IN THE INTEREST OF J.P., Minor Child, M.M.A., Mother, Appellant, J.A.P., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-246 / 07-0226
Filed April 25, 2007
IN THE INTEREST OF J.P.,
Minor Child,
M.M.A., Mother,
Appellant,
J.A.P., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Kevin Parker,
District Associate Judge.
A mother and father appeal the district court’s order terminating their
parental rights to their minor child. AFFIRMED.
Jeffrey Mains, Des Moines, for appellant mother.
William Sales, Ankeny, for appellant father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Bryan Tingle, County Attorney and Alyssa Kenville, Assistant
County Attorney, for appellee.
Patricia Notch, Norwalk, for the minor child.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
VOGEL, J.
M.A. and J.A.P., mother and father of J.P., appeal the district court’s order
terminating their parental rights.
Upon our de novo review, In re J.E., 723
N.W.2d 793, 798 (Iowa 2006), we affirm.
J.P. was removed from her mother’s care in June 2005 due to the
mother’s methamphetamine use and physical abuse of J.P.
She was
adjudicated a child in need of assistance (CINA) in July 2005, pursuant to Iowa
Code sections 232.2(6)(b) (parent has physically abused or neglected child);
(c)(2) (child is likely to suffer harm due to parent’s failure to exercise care in
supervising child); and (n) (parent’s mental capacity or condition, or drug or
alcohol abuse, results in child not receiving adequate care). J.P. was placed in
the care of her maternal grandmother, and services were provided by the Iowa
Department of Human Services (DHS) to both the mother and father to address
their substance abuse problems.
Both parents were resistant and generally
noncompliant. Termination of parental rights was ordered by the district court in
January 2007, and both parents appeal.
The grounds for termination must be proven by clear and convincing
evidence. J.E., 723 N.W.2d at 798. We give weight to the fact findings of the
juvenile court, especially when considering the credibility of witnesses, but we
are not bound by these findings.
Iowa R. App. P. 6.14(g).
Our overriding
concern in such cases is always the best interests of the child. In re K.N., 625
N.W.2d 731, 733 (Iowa 2001).
The father argues that the district court erred in terminating his parental
rights because he did not receive notice of the CINA proceedings.
He did,
3
however, receive notice of the termination hearing. Iowa Code section 232.88
provides that “reasonable notice” for CINA adjudicatory hearings is governed by
the process of section 232.37, which includes personal service by the sheriff or
by certified mail when determined by the court that personal service is
impracticable. These procedures also allow the State to dispense with notice if
“the court finds that a reasonably diligent effort has been made to notify the
child's parent, guardian, or custodian, and the effort was unavailing.” Id. §
232.38.
The record reflects that personal service of process for the CINA petition
was attempted at least eight times in mid-July 2005 by the Polk County Sheriff’s
office at the last known address of the father in Des Moines. 1
When these
attempts were not successful, the CINA adjudication hearing proceeded and the
resulting order was mailed to the father at the same address. It appears that this
mailing was returned as undeliverable, and the State did not attempt to effect
notice by other means, such as publication. However, the father was aware of
the involvement by the State, as DHS did contact him by telephone in late June
2005 as part of its intake process. Prior to the adjudicatory hearing, additional
phone contacts were made by DHS, including conversations regarding the
investigation of the CINA allegations and offers of a substance abuse evaluation.
Subsequent to the adjudication, DHS offered the father supervised visitation and
other services. In the fifteen months between adjudication and the filing of the
termination petition, the father was incarcerated for drug crimes much of the time.
1
The father admitted at the termination hearing that he was residing at this address at the time
service was attempted.
4
When he was not incarcerated he failed to provide DHS current contact
information despite repeated requests.
Although it does not appear that the
statutory procedures for notice of the CINA adjudicatory, dispositional, or
permanency review hearings were strictly complied with by the State, we
conclude that the lack of formal notice does not undermine the subsequent
termination of his parental rights. The father did receive notice of the termination
petition and hearing, was present, and was represented by counsel. See In re
M.L.M., 464 N.W.2d 688, 689 (Iowa Ct. App. 1990) (upholding termination where
father received notice of termination proceeding but not of prior CINA
proceeding); In re J.F., 386 N.W.2d 149, 151-152 (Iowa Ct. App. 1986) (noting
father who learned of CINA proceedings independently had waived right to later
have dispositional order vacated).
The father had considerable personal contact with DHS, was informed of
the status of the adjudication and disposition, and was offered services to comply
with the case plan for reunification. At the termination hearing, he admitted that
he knew he should have obtained legal counsel during the pendency of the CINA
case. Under these facts, the father has never challenged the adjudication or
disposition.
We conclude formal notice or service of process under section
232.88 to the father of the CINA case was waived and did not hinder the court
from proceeding with termination of his parental rights.
5
Both parents argue the district court erred in finding clear and convincing
evidence to support termination. 2 In order to affirm a termination of parental
rights, we need only find grounds sufficient to terminate under one of the
statutory grounds the district court cited. In re S.R., 600 N.W.2d 63, 64 (Iowa
1999). While the termination order could have been more clearly delineated as
to which grounds were found for which parent, we conclude the evidence
supports termination under section 232.116(1)(l) (child CINA, parent has a
substance abuse problem, child cannot be returned within a reasonable time).
Neither M.A. nor J.A.P. took advantage of services that were made available to
them during the pendency of this case. Both parents failed to submit regularly to
drug screening or drug evaluation and counseling, both continued to use illegal
substances, and the father even spent a considerable time during the case
incarcerated on drug or related charges.
At the time of termination, neither
parent was able to assume care of J.P. after each failed to comply with or only
made belated attempts to access services, never progressing beyond supervised
visitation. “At some point, the rights and needs of the child rise above the rights
and needs of the parents.” In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.
1997). In making a permanency determination, the child’s need for security,
stability, and permanence in her young life must come first. In re C.D., 509
N.W.2d 509, 513 (Iowa Ct. App. 1993). The record reflects clear and convincing
evidence supporting termination and that it is in J.P.’s best interests to sever the
2
The mother does not have standing to assert error regarding the father’s notice issue. We also
conclude as meritless her argument that termination of her rights was not independently sought
but only a result of the termination of the father’s rights. The mother also failed to request
additional services during the course of the case, thereby waiving her reasonable efforts
argument. In re M.T., 613 N.W.2d 690, 692 (Iowa Ct. App. 2000).
6
parental rights of M.A. and J.A.P.
J.A.P.’s parental rights.
AFFIRMED.
We affirm termination of both M.A. and
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