Opinion
No. 3-675 / 03-1238
Filed October 15, 2003
Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor, Judge.
A mother appeals a juvenile court order terminating her parental rights to one child. AFFIRMED.
Mark Lawson, Maquoketa, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and John Kies, County Attorney, for appellee-State.
Thomas F. Peckosh, Maquoketa, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Loretta is the mother of Randal, born in July 2000. She appeals from a July 15, 2003 juvenile court order terminating her parental rights to Randal pursuant to Iowa Code section 232.116(1)(h) (2003) (child three or younger, adjudicated a child in need of assistance (CINA), removed from physical custody of parents for at least six of the last twelve months, cannot be returned to custody of parents at present time). Loretta appeals. We affirm.
The juvenile court also terminated Randal's father's parental rights. He does not appeal.
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).
Loretta did not contest termination of her parental rights, but now appeals. She first contends there is not clear and convincing evidence that Randal cannot be returned to her custody at the present time.
Loretta has lower intellectual functioning with some psychiatric symptoms. Randal has a chromosome abnormality which causes short stature, and may lead to mental retardation. Randal was seen at the University of Iowa Growth Clinic at ten months of age, in May 2001, for failure to achieve normal physiologic growth. Loretta had no feeding schedule, gave Randal inappropriate foods for his age, and gave him excessive juice and water with resultant suppression of his appetite. It was recommended that Randal receive structured meals, no milk prior to feedings, calorie boosting, and service monitoring.
In August 2001 Randal was diagnosed as failing to thrive and was hospitalized. Despite dietary advice and services he had lost weight over the preceding two months. His size at twelve months was that of a four-month-old child, with his height and weight at the third percentile. While hospitalized for twenty days he gained weight at a normal rate.
Following discharge from the hospital Randal again lost weight. Services began. Visiting Nurses home health services were provided from August 30, 2001, to the time of the termination hearing. Parent education services were provided from September 10, 2001 to February 27, 2002, followed by family centered services from February 28, 2002 to the termination hearing. Loretta was provided mental health services from September 14, 2001, to the termination hearing. Protective day care services were provided from October 15, 2001 to February 27, 2002.
Despite numerous services, Loretta was unable to provide Randal with proper, adequate nutrition. Randal was placed in voluntary foster care on February 28, 2002. He had gained less than two pounds in the preceding six months. Services to Loretta continued. While in foster care Randal began gaining weight at a more rapid pace. The juvenile court adjudicated Randal a CINA on May 21, 2002, and placed him in the temporary custody of the Iowa Department of Human Services (DHS) for placement in foster care. A June 18, 2002 dispositional order placed him in DHS custody for placement in family foster care. He has remained in foster family care since February 28, 2002. He has a strong bond to the foster parents, is thriving in their care, and they are willing to adopt him.
The reports of a DHS case worker and a service provider reflect that even with the significant services that have been provided, Loretta has limitations in comprehending and following through with suggestions to aid in Randal's growth, and does not have a basic understanding of the developmental needs of a child. The reports and testimony reflect a concern regarding "boundary issues," it appearing that Randal is in charge of Loretta rather than Loretta directing Randal, and that after more than one and one-half years of services Loretta lacks the ability to provide Randal with the guidance and direction he needs to safely grow and mature.
The juvenile court found, among other findings, that Loretta is unable to provide consistent parenting to meet Randal's special needs, Randal requires a great deal of structure and support, Loretta has not shown an ability to provide that structure and support at the present or in the future, and Randal still refuses to eat for Loretta and despite extensive training and guidance she is not able to get him to do so. We fully agree with these findings and adopt them as our own. We also agree with the juvenile court that the State proved by clear and convincing evidence that Randal cannot be returned to Loretta's custody at the present time without being subject to the adjudicatory harm that led to his removal from his parents' physical custody. We affirm on this issue.
While acknowledging that error was not preserved on the issue, Loretta also contends there is clear and convincing evidence that termination of her parental rights would be detrimental to Randal due to the closeness of the parent-child relationship. The court need not terminate parental rights if it makes such a finding. See Iowa Code § 232.116(3)(c).
An issue not presented in the juvenile court may not be raised for the first 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 this claim in the juvenile court Loretta has waived it. See id. We conclude this claim has not been preserved for our review and we do not address it.