IN THE INTEREST OF J.F., III, Minor Child, B.L.B.-F., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-311 / 08-2023
Filed May 29, 2009
IN THE INTEREST OF J.F., III,
Minor Child,
B.L.B.-F., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karla J. Fultz,
Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental
rights to her child. AFFIRMED.
Stephie N. Tran, Des Moines, for appellant mother.
Jared Harmon, Des Moines, for father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Annette Taylor,
Assistant County Attorney, for appellee State.
Nicole Garbis-Nolan of Youth Law Center, Des Moines, for minor child.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
DOYLE, J.
Barbara is the mother of one-year-old James.
She appeals from a
December 2008 ruling terminating her parental rights to him.1 We affirm.
James was removed from his parents’ care in July 2008 after Barbara was
arrested for assault causing serious injury. Police responded to a report of a fight
at a motel room where the family was residing. When the police arrived, they
encountered an injured woman covered in blood walking away from the family’s
motel room. The woman told the police that Barbara had assaulted her. Barbara
admitted she attacked the woman upon finding her in bed with James’s father. A
broken glass crack pipe and other drug paraphernalia were discovered in their
motel room.
James, who was present when the fight occurred, later tested positive for
exposure to cocaine. He was placed in the temporary legal custody of the Iowa
Department of Human Services (DHS), where he has since remained. He was
adjudicated a child in need of assistance (CINA) in July 2008 pursuant to Iowa
Code sections 232.2(6)(b), (c)(2), and (n) (2007).
Barbara has a lengthy history of substance abuse, unstable housing,
unemployment, and criminal activity. She began smoking marijuana when she
was sixteen years old, progressing to crack cocaine by the time she was
seventeen years old. Her first child, DaShawn, was removed from her care in
2005 due to her substance abuse.
She was homeless and smoking crack
cocaine five to seven times per week at that time. She was also in and out of jail
1
The order also terminated the parental rights of James’s father. He has not appealed
the termination of his parental rights.
3
for probation violations stemming from a 2005 conviction for prostitution. Her
parental rights to DaShawn were eventually terminated in 2006.
Barbara’s circumstances did not improve in the intervening years. At the
time of James’s removal, she was unemployed and involved in a violent
relationship with James’s father, who had been convicted of assaulting Barbara
on several occasions. Barbara entered an inpatient treatment program in early
August 2008 but reported using crack cocaine the day before she was admitted
into the facility. She was unsuccessfully discharged from the program at the end
of August after she provided prescription pain medication to another resident at
the facility. Barbara’s probation was revoked, and she was incarcerated in early
September. The juvenile court waived reasonable efforts to preserve and unify
the family soon thereafter, finding “the issues which caused the termination of
[Barbara’s] rights to DaShawn have continued.”
The State filed a petition to terminate parental rights in October 2008.
Following a hearing, the juvenile court entered an order terminating Barbara’s
parental rights pursuant to Iowa Code sections 232.116(1)(b), (d), (g), (i), and (l).
Barbara appeals.
We review termination proceedings de novo. Although we are not
bound by them, we give weight to the trial court’s findings of fact,
especially when considering credibility of witnesses. The primary
interest in termination proceedings is the best interests of the child.
To support the termination of parental rights, the State must
establish the grounds for termination under Iowa Code section
232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
4
Barbara challenges only one of the grounds under which her parental
rights were terminated: section 232.116(1)(d).2 We could affirm the termination
based on the unchallenged grounds as urged by the State. See 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.”); In re S.R., 600 N.W.2d 63, 64
(Iowa Ct. App. 1999) (“When the juvenile court terminates parental rights on
more than one statutory ground, we need only find grounds to terminate under
one of the sections cited by the juvenile court to affirm.”). However, we elect to
proceed to the merits of the challenged ground.
Section 232.116(1)(d) requires the State to prove the child was previously
adjudicated a child in need of assistance and “[s]ubsequent to the child in need
of assistance adjudication, the parents were offered or received services to
correct the circumstance which led to the adjudication, and the circumstance
continues to exist despite the offer or receipt of services.”
Barbara has been offered numerous services since 2005, which she
unfortunately failed to take full advantage of prior to her incarceration in
September 2008.
She admitted at the termination hearing that she smoked
crack cocaine the day before she entered an inpatient treatment program. She
was discharged from that program a short time later for providing prescription
pain medications to another resident.
There were also reports that Barbara
herself was improperly using those prescription pain medications, resulting in her
probation being revoked.
2
The other grounds challenged by Barbara—sections 232.116(1)(e), (f), and (h)—were
not grounds used by the juvenile court in terminating her parental rights.
5
In support of her argument that the circumstances leading to James’s
adjudication no longer exist, Barbara observes “that she is currently in the jailbase[d] treatment and will complete the program on January 26, 2009,” at which
time she will be released to a women’s facility where James could reside with
her. However, children “should not be forced to endlessly await the maturity of a
natural parent.” In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). “Children simply
cannot wait for responsible parenting. Parenting cannot be turned off and on like
a spigot. It must be constant, responsible, and reliable.” Id. While we recognize
and commend the progress Barbara made during her incarceration in addressing
her long-standing issues with substance abuse, such efforts are simply too little,
too late. See C.B., 611 N.W.2d at 495 (“A parent cannot wait until the eve of
termination, after the statutory time periods for reunification have passed, to
begin to express an interest in parenting.”).
Although Barbara may have, as she asserts, “complied with services when
she could and visited with her child as much as she was able to” until she was
incarcerated, “[a]n incarcerated parent must take full responsibility for the
conduct which has resulted in h[er] confinement.” In re J.L.W., 523 N.W.2d 622,
624 (Iowa Ct. App. 1994). Any services DHS could have provided to Barbara
while she was in jail were limited due to her own actions that produced the
situation. Moreover, Barbara’s poor past performance and response to services
in the juvenile court proceedings involving her older son are indicative of the
quality of future care she is capable of providing to James. See In re Dameron,
306 N.W.2d 743, 745 (Iowa 1981).
6
A parent does not have unlimited time in which to correct her deficiencies.
In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). At some point, the
rights and needs of the child rise above the rights and needs of the parent.
J.L.W., 570 N.W.2d at 781. As the juvenile court found,
James has been waiting for his parents to address their
substance abuse issues, and they continue to fail to make him their
priority. He is placed in a pre-adoptive home where his needs are
met and he is safe. He should not be required to wait any longer
for his parents. He is in need of a safe, stable, drug and violence
free home now.
Upon our de novo review, we fully agree with the juvenile court that
Barbara was not capable at the time of the termination hearing of providing
James with the type of home he needs and deserves despite the extensive
services that have been offered to her since 2005. See In re J.E., 723 N.W.2d
793, 801 (Iowa 2006) (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.”). In light of the foregoing, we conclude, as the juvenile
court did, that termination of Barbara’s parental rights is in the child’s best
interests despite Barbara’s arguments to the contrary.3 We therefore affirm the
termination of Barbara’s parental rights to James.
AFFIRMED.
3
Citing Iowa Code sections 232.116(3)(c) and (e), Barbara claims the juvenile court
erred in terminating her parental rights to James due to the closeness of the parent-child
relationship and her incarceration. It does not appear that any section 232.116(3) issues
were either raised by Barbara in the termination proceedings or addressed by the
juvenile court in its order terminating her parental rights. See In re T.J.O., 527 N.W.2d
417, 420 (Iowa Ct. App. 1994) (“As a general rule, an issue not presented in the juvenile
court may not be raised for the first time on appeal.”) Barbara thus has not preserved
error on this claim, and we do not address it any further.
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