Opinion
No. 2-474 / 02-0032.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, CONSTANCE COHEN, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her four minor children. AFFIRMED.
Debra Hockett-Clark, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Cory McClure, Assistant County Attorney, for appellee-State.
Nicole Garbis-Nolan of the Youth Law Center, Des Moines, guardian ad litem for minor children.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
A mother appeals the termination of her parental rights to her four minor children. She contends the district court erred in terminating her rights pursuant to Iowa Code section 232.116(1)(d) and (h) (Supp. 2001) and termination was not in the children's best interests. We review her claims de novo. See In re M.T., 613 N.W.2d 690, 691 (Iowa Ct.App. 2000). We give weight to the trial court's findings of fact, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)(g).
In its order terminating parental rights, the court cites to Iowa Code sections 232.116(1)(c) and (g) (2001). However, the applicable law in this termination is correctly cited as Iowa Code sections 232.116(1)(d) and (h) (Supp. 2001) due to an amendment to section 232.116 that renumbered the sections but did not substantively alter them.
In order to terminate parental rights under section 232.116(1)(d), the State is required to prove by clear and convincing evidence that the children have been adjudicated in need of assistance and the circumstances leading to the adjudication continue to exist despite the receipt of services. The mother contends the State has failed its burden of proving the circumstances continued to exist. We disagree. The State is required to act to prevent probable harm to the children and need not delay until actual physical harm has occurred. In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994). The district court found the children would be subjected to unstable housing, poor school attendance, drug exposure, and criminal activity if returned to their mother's care. Within three weeks of the termination hearing, the mother tested positive for illegal drug use. Mother claims her positive tests are from contact with others using drugs. Throughout the child in need of assistance proceeding, the district court did not believe the mother's denial of illegal drug use. Upon de novo review, we concur with the court's assessment.
The mother argues the State failed to make reasonable efforts to reunify her with her children. A challenge to the sufficiency of services should be raised in the course of the child in need of assistance proceedings. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). Because the mother failed to do so, we find this issue has not been preserved for our review.
We also find termination is in the children's best interests. The future can be gleaned by the mother's past performance. See In re T.B., 604 N.W.2d 660, 662 (Iowa 2000). The mother has continued to test positive for methamphetamine use and has failed to obtain adequate treatment. She is unemployed and financially dependent on her mother. Meanwhile, the children have benefited from being placed in a comfortable and stable environment. Children should not be forced to endlessly await the maturity of a natural parent. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). At some point, the rights and needs of the child rise above the rights and needs of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). Accordingly, we affirm the district court's order terminating the mother's parental rights.
AFFIRMED.