Opinion
No. 2-877 / 02-1421
Filed October 30, 2002
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
A mother appeals from the juvenile court order terminating her parental rights. AFFIRMED.
Thomas Graves, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Corey McClure, Assistant County Attorney, for appellee-State.
Marla Suddreth, Bondurant, guardian ad litem for minor child.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
A mother appeals from the juvenile court order terminating her parental rights. She contends (1) the Department of Human Services (DHS) failed to make accommodations for her mental disability in violation of the Americans with Disabilities Act (ADA) and that DHS failed to provide reasonable services for reunification; and (2) the juvenile court erred by not granting her additional time to receive services and demonstrate her ability to be a better parent. We affirm.
Background Facts and Proceedings. Pam is the mother of Seska, born in April 2001. Pam has a long history of serious substance abuse. In 1998 she was diagnosed as HIV positive. When Pam gave birth to Seska, she tested positive for marijuana. Seska was not removed from the home at this time because Pam agreed to participate in family preservation services.
On August 17, 2001, Pam was critically injured as the result of a brutal attack by an unknown assailant. On the same day, Seska was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n) (Supp. 2001). She was removed from the home and temporarily placed with Pam's sister, Kristy. After living with Kristy for a few months, Seska was returned to foster care because Kristy felt she could no longer care for her.
In addition to Pam's history of substance abuse, she also has a criminal record dating back to 1993. She has been charged with offenses relating to drugs, prostitution, and assault. Her prostitution occurred even though she was aware she was HIV positive. Pam has been in jail sixty-three days since March 5, 2002, and as a result has been unable to attend regular visitation with Seska. The juvenile court noted:
When these visits occur some days Pam is nurturing and consistent, but other days she is unable to stay awake during her visits and is very irritable. Her parenting skills have deteriorated significantly since her injury. Despite intensive services, Pam is unable to provide an environment safe enough to have even unsupervised visits for short periods of time with Seska.
On December 18, 2001, the juvenile court ordered Pam to undergo a neuropsychological examination. Pam delayed the examination by failing to sign the necessary consents and releases. Once the examination was finally scheduled, the doctor refused to complete the exam when he found out juvenile court was involved. Pam also refused to release her most recent UA results. The last UA result she provided tested positive for methamphetamine in February 2002.
On June 5, 2002, the State filed a petition to terminate parental rights. Following a termination hearing, the juvenile court terminated Pam's parental rights pursuant to Iowa Code sections 232.116(1)(d) and (h) (Supp. 2001). Pam appeals.
Standard of Review. We review termination proceedings 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 E.K., 568 N.W.2d 829, 831 (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. 6.14(6)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). Our primary concern is the best interests of the child. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
Reasonable Efforts. Pam contends she was not afforded reasonable accommodations for her mental disability in violation of the Americans with Disabilities Act (ADA) and that DHS failed to provide reasonable services for reunification. 42 U.S.C. § 12101-12213. The ADA prohibits a public entity from discriminating against a disabled person by excluding him or her from participation or by denying the benefits of public services, programs, or activities. Id. § 12132. The ADA requires the public entity to make "reasonable accommodation" to allow the disabled person to receive the services or to participate in the public entity's programs. 28 C.F.R. § 35.130(b)(7) (1994).
Specifically, she claims DHS did not make reasonable accommodations for her to complete the court ordered neuropsychological examination. We disagree. DHS's attempts to schedule Pam's neuropsychological examination were often met with resistance. First of all, Pam delayed the examination by failing to sign necessary consents and releases. Secondly, even if the evaluation had been scheduled earlier it is unlikely Pam could have attended given the fact she was in and out of jail sixty-three days between March 5, 2002, and July 23, 2002. When DHS finally scheduled the examination, the doctor refused to complete it when he found out juvenile court was involved. Even though Pam did not complete the examination, she has been under the care of qualified doctors and she was discharged with maximum benefits. In addition, the record is devoid of any evidence that an evaluation would have aided in reunification. Accordingly, we conclude DHS provided reasonable services and reasonable accommodations under the ADA even though the neurological examination was not completed.
Additional Time. Pam argues she was a nurturing and capable parent prior to her assault and now she should be allowed more time to receive services and demonstrate her ability to be a better mother to Seska. We disagree. 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). The 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). As previously mentioned, Pam's serious substance abuse problem and criminal record date back to 1993, long before she was assaulted. In fact, her drug problem is the reason Seska tested positive for methamphetamine at birth. Pam still continues to use drugs despite her participation in treatment. At the time of the termination hearing, Pam's address and living arrangements were unknown. Further, she failed to appear at the termination hearing. We conclude there is no concrete evidence in the record to indicate that additional time would result in Pam being able to provide a safe, stable, and drug-free home for Seska.
We note that Pam's appellate counsel did an able and admirable job of representing her on appeal. However, we disagree with the allegation that terminating Pam's parental rights "is an egregious example of punishing the victim rather than the criminal." We agree that the brutal assault on Pam by an unknown assailant was tragic. However, Pam had serious problems before the attack and, unfortunately, the realities of this case make it clear the attack has only further hampered her ability to properly parent Seska. Our intent is simply to further the best interests of the child and not to punish Pam.