Opinion
No. 1-987 / 01-1140.
Filed March 13, 2002.
Appeal from the Iowa District Court for Wapello County, WILLIAM S. OWENS, Associate Juvenile Judge.
Mother appeals from the juvenile court order terminating her parental rights to her minor child pursuant to Iowa Code sections 232.116(1)(c) and 232.116(1)(g) (1999). AFFIRMED.
Jeffrey Logan of Patrick F. Curran P.C., Ottumwa, for appellant.
Thomas J. Miller, Attorney General, and Kathrine Miller-Todd, Assistant Attorney General, for Appellee-State.
Cynthia Hucks of Box Box, Ottumwa, for minor child.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Mother appeals from the juvenile court order terminating her parental rights to her minor child pursuant to Iowa Code sections 232.116(1)(c) and 232.116(1)(g) (1999). We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Valerie is the mother of S.D., born November 8, 1999, and R.D., born November 29, 2000. This appeal only involves S.D. Valerie and S.D. first came to the attention of the Iowa Department of Human Services (DHS) when a child abuse referral was received on March 6, 2000 because Valerie had threatened to kill herself and S.D. Valerie was transported to the hospital and subsequently involuntarily detained due to her lack of cooperation in the emergency room. The hospital records show Valerie suffered from cyclothymic disorder, impulse control disorder, borderline personality traits, borderline intellectual functioning, and had been diagnosed with cervical cancer for which she refused treatment. Valerie also tested positive for marijuana. She demanded release from the hospital and was released against medical advice on March 10, 2000.
Valerie agreed to participate in adult and child protective treatment services, family preservation services, nursing services, individual counseling, a substance abuse evaluation, and to have a protective payee. However, the DHS still recommended the filing of a child in need of assistance (CINA) petition regarding S.D. and such was filed on April 10, 2000.
Valerie received services until April 17, 2000 at which time an ex parte order for removal of S.D. was ordered by the juvenile court when Valerie became despondent and refused to attend any further appointments. After a hearing on the CINA petition, the court adjudicated S.D. to be a child in need of assistance under Iowa Code sections 232.2(6)(b), (c)(2), and (n) (1999). All parties agreed S.D. should remain in foster care at that time. The court also set a dispositional hearing and DHS was ordered to continue providing Valerie with services, including in-home counseling and parenting skills development, a substance abuse evaluation, individual counseling, adult protective treatment services, medication monitoring, pre-natal care, and both supervised and unsupervised visitation with S.D.
Valerie was again pregnant at this time and due on approximately November 14, 2000.
A dispositional hearing was held on June 2, 2000. The juvenile court found that reasonable efforts had been made to reunify Valerie and S.D. and that S.D. continued to be a child in need of assistance. The court ordered legal custody of S.D. placed with the DHS for placement in foster care, the case permanency plan be adopted, and that all parties comply with such plan. The court also advised the parties, both orally and in writing, that failure to identify a deficiency in services may preclude them from later challenging the sufficiency of services in a termination proceeding.
A review hearing was held on December 5, 2000. The court found that Valerie had participated at various times in court-ordered services. However, her substance abuse counselor reported her prognosis for recovery as poor and stated Valerie did not appear to be committed to recovery. Furthermore, the DHS worker testified that despite the myriad of services offered to Valerie she had made little if any progress toward having S.D. returned to her care. The juvenile court again found S.D. continued to be a child in need of assistance and ordered her continued custody with the DHS. The court also once again inquired as to the sufficiency of the services being offered and advised the parties that failure to challenge the sufficiency of services could preclude them from later challenging the sufficiency at a termination proceeding.
A petition for termination of Valerie's parental rights was filed February 12, 2001, and hearing was held on the matter May 4, 2001. In an order dated June 29, 2001 the juvenile court terminated Valerie's parental rights to S.D under sections 232.116(1)(c) and (g). Valerie appeals from the court's ruling alleging the court did not have clear and convincing evidence to terminate her rights under sections 232.116(1)(c) and 232.116(1)(g). Specifically, she argues she was not offered sufficient services to correct the circumstances that led to the CINA adjudication and that the evidence in the record shows she had made progress with the services that were provided.
II. STANDARD OF REVIEW
We review termination proceedings de novo. Iowa R. App. P. 4; In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven by the State by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). Our primary concern is the best interests of the child. In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996).
III. MERITS
Valerie first contends the juvenile court erred in finding the State proved by clear and convincing evidence that her parental rights should be terminated pursuant to Iowa Code section 232.116(1)(c). Section 232.116(1)(c) provides in relevant part:
1. Except as provide in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:
. . .
c. The court finds that both of the following have occurred:
(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents. . . .
(2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.
Valerie contends the services offered were not sufficient to correct the circumstance that led to the CINA adjudication. She testified at the termination hearing she did not get along with the initial provider of parent-skill services because she got tired of the provider always showing her objects on the floor that might be hazardous to S.D. However, Valerie also testified that she never told either that provider or the provider's supervisor about the fact she did not like the provider and never discussed the possibility of getting a different parent-skills provider.
Valerie concedes the requirements under section 232.116(1)(c)(1) were proved, and claims only that the requirements of section 232.116(1)(c)(2) were not proved.
While the State has an obligation to provide reasonable reunification services, the parent has an equal obligation to demand other, different, or additional services prior to the termination hearing. In re S.R., 600 N.W.2d at 65. Challenges to services should be made when the case plan is entered. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). When the parent alleging inadequate services fails to demand services other than those provided, the issue of whether services were adequate is not preserved for appellate review. In re S.R., 600 N.W.2d at 65; In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994).
The record is clear Valerie did not raise the issue of the reasonableness of services prior to the termination proceeding and at no time did she demand additional or different services. The juvenile court repeatedly informed Valerie of the need to raise the issue of insufficient services prior to the termination proceeding or risk losing the ability to later make such a challenge. Therefore, we conclude the issue of whether adequate services were provided has not been preserved for appeal.
We further find the juvenile court did not address the issue of the sufficiency of the services in the termination order and Valerie did not file a motion raising this issue pursuant to Iowa Rule of Civil Procedure 179(b). Generally, an issue must be presented to and passed on by the trial court before it may be raised and adjudicated on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). A motion pursuant to rule 179(b) seeking to enlarge or amend findings and conclusions of the trial court is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication. State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984); see also In re A.R., 316 N.W.2d 887, 889 (Iowa 1982) (holding rule 179(b) applicable to juvenile court termination proceedings). Accordingly, we find error has not been preserved on this issue for this reason as well.
Valerie next claims the juvenile court erred in finding the State proved by clear and convincing evidence that her parental rights should be terminated pursuant to section 232.116(1)(g). Under subsection four of this Code provision the court must find: "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." Iowa Code § 232.116(1)(g)(4). Valerie contends the court lacked clear and convincing evidence to find S.D. could not be returned to her custody.
Valerie concedes the requirements under sections 232.116(1)(g)(1), (2), and (3) were proved, and claims only that the requirements of section 232.116(1)(g)(4) were not proved.
Valerie again alleges that she was not provided reasonable services to reunify her with S.D. For the reasons set forth above we find this issue had not been preserved for appeal. However, Valerie also alleges here that there is ample evidence in the record regarding her progress with the services she has been provided and, based on that progress, the juvenile court should not have terminated her parental rights. In support of her contention Valerie points to testimony at the termination hearing from two service providers who stated they had observed some recent improvement in her independent living skills, her emotional stability, and her willingness to participate in and cooperate with services. However the ultimate issue here is whether Valerie has made sufficient progress so that S.D. can be returned to her care at the present time. Iowa Code § 232.116(1)(g)(4). Based on the evidence in the record before us we cannot make such a finding.
While it is true two service providers testified they had observed some recent improvements in Valerie's willingness to accept help, in her independent living skills, and in her emotional stability, their testimony also indicated a belief that she has a long way to go before S.D. could be returned to her custody and care. Additionally, two other service providers and the DHS social worker all testified they did not believe S.D. could be returned to Valerie's care at the time of the termination proceeding.
"While we recognize the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,' Iowa has built this patience into the statutory scheme of Iowa Code Chapter 232." In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)). As such, this time period and patience are "limited because patience on behalf of the parent can quickly translate into intolerable hardship for the children." In re R.J., 436 N.W.2d 630, 636 (Iowa 1989). We believe it is time for this patience with Valerie to yield to the best interests of S.D.
The evidence in the record shows Valerie made little progress over the year since S.D. had been placed in foster care. Valerie still had several mental problems at the time of termination and has not been consistent in addressing and dealing with those problems. Furthermore, she has not been consistent in addressing her substance abuse problems, she failed to participate in adult services, and she was not regularly attending individual counseling. Valerie only began to utilize case management services in January of 2001 and although her independent living skills were showing signs of improvement, it is unclear how long it would be before she would be capable of caring for a child as well as herself.
"The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). There is no indication from the testimony of the service providers when Valerie may be at a point, mentally, physically, or emotionally, to be able to care for S.D. on a full-time basis. Accordingly, we agree with the juvenile court's findings that additional time and services would not effectuate a reunification and its following finding:
Therefore, while additional time may be in Val's best interests, it would be contrary to [S.D.'s] welfare, and would only serve to postpone establishing the permanency that she so desperately needs. . . . The most credible evidence presented establishes that the only way that [S.D.] can achieve permanency is to grant the Petitioner's request and terminate parents' parental rights.
IV. CONCLUSION
For all of the reasons set forth above, based on our de novo review of the entire record we conclude the juvenile court was correct in finding that subsequent to the CINA adjudication Valerie was offered and received services to correct the circumstance which led to the adjudication, but the circumstance continued to exist, S.D. could not be returned to Valerie's custody at the time of termination, and S.D.'s best interests were met by terminating Valerie's parental rights. We further conclude Valerie failed to preserve the issue of the reasonableness of services as she did not ask for additional or different services prior to the termination proceedings, the juvenile court did not rule on this issue, and Valerie did not file a motion pursuant to rule 179(b). We affirm the order of the juvenile court terminating Valerie's parental rights to S.D.
AFFIRMED.