IN THE INTEREST OF F.S., Minor Child, A.S., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-794 / 06-1593
Filed October 24, 2007
IN THE INTEREST OF F.S.,
Minor Child,
A.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, Donavon D.
Schaefer, District Associate Judge.
A.S. appeals from the juvenile court’s order terminating her parental rights
concerning her child, F.S. AFFIRMED.
John P. Greer of Greer Law Office, Spencer, for appellant mother.
Diane Wallwey, Spencer, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, Michael J. Houchins, County Attorney, and Charles K. Borth,
Assistant County Attorney, for appellee State.
Ney McDaniel, Spencer, for minor child.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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HUITINK, P.J.
A.S. appeals from the juvenile court’s order terminating her parental rights
concerning her child, F.S. We affirm.
I. Background Facts and Proceedings
Four-month-old F.S. was removed from A.S.’s custody because of the
imminent risk of harm presented by domestic violence, as well as A.S.’s mental
health and substance abuse issues. F.S. was subsequently adjudicated a child
in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c) and (n)
(2005), and placed in foster care. The juvenile court’s dispositional order also
included a provision of services for A.S., which was intended to facilitate
reunification.
On September 1, 2006, the State filed a petition to terminate A.S.’s
parental rights concerning F.S. pursuant to sections 232.116(1)(e) and (h). On
September 15, 2006, A.S. requested appointment of a new attorney and a
continuance of the termination hearing set for September 27, 2006. The juvenile
court appointed a different attorney to represent A.S.
Her request for a
continuance was denied.
When A.S. did not appear for the September 27 termination hearing, her
attorney requested a continuance, citing A.S.’s unexplained failure to appear.
The juvenile court denied the requested continuance, and the matter proceeded
to a hearing on the merits of the State’s termination petition.
At the termination hearing, the juvenile court admitted State’s exhibit 1, a
DHS report with accompanying attachments, over counsel’s objections that it
was hearsay and recited the author’s legal conclusions.
State’s exhibits 3
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through 6 were also admitted over counsel’s relevancy objections. Following the
termination hearing, the juvenile court entered an order terminating A.S.’s
parental rights pursuant to sections 232.116(1)(e) and (h).
On appeal, A.S. claims (1) the juvenile court abused its discretion in
denying her attorney’s request to continue the termination hearing, (2) the
juvenile court abused its discretion in admitting exhibits 1 through 6 because they
are inadmissible hearsay, and (3) the record does not contain clear and
convincing evidence supporting termination on either ground relied on by the
juvenile court to terminate A.S.’s parental rights.
II. Continuance
The juvenile court shall grant a continuance only if good cause exists.
Iowa Ct. R. 8.5. We review the denial of a motion for a continuance for abuse of
discretion and will reverse only if injustice will result to the party requesting the
continuance.
In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996).
The
complaining party must show the juvenile court’s decision was “unreasonable
under the attendant circumstances.” In re J.L.L., 414 N.W.2d 133, 135 (Iowa
1987). Because of the urgency of termination proceedings, the juvenile court is
not obligated to grant a parent’s motion for a continuance because “children
simply cannot wait for responsible parenting.” In re L.L., 459 N.W.2d 489, 495
(Iowa 1990).
A.S. argues the juvenile court abused its discretion in denying her
attorney’s request to continue the termination hearing.
findings of fact include the following:
The juvenile court’s
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The Court noted that [A.S.] had legal as well as actual notice of the
hearing and that no good cause has been shown to continue the
hearing, the Court, noting that, in fact, hearing was not commenced
until one half hour after the scheduled starting time awaiting the
arrival of [A.S.].
Based on our review of the record, we are unable to say the juvenile court
abused its considerable discretion by denying A.S.’s requested continuance, and
we affirm on this issue.
III. Evidentiary Rulings
We review evidentiary rulings based on hearsay evidence for correction of
errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). In general,
hearsay is not admissible unless an exception applies. Iowa R. Evid. 5.802.
Iowa Code section 232.96(6) allows the admission in a CINA proceeding of a
report, study, record, or other writing made by DHS, a juvenile court officer, a
peace officer, or a hospital, notwithstanding any objection to the hearsay
statements contained therein, if it is relevant and is not unduly prejudicial. This
hearsay exception is also applicable to termination proceedings.
See In re
E.J.R., 400 N.W.2d 531, 532-33 (Iowa 1987) (holding that because of the
interdependent nature of CINA and termination cases, evidence admissible in a
CINA proceeding should be accorded the same standard of admissibility in a
subsequent termination proceeding). The nature of this evidence is considered
for its probative value, rather than its admissibility. In re H.R.K., 433 N.W.2d 46,
48 (Iowa Ct. App. 1988).
A.S. argues the juvenile court abused its discretion in admitting exhibits 1
through 6 because they are inadmissible hearsay. At the hearing, her attorney
objected to all of the exhibits except for exhibit 2. Her attorney objected to only
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exhibit 1 based on hearsay. Although her attorney objected to exhibits 3 through
6 based on relevance, A.S. makes no argument in support thereof in her brief.
Therefore, any alleged error based on the admission of exhibits 2 through 6
either has not been preserved or has been waived.
See Iowa R. Evid.
5.103(a)(1) (“Error may not be predicated upon a ruling which admits . . .
evidence unless . . . a timely objection” has been made.); Iowa R. App. P.
6.14(1)(c) (“Failure in the brief to state, to argue or to cite authority in support of
an issue may be deemed waiver of that issue.”). Exhibit 1, a DHS report with
accompanying attachments, was clearly admissible under section 232.96(6). We
affirm on this issue.
IV. Sufficiency of the Evidence
We review a juvenile court’s decision to terminate a parent’s rights de
novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Although we are not bound
by the juvenile court’s factual findings, we give them weight. Iowa R. App. P.
6.14(6)(g). Our primary concern is the best interests of the child. In re R.C., 523
N.W.2d 757, 760 (Iowa Ct. App. 1994). The State must prove the statutory
grounds for termination by clear and convincing evidence.
In re K.F., 437
N.W.2d 559, 560 (Iowa 1989).
A.S. argues insufficient evidence exists to support termination of her
parental rights under sections 232.116(1)(e) and (h). When the juvenile court
terminates a parent’s rights on more than one statutory ground, we need find that
termination was proper under only one ground to affirm.
In re R.R.K., 544
N.W.2d 274, 276 (Iowa Ct. App. 1995). Under section 232.116(1)(h), the juvenile
court may terminate a parent’s rights if all of the following exist:
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(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 292.96.
(3) The child has been removed from the physical custody
of the child’s parents for at least six months of the last twelve
months, or for the last six consecutive months and any trial period
at home has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
A.S. argues insufficient evidence exists regarding the fourth element. The
juvenile court’s findings of fact include the following:
The Court finds that the evidence is not only clear and
convincing but overwhelming that the grounds set forth in the
Petition for Termination of [A.S.’s] parental rights have been
met. . . .
The Court further finds that the State has made not just
reasonable but extraordinary efforts to attempt to reunite or
preserve the family, including:
a. Family Foster Care;
b. Foster Care Review Board;
c. Court Appointed Special Advocate Program;
d. Family Centered Services;
e. Individual Parental Counseling and Education;
f. Substance Abuse Treatment and Services;
g. Iowa Workforce Development (Assistance in developing a
plan for completion of GED for [A.S.]);
h. Centers Against Abuse and Sexual Assault (CAASA);
[and]
i. Individual Therapy for [A.S.] at Plains Area Mental
Health[.] . . .
The Court further finds that, due to . . . [A.S.’s] failure to
cooperate or follow through with all of the services provided and her
lack of stability and failure to maintain a stable residence, [F.S.]
cannot be returned to [her] custody at the present time nor in the
foreseeable future.
The record includes abundant evidence supporting these findings of fact, and we
adopt them as our own. Therefore, we conclude that sufficient evidence exists to
terminate A.S.’s parental rights to F.S. under section 232.116(1)(h).
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In addition to meeting the statutory requirements, the termination must be
in the best interests of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994).
However, because A.S. does not argue that termination is not in F.S.’s best
interests, this issue has been waived. See Iowa R. App. P. 6.14(1)(c).
We accordingly affirm the juvenile court’s decision terminating A.S.’s
parental rights to F.S.
AFFIRMED.
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