IN RE J.A.P., 03-2024 (Iowa App. 2-27-2004)

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Docket Number

No. 4-070 / 03-2024

Attorney(S)

John Swain, Marshalltown, for appellant. Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Jennifer Miller, County Attorney, and Susan Klaessy, Assistant County Attorney, for appellee-State. Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for maternal grandmother. Jo Ann Barten of Boliver Law Firm, Marshalltown, for minor child.

Judges

Robert Mahan

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Smart Summary

Factual and Procedural Background

Rebecca is the mother of two minor children: Taylor (born April 1, 2001) and Jessie (born October 1, 2002). Rebecca has a long history of criminal and drug involvement. Taylor was removed from the home in 2001 when Rebecca was arrested on drug-related charges and child endangerment and was placed with the maternal grandmother. Jessie was born with drugs in her system and has lived with the maternal grandmother since birth. Both children were adjudicated children in need of assistance (CINA) under Iowa Code section 232.2(6)(n).

In October 2002 Rebecca began living in a halfway house. Between February and June 2003 she incurred at least thirty-five rule violations at the halfway house (including disobeying lawful orders, unauthorized possession of money, false statements, tampering with locks, theft, failure to participate in treatment, among others). In August 2003 she was incarcerated at Mt. Pleasant Women's Unit due to probation violations.

On October 2, 2003, a termination hearing was held; Rebecca participated by phone because she was incarcerated. The juvenile court terminated Rebecca's parental rights to Taylor under Iowa Code section 232.116(1)(h) and to Jessie under section 232.116(1)(e). Rebecca appealed. The Court of Appeals of Iowa affirmed the juvenile court's decision on February 27, 2004.

Legal Issues Presented

Whether the juvenile court erred in terminating Rebecca's parental rights to Jessie under Iowa Code section 232.116(1)(e) by finding she had not maintained significant and meaningful contact and had not made reasonable efforts to resume care.
Whether the State made reasonable efforts to reunify Rebecca and Jessie prior to termination.
Whether termination of parental rights was in the children's best interests.
Whether extenuating circumstances existed that would counsel against terminating parental rights.
Whether the juvenile court erred in declining to apply the permissive exception under Iowa Code section 232.116(3).
Whether the juvenile court abused its discretion by admitting hearsay testimony from the CASA worker.
Whether Rebecca's due process rights were violated because she was not transported to the termination hearing.

Arguments of the Parties

Appellant's Arguments

Rebecca argued the juvenile court erred in finding she had not maintained significant and meaningful contact with Jessie in the prior six months and that she had not made reasonable efforts to resume care (Iowa Code § 232.116(1)(e)(3)).
She contended the State did not engage in reasonable efforts to reunite her with Jessie.
Rebecca asserted termination was not in the children's best interests.
She claimed extenuating circumstances existed (relying on In re A.L.) — specifically, problems with her probation officer affected visitation and opportunities to resume care.
Rebecca argued the juvenile court should have applied the exception under Iowa Code section 232.116(3).
She contended the CASA worker's testimony was inadmissible hearsay and unfairly prejudicial.
She asserted a due process violation because she was not transported to the termination hearing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)	The scope of review in termination cases is de novo.	The court stated it reviews termination cases de novo and applied that standard to its review of the record.
In re T.B., 604 N.W.2d 660, 661 (Iowa 2000)	Grounds for termination must be proved by clear and convincing evidence.	The court applied the clear-and-convincing evidentiary standard in evaluating the grounds for termination.
In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997)	At some point, the rights and needs of the child rise above the rights and needs of the parent.	Cited to support prioritizing the children's interests over the parent's failure to maintain contact or resume care.
In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994)	The State must provide reasonable services to attempt reunification before terminating parental rights.	The court reviewed the record and concluded the services offered in this case were reasonable under the facts presented.
In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct. App. 1997)	It is the parent's responsibility to demand services if they are not offered prior to the termination hearing.	The court relied on this principle to conclude that Rebecca bore responsibility to seek services if not offered and that the record showed reasonable services were provided.
In re M.S., 519 N.W.2d 398, 400 (Iowa 1994)	Even if statutory requirements are met, termination must be in the children's best interests.	The court applied this rule in assessing whether termination served the children's best interests and concluded it did.
In re C.K., 558 N.W.2d 170, 175 (Iowa 1997)	Children need permanency and should not be forced to endlessly await the maturity of the natural parent.	Cited to support the conclusion that the children required permanency and that termination was appropriate given Rebecca's continued illegal drug use and incarceration.
In re A.L., 492 N.W.2d 198 (Iowa Ct. App. 1992)	Recognizes that extenuating circumstances may permit a juvenile court to exercise discretion not to terminate despite grounds existing.	The court considered Rebecca's reliance on A.L. but distinguished the present facts, finding no extenuating circumstances to justify avoiding termination.
In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct. App. 1991)	Section 232.116(3) provides an exception under which a termination otherwise warranted may be avoided.	The court acknowledged the exception but concluded the juvenile court correctly declined to apply it in this case.
In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993)	The factors under section 232.116(3) are permissive, not mandatory.	Cited to support the court's conclusion that the juvenile court properly exercised discretion in not applying the section 232.116(3) exception.
In re E.H., 578 N.W.2d 243, 245-46 (Iowa 1998)	Evidentiary rulings and motions are reviewed for an abuse of discretion.	The court reviewed the admission of the CASA worker's testimony under the abuse-of-discretion standard and found no abuse.
In re A.J., 553 N.W.2d 909, 916 (Iowa Ct. App. 1996)	Iowa Code section 232.96(6) allows the use of hearsay evidence in juvenile proceedings if relevant and not unduly prejudicial.	The court relied on this principle and the statute to conclude the CASA worker's testimony was properly considered.
In re T.M.C., 429 N.W.2d 165, 167 (Iowa Ct. App. 1998)	An incarcerated parent does not have an absolute right to be physically present at judicial proceedings involving CINA adjudications.	The court cited this authority in rejecting Rebecca's claim that her due process rights were violated because she was not transported to the hearing.

Court's Reasoning and Analysis

The court applied de novo review and the clear-and-convincing evidentiary standard. On the statutory ground under Iowa Code section 232.116(1)(e), the court found clear and convincing evidence that Rebecca had not maintained significant and meaningful contact with Jessie during the relevant six-month period and had failed to make reasonable efforts to resume care despite opportunities. The court based this finding on Rebecca's failure to take advantage of supervised visitation while in the halfway house (including missing visits due to room restriction), failure to use furlough time to visit the children, and her incarceration.

Regarding reunification, the court reviewed whether the State provided reasonable reunification services. Citing precedent that the State must provide reasonable services but that parents must request services if not offered, the court concluded the services provided were reasonable under the facts of the case.

On best interests, the court held that termination must still be in the children's best interests even if statutory grounds are met. The court found Rebecca unable to adequately care for the children while she continued illegal drug use and faced incarceration, and emphasized the children's need for permanency; therefore termination was in their best interests.

The court considered Rebecca's claim of extenuating circumstances (relying on In re A.L.) and rejected it, concluding Rebecca's numerous halfway-house and probation violations resulted from her poor choices rather than external factors that would justify refusing to terminate parental rights.

With respect to Iowa Code section 232.116(3), the court treated the section's factors as permissive and concluded the juvenile court properly declined to apply the exception in this case.

On evidentiary issues, the court reviewed admission of the CASA worker's testimony for abuse of discretion and noted Iowa Code section 232.96(6) permits hearsay in juvenile proceedings if relevant and not unduly prejudicial; the court found the CASA testimony properly considered.

Finally, the court addressed Rebecca's due process claim that she should have been transported to the hearing and found no merit, citing authority that an incarcerated parent does not have an absolute right to physical presence at CINA-related proceedings.

Holding and Implications

AFFIRMED.

Holding: The Court of Appeals affirmed the juvenile court's termination of Rebecca's parental rights to both minor children (Taylor and Jessie) — Taylor terminated under Iowa Code section 232.116(1)(h) and Jessie under section 232.116(1)(e).

Implications: The direct effect is that Rebecca's parental rights to the two children were terminated and that the juvenile court's orders were upheld. The opinion does not announce or claim to establish a new legal precedent beyond applying existing statutory provisions and case law to the facts; it applies established standards for review, evidentiary admissibility in juvenile proceedings, the best-interests inquiry, the permissive nature of the section 232.116(3) exception, and the limited right of an incarcerated parent to be physically present at CINA proceedings.

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IN THE INTEREST OF J.A.P. and T.J., Minor Children, R.M.J.P., Mother, Appellant.

MAHAN, J.

Rebecca appeals the termination of her parental rights to her minor children. We affirm.

Background Facts and Proceedings.

Rebecca is the mother of Taylor, born April 1, 2001; and Jessie, born October 1, 2002. Rebecca has a long history of criminal and drug involvement. Taylor was removed from the home in 2001 when Rebecca was arrested on drug-related charges and child endangerment. Taylor was placed with her maternal grandmother. Jessie was born with drugs in her system and has lived with her maternal grandmother and Taylor since birth. Both children were adjudicated children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n).

There were allegations that Rebecca was using the home for making methamphetamine.

In October 2002 Rebecca began living in a halfway house. Between February and June 2003, Rebecca had at least thirty-five rule violations at the halfway house. These violations included: disobeying a lawful order, unauthorized possession of money, habitual minor offense, false statements, out of place assignment, sexual misconduct, abuse of medication, failure to secure/maintain employment, safety/sanitary violation, unauthorized possession/exchange, verbal abuse, threats/intimidation, tampering with locks, theft, and failure to participate in treatment. In August 2003 Rebecca was incarcerated at Mt. Pleasant Women's Unit due to her probation violations.

On October 2, 2003, a termination hearing was held, and Rebecca participated by phone because she was incarcerated. The court terminated Rebecca's parental rights to Taylor under Iowa Code sections 232.116(1)(h), and to Jessie under section 232.116(e). Rebecca appeals.

Scope of Review.

The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).

Section 232.116(1)(e). Rebecca claims the juvenile court erred in finding she had not maintained significant and meaningful contact with Jessie during the previous six months and had made no reasonable efforts to resume care despite being given the opportunity to do so. See Iowa Code § 232.116(1)(e)(3). We disagree. Since birth Jessie has lived with her maternal grandmother. While in the halfway house, Rebecca received supervised visitation as part of her family-centered services. She failed to take advantage of these opportunities to visit her children. Several times she missed scheduled visits because she was on room restriction. Further, she failed to use furlough time to visit her children. Instead, she spent the time visiting friends, shopping, and attending recreational events. At the time of the termination hearing, Rebecca was incarcerated. "At some point, the rights and needs of the child rise above the rights and needs of the parent." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). Therefore, we find clear and convincing evidence in the record that Rebecca has not maintained significant and meaningful contact with Jessie. Further, we find Rebecca was given sufficient opportunity to make reasonable efforts to resume care of Jessie and failed to do so.

Rebecca argues that the grounds for termination of her parental rights to Jessie were not shown. She does not make a similar argument concerning the grounds for termination of her parental rights to Taylor under Iowa Code section 232.116(1)(h).

Reunification.

Rebecca claims the State did not engage in reasonable efforts to reunite her with Jessie. Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). The State has the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct. App. 1997). After a careful review of the record, we find the services offered were reasonable under the facts of this case.

Best Interests.

Rebecca contends the termination of her parental rights was not in the children's best interests. Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interests of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Rebecca cannot adequately take care of the children until she can take care of herself. She has adopted a lifestyle which includes the illegal use of drugs. This lifestyle led to her incarceration. The children need permanency. They should not be forced to endlessly await the maturity of the natural parent. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). We find termination is in the children's best interests.

Extenuating Circumstances.

Rebecca argues extenuating circumstances exist and relies on In re A.L., 492 N.W.2d 198 (Iowa Ct. App. 1992). In this case, the juvenile court found that the grounds for termination were present but chose not to do so because "the system failed its function by not providing suitable opportunity for the parents to resume care of the children. . . ." Id. at 201. On appeal, our court agreed with the juvenile court noting that extenuating circumstances were enough for the court to use its discretion in not terminating parental rights. Id. In the present case, Rebecca argues the problems she had with her probation officer were extenuating circumstances that affected her visitation and relationship with her children. Therefore, she did not have suitable opportunity to resume care of her children and termination was not appropriate. We disagree. Rebecca had at least thirty-five rule violations at the halfway house. She had numerous probation violations. Rebecca's problems with her probation officer were the result of her poor choices. In addition, she missed several scheduled visits with her children and failed to use furlough time to visit with them. Therefore, we find no extenuating circumstances exist that would justify not terminating Rebecca's parental rights.

Section 232.116(3).

Rebecca also contends the juvenile court erred in failing to consider the exception to termination as set forth in this section. A termination, otherwise warranted, may be avoided under this exception. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct. App. 1991). The factors under section 232.116(3) have been interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993). We conclude the juvenile court correctly declined to apply the exception in this case.

Admission of Testimony.

Rebecca asserts the court erred when it admitted the CASA worker's testimony because it contained hearsay and was unfairly prejudicial. Evidentiary rulings and motions are reviewed for an abuse of discretion. In re E.H., 578 N.W.2d 243, 245-46 (Iowa 1998). Iowa Code section 232.96(6) allows the use of hearsay evidence in juvenile proceedings, provided the evidence is relevant and not unduly prejudicial. In re A.J., 553 N.W.2d 909, 916 (Iowa Ct. App. 1996). We determine the juvenile court properly considered the record in this case, including the testimony of the CASA worker.

Motion for Transport Order.

Rebecca argues her due process rights were violated because she was not transported to the termination hearing. We find no merit in Rebecca's final argument because an incarcerated parent does not have the absolute right to be physically present at judicial proceedings involving CINA adjudications. See Iowa Code § 232.91; In re T.M.C., 429 N.W.2d 165, 167 (Iowa Ct. App. 1998). Accordingly, we affirm the decision of the juvenile court on this issue.

AFFIRMED.