IN THE INTEREST OF T.K. and B.B., Minor Children, N.W.B., Father, Appellant, T.J.K., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-638 / 08-0984
Filed August 27, 2008
IN THE INTEREST OF T.K. and B.B.,
Minor Children,
N.W.B., Father,
Appellant,
T.J.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Michael
Dieterich, District Associate Judge.
A mother appeals from the termination of her parental rights. AFFIRMED.
Ronald Ellerhoff, Burlington, for appellant father.
Alan Waples of Wittkamp & Waples, Burlington, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, and Patrick C. Jackson, County Attorney, for appellee State.
Brent Ruther, Burlington, for minor children.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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HUITINK, P.J.
Tammy appeals from the order terminating her parental rights to her two
children, T.K., age seven, and B.B., age four. We affirm.
I. Background Facts and Prior Proceedings
The Iowa Department of Human Services (DHS) became involved with
T.K. and B.B. when alerted that Tammy was under the influence of marijuana
while supervising her children. From 2001 to 2006 Tammy was involved in nine
founded child abuse reports, including denial of critical care, failure to provide
proper supervision, and presence of illegal drugs in a child’s body. Of these nine
reports, seven involved drug related incidents. In 2001 T.K. was born testing
positive for marijuana, and in 2003 he tested positive for methamphetamines.
T.K. and B.B. were removed on November 2, 2006, after it was discovered that a
known sex offender was spending time with the children in their home. Both
were adjudicated a child in need of assistance (CINA) on November 13, 2006,
pursuant to Iowa Code section 232.2(6)(c)(2) (2005).
Both children were placed in foster care, and Tammy was granted
supervised visits.
On March 8, 2007, she was allowed visits on a semi-
supervised basis, but on March 30, 2007, she tested positive for cocaine, and all
visits were thus returned to supervised. From July 3, 2007, to the present, the
children have remained in the same foster home.
Since the children were removed and services began, Tammy has tested
positive for drugs three times: March, April, and June 2007, two of these tests
being positive for cocaine. In May 2007 she completed in-patient substance
abuse treatment, but upon her release, as previously mentioned, promptly tested
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positive for cocaine in June 2007. She also testified that she continues to drink
alcohol. Over the past few years, Tammy held several jobs and lived in several
locations, moving and changing jobs five times at a minimum.
As of the
termination hearing (May 2008), she had obtained employment and maintained a
home since December 2007.
On March 3, 2008, the State filed the present petition to terminate both
parents’ parental rights. At the termination hearing, the evidence indicated the
parents did not adequately participate in or perform the services assigned to
them by previous court orders.
Both children had been removed from their
parents for at least twelve of the last eighteen months, pursuant to Iowa Code
section 232.96.
The trial court found it was not in the best interests of the
children to remain with their parents. On May 29, 2008, the trial court entered an
order terminating the parental rights of both parents pursuant to section
232.116(1)(f).
On appeal, Tammy1 claims (1) there was insufficient evidence to terminate
her parental rights, (2) reasonable efforts were not made to reunite her with her
children, (3) she should have been given an additional six months to achieve
reunification, and (4) the district associate judge prejudged her case prior to
termination.
II. Standard of Review
We review termination of parental rights de novo. In re J.E., 723 N.W.2d
793, 798 (Iowa 2006). Grounds for termination must be proved by clear and
convincing evidence, and our primary concern is the child’s best interests. Id.
1
The appeal of N.W.B., father, was dismissed as untimely.
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III. Merits
Statutory Grounds. Tammy claims there was insufficient evidence to
terminate her rights. We disagree. Under section 232.116(1)(f), a parent’s rights
may be terminated if the court finds by clear and convincing evidence (1) the
child is four years or older, (2) the child has been adjudicated in need of
assistance, (3) the child has been removed from the home for at least twelve of
the last eighteen months, and (4) the child cannot be returned home at the
present time. The first three elements are not in dispute; the only question is
whether T.K. and B.B. could have been returned to Tammy’s care at the time of
the termination hearing.
Like the trial court, we find clear and convincing evidence indicates the
children cannot be returned to Tammy’s care. As noted earlier, the risks of harm
resulting in their removal were related to Tammy’s chronic substance abuse.
Although Tammy has received substance abuse treatment, her prognosis is
poor. We have repeatedly held that a parent’s unresolved substance abuse
presents a clear danger to the children in their care. See, e.g., In re J.K., 495
N.W.2d 108, 113 (Iowa 1993). We also note testimony and reports indicating
Tammy’s relationship with a known sex offender and recent shoplifting arrest as
further evidence of Tammy’s inability to provide a safe and stable home for the
children. We accordingly affirm on this issue.
Reasonable Efforts. The record indicates Tammy has received a variety
of services intended to facilitate reunification. DHS provided her with family skill
development, parent skill supervision, substance abuse evaluation, substance
abuse treatment, family team meetings, mental health evaluation, and medication
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management. While she made an attempt at substance abuse treatment, she
quickly relapsed, and has not taken advantage of any of the other numerous
services provided. There is no merit in Tammy’s claim to the contrary, and we
affirm on this issue. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (parent
required to actively and positively respond to services).
Additional Time. Tammy also argues the court erred by not granting her
an additional six months to achieve reunification. Our legislature has established
a twelve-month period for parents to demonstrate they can parent. Iowa Code §
232.116(1)(f); see In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). This time period
has elapsed, and Tammy still does not have the ability to adequately provide for
T.K.’s and B.B.’s needs. We affirm on this issue.
Preservation of Error. Upon de novo review of the record, we find error
was not preserved regarding Tammy’s claim that the district associate judge
prejudged the case prior to the termination hearing. During the permanency
hearing, the judge ordered that the Des Moines County Attorney file a petition for
termination. Because the same judge presided over both the permanency and
termination hearings, Tammy believed he prejudged the termination decision
prior to the termination hearing. However, “[u]nder our rules of civil procedure,
an issue which is not raised at the trial court may not be raised for the first time
on appeal.” In re N.W.E., 564 N.W.2d 451, 455 (Iowa 1997). Therefore, when
Tammy did not present this issue to the juvenile court and request that the judge
recuse himself, error was not preserved, and the claim is accordingly waived.
Best Interests.
Even where there is a statutory basis to terminate
parental rights, the termination must still be in the best interests of the children.
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In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Rather than accept services from
DHS, Tammy habitually denied such services, further endangering her children
with her continued substance abuse, poor choices of friends, and an inability to
maintain stability. T.K. and B.B. have waited twenty-one months for Tammy to
make their care a constant concern. They should not be forced to wait any
longer. See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987) (“The crucial days of
childhood cannot be suspended while parents experiment with ways to face up to
their own problems.”); see also 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 when determining a child’s best interests.”). The children have
shown great improvement while in foster care and have bonded with their foster
family as well as each other. In light of the foregoing, we find termination is in the
best interests of T.K. and B.B.
termination order in its entirety.
AFFIRMED.
Accordingly, we affirm the juvenile court’s
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