Opinion
No. 1-316 / 00-1220.
Filed June 13, 2001.
Appeal from the Iowa District Court for Pottawattamie County, KATHLEEN KILNOSKI, District Associate Judge.
A father appeals from the juvenile court decision terminating his parental rights. AFFIRMED.
Drew H. Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Martha A. Heinicke, Assistant County Attorney, for appellee-State.
Roberta Megal, Public Defenders Office, Council Bluffs, for minor child.
Eric Hansen, Council Bluffs, for mother.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
A father appeals the decision of the juvenile court which terminated his parental rights. He claims the State did not present sufficient evidence to warrant termination of his rights, and the court should have granted his motion to dismiss for lack of personal jurisdiction. We affirm on appeal.
Shawn O. and Mary are the parents of Shawn, born in April 1991. Both parents have a history of using illegal substances. Mary has reported she was physically abused by Shawn O. during their relationship.
Until about January 1994, Shawn lived with his maternal grandparents. After that, he lived with his mother and her paramour, Juan. In April 1994, Shawn was placed in protective custody in Nebraska because he had been physically abused by Juan.
In 1994, Shawn O. broke into an apartment and viciously beat the occupants. He pled guilty to assault causing injury and trespassing. He completed substance abuse treatment, but otherwise did not comply with probation. He continued to use drugs. He took money from a member of a jail ministry association who tried to help him. In early 1995, probation was revoked and he was sent to a correctional facility.
Shawn was returned to Mary's care in April 1995. Mary moved to Iowa. In July 1995, Shawn was removed from her care and placed in foster care. Shawn was adjudicated to be a child in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) and (n).
Shawn O. was released from the correctional facility in November 1995. In December 1995, the juvenile court ordered him to participate in parenting classes, receive evaluations, and obtain a residence. Shawn O. had very little contact with DHS. He did not participate in services. He told a social worker he was not interested in being drug free. Shawn O.'s mother, Celia, had regular visitation with Shawn, and Shawn O. would appear at some of these visits.
The case proceeded for several years due to expectations Mary would be able to resume care of the children. During most of this time DHS was unaware of Shawn O.'s whereabouts. Celia told social workers she did not know Shawn O.'s telephone number or address. The Court Appointed Special Advocate (CASA) was unable to locate Shawn O.
In October 1999, the State filed a petition to terminate the parental rights of Shawn O. and Mary to Shawn. A copy of the petition was served on the attorney of Shawn O. Also, notice was published in a local newspaper. Shawn O. filed a motion to dismiss the petition for lack of personal jurisdiction. This motion was denied by the juvenile court because Shawn O. and his attorney were present at the termination hearing.
In July 2000, the juvenile court terminated Shawn O.'s parental rights to Shawn under sections 232.116(1)(b) and (e). The court stated, "He has not demonstrated that he has a stable home for his son, or the desire to be his son's father." The court found Shawn O. had not been able to overcome his chemical dependency. Shawn O. appealed.
Mary's parental rights were also terminated. Her appeal was dismissed.
I. SCOPE OF REVIEW
The scope of review in termination cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct. App. 1997). The grounds for termination must be proven by clear and convincing evidence. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Our primary concern is the best interests of the children. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
II. NOTICE
Shawn O. contends his parental rights were improperly terminated because he did not receive notice of the termination. Section 232.112(1) provides that living parents of a child are entitled to notice of termination proceedings and an opportunity to be heard.
In considering a case where a mother did not receive any notice of termination proceedings because she could not be located, we stated:
In reality, this termination proceeding merely constituted a continuation of the CHINA proceeding. Because the mother can be reasonably expected to know of the continuing nature of the CHINA proceeding, she should be on notice of this termination proceeding as well.
In re R.E., 462 N.W.2d 723, 725 (Iowa Ct. App. 1990). Similarly, in the present case Shawn O. knew of the CINA proceedings involving Shawn, and participated in those proceedings.
Furthermore, in this case notice was given by publication, and Shawn O. admitted he saw the notice in the newspaper. Additionally, Shawn O.'s attorney received notice of the termination proceedings. "It is a familiar rule that notice to an attorney in respect to a matter in which he is then acting for a client is notice to the client." Id. at 726 (quoting Perpetual Sav. Loan Ass'n v. Van Atten, 211 Iowa 435, 438, 233 N.W. 746, 747 (1930)). Shawn O. and his attorney both appeared at the termination hearing. We conclude the juvenile court properly overruled Shawn O.'s motion to dismiss for lack of personal jurisdiction.
The termination proceeding is a separate action from the CINA proceeding, requiring original notice. Here, however, the father had the same attorney and termination was recommended in the most recent CINA reports.
III. SUFFICIENCY OF THE EVIDENCE
Shawn O. contends there is insufficient evidence in the record to warrant termination of his parental rights. He admits he did not comply with services and had minimal contact with DHS. He asserts, however, he is a concerned parent and Shawn should be placed in his care. He points out he often saw Shawn during Shawn's visits with Celia.
A court must reasonably limit the time for parents to be in a position to assume care of their children because patience with parents can soon translate into intolerable hardship for the children. In re A.Y.H., 508 N.W.2d 92, 96 (Iowa Ct. App. 1996). The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems. In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993). At some point, the rights and needs of the children rise above the rights and needs of the parents. J.L.W., 570 N.W.2d at 781.
In the present case, throughout the many years Shawn has been in foster care, Shawn O. has made no effort to assume the responsibilities of parenthood. While Shawn O. has played with Shawn during Celia's visitation time, he has never taken the role of a parent in Shawn's life. Shawn O.'s lack of participation in services shows a lack of interest in his child. Shawn O. admitted he had not quit using illegal substances; he had used marijuana within about two months before the termination hearing. Shawn has been in foster care for a very long time. He should not be required to wait any longer for permanency in his life. Shawn O.'s parental rights were properly terminated.
We affirm the decision of the juvenile court.
AFFIRMED.