In the Interest of N.J., No. 6-052/05-2049 (IA 3/15/2006)

• Decision Date: 15 March 2006
• Docket Number: No. 6-052/05-2049,6-052/05-2049
• Parties: IN THE INTEREST OF N.J., K.S., II, and A.W., Minor Children, M.W., Father of A.W., Appellant, T.S., Mother, Appellant.
• Court: Iowa Supreme Court

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IN THE INTEREST OF N.J., K.S., II, and A.W., Minor Children M.W., Father of A.W., Appellant T.S., Mother, Appellant.

No. 6-052/05-2049

Court of Appeals of Iowa.

Filed March 15, 2006

Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.

A mother and a father each appeal from a juvenile court order terminating their parental rights. AFFIRMED ON BOTH APPEALS.

Richard K. Betterton, Cedar Falls, for appellant-father of A.W.

Michael Bandy of Bandy Law Office, Waterloo, for appellant-mother.

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

Andrew Abbott, Waterloo, for appellee-father of N.J.

Tomas Rodriguez, Cedar Falls, for appellee-father of K.S., II.

Sharon Briner, Waterloo, guardian ad litem for minor children.

Considered by Zimmer, P.J., and Miller and Hecht, JJ.

MILLER, J.

Tara is the mother of Natajia, born in April 1999, Adrie'l, born in November 2001, and Keith II, born in April 2003 (the children). James is Natajia's father, Michael is Adrie'l's father, and Keith is Keith II's father. Tara and Michael appeal from a December 2005 juvenile court order terminating Tara's parental rights to the children and Michael's parental rights to Adrie'l.¹ We affirm on both appeals.

The children were removed from Tara's physical custody in November 2003 after she had tested positive for amphetamine and methamphetamine, Natajia and Adrie'l had each tested positive for methamphetamine and cocaine, and Keith II had tested positive for cocaine. The children were placed in the temporary legal custody of the Iowa Department of Human Services (DHS) for family foster care or suitable relative placement. The State filed a petition seeking an adjudication the children were in need of assistance (CINA). Following a temporary removal hearing the children were continued in the temporary legal custody of the DHS for placement in suitable family foster care or the home of a suitable relative. The juvenile court ordered supervised visitation and other services.

In early January 2004 the juvenile court adjudicated the children as CINA pursuant to Iowa Code sections 232.2(6)(n) (2003) (child whose parent's mental capacity or condition or drug abuse results in child not receiving adequate care) and (o) (child with illegal drug present in body as result of parent's acts or omissions). The court ordered supervised visitation and services, and required all of the parents to provide random urine samples for drug testing, with costs paid from court-ordered service funds. It continued the children in the legal custody of the DHS for suitable family foster care or relative placement, a status in which the children have thereafter remained.

In a late February 2004 dispositional order the juvenile court provided for supervised, semi-supervised, or unsupervised visitation, at the discretion of the DHS; ordered continued services; ordered that Tara participate in outpatient mental health counseling, take recommended medications, complete recommended substance abuse programming, and provide random urine samples for testing; ordered that all fathers provide random urine samples for testing at the request of the DHS; and ordered that all costs of random urine tests be paid from court-ordered service funds. A late May 2004 review order continued the earlier order in effect. Following a November 2004 permanency hearing the court found that neither Tara nor Michael had been consistent in participation in services and Michael had not been consistent in visitation. It continued prior orders in effect and ordered that within two weeks the State file a petition for termination of parental rights.

The State filed its petition for termination of parental rights in early December 2004. The petition alleged parental rights should be terminated pursuant to the grounds set forth in Iowa Code sections 232.115(1)(e), (f), (h), and (l).² The juvenile court scheduled trial for a date in early January 2005 but later continued the trial to a date in early March 2005. The trial then commenced as scheduled, but was not concluded and was continued to April 14, 2005 for continuation of a combined termination and permanency hearing.

On April 14 the juvenile court accepted an agreement of the parties and continued the hearing for six months to allow the children's parents additional time and opportunity to comply with requirements necessary for reunification. The court continued its previous order in effect and additionally required that each parent provide a safe, stable, clean home environment; ordered that Tara immediately commence substance abuse and mental health treatment; ordered that Michael immediately obtain a substance abuse evaluation and follow all treatment recommendations; and continued the hearing to October 7, 2005.

Following further hearing on October 7 and 17, 2005, the juvenile court entered its findings, conclusions, and order in early December 2005. It concluded the State had proved the grounds for termination of Tara's parental rights to the children and Michael's parental rights to Adrie'l pursuant to section 232.116(1)(e) (2005), Tara's parental rights to Natajia and Adrie'l and Michael's parental rights to Adrie'l pursuant to section 232.116(1)(f), Tara's parental rights to Keith II pursuant to section 232.116(1)(h), and Tara's parental rights to the children and Michael's parental rights to Adrie'l pursuant to section 232.116(1)(l). Tara and Michael appeal.

We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. 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.

In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).

Tara claims the juvenile court erred in finding the DHS had made reasonable efforts to reunify the family. The State asserts Tara did not preserve error in that she does not address what services she should have been provided and she did not raise this issue until the termination hearing. For several reasons we find Tara entitled to no relief on this claim of error.

First, by not even suggesting what services she should have been provided but was not provided, Tara has waived the issue. See Iowa R. App. P. 6.14(1)(c) (failure to argue an issue may be deemed waiver of that issue); In re W.R.C., 489 N.W.2d 40, 41 (Iowa Ct. App. 1992) (same). Second, by not raising the issue before the termination hearing, Tara has not preserved error. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999). Finally, her claim has no substantive merit. As shown by the evidence and the juvenile court's findings, the DHS offered "[f]amily centered services, including family therapy and skill development services, mental health referrals and counseling, outpatient substance abuse programming, random urinalysis,³ suitable relative placement, supervised visitation, and community referrals and cooperative supervision." We agree with the court that the DHS "has offered all appropriate services to these parents, which were designed to help reduce or eliminate the adjudicatory harms present with these children."

Tara also claims the juvenile court erred in finding that placement of the children in her home would not be in their best interests. In discussing Tara's response to services the juvenile court found:

Very little progress has been noted. Tara made approximately 50 to 60 percent of the visitations which she was allowed. Even the visitations allowed were not very productive, as she often spent much time on the telephone. Little progress was made with respect to substance abuse treatment. On at least nine (9) occasions, Tara refused a request for a urinalysis.⁴ While she did apparently have two (2) negative test results in July and August 2005, she acknowledged use of methamphetamine and marijuana in late September 2005. With respect to mental health treatment, she continues to be unstable with poor medication management, and has had no therapy sessions since December 17, 2004. She has moved at least four to five times this year and has not been employed since these proceedings commenced. Overall, no compliance with the order entered by the Court on April 14, 2005.

We fully agree with these findings. Generally, if the statutory grounds for termination exist termination is in the children's best interests. In re L.M.F., 490 N.W.2d 66, 68 (Iowa Ct. App. 1992). The children had been removed from their parents for over two years. Tara had unresolved mental health and substance abuse problems. She had not maintained significant and meaningful contact with the children during the previous six months and had not made reasonable efforts to resume care of the children despite being given the opportunity to do so. Tara was nowhere near a point where the children could be returned to her. The children were adoptable, and apparently doing well. We agree with the juvenile court that termination of Tara's parental rights is in the children's best interest.

Michael claims the juvenile court erred in terminating his parental rights pursuant to section 232.116(1)(d), which was not pled...