In re CB, 98-1719.

Citation611 N.W.2d 489
Decision Date01 June 2000
Docket NumberNo. 98-1719.,98-1719.
PartiesIn the Interest of C.B. and G.L., Minor Children, H.W., Mother, Appellant.
CourtUnited States State Supreme Court of Iowa

Martha M. McMinn, Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant Attorney General, for appellee-State.

Joseph Kertels, Sioux City, guardian ad litem for minor children.

Considered en banc.

CADY, Justice.

The State seeks further review of a decision by the court of appeals reversing an order by the juvenile court terminating a mother's parental rights. We vacate the decision of the court of appeals, and affirm the decision of the juvenile court.

I. Background Facts and Proceedings.

H.W. has six children. Each child has a different father. Two of the children are C.B., a boy, and G.L., a girl. C.B. was born on February 11, 1992, and G.L. was born on August 19, 1995. They were removed from H.W.'s care in August 1996, after H.W. assaulted an older child with a belt. She was intoxicated at the time and threatened to kill the child. H.W. has a long history of alcohol and drug abuse. G.L. tested positive for cocaine when she was born.

H.W. was convicted of child endangerment as a result of the incident which led to the removal of C.B. and G.L. She was placed on probation. Both C.B. and G.L. were adjudicated children in need of assistance pursuant to Iowa Code section 232.2(6)(a), (b), (j), and (n) (1995) in October 1996. G.L. was placed with her maternal grandmother in Louisiana. C.B. was placed with his maternal aunt in Sioux City.

The dispositional hearing was continued until March 1997 so an evaluation of H.W. and an Interstate Compact home study of the maternal grandmother in Louisiana could be completed. Visitation between H.W. and the children, C.B. and G.L., was permitted under the supervision of the Iowa Department of Human Services (DHS), or its designee, which included the children's maternal aunt. H.W., however, failed to cooperate and eventually left Iowa to avoid facing a probation revocation hearing. Consequently, she failed to maintain appointments, failed to complete a chemical dependency assessment, failed to submit to urinalysis drug screening, and failed to cooperate with the parent-skill development services. The court ordered H.W. to have no contact with C.B. or G.L. until she contacted the DHS. The home study recommended all of H.W.'s children be placed in the custody of the maternal grandmother in Louisiana.

H.W. was located by social service officials in Louisiana in September 1997. She was found in the home of the maternal grandmother caring for some of the children, including G.L. She exhibited signs of intoxication at the time. Louisiana officials subsequently returned the children to Iowa for foster care placement, but not before H.W. attempted to abscond with G.L. She was stopped by law enforcement officials in a visibly intoxicated condition. She was also eight months pregnant.

H.W. returned to Iowa shortly before a review hearing in March 1998. She was unemployed, but claimed she had not used drugs for some time. In light of the probation revocation hearing she faced later in the month, the juvenile court found it was not in the best interests of C.B. and G.L. to permit visitation until after the conclusion of the probation hearing.

A permanency hearing was held in May 1998. By this time, H.W. had entered a relapse program. She was also attending Alcoholics and Narcotics Anonymous meetings, and had filed for divorce from her abusive husband. She was also employed. Nevertheless, an evaluator determined she was not a likely candidate for successful therapy with her children. She only attended one of her last five individual therapy sessions. H.W. completed a psychological evaluation which showed symptoms of a schizoid personality disorder and chemical dependency. The State filed a petition for termination of H.W.'s parental rights on the day of the permanency hearing. The court found it was not in the best interest of the children to resume visitation until the completion of the termination hearing.

The termination hearing was held in early July 1998. H.W. had maintained employment for over a month, been separated from her abusive husband for over three months, obtained separate living arrangements within the week preceding the hearing, and made progress in her chemical dependency treatment. Nevertheless, her chemical dependency counselor felt C.B. and G.L. should not be returned to H.W. unless under a highly structured setting.

The court found the circumstances which led to the adjudication of C.B. and G.L. as children in need of assistance continued to remain and that they could not be returned in a reasonable amount of time, stating

With [H.W.'s] history, the Court strongly believes that should the children be returned to her anytime in the near future, the stress of having to care for them would make it extremely likely that she would relapse. The events of the last couple months give reason to have hope for [H.W.'s] future, however, a couple months of sobriety weighed against 15 years of dependency makes that hope be cautious at best. These children deserve more than cautious hope, especially in light of the fact that they have been involved in the system for over two years already.

Furthermore, the court found H.W. failed to maintain significant and meaningful contact with C.B. for the fourteen months prior to the termination hearing, or with G.L. for the preceding eight months. Additionally, the court found H.W. never attempted to make reasonable efforts to resume caring for her children. The court terminated H.W.'s parental rights of C.B. and G.L. pursuant to Iowa Code section 232.116(1)(c), (d), (e), (g), and (k) (1997). H.W. appealed, and the case was transferred to the court of appeals.

H.W. claimed there was insufficient evidence to support termination of her parental rights under "all elements" of each ground for termination because the DHS did not use reasonable efforts to correct the problems which led to the removal of the children. H.W. specifically claimed the DHS failed to provide reasonable efforts, including visitation, during those three critical months preceding the termination hearing after she started to turn her life around.

The court of appeals found the record was insufficient to support termination of H.W.'s parental rights and remanded the case to the district court for determination of whether further unification services could be implemented. The court of appeals found that the DHS did not use reasonable efforts to facilitate visitation and further found the recent lifestyle changes by H.W. made unification possible. The State filed application for further review.

II. Scope of Review.

We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). 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. 14(f)(7); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The primary interest in termination proceedings is the best interests of the child. Iowa R.App.P. 14(f)(15); In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence. See Iowa Code § 232.116. "Clear and convincing evidence" means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence. See Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa App.1983)


III. Waiver.

The State first claims H.W. waived any challenge to the sufficiency of the evidence by failing to set forth the specific elements of the grounds for termination which lacked sufficient evidence due to the lack of reasonable efforts. The State claims this is required by Iowa Rule of Appellate Procedure 14(a)(3). We disagree.

We have long recognized an appellant must identify alleged error on appeal. See Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 521 (Iowa 1998)

; City of Des Moines v. Geller Glass & Upholstery, Inc., 319 N.W.2d 239, 244 n. 3 (Iowa 1982). This concept is reflected in Iowa Rule of Appellate Procedure 14(a)(3), which requires the appellant to separately list all issues for appeal. A broad, all encompassing argument is insufficient to identify error in cases of de novo review. Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996).

In this case, the juvenile court terminated parental rights under Iowa Code section 232.116(1)(c), (d), (e), (g), and (k). All five grounds for termination generally contain the dual elements of parental unfitness and the failure of the parent to become minimally fit to parent the child within a specific period of time in which our legislature has determined a child needs a permanent home. Although each is a separate ground for termination, they all contain a common element which implicates the reasonable effort requirement. In section 232.116(1)(c), the State must prove the parent was offered or received services to correct the circumstances which led to a CINA adjudication and that those circumstances still exist. In section 232.116(1)(d), the State must show the parent has not maintained significant and meaningful contact with the child, nor attempted to resume care of the children despite the opportunity to do so. In Iowa Code sections 232.116(1)(e), (g), and (k), the State must show the child cannot be returned to the custody of the parent.

H.W. challenged the sufficiency of evidence on appeal in terms of the reasonableness of the efforts of the DHS to achieve reunification of parent and child. She did not challenge the basis for the removal of the children. Thus, H.W. clearly implicated those elements of the grounds for termination dealing with the evidence to show the child cannot be returned home because the parent has not improved enough to justify...

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