IN THE INTEREST OF C.S., Minor Child, S.L.S., Mother, Appellant, M.R.S., Sr., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-731 / 09-0988
Filed October 7, 2009
IN THE INTEREST OF C.S.,
Minor Child,
S.L.S., Mother,
Appellant,
M.R.S., Sr., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Judge.
A father and mother separately appeal from the order terminating their
parental rights. AFFIRMED AS TO BOTH APPEALS.
Daniel McClean of McClean Law Offices, Dyersville, for appellant father.
William A. Lansing of William A. Lansing, P.C., Dubuque, for appellant
mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, Ralph Potter, County Attorney, and Jean Becker, Assistant
County Attorney, for appellee State.
Mary Kelley, Assistant Public Defender, Dubuque, for minor child.
Considered by Vogel, P.J., and Eisenhauer and Potterfield, JJ.
2
VOGEL, P.J.
A father and mother separately appeal the district court’s order terminating
their parental rights to their son, C.S., born in November 2007. We affirm on
both appeals.1
I. Background Facts and Proceedings.
C.S. was initially removed from his parent’s care shortly after his birth,
when cocaine was discovered in the baby’s stool. C.S. was placed in family
foster care. In February 2008 all parties stipulated that C.S. was a child in need
of assistance (CINA), as defined in Iowa Code sections 232.2(6)(n) (2007)
(parent’s drug or alcohol abuse results in child not receiving adequate care); and
(o) (illegal drug present in child). Various reunification services were ordered and
offered to the parents.
After both parents demonstrated some progress towards sobriety and the
ability to safely parent C.S., he was returned to their care. However, progress
was short-lived and C.S. was again removed.
Two more times, the parents
demonstrated some progress with maintaining sobriety, and the court in turn
ordered C.S. returned to their care. The final removal occurred in December
2008, after the parents again relapsed into cocaine use. Eventually the State
petitioned for termination of both parents’ rights to C.S. The termination hearing
was held over the course of several days: March 19, 2009, April 17, 2009, and
1
The mother “formally objects to the requirement that she file this Petition on Appeal
prior to the receipt of and opportunity to review the transcript of trial proceedings.” She
cites no authority to support her objection. We reject her claim. See In re R.K., 649
N.W.2d 18, 21-22 (Iowa Ct. App. 2002) (holding no due process violation in the
expedited appeal procedure as counsel had the opportunity to identify the issues for
review and the reviewing court had the entire record and trial transcript to conduct its de
novo review).
3
May 14, 2009. The district court found clear and convincing evidence supporting
termination of both parents’ rights pursuant to Iowa Code sections 232.116(1)(h)
(2009) (child is three or younger, child CINA, removed from home for six of last
twelve months, and child cannot be returned home) by order dated June 11,
2009. The parents separately appeal.
II. Scope and Standard of Review.
We review termination of parental rights de novo. In re Z.H., 740 N.W.2d
648, 650 (Iowa Ct. App. 2007). Grounds for termination must be proved by clear
and convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Our
primary concern is the best interests of the children. Id.
III. Notice of Potential Termination.
The father and mother both raise issues relating to a mistaken date
included in two district court interim orders.2 The father claims because of this
error, the court lacked jurisdiction; the mother claims she was denied adequate
notice of the potential for termination.
While the district court acknowledged the error, we find these arguments
by the parents are simply disingenuous. As the district court noted, multiple prior
orders contained language with the correct time-frame, putting them on notice
very early on of the need to comply with services, or risk losing their parental
rights. By the time the termination petition came on for hearing, C.S. had been
2
The December 12, 2008 and the January 12, 2009 orders both contained this
language: “The child’s parents are hereby warned that the consequences of a
permanent removal may include petition for termination of parental rights with respect to
the child in 12 months from the date of removal; that their parental rights could be
terminated and further that all reasonable effort services are provided herein and
continue to be provided for reunification.”
4
out of his parents’ care for 292 days, with little sustainable progress by either
parent.
Furthermore, Iowa Code section 232.95, which provides the framework for
seeking temporary removal of a child from the parental home, does not require a
time-frame be included in the language. “The [removal] order shall also include a
statement informing the child’s parent that the consequences of a permanent
removal may include termination of the parent’s right with respect to the child.”
Iowa Code § 232.95(2)(a)(3). We affirm the district court’s denial of the parents’
request to dismiss the termination petition or reset the hearing, finding their
arguments lack both merit and prejudice to either parent.
IV. Father’s Appeal.
The father asserts he was denied services while he was incarcerated from
December 19, 2008, until February 18, 2009. This issue was not ruled on by the
district court. An issue that is not raised at the trial court may not be raised for
the first time on appeal. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) (“Even
issues implicating constitutional rights must be presented to and ruled upon by
the district court in order to preserve error for appeal.”). Nonetheless, we note
the district court did find both parents had an “extensive history” with the Iowa
Department of Human Services (DHS) dating back to 2003.3 The father has had
a host of services provided to him, yet still has been unable to maintain sobriety
or improve the many areas of his life that present grave concerns for the safety
and well-being of C.S. J.E., 723 N.W.2d at 801 (Cady, J., concurring specially)
3
The father and mother both had their parental rights terminated as to two other
children; also the mother had her rights terminated to another child; the father voluntarily
released his parental rights to yet another child.
5
(stating children’s safety and their need for a permanent home are the defining
elements in a child’s best interests). The brief period of suspension of services
the father complains of is overshadowed by the years of services he has been
provided, without any lasting success. We affirm the termination of the father’s
parental rights.
V. Mother’s Appeal.
The mother also claims she was denied reasonable effort services by
DHS, specifically faulting its failure to refer her to the appropriate residential
chemical dependency treatment.
The district court detailed the several
substance abuse treatment plans DHS offered to the mother starting in 2003 and
continuing through the termination hearing, some the mother had been
successful with and others the mother walked away from.
As recent as
December 2008, she was unsuccessfully discharged from yet another treatment
center. While we acknowledge the intense grip illegal substances (in this case
cocaine) can have on a person, and the corresponding need for an appropriate
length of time to break the cycle of addiction, we also are mindful of the best
interests of the children who are the unintended victims of their parents’
dangerous lifestyle.
The paramount consideration in parental termination
proceedings is always the best interests of the child. In re C.K., 558 N.W.2d 170,
172 (Iowa 1997).
How long a child is forced to be out of the home waiting for a responsible
parent to emerge is determined by our Iowa legislature. See generally Iowa
Code § 232.116. With those time frames in mind, we have recognized that at
some point, the rights and needs of the children rise above the rights and needs
6
of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). The
mother has had ample opportunity for many years to maintain sobriety but has
failed to do so. “[I]n considering the impact of [a parent’s] drug addiction, we
must consider the treatment history of the parent to gauge the likelihood that the
parent will be in a position to parent the child in the foreseeable future.” In re
N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998). The mother’s claim that the
district court abused its discretion in denying her motion for extension of time
must be rejected for the same reason: her history shows an inability to maintain
sobriety.
The district court correctly found clear and convincing evidence to
terminate the mother’s parental rights.
AFFIRMED AS TO BOTH APPEALS.
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