No. 5-198 / 05-0185.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Lyon County, Robert J. Dull, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to three children. AFFIRMED.
Brian K. Van Engen of Oostra, Bierma Van Engen, P.L.C., Sioux Center, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Carl Peterson, County Attorney, for appellee-State.
Nicole M. Jensen-Harris, Sibley, guardian ad litem for minor children.
Michael Jacobsma, Orange City, for father.
Francis Honrath, Inwood, for Intervenor.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
MILLER, J.
Lisa and Jeremy, who have apparently never been married, are the parents of eight-year-old Julianne, six-year-old Alisa, and two-year-old Eric (“the children”). Lisa appeals from a January 2005 juvenile court order terminating her parental rights to the children.[1] We affirm.
The children were removed from their parents’ physical custody and placed in the custody of the Iowa Department of Human Services (DHS) on November 5, 2003, when a methamphetamine laboratory was found in the family residence during a police raid. The children have thereafter remained in the legal custody of the DHS. Julianne and Alisa have been in foster care placement. Eric was in foster care placement for a short time, and has thereafter been placed in the home of relatives.
In January 2004 the juvenile court adjudicated the children to be children in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2), (6)(n), and (6)(p) (2003). In March 2004 the court entered a dispositional order. As a result of the adjudication and dispositional orders Lisa and Jeremy were ordered to cooperate with family centered services, complete parenting classes, submit to a psychosocial evaluation and undergo recommended counseling, submit to a substance abuse evaluation and complete any recommended treatment, submit to random drug testing, and obtain appropriate housing and suitable employment. Julianne was to undergo a psychiatric evaluation, and she and Alisa were to participate in outpatient therapy.[2]
Services had begun in December 2003.
On November 22, 2004, the State filed a petition seeking termination of Lisa’s parental rights. Following a late December 2004 hearing the juvenile court filed a ruling in January 21, 2005, terminating Lisa’s parental rights to Julianne and Alisa pursuant to Iowa Code sections 232.116(1)(f) (2005) (child four or older, adjudicated CINA, removed from parents’ physical custody last twelve consecutive months, cannot be returned at present time), and terminating her parental rights to Eric pursuant to Iowa Code section 232.116(1)(h) (child three or younger, adjudicated CINA, removed from parents’ physical custody last six consecutive months, cannot be returned at present time). Lisa 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).
The State’s petition sought termination pursuant to the two sections upon which the juvenile court terminated Lisa’s parental rights. As to the fourth element of each provision the petition alleged the children “cannot be returned to the custody of the [children’s or child’s] mother . . . at the present time.” (Emphasis added). At the termination hearing Lisa moved to dismiss the petition, arguing the petition was insufficient because the statutes require a showing “that the children not be able to be returned to the parents, plural.” The juvenile court took the motion under advisement and proceeded with the hearing. In its later ruling terminating Lisa’s parental rights the juvenile court, without analysis, summarily overruled the motion. Lisa claims the juvenile court erred because the petition was facially deficient. We disagree.
The State’s petition expressly sought termination of Lisa’s parental rights pursuant to sections 232.116(1)(f) and (h). The fourth element of each does require proof that a child in interest “cannot be returned to the custody of the child’ parents” (emphasis added) at the present time. However, in interpreting and applying the predecessors to present Iowa Code sections 232.116(1)(e), (f), and (h) our supreme court held that the term “parents” as it appeared in those sections includes the singular “parent” as well as the plural “parents.” See In re N.M., 491 N.W.2d 153, 155-56, 155 n. 5 (Iowa 1992); see also In re C.W., 554 N.W.2d 279, 281-82 (Iowa Ct.App. 1996) (concerning former section 232.116(1)(g), now section 232.116(1)(h)). We conclude the fact the State’s petition alleged the children could not be returned to Lisa at the present time did not entitle Lisa to dismissal of the petition.
Lisa claims the juvenile court erred in finding the children could not be returned to parental custody at the present time, or to Lisa’s custody within the foreseeable future. She argues the evidence shows Jeremy was fulfilling all requirements and the evidence does not show “the children could not be returned to parental custody, and especially that of Jeremy.” For several reasons we again disagree.
First, Lisa had been in and out of jail and treatment facilities until September 2004 and, with the exception of completing a parenting class while confined, had completed few or none of the requirements imposed by the case plan and juvenile court orders. She had then had her probation revoked and been sentenced to a term of no more than five years with her earliest date for a parole hearing being June, or perhaps, May of 2005. Even then she would require some extended period of services before being able to resume custody of the children. The children clearly could not be returned to her at the time of the December 2004 termination hearing or within the then foreseeable future.
Second, Jeremy in fact had not progressed to the point he was able to have custody of the children. He had been incarcerated for part of 2004. He had missed one or more substance abuse treatment appointments. He had for most of the period from the children’s removal in early November 2003 until the termination hearing in December 2004 not found suitable housing. He had been dishonest to family members and service providers, and maintained inappropriate peer relationships. He had exercised only limited, supervised visitation with the children. At the time of the termination hearing Jeremy had only recently obtained suitable housing and employment and completed substance abuse treatment. He had by then begun AA meetings and his scheduled visitations had been appropriate. Although it appeared Jeremy was on the way to being able to assume custody of the children, he was not yet able to do so. Before doing so he needed to demonstrate a commitment and ability to maintain sobriety, housing, and employment, increase the frequency and duration of visitations and progress to unsupervised visitations, and acquire parenting skills.
Finally, as noted above, even if the children could have been placed in Jeremy’s custody at the time of the termination hearing such would not suffice to prevent termination of Lisa’s parental rights if termination of those rights was otherwise appropriate See N.M., 491 N.W.2d at 155-56; C.W., 554 N.W.2d at 281-82.
Lisa claims the juvenile court erred in terminating her parental rights to Eric, because Eric was in the custody of a relative, and erred in terminating her parental rights to Julianne, because Julianne had stated a preference to live with Lisa. Lisa cites Iowa Code sections 232.116(3)(a) and 232.116(2)(b)(2) respectively in support of these stated issues. For two reasons we find Lisa entitled to no relief on these claims.
First, Lisa has not preserved error on these claims. “Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal.” Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). It is well settled that “an Iowa Rule of Civil Procedure] 179(b) [now rule 1.904(2)] motion is essential to preservation of error when the trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication.”State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (citations omitted). This rule has been held to apply to termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994). The termination order did not address any section 232.116(3) or section 232.116(2) issue, whether of relative placement, stated preference of a child, closeness of a parent-child bond, or otherwise, and Lisa did not file a motion to enlarge or modify the juvenile court’s findings, conclusions, or judgment.
Second, the record shows that the children, particularly the girls, are in serious need of permanency, and that termination of Lisa’s parental rights followed by placement with Jeremy, or failing such placement adoption or other permanent placement, will best serve the best interests of the children.
Lisa finally claims the juvenile court erred in terminating her parental rights because the State failed to use reasonable efforts to seek reunification of the children with her. She asserts error was preserved by “[c]ontest[ing] termination and introduc[ing] evidence regarding reasonable efforts.” She argues the State “refused to increase visitation [when] she was at the Residential Treatment Facility,” did not provide visitation after her probation was revoked and “she was located at Mitchellville,” deemed a halfway house program (which allowed children) inappropriate, and ended contact between her and the children when the juvenile court waived the requirement for making reasonable efforts. The State asserts error was not preserved on this issue.
Although some testimony at the termination hearing may be seen as supporting a claim the State did not make reasonable efforts, the termination order did not address or pass on the reasonable efforts issue. Lisa did not file a motion pursuant to rule 1.904(2). We conclude that by not filing such a motion in the juvenile court Lisa has not preserved error on the issue she now attempts to present on appeal. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in CINA proceeding, that constitutional and statutory challenges were waived by failing to file a rule 1.904(2) motion); T.J.O., 527 N.W.2d at 420 (“As a general rule, an issue not presented in the juvenile court may not be raised for the first time on appeal.”).
Although we have resolved Lisa’s final claim on error preservation grounds, we also conclude her claim is without merit. The evidence shows that at times such as when she was in the residential treatment facility restrictions were placed on her visitations because she failed or refuse to comply with reasonable conditions regarding the content of her conversations and communications with the children. The DHS was willing to explore Lisa’s placement in a women’s halfway house where children were allowed, but before it could do so Lisa was unsuccessfully discharged from a residential treatment facility and placed in jail, after which her probation was revoked and she was sent to prison. Lisa did not appeal from a juvenile court order which modified prior dispositional orders by waiving reasonable efforts to reunify the children with her, and that order was made at about the time the district court revoked her probation and sent her to prison for a term of no more than five years.
In summary, we conclude error was not preserved on certain issues which Lisa attempts to present on appeal. Upon our de novo review we agree with the juvenile court on those issues on which error has been preserved.
AFFIRMED.