Opinion
No. 3-912 / 03-1672.
Filed December 10, 2003.
Appeal from the Iowa District Court for Decatur County, Gregory A. Hulse, Judge.
A mother appeals from a juvenile court order terminating her parental rights to three children. AFFIRMED.
Patrick W. Greenwood, Lamoni, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Carol Clark, County Attorney, for appellee-State.
George Hoffman of Hoffman Law Firm, Leon, for appellee-father.
Monty Franklin of Franklin Law Office, Humeston, guardian ad litem for minor children.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
Sherry is the mother of fourteen-year-old Austin, thirteen-year-old David, and eleven-year-old Steven. Following an August 21, 2003 hearing the juvenile court entered a September 24 order terminating the parental rights of Sherry, and of Austin and David's father. The termination was based on the grounds set forth in Iowa Code sections 232.116(1)(d) (2003) (child adjudicated in need of assistance (CINA) for neglect, circumstances continue to exist despite receipt of services) and section 232.116(1)(f) (child four or older, adjudicated CINA, removed from home for twelve of last eighteen months, cannot be returned home). Sherry appeals. Austin and David's father does not appeal. We affirm.
Sherry does not know who Steven's father is.
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).
Two days before the termination hearing the children's guardian ad litem spoke with them. He received their assurance that they understood what the hearing was for. In response to the guardian ad litem's inquiries Austin indicated he wished to be at the hearing and express his opinion to the court. The guardian ad litem secured his presence at the hearing and he testified. However, David and Steven indicated they had no information they wished to provide the court, did not want to appear at the hearing, and did not want to be present while the hearing was held. Neither the guardian ad litem nor any other party secured their presence for the hearing.
At the termination hearing Sherry, through counsel, stated she assumed David and Steven would be present and objected "to any waiver of their presence." Her stated reason for wishing their presence was to determine whether they understood the purpose of the proceeding and whether their opinion was still the same. The guardian ad litem asked that they "be excused from being present." After extended discussion the juvenile court overruled Sherry's objection and granted the guardian ad litem's request.
Sherry first claims the juvenile court "erred in granting the guardian ad litem's motion to waive the presence of [David and Steven]." We find no error. First, assuming without deciding that their presence was required unless waived by the juvenile court, we believe the juvenile court's decision required an exercise of discretion. We conclude our review is therefore for an abuse of discretion. See, e.g., In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996) (holding that review of discretionary decision regarding grant or denial of a continuance is for an abuse of discretion). We conclude that under the facts and circumstances shown by the record and briefly summarized above no abuse of discretion is shown. Second, although Sherry cites statutes which make David and Steven "necessary parties" to the State's action to terminate Sherry's parental rights with respect to them, she cites no authority in support of her assertion, implicit in her claim of error, that a necessary party must be present at trial. We hold she waived error on the issue. See Iowa R. App. P. 6.14(1)( c) (requiring that an appellant's brief contain a list of all cases, statutes, and other authorities referred to in the argument concerning an issue, and stating that "failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue"); Genetzky v. Iowa State Univ., 480 N.W.2d 858, 861 (Iowa 1992) (holding error waived where appellant cited no authority and made no argument in support of an issue).
Although a "petition on appeal" rather than a "brief" is required in this appeal from an order terminating parental rights, see Iowa Rs. Civ. P. 6.6(4) and 6.151, the petition must include "supporting statutes, case law, and other legal authority for each issue raised." See Iowa R. App. P. 6.151(2)( e). We conclude that a "petition on appeal" is a counterpart to or substitute for a "brief," and therefore rule 6.14(1)( c)'s "deemed waiver" provision applies to a failure to cite authority in a petition on appeal.
Sherry also claims the juvenile court erred in finding that the circumstances which led to the CINA adjudication continued to exist despite the receipt of services, and in finding that to return the children to her custody would subject them to adjudicatory harm. These findings by the juvenile court implicate the final element of section 232.116(1)(d) and the final element of section 232.116(1)(f) respectively. We conclude the evidence clearly and convincingly establishes both elements.
The children were removed from Sherry's custody March 2, 2001, when she was arrested and incarcerated. They were placed in the custody of the Department of Human Services (DHS) and have thereafter remained in family foster care. They were adjudicated CINA on April 13, 2001, pursuant to Iowa Code sections 232.2(6)(c)(2) (2001) (failure of parent to exercise reasonable degree of care in supervising child), 232.2(6)(g) (parent fails to exercise minimal degree of care in supplying child with adequate food, clothing, or shelter), and 232.2(6)(n) (parent's mental capacity or condition or drug or alcohol abuse results in child not receiving adequate care). Sherry was required to successfully complete a drug rehabilitation program, establish a stable home, and maintain steady employment for six months or become involved in a job training program, and maintain regular contact and visitation with the children.
After her March 2, 2001 arrest Sherry did not see her children for about six months despite the fact she was released from jail shortly. She apparently made no effort to see them during this six months. On another occasion she left the area without notice and went to Alabama with Sammy for two weeks, missing visits. She has been incarcerated on four occasions, and perhaps faces additional incarceration. Although she has at most other times maintained contact and attended scheduled visitations, she has missed another four to five scheduled visitations. She has fallen substantially short of complying with her obligation to maintain contact and visitation with the children.
The DHS arranged inpatient substance abuse treatment. Sherry refused to participate. In early 2002 she began outpatient treatment, but was discharged without successful completion. Under threat of termination of her parental rights, she began an outpatient treatment program in March 2003 and successfully completed it in June. It was recommended that she follow a developed aftercare plan. No substantial evidence indicates she has done so.
Since the children's removal Sherry has been jailed four times, and as of the week of the termination hearing was facing additional, new charges. She has moved at least five different times, residing in five different communities. She has at all times resided with and been dependent upon others for her housing. She has not lived in the same location for more than six months at one time until her present residence. Sherry divorced her husband in June 2002. She began living in a one-bedroom apartment with "Sammy," the most recent of her husbands and boyfriends, in about December 2002. She testified that her present boyfriend is her fiance The evidence shows, however, that he is married to someone else. Sammy has apparently recently expanded his apartment to three bedrooms by acquiring access to additional space on the upper floor apartment in which he and Sherry live. We conclude Sherry has not established a stable home for herself, much less for her children.
In the period of about two and one-half years between her children's removal and the termination hearing Sherry has remained unemployed except for a period of about six months during which she worked two part-time jobs totaling about thirty hours per week. She last worked at one of those jobs in September 2002 and the other in about October 2002. In the period of almost a year since she last worked she has not become involved in any job training program. She asserts she has sought employment, but it appears her efforts have been somewhat less than strenuous. She is unable to support herself, much less her children. Sammy works, earning $240 gross pay for a forty-eight hour week, and also draws some social security benefits as a result of a disability. Sherry and Sammy express the view they can support Sherry's children. However, the evidence shows that Sammy was even unable to pay the utilities on the home he occupied before his present apartment. Sherry remains dependent upon others and remains unable to provide a stable home for her children.
Sherry received services on two earlier occasions in the latter 1990s. She has also been offered and has received services since shortly after the children were removed in March 2001.
We conclude that despite the offer and receipt of services the circumstances which led to the children's CINA adjudications continue to exist. Specifically, Sherry remains at some risk of substance abuse relapse by reason of her failure or refusal to participate in an aftercare program; she has no employment, income, or stable home; and the children cannot be returned to her custody at the present time without being subject to adjudicatory harm in the form of lack of adequate food, clothing, and shelter. We conclude termination of Sherry's parental rights is proper under both of the statutory provisions relied on by the juvenile court.
AFFIRMED.