Opinion
No. 1-231 / 00-1357
Filed August 15, 2001
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
Mother and father appeal separately from the juvenile court order terminating their parental rights to their two children.
AFFIRMED.
Clemens Erdahl of Tindal, Erdahl, Goddard Nestor, Iowa City, for appellant mother.
Christine Boyer, Iowa City, for appellant father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Deborah Farmer Minot, Assistant County Attorney, for appellee-State.
Sally Weyer of Bergan Weyer, L.L.P., Iowa City, for minor children.
Heard by Sackett, C.J., and Huitink and Streit, JJ.
The father and mother of two young children appeal the order terminating their parental rights. We affirm.
I. Background .
Samuel T. and Theresa K., who both have extensive histories of criminal conduct and substance abuse, are the parents of Shaundria K. (born December 12, 1996) and Jovonte T. (born December 15, 1998). In March 1999 Samuel assaulted Theresa while she was holding Jovonte. Samuel was thereafter prohibited from having contact with Theresa, Shaundria, and Jovonte. Despite these no-contact orders, in June 1999 Theresa allowed Samuel to baby-sit Shaundria and Jovonte while she purportedly went out to buy drugs. The following month Shaundria and Jovonte were placed in foster care, and in October 1999 Samuel and Theresa stipulated their children were in need of assistance as provided in section 232.2(6)(n) of the Iowa Code. Samuel's and Theresa's parental rights were terminated in July 2000. They both appeal.
Section 232.2(6)(n) provides the following: "`Child in need of assistance' means an unmarried child . . . Whose parent's or guardian's mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care."
II. The Merits .
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The State must prove by clear and convincing evidence the grounds for termination. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). Our primary concern is the best interests of Shaundria and Jovonte. See In re A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996).
A. Clear and Convincing Evidence.
Samuel and Theresa both claim the State did not prove by clear and convincing evidence the grounds for terminating their parental rights pursuant to section 232.116(1)(b), (d), (g), or (k). The State counters Samuel's and Theresa's failure to specifically contest the termination of their parental rights pursuant to section 232.116(1)(c) constitutes a failure to preserve error. We note that, although the State's termination petition stated Samuel's and Theresa's parental rights should be terminated pursuant to sections 232.116(1)(c) and (g), the juvenile court did not specify the statutory bases for its termination order. We reject the State's error preservation argument and proceed to the merits.
All parties agree the juvenile court terminated Samuel's and Theresa's parental rights pursuant to section 232.11(1)(g). The terminations were justified pursuant to this section if Shaundria and Jovonte were each three years old or younger; they had been adjudicated children in need of assistance; they had been removed from the physical custody of Samuel and Theresa for at least six of the twelve months preceding the termination hearing, or for the six consecutive months preceding the termination hearing and any trial period at either Samuel's or Theresa's home was less than thirty days; and they could not be returned to the custody of Samuel or Theresa at the time of the termination hearing. See Iowa Code § 232.116(1)(g) (1999). Samuel and Theresa both argue the State did not prove section 232.116(1)(g)'s final element by clear and convincing evidence.
To affirm the juvenile court, we only need to find grounds to terminate Samuel's and Theresa's parental rights pursuant to one section. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996).
The juvenile court properly terminated Samuel's parental rights pursuant to section 232.116(1)(g). Since Samuel began having supervised visits with Shaundria and Jovonte in February 2000, he has interacted appropriately with them. He has not, however, been able to successfully confront his substance abuse problem. This problem, in part, precipitated Samuel's vicious beating of Theresa in March 1999 while she was holding three-month-old Jovonte. This problem was also identified by Shaundria's and Jovonte's social worker as the "paramount issue" that needed to be resolved before the children could be reunified with Samuel. However, roughly two months before the termination hearing, Samuel tested positive for cocaine. Less than a month before the hearing, he tested positive for marijuana. There is clear and convincing evidence Samuel could not resume custody of Shaundria and Jovonte at the time of the termination hearing.
The juvenile court also properly terminated Theresa's parental rights pursuant to section 232.116(1)(g). In July 1999 Theresa was placed in jail after she was charged with second-degree theft and her probation was revoked. She later pled guilty to forgery and in October 1999 was sentenced to an indeterminate term of incarceration not to exceed five years. During her incarceration, Theresa took steps to become a better parent she abstained from drugs and completed programs involving substance abuse, proper parenting, domestic violence, and other pertinent topics. These steps are commendable. Nonetheless, at the time of the termination hearing Theresa was still at a halfway house. She could not live with Shaundria and Jovonte. Moreover, she had not yet demonstrated she could avoid reverting to her old life of crime and substance abuse once she was outside of a highly regimented custodial setting. Cf. In re S.J., 620 N.W.2d 522, 526-27 (Iowa Ct.App. 2000) (affirming the termination of a father's parental rights after noting his "positive steps toward rehabilitation did not eliminate his past"); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998) ("Where the parent has been unable to rise above the addiction and experience sustained sobriety in a noncustodial setting, and establish the essential support system to maintain sobriety, there is little hope of success in parenting."). We cannot state with any degree of confidence Theresa's long-existing activity with drugs and crime are now done. There is clear and convincing evidence Theresa could not resume custody of Shaundria and Jovonte at the time of the termination hearing.
B. Reasonable Efforts.
Theresa contests the juvenile court's finding "reasonable efforts have been made to rehabilitate [her] with no success." Specifically, Theresa argues the State should have helped her secure placement in a drug treatment program where she could have lived with Shaundria and Jovonte after being released from prison. The State must provide a parent reunification services before his or her parental rights are terminated. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) ("The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent."). However, "[w]hile the state [has] the obligation to make [reasonable] efforts, the parents have a responsibility to demand services prior to the termination hearing." In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994) (footnote omitted). Nothing in the record-including the testimony Theresa cites in her reply brief-indicates she timely requested the State help her secure such a placement. Her complaint at the termination hearing regarding the State's efforts came too late.
On appeal, Samuel only argues the State did not prove by clear and convincing evidence the grounds for terminating his parental rights. He has not raised any other issues.
Theresa also argues the State should have granted her additional visitation with Shaundria and Jovonte after she was released from prison. "[T]he services required to be supplied [a parent] are only those that are reasonable under the circumstances." In re S.J., 620 N.W.2d at 525. Theresa first requested additional visitation in May 2000. By this time, the termination hearing was imminent. Shaundria and Jovonte also may have been distressed by additional visitation because they had already had their so-called "good-bye" visit. Given these circumstances, the State was not obligated to grant Theresa additional visitation.
The termination hearing was originally scheduled for June 14, 2000. It was continued, by a court order filed June 16, to July 13, 2000.
Finally, Theresa argues the steps she has taken to become a better parent have been completely ignored. After Theresa was assaulted by Samuel in March 1999, she was provided various supportive services. Despite these services, she did not make choices that were in the best interests of Shaundria and Jovonte she did not seek appropriate medical care for her pancreatitis, did not abstain from drugs, did not fulfill her promise to complete a drug treatment program, and did not refrain from criminal conduct. As we discussed above, it was not until Theresa was in a custodial setting that she began to take some positive steps towards becoming a better parent. Although we do not ignore these steps, we cannot overlook when and where they have occurred. We agree that, although the State made reasonable efforts to reunify Theresa with Shaundria and Jovonte, Theresa responded to these efforts with insufficient success.
C. Timeliness.
Theresa also claims the State placed this case on the "fast track" and prematurely decided to terminate her parental rights. "The legislature has made a categorical determination that the needs of a child are promoted by termination of parental rights in cases meeting the criteria established by the legislature." In re S.N., 500 N.W.2d at 35. Theresa's parental rights could have been terminated as early as January 1, 2000. See Iowa Code § 232.116(1)(g). However, the termination petition was not filed until the end of February 2000, and the termination hearing was not held until July 2000. Shaundria's and Jovonte's respective needs for stability and permanency should not have been further postponed so Theresa could get reacquainted with her children and become an adequate parent.
D. Federal Law.
Finally, Theresa claims the termination of her parental rights violated the due process rights she is guaranteed by federal statute and the United States Constitution. She did not raise this issue at the termination hearing and thus failed to preserve error. See in re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990) ("Even issues of constitutional magnitude will not be addressed by this court if not presented in the trial court."). Accordingly, she asserts the issue via an ineffective-assistance-of-counsel claim. See In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992) ("In order to establish an ineffective assistance claim, it must be shown that (1) counsel's performance is deficient, and (2) actual prejudice resulted.").
Theresa has not specifically identified this federal statute.
The federal law violations Theresa alleges involve the issues discussed above. For example, Theresa argues the State violated statutory due process "[b]y prematurely concluding that reunification was impossible." Similarly, she argues the State violated constitutional due process "where, despite her incredible and rapid process in fulfilling the cases permanency plan, [its] predisposition to have [Shaundria and Jovonte] adopted led to a hasty decision . . . that reunification was impossible." These issues do not gain merit simply by being couched in terms of substantive or procedural due process. Theresa's attorney had no duty to argue the termination of Theresa's parental rights violated federal law.
III. Disposition .
We have considered all of the issues Samuel and Theresa have presented on appeal, whether discussed in detail or not. We affirm the juvenile court.
AFFIRMED.
Huitink, J., concurs; Sackett, C.J., concurs specially without opinion.