `90s, the mother has had multiple substance abuse treatments, and specifically in the last eight years, has been in an inpatient or outpatient treatment program every year. Also, the mother was diagnosed with depression, ADD, and polysubstance abuse, and mental health treatment was ordered. However, she had not followed through with same. Substance abuse opinion is for long-term residential treatment, and in the last month, she has made good progress in her ARC program in Madison as part of a sentencing alternative for her felony level charge in the State of Wisconsin.
Reasonable effort services have been utilized throughout this case in order to address the mother's chronic substance abuse, multiple relapses, male dependency issues, lack of stability, and mental health issues; however, the mother has not over time been able to satisfactorily commit to the services, and the children have frequently been left with [Mr. and Mrs. B.] or her parents. The mother admits that her behaviors have adversely impacted the children, and providers indicate her inability to care for them. Although the mother at this time indicates her progress in the last couple months and current sobriety, the mother has many times made said promises and had multiple relapses and inability to provide stability in a safe, drug-free environment. Providers indicated it was not safe to return the children due to the high risk of relapse, instability, male dependency, and also her current criminal structured program. In fact, the mother has had little contact with [M.M., Jr.] in the last few months due to her inability to consistently cooperate and commit to services. Visits were suspended and the mother has not seen [M.M., Jr.] since January 2002, eight months ago. The last year indicates significant instability, incarceration, and substance abuse. After serving a 30-day jail sentence in Jo Daviess County, Illinois, and a period of homelessness, the mother was arrested and has spent significant time in the Dane County Jail, Wisconsin in the Alternative Monitoring Program in which she is currently involved. She currently has a no-contest plea approximately one month ago on a felony charge of Conspiracy to Manufacture Methamphetamine by helping to steal pills and batteries with [T.R.], and had been highly involved with the use of methamphetamine since spring 2002. She has four OWI charges and three convictions, and consistently chose drugs and negative male peers over her children. Over time, [M.M., Jr.], has been abandoned by her to good care provided by [Mr. and Mrs. B.] and her parents.
This child has been out of his mother's care and custody for almost one year, and permanency is needed given the significant history of inconsistency, instability, significant drug use, and the need for permanency and a permanent bond with caretakers for this young child. It would be unfair to this child to await the mother's stability. Certainly, the hope is that she will be able to maintain sobriety and stability; however, over the last two years of court involvement, history has not indicated same, and this child needs a permanent adoptive home with caretakers with whom he has bonded and whom have provided excellent care.
It is in the best interests of [M.M., Jr.] that he receive a permanent adoptive placement with caretakers with whom he has bonded, either [Mr. and Mrs. B.] or the grandparents. Currently, the Department of Human Services and therapists recommend placement with [Mr. and Mrs. B.] as a foster care placement where the child has done well, is nurtured, bonded, and that they can have a more neutral approach in this case. Although the grandparents have also provided good care to the child, they would have a difficult time keeping the separation of the mother from the upbringing of this child after this permanency adoption order, and the State, guardian ad litem, and all providers support the continued placement of the child with his current caretakers, [Mr. and Mrs. B.].
Stacey's OWI charges and convictions occurred in 1997, 1998, and 1999. In her testimony at the September 2002 termination hearing Stacey acknowledged she was not able to take care of her children and probably would not be able to do so until the following summer, nine months or more later. In its order terminating parental rights the juvenile court found that M.M., Jr. was born August 8, 2000, and was currently two years of age.
The April 23, 2002 petition to terminate Stacey's parental rights to M.M., Jr. alleged he was then one year of age, born August 8, 2000. It requested termination pursuant to Iowa Code section 232.116(1)(g). It alleged termination should occur because the child is 3 years of age or older, has been adjudicated a Child in Need of Assistance pursuant to section 232.96, has been removed from the physical custody of the child's parents for at least 6 of the last 12 months, and there is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in Section 232.102 at the present time.
(Emphasis added). The juvenile court's order terminated Stacey's parental rights "pursuant to Iowa Code Section 232.116(1)(g)." In doing so the juvenile court found that M.M., Jr. was three years of age or younger, had been adjudicated a child in need of assistance pursuant to Iowa Code section 232.96, had been removed from Stacey's care for six of the last twelve months and there was clear and convincing evidence M.M., Jr. could not be returned to Stacey pursuant to section 232.102 at that time.
Stacey first claims she was denied due process of law when the juvenile court found a basis for termination not alleged in the petition and the State was allowed to amend its pleadings at trial without prior notice to her.
At the conclusion of the State's evidence Stacey moved for a "directed finding." She argued the State's petition sought termination pursuant to section 232.116(1)(g) which required that "the court has terminated parental rights pursuant to section 232.117 with respect to another child who is a member of the same family," such proof was lacking, and the child was under the age of three. The assistant county attorney acknowledged that the petition erroneously stated as an element that the child was three years of age or older when it should have alleged three years of age or younger. The juvenile court noted that elements of section 232.116(1)(g) required that the child in interest be three years of age or younger, and that the child could not then be returned to parental custody, and inquired if that was the Code section on which the State relied. The assistant county attorney replied that those were the grounds alleged, and the Code section relied on, "even though that one word is mistaken." The juvenile court overruled Stacey's motion. The record contains nothing further concerning the issue.
Stacey's motion for a "directed finding" raised no due process of law or other constitutional issue. Neither the juvenile court's ruling on the motion nor its termination order addressed or passed on any constitutional issue. An issue not presented in the juvenile court may not be raised for the fist 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 Stacey has waived it. Id. We conclude Stacey's claim of a due process violation has not been preserved for our review and we do not address it.
Stacey's first claim of trial court error may, however, be seen as also raising another issue she did raise in the trial court, a claim that the State failed to prove a necessary element required for termination and that there was a variance between the petition and the proof. We therefore address this additional or subsumed claim.
An April 24, 2001 amendment to Iowa Code section 232.116(1) renumbered but did not substantively alter certain of its subdivisions. See 2001 Iowa Acts ch. 67, §§ 9 and 13. As a result of this amendment, the provisions that appeared as sections 232.116(1)(f) and (g) in the 2001 Code became sections 232.116(1)(g) and (h) respectively in the 2001 Code Supplement. Stacey's motion for "a directed finding" asserted lack of proof of an element of section 232.116(1)(g) of the 2001 Code Supplement. However, with the exception of the mistaken language "three years of age or older" instead of "three years of age or younger" the State's termination petition recites almost verbatim the language of section 232.116(1)(g) as it appears in the 2001 Code. The mistake in one word was or should have been readily apparent to all concerned. The one word was clearly different than the word appearing in the statute, with the statute otherwise recited almost verbatim in the petition. Further, M.M., Jr.'s age was correctly stated elsewhere in the petition, was clearly known to all concerned, and was not at all in dispute. Under these circumstances Stacey and her attorney cannot legitimately claim that they did not understand which version of section 232.116(1)(g) was at issue or that Stacey was in any manner prejudiced by the one erroneous word in the State's position. Any claim of lack of notice, confusion, or prejudice by Stacey relative to this issue is without merit.
Stacey next claims the juvenile court erred in terminating her parental rights "when it was possible to place the minors with their maternal grandparents pursuant to 232.102(1)(a) and 232.116(3)(a)." She notes that following the children's removal from her custody in October 2000 the juvenile court placed them in the maternal grandparents' custody. They were with the maternal grandparents until returned to Stacey in March 2001 for placement in the Family Empowerment Program. After they were again removed from Stacey's custody in October 2001, the children were placed in foster care with Mr. and Mrs. B. in November 2001 and continued in their care by a December 24, 2001 disposition review order, even though the maternal grandparents then and thereafter made known their desire to be considered an adoptive placement for the children.
Although the State agrees Stacey has preserved error on this issue, we do not agree. Stacey's claim is clarified by the argument she makes in her brief on appeal. She asserts
Had [the maternal grandparents] been able to exercise their statutory right to be considered for custody of the children at the dispositional phase pursuant to 232.102(1)(a), the Court may not have had to terminate the relationship between the children and their mother, pursuant to 232.116(3)(a). DHS should have acknowledged the importance of biological ties and the importance of consistency in the lives of these children when they made the determination to place them with unrelated foster parents.
Section 232.102 deals with transfer of legal custody and placement of a child following a dispositional hearing in a child in need of assistance (CINA) proceeding. Iowa Code § 232.102 (Supp. 2001). Section 232.102(1)(a) provides that after such a dispositional hearing legal custody of a child may be placed with, among others, a "relative." The essence of Stacey's claim is that the juvenile court erred in not placing M.M., Jr.'s legal custody with Stacey's parents as part of a dispositional order or dispositional review order in the CINA proceeding. A CINA dispositional order is an appealable final order. In re A.W., 464 N.W.2d 475, 477 (Iowa Ct.App. 1990) (citing In re Long, 313 N.W.2d 473, 477 (Iowa 1981)). Stacey does not claim, and the record does not show, that Stacey appealed from any of the CINA proceedings, and the time for appeal from any November or December 2001 dispositional or dispositional review orders has passed. She cannot challenge alleged errors in the CINA proceedings in this termination of parental rights appeal. In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App. 1998). Further, because the orders in question were not appealed within thirty days we are without subject matter jurisdiction in this appeal to consider those issues decided by the final, unappealed CINA dispositional and dispositional review orders. See Iowa R.App.P. 6.5(1) (appeal must be taken within thirty days); Greene v. Iowa Dist. Ct., 312 N.W.2d 915, 919 (Iowa 1981) (holding an untimely appeal deprives the appellate court of subject matter jurisdiction.)
Were we to address the substance of Stacey's claim that the juvenile court in the CINA proceeding erred by not placing custody of M.M., Jr. with his maternal grandparents, we would find no merit to her claim. At the time in question Stacey had once again relapsed and been using methamphetamine, she was associating with yet another male who should not have contact with her children because he was involved in drug and related criminal activity, and she was not to any reasonable extent participating in or benefiting from the services ordered and offered to help her deal with the numerous problems and issues that prevented her from properly providing for the children. There were valid reasons to believe that under such circumstances Stacey should not have liberal access to the children. There were also valid concerns, based on past events, that her parents would not prevent or adequately supervise her contacts with the children.
Stacey's final claim is that the State did not prove by clear and convincing evidence "that reasonable effort services were offered to [Stacey] to preserve the family unit." She complains she requested additional visitation that was not granted, and she asked that the children be allowed to go to Wisconsin with her so she could enter a residential treatment facility for her polysubstance addictions but the department of human services refused to pursue an interstate compact agreement for such a placement.
The evidence shows Stacey was offered a myriad of services designed to help her with her many problems such as substance abuse, mental problems, lack of parenting skills, and dependency upon a lengthy and continuing series of inappropriate males. Many of the offered services are noted in the juvenile court's findings, which we have adopted as our own. Although late in the juvenile court proceedings Stacey participated to some extent and made some progress, for most of the time those proceedings were pending she failed or refused to participate in or take advantage of most of the services and made very little progress.
There is no evidence that Stacey requested additional or different services other than visitation and an interstate transfer. Her visitations were suspended because she failed and refused to participate in and benefit from services that had been ordered and offered, she engaged in repeated criminal conduct, and she violated terms and conditions of probation in her criminal cases. The State did not act unreasonably in declining to seek an interstate transfer for the purpose of Stacey securing services in Wisconsin when she had failed and refused to take advantage of the myriad of services offered in Iowa. Assuming, without so deciding, that Stacey has preserved error on this issue, we find it to be without merit. The State proved by clear and convincing evidence that it offered Stacey reasonable services to reunify her with M.M., Jr., services sufficient to do so if she had been willing to participate in and benefit from them.