Opinion
No. 3-194 / 03-0289.
Filed April 30, 2003.
Appeal from the Iowa District Court for Polk County, KARLA J. FULTZ, Associate Juvenile Judge.
T.B. and D.B. appeal the termination of their parental rights to S.B. AFFIRMED IN PART AND APPEAL DISMISSED IN PART.
Heather Turner-Graves, Des Moines, for appellant father.
Jennifer Jaskolka-Brown, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson, Assistant County Attorney, for appellee-State.
Amy Kepes, Youth Law Center, for minor child.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
Dana and Travis appeal the termination of their parental rights with respect to S.B., age three. We affirm the termination of Dana's parental rights and dismiss Travis's appeal.
I. Background Facts and Procedures.
On July 14, 2000, S.B. was removed from her parents' care because of Dana's continued drug use, need for in-patient treatment, and Travis's suicide attempt. S.B. has been out of her mother's care since that time. On September 26, 2000, S.B. was adjudicated a child in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) (Supp. 1999) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) and 232.2(6)(n) (parent's mental capacity or condition or drug or alcohol abuse results in child not receiving adequate care). The dispositional order, entered the same day as the adjudication, continued S.B.'s placement outside of the home. She spent some time in her father's care and in foster care before being placed with relatives in November 2001, where she has remained since.
On July 17, 2002, the guardian ad litem petitioned to terminate Dana's and Travis's parental rights with respect to S.B. pursuant to Iowa Code sections 232.116(1)(h) (Supp. 2001) (child is three or younger, CINA, removed from home for six of the last twelve months, and child cannot be returned home) and 232.111(2)(a)(1) (child has been in foster care for fifteen months of the most recent twenty-two month period).
The juvenile court's findings of fact entered following the termination hearing include the following:
[Dana] has a history of methamphetamine and marijuana use. . . . She received treatment in 2000 after the removal of [S.B.]. She received both inpatient and outpatient treatment. She went to treatment again at MECCA for outpatient treatment. She has not completed that treatment. She claims she last used methamphetamine April 2002. However, as [Dana] has not provided any UAs since the last review hearing in May 2002 her claim is unsubstantiated.
[Dana] is living in a trailer with [Matt] . . . . She is pregnant with his child and due to give birth in December 2002. She is intending to place her expected child for adoption because she cannot give the child a proper home. She has not been employed since January 2002.
[Dana] has not dropped UAs since the review hearing in May 2002. She has not attended therapy on a regular basis. She scheduled thirty-seven appointments and has attended thirteen of the appointments. [Dana] has a criminal history. She pled guilty to possession of methamphetamine in May 1998. She pled guilty to possession of methamphetamine with intent to deliver June 28, 2001 and was sentenced to ten years and probation was granted. She has not followed through with aftercare.
. . . .
Reasonable and appropriate services were offered by the Department of Human Services to alleviate the problems which led to the removal and adjudication of the child. [Dana and Travis] did not cooperate with the services offered in this matter or have not utilized the services offered.
Services provided included:
1. DHS/CPT
2. Family Preservation Services
3. Visitation
4. Family Centered Services, In Home
5. Medication, Travis
6. Protective Day care
7. UAs
8. Substance Abuse evaluations and treatment
9. Foster care services
10. Individual therapy
11. Dr. Shah
12. Psychosocial evaluations
13. Children in the Middle
Based on these findings the juvenile court terminated the parental rights of Dana and Travis, resulting in this appeal.
On appeal, Travis argues the State failed to make reasonable efforts to reunite him with S.B. Dana raises the following arguments:
(1) Termination of Dana's parental rights was not in S.B.'s best interests in light of the strong mother-daughter bond that exists and that S.B. is in a relative placement, and
(2) The State failed to use reasonable efforts in reunifying S.B. with Dana and preserving the family unit.
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. Travis's Parental Rights.
The order terminating parental rights was filed on January 29, 2003. Travis's notice of appeal, filed on February 20, 2003, was signed by counsel only. An amended notice of appeal was filed on March 17, 2003. The amended notice contained the signatures of both Travis and his attorney. In order for the appeal to be perfected, the notice of appeal and petition on appeal must be timely filed. Iowa R.App.P. 6.5(2). For termination of parental rights cases, the notice of appeal must be filed within fifteen days after entry of the order terminating parental rights. Id. Furthermore, the notice of appeal must be signed by both the appellant and appellant's counsel. Iowa R.App.P. 6.6(3). If counsel is unable to locate the appellant for purposes of signing the notice of appeal, counsel may file a certificate of diligent search. Id. Because the notice of appeal was not filed within the fifteen-day window to perfect the appeal, was not signed by the appellant, and no certificate of diligent search was filed, we accordingly dismiss Travis's appeal.
IV. Dana's Parental Rights.
Dana contends her parental rights should not be terminated because of her close relationship with S.B. Because Dana did not raise this issue below, we decline to consider it on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). Even if the issue had been preserved for our review, S.B.'s best interests are served by terminating Dana's parental rights for the reasons that follow.
Dana also argues the termination of her parental rights was unnecessary because S.B. was placed with relatives. The court has discretion to deny the State's requested termination of parental rights if circumstances indicate that termination is not in the child's best interests. In re A.L., 492 N.W.2d 198, 202 (Iowa Ct.App. 1992). The trial court specifically rejected this option, stating:
Since she is in a relative home the Court could place guardianship with the relatives rather than terminate parental rights. There is a no-contact order with the relative home because of the actions of the mother. Under the circumstances a guardianship is not in the child's best interest. Therefore, permanency cannot be established by a guardianship. [S.B.] is in need of a permanent, stable home which is available. She is already suffering from the disruption her parents' actions have caused her and began seeing a therapist at age three years. She should not have to wait while her parents attempt to put their lives in order. Reasonable efforts have been made to provide her with an adoptive home. She is in a pre-adoptive relative home where she has lived since she was removed from her father. She is bonded to her caretakers. She cannot be returned to the custody of her mother or her father, to do so would expose her to further adjudicatory harm. Placement in either home would be contrary to her welfare for the reasons found above. It is in the best interest of [S.B.] that termination of parental rights with her mother and father occur.
We agree.
S.B. is in a pre-adoptive home where she is loved, and she has bonded with those caretakers. Dana admits she is not ready to take care of S.B. now. Waiting an indefinite period of time so Dana can assume her parenting responsibilities does not promote S.B.'s immediate or long-range interests. S.B. deserves permanency now. Furthermore, the "determination to terminate a parent-child relationship is not to be countermanded by the ability and willingness of a family member to take the child." In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). We find no error in the juvenile court's decision declining to establish a guardianship. The trial court did not abuse its discretion by rejecting this option. We therefore affirm on this issue.
Finally, Dana argues the State failed to make reasonable reunification efforts citing the lack of funding for her necessary drug testing. While the State has an obligation to make reasonable efforts to reunite a family, it is a parent's responsibility to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997). Services should be challenged when the case plan is entered. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). Because Dana failed to challenge the services when the case plan was entered, she has not preserved this issue for our consideration.
We affirm the order of the juvenile court terminating the parental rights of Dana with respect to S.B. We dismiss Travis's untimely appeal.