IN THE INTEREST OF J.S. and J.S., Minor Children, L.J.S., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-992 / 09-1547
Filed December 17, 2009
IN THE INTEREST OF J.S. and J.S.,
Minor Children,
L.J.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental
rights to two of her children. AFFIRMED.
William A. Lansing of William A. Lansing, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Ralph Potter, County Attorney, and Jean Becker, Assistant
County Attorney, for appellee.
Natalia Blaskovich of Reynolds & Kenline, L.L.P., Dubuque, for father.
Sarah Stork Meyer, Dubuque, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., Danilson, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
MILLER, S.J.
The appellant is the mother of nine-year-old and six-year-old sons (“the
children”). She appeals from an October 2009 juvenile court order terminating
her parental rights to these children. (The boys’ father could not be located and
served with notice of the termination proceedings, and his rights are thus not at
issue in this appeal.) We affirm.
The Iowa Department of Human Services (DHS) became involved with
this family in August 2008 when the mother struck and injured the children’s older
sister and failed to supervise the children.1 The children were removed from the
mother. In August 2008 the juvenile court ordered numerous services for the
mother and family.2 The children were adjudicated children in need of assistance
(CINA) in October 2008.
Following a November 2008 disposition hearing the court ordered the
mother to participate in and cooperate with a myriad of services designed to
address her numerous problems.
Petitions for termination of the mother’s
parental rights to the children were eventually filed in August 2009. Following a
hearing held on two days, in October 2009 the juvenile court filed detailed and
thorough findings of fact, conclusions of law, and an order terminating the
mother’s parental rights to the children. As cogently found by the court, in a
finding fully supported by the record: “Since the outset of the case, there has
1
The mother has been involved with the DHS intermittently since 1997, with nine
founded reports of neglect or abuse of one or more of her children.
2
The mother has a lengthy history of substance abuse; a lengthy history of mental
problems, some of which are related to her substance abuse; a history of a lack of stable
housing; and a history of lack of employment and failure or refusal to seek employment.
3
been little progress in any of the areas of concern identified by the [DHS].” 3 The
mother 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).
Although not stated as an issue, the mother claims that the time frame
allowed for filing her petition on appeal required her to file it prior to the receipt
and opportunity to review the transcript of the termination hearing, and that such
was “in violation of appellant’s due process right to appeal.”4 The substance of
the mother’s claim was dealt with and rejected in In re R.K., 649 N.W.2d 18, 2022 (Iowa Ct. App. 2002).5,6 Based on the holding in R.K., we reject this claim.
The mother also claims that she, and the children, “were denied
reasonable effort services by the DHS’s failure to effect mental health
commitment of the mother.”
3
The evidence shows that despite encouragement and assistance, including repeated
requests to participate in ordered services, having appointments made for her, and
having transportation provided to her to assist in accessing and acquiring services, the
mother largely failed and refused to participate in substance abuse evaluation, mental
health therapy, and securing employment.
4
We note that there is no federal or Iowa constitutional right to appeal. See State v.
Hinners, 471 N.W.2d 841, 843 (Iowa 1991).
5
The attorney representing the mother in this appeal also represented her at the
termination hearing.
6
As potentially applicable to the mother’s failure to cite this case, see Iowa Rule of
Professional Conduct 32:3.3(a)(2).
4
As a preliminary matter, we note that the mother’s claim appears to
incorrectly assume that the DHS has the authority “to effect [a] mental health
commitment.” See Iowa Code §§ 229.12, .13 (2009) (providing that the court
makes a commitment decision after a hearing).
Further, the mother now
somewhat strangely claims that the DHS failed by not taking adversary steps to
force her to submit to services that she repeatedly and thoroughly rejected. We,
however, pass these concerns and address the question of error preservation
raised by the State.
While the State has an obligation to provide reasonable reunification
services, the parent has an equal obligation to demand other, different, or
additional services prior to the termination hearing. In re S.R., 600 N.W.2d 63,
65 (Iowa Ct. App. 1999). Challenges to services should be made when the case
plan is entered.
In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997).
Although a parent suffering from mental illness suffers a disability and may need
special accommodations, this issue should be raised at the removal hearing or at
a review hearing and it is too late to challenge the service plan at the termination
hearing. In L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). When a parent
alleging inadequate services fails to demand services other than those provided,
the issue of whether services were adequate is not preserved for appellate
review. J.L.W., 570 N.W.2d at 781.
In closing remarks at the conclusion of the termination hearing, the
mother, through counsel, complained that “a mental health commitment” should
have been sought. The juvenile court found “this argument to be untimely,” and
5
declined to “address whether [the mother] would have even met the statutory
criteria for involuntary hospitalization under either the substance abuse or mental
health chapters.” The State asserts that the mother’s claim was not preserved,
not being raised prior to the termination hearing. The mother does not claim that
she raised the present issue at any time before the termination hearing, and our
review of the record discloses no assertion of such inadequate services or efforts
before that hearing. We conclude error is not preserved on this issue and do not
further address it.
AFFIRMED.
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