IN THE INTEREST OF S.W. AND S.W., Minor Children, T.R.W., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-348 / 07-0592
Filed June 13, 2007
IN THE INTEREST OF S.W. AND S.W.,
Minor Children,
T.R.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Gary R.
Noneman, District Associate Judge.
A mother appeals from the termination of her parental rights to two
children. AFFIRMED.
Thomas D. Marion of Norman & Marion, Keokuk, for the appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Michael Short, County Attorney, and David Andrusyk,
Assistant County Attorney for the appellee.
Artemio M. Santiago of the Hoyer Law Firm, L.C., Fort Madison, for the
appellee father.
Kendra Abfalter, Assistant Public Defender, Keokuk, guardian ad litem for
the minor children.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
BAKER, J.
Tonya is the mother of Shelby, who was born in 2004, and Selena, who
was born in 2003. Both children were removed from the care of their mother in
July of 2005, after Selena suffered a serious injury to her vaginal area. Tonya
initially attempted to blame the girls’ father, Dwight, for the abuse, and she later
attempted to blame the child’s ten-year-old sister. 1
However, subsequent
investigation revealed that only the mother could have caused the injury, and an
investigator concluded she had committed the act.
On September 1, 2005, the children were adjudicated to be in need of
assistance (CINA). Since that time, both children have resided in foster care. In
December of 2005, the mother was convicted of child endangerment based on
the incident noted above.
Finding that the progress made by the mother
following the offer and receipt of services was inadequate to warrant
reunification, the State filed a petition seeking to terminate her parental rights to
the girls in December of 2006. Following a hearing, the court granted the State’s
request and terminated the mother’s parental rights to her daughters under Iowa
Code section 232.116(1)(h) (2007). The mother appeals from this order. 2
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824
(Iowa 1991). Our primary concern is the best interests of the child. In re C.B.,
611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proved
by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).
1
2
The interests of that sibling are not at issue in this appeal.
The father has not appealed.
3
Tonya first argues DHS “refused to provide adequate services to promote
reunification . . . .” While it is clear that the State must make reasonable efforts
aimed at reunification, see In re C.B., 611 N.W.2d 489, 492 (Iowa 2000), it is also
true that when a parent fails to demand services other than those provided, the
issue of whether services provided were adequate has not been preserved for
appellate review. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999). Although
the mother now asserts a request for overnight visitations, there is no indication
in the record that she ever demanded more or different services. The mother
has therefore failed to preserve error on her claim that the State failed to make
reasonable efforts to reunite her with her children. We affirm on this issue.
Assuming, however, that the issue is preserved, her claim is refuted by the
record. Services were offered and provided to Tonya for over a year. The major
problem preventing reunification was not a failure of reasonable efforts toward
reunification, but rather was Tonya's failure or inability to avail herself of and
benefit from necessary and offered services. In this case, overnight visitation is
not required where the circumstances do not warrant it. In re M.B., 553 N.W.2d
343, 345 (Iowa Ct. App. 1996) (“Visitation, however, cannot be considered in a
vacuum. It is only one element in what is often a comprehensive, interdependent
approach to reunification. If services directed at removing the risk or danger
responsible for a limited visitation scheme have failed its objective, increased
visitation would most likely not be in the child's best interests.”). We find the
State made reasonable efforts toward reunification and Tonya’s claim to the
contrary is without merit.
4
The mother next maintains the termination of her rights “violates
constitutional protected relationships and would result in a violation of public
policy by separating siblings.”
We agree there is a preference for keeping
siblings together. In re A.M.S., 419 N.W.2d, 723, 734 (Iowa 1988). “However,
this preference is not absolute. Our ultimate concern is the best interests of the
child.” In re J.E., 723 N.W.2d 793, 800 (Iowa 2006).
To the extent this argument raises a constitutional issue, we find it not
preserved for appellate review.
In re K.C., 660 N.W.2d 29, 38 (Iowa 2003)
(holding even constitutional issues cannot be raised for the first time on appeal).
The juvenile court’s termination order does not address the separation of the girls
from their older sister, and therefore the issue has not been preserved for appeal.
See Id. Regardless, as will be indicated in the following section of this opinion,
even if the sibling issue had been preserved, we would hold that the termination
was still supported by the evidence and in the girls’ best interests. See, e.g., In
re J.E., 723 N.W.2d at 800.
Finally, the mother contends the State failed to submit clear and
convincing evidence that the children could not be returned to her custody as of
the date of the termination hearing. In particular, she maintains that at the time
of the hearing, she could provide adequately for the housing and economic
needs of the children.
disagree.
Upon our careful de novo review of the record, we
Without conceding that she could provide for the strictly material
needs of the children, Tonya clearly lacks the insight and instincts necessary to
providing safe care and nurturance of two young children.
5
The juvenile court recognized three “key issues” that it felt limited her
parenting ability: her limited cognitive ability including a learning disorder that
makes her largely unable to comprehend written instructions, ongoing mental
health issues, and her lack of residential stability.
We believe these issues
preclude the return of the children’s care to their mother. The mother continues
to struggle applying and internalizing some of the basic parenting requirements.
She failed to adequately child safety-proof her home despite guidance on how to
do so. Service providers reported frequently having to intervene with the mother
and children due to safety concerns. Moreover, she has difficulty parenting the
older daughter alone without the added stressful situations that arise from raising
and supervising two additional toddlers.
The mother’s low level of intellectual functioning has caused safety
concerns to service providers. She has balked at being taught parenting skills
from an instructor who taught from a book. Despite being counseled on the
directions for a certain medication, she almost over-medicated one child due to
her failure to apply that counseling to a real-life situation. Her mental health
issues, including diagnoses of bipolar disorder, depression, and ADHD, have
also impacted her ability to provide care to her children.
These safety concerns weighed heavily on the juvenile court’s decision,
and we likewise find them significant. See In re J.E., 723 N.W.2d at 801 (Cady,
J., concurring specially) (“A child's safety and the need for a permanent home are
now the primary concerns . . .”). Based on her prior behaviors, there is a strong
possibility the mother may never be able to provide for these children’s basic
needs. See id. (noting a parent’s past performance is indicative of the quality of
6
care the parent will provide in the future). We therefore affirm the termination of
the mother’s parental rights.
AFFIRMED.
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