Opinion
No. 4-070 / 03-2024
Filed February 27, 2004
Appeal from the Iowa District Court for Marshall County, Victor G. Lathrop, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her minor children. AFFIRMED.
John Swain, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Jennifer Miller, County Attorney, and Susan Klaessy, Assistant County Attorney, for appellee-State.
Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for maternal grandmother.
Jo Ann Barten of Boliver Law Firm, Marshalltown, for minor child.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Rebecca appeals the termination of her parental rights to her minor children. We affirm.
Background Facts and Proceedings.
Rebecca is the mother of Taylor, born April 1, 2001; and Jessie, born October 1, 2002. Rebecca has a long history of criminal and drug involvement. Taylor was removed from the home in 2001 when Rebecca was arrested on drug-related charges and child endangerment. Taylor was placed with her maternal grandmother. Jessie was born with drugs in her system and has lived with her maternal grandmother and Taylor since birth. Both children were adjudicated children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n).
There were allegations that Rebecca was using the home for making methamphetamine.
In October 2002 Rebecca began living in a halfway house. Between February and June 2003, Rebecca had at least thirty-five rule violations at the halfway house. These violations included: disobeying a lawful order, unauthorized possession of money, habitual minor offense, false statements, out of place assignment, sexual misconduct, abuse of medication, failure to secure/maintain employment, safety/sanitary violation, unauthorized possession/exchange, verbal abuse, threats/intimidation, tampering with locks, theft, and failure to participate in treatment. In August 2003 Rebecca was incarcerated at Mt. Pleasant Women's Unit due to her probation violations.
On October 2, 2003, a termination hearing was held, and Rebecca participated by phone because she was incarcerated. The court terminated Rebecca's parental rights to Taylor under Iowa Code sections 232.116(1)(h), and to Jessie under section 232.116(e). Rebecca appeals.
Scope of Review.
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).
Section 232.116(1)(e). Rebecca claims the juvenile court erred in finding she had not maintained significant and meaningful contact with Jessie during the previous six months and had made no reasonable efforts to resume care despite being given the opportunity to do so. See Iowa Code § 232.116(1)(e)(3). We disagree. Since birth Jessie has lived with her maternal grandmother. While in the halfway house, Rebecca received supervised visitation as part of her family-centered services. She failed to take advantage of these opportunities to visit her children. Several times she missed scheduled visits because she was on room restriction. Further, she failed to use furlough time to visit her children. Instead, she spent the time visiting friends, shopping, and attending recreational events. At the time of the termination hearing, Rebecca was incarcerated. "At some point, the rights and needs of the child rise above the rights and needs of the parent." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). Therefore, we find clear and convincing evidence in the record that Rebecca has not maintained significant and meaningful contact with Jessie. Further, we find Rebecca was given sufficient opportunity to make reasonable efforts to resume care of Jessie and failed to do so.
Rebecca argues that the grounds for termination of her parental rights to Jessie were not shown. She does not make a similar argument concerning the grounds for termination of her parental rights to Taylor under Iowa Code section 232.116(1)(h).
Reunification.
Rebecca claims the State did not engage in reasonable efforts to reunite her with Jessie. Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). The State has the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct. App. 1997). After a careful review of the record, we find the services offered were reasonable under the facts of this case.
Best Interests.
Rebecca contends the termination of her parental rights was not in the children's best interests. Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interests of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Rebecca cannot adequately take care of the children until she can take care of herself. She has adopted a lifestyle which includes the illegal use of drugs. This lifestyle led to her incarceration. The children need permanency. They should not be forced to endlessly await the maturity of the natural parent. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). We find termination is in the children's best interests.
Extenuating Circumstances.
Rebecca argues extenuating circumstances exist and relies on In re A.L., 492 N.W.2d 198 (Iowa Ct. App. 1992). In this case, the juvenile court found that the grounds for termination were present but chose not to do so because "the system failed its function by not providing suitable opportunity for the parents to resume care of the children. . . ." Id. at 201. On appeal, our court agreed with the juvenile court noting that extenuating circumstances were enough for the court to use its discretion in not terminating parental rights. Id. In the present case, Rebecca argues the problems she had with her probation officer were extenuating circumstances that affected her visitation and relationship with her children. Therefore, she did not have suitable opportunity to resume care of her children and termination was not appropriate. We disagree. Rebecca had at least thirty-five rule violations at the halfway house. She had numerous probation violations. Rebecca's problems with her probation officer were the result of her poor choices. In addition, she missed several scheduled visits with her children and failed to use furlough time to visit with them. Therefore, we find no extenuating circumstances exist that would justify not terminating Rebecca's parental rights.
Section 232.116(3).
Rebecca also contends the juvenile court erred in failing to consider the exception to termination as set forth in this section. A termination, otherwise warranted, may be avoided under this exception. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct. App. 1991). The factors under section 232.116(3) have been interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993). We conclude the juvenile court correctly declined to apply the exception in this case.
Admission of Testimony.
Rebecca asserts the court erred when it admitted the CASA worker's testimony because it contained hearsay and was unfairly prejudicial. Evidentiary rulings and motions are reviewed for an abuse of discretion. In re E.H., 578 N.W.2d 243, 245-46 (Iowa 1998). Iowa Code section 232.96(6) allows the use of hearsay evidence in juvenile proceedings, provided the evidence is relevant and not unduly prejudicial. In re A.J., 553 N.W.2d 909, 916 (Iowa Ct. App. 1996). We determine the juvenile court properly considered the record in this case, including the testimony of the CASA worker.
Motion for Transport Order.
Rebecca argues her due process rights were violated because she was not transported to the termination hearing. We find no merit in Rebecca's final argument because an incarcerated parent does not have the absolute right to be physically present at judicial proceedings involving CINA adjudications. See Iowa Code § 232.91; In re T.M.C., 429 N.W.2d 165, 167 (Iowa Ct. App. 1998). Accordingly, we affirm the decision of the juvenile court on this issue.