IN THE INTEREST OF M.S. and A.S., Minor Children, M.W., Mother, Appellant, D.S., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-219 / 07-0291
Filed April 25, 2007
IN THE INTEREST OF M.S. and A.S.,
Minor Children,
M.W., Mother,
Appellant,
D.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Stephen C.
Gerard II, Judge.
A mother and father appeal the termination of their parental rights to their
children. AFFIRMED.
Sue Kirk of Honohan, Epley, Braddock & Brenneman, Iowa City, for
appellant-mother.
Dai Gwilliam, Iowa City, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Janet Lyness, County Attorney, and Kristin L. Parks, Assistant
County Attorney, for appellee.
Shelly Mott, Coralville, guardian ad litem for minor child.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
A mother and father appeal the termination of their parental rights to their
children. They contend the State failed to prove the grounds for termination by
clear and convincing evidence. The father also contends his due process rights
were violated. We review these claims de novo. In re C.H., 652 N.W.2d 144,
147 (Iowa 2002).
The district court terminated the mother’s parental rights on several
grounds, including Iowa Code section 232.116(1)(i) (2005). The father’s parental
rights were terminated pursuant to section 232.116(1)(b).
Termination is
appropriate pursuant to section 232.116(1)(i) where the State has proved by
clear and convincing evidence the following:
(1) The child meets the definition of child in need of assistance
based on a finding of physical or sexual abuse or neglect as a
result of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or receipt
of services would not correct the conditions which led to the abuse
or neglect of the child within a reasonable period of time.
The mother does not dispute the first two elements were proven, but instead
argues the third element has not been proven.
We conclude clear and convincing evidence shows the mother’s receipt of
services would not correct the conditions that led her to neglect her children
within a reasonable period of time. At the time of termination, the children had
been removed from their mother’s care for two years.
During this time, the
mother has continued to abuse drugs as is evidenced by the results of the urine
she provided for analysis, as well as her testimony at trial that she did not provide
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urine for analysis because she knew she would test positive for drug use.
Although the mother admits she has a substance abuse problem, she stated she
would only seek treatment at the House of Mercy so long as her children were
returned to her. She testified:
My substance abuse problem and my addiction is bigger
than I am; and I don’t have complete control over that or why, umm,
I’ve used.
If it were only for the sake of my children and knowing the
jeopardy that I am in of losing them, I would have stopped. Umm, I
don’t have a handle on how to do recovery. I’m still in the process
of learning the recovery and how to – to do that, and every day.
I love my children, and the fact that I use doesn’t mean that I
don’t love my children. I have an addiction that’s bigger than me
and that I don’t know – I don’t have a handle on right now.
The mother requires at least an additional year of treatment at the House of
Mercy.
Additionally, the mother has continued to have difficulty maintaining
appropriate housing and quit her job to avoid being fired over financial
discrepancies.
The mother’s past actions are evidence of the future quality of her care.
See In re T.B., 604 N.W.2d 660, 662 (Iowa 2000). Coupled with her admission
that she is only seeking treatment to have her children returned to her care and
not for herself, the mother’s prognosis is poor. The child should not be forced to
endlessly await the maturity of her natural parents. In re C.B., 611 N.W.2d 489,
494 (Iowa 2000). “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).
We also conclude the State has proved the grounds for terminating the
father’s parental rights pursuant to section 232.116(1)(b) as he has abandoned
the children. At the time of the termination hearing, the father was incarcerated.
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Since the children were removed from the mother’s care, the father has had only
one contact with the Department of Human Services.
The father also contends his due process rights were violated when the
Iowa Department of Corrections refused to transport him to testify at the
termination hearing. He instead submitted an affidavit to the court, although he
argues his writing skills are not well-developed.
There is no due process
requirement that an incarcerated parent be present at a termination of parental
rights hearing, especially where the parent is represented by counsel at the
hearing and is not denied an opportunity to present testimony by deposition at
the hearing, if requested. See In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App.
1991) (“Where a parent receives notice of the petition and hearing, is
represented by counsel, counsel is present at the termination hearing, and the
parent has an opportunity to present testimony by deposition, we cannot say the
parent has been deprived of [due process].”). We reject this claim.
We affirm the order terminating the mother and father’s parental rights.
AFFIRMED.
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