Opinion
No. 5-885 / 05-1616
Filed December 7, 2005
Appeal from the Iowa District Court for Polk County, Joe E. Smith, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Scott Sobel, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee.
Kimberly Ayotte, Des Moines, guardian ad litem for minor child.
Cory Gourley, West Des Moines, for father.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Amanda appeals from a September 2005 juvenile court order terminating her parental rights to Jesse, born in October 2004. The order also terminated the parental rights of Jesse's father, but he is not involved in this appeal. We affirm.
Jesse was removed from the physical custody of Amanda and Jesse's father in January 2005 and placed in the legal custody of the Iowa Department of Human Services (DHS) for placement in a crisis nursery. Two days later he was placed in the physical custody of Amanda's great aunt and uncle. He was placed in the legal custody of the great aunt and uncle in late January 2005. He remained in their legal and physical custody until the time of the termination hearing in September 2005. Jesse was adjudicated a child in need of assistance pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2005) in March 2005.
Jesse's removal and adjudication as a CINA stemmed from Amanda's use of methamphetamine and marijuana. She had about a three-year history of use and abuse of those controlled substances. Amanda also had a history of several attempts at rehabilitation, both as a juvenile and as an adult, and had only successfully completed one of those several treatment programs. She continued to abuse methamphetamine through the course of the underlying CINA proceeding.
In July 2005 the State filed a petition seeking termination of Amanda's parental rights to Jesse. Following a September 2005 hearing the juvenile court entered an order terminating her parental rights on the grounds set forth in Iowa Code sections 232.116(1)(d), (e), (h), and (l). Amanda 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).
Amanda first claims the juvenile court erred in failing to make a specific finding as to Jesse's age, termination on the ground set forth in section 232.116(1)(h) being appropriate only as to a child three years of age or younger. The evidence clearly showed Jesse's exact date of birth in October 2004. In its findings of fact the juvenile court expressly found and stated that date of birth, thus clearly making an implicit finding Jesse was three years of age or younger at the date of the termination hearing. No more is required and this claim is without any arguable merit. We do note that Amanda does not challenge the existence of statutory grounds for termination under any one or more of the other three provisions relied on by the juvenile court.
Amanda next claims the juvenile court abused its discretion by failing to find Jesse was in the custody of maternal relatives. As supporting legal authority she cites Iowa Code section 232.116(3)(a), which provides that the court need not terminate parental rights if it finds a relative has legal custody of the child. For two reasons we find Amanda entitled to no relief on this claim of error.
First, although Amanda raised such an issue in a pre-trial motion to dismiss, as she acknowledges in her petition on appeal the juvenile court did not address the issue at the termination hearing or in its termination order. Further, she did not file a post-trial motion requesting a ruling on the issue. She has thus not preserved error on the issue.
Second, even assuming Amanda had preserved error, section 232.116(3)(a) has little or no application under the facts and circumstances involved in this case. Amanda's great aunt and uncle had indicated they did not intend to adopt Jesse, a pre-adoptive home had been found, and transition to that home was underway. Under these facts we find no abuse of discretion in the juvenile court not applying section 232.116(3)(a), a decision with which we fully agree. See In re A.J., 553 N.W.2d 909, 916 (Iowa Ct.App. 1996) (noting prior holdings that (1) the factors in section 232.116(3) have been interpreted as permissive, not mandatory, and (2) it is in the court's discretion, based upon the unique circumstances of the case and the best interests of the child, whether to apply such factors).
Amanda's next claim of error relates to her attorney's request, during the termination hearing, for a continuance of the hearing. Amanda's attorney had, on the Friday before the Monday trial, discussed the impending trial with her. Amanda was called as a witness by the State. After several minutes of testimony (four pages of trial transcript), including a negative response when asked if she was under the influence of any illegal substances, her attorney stated Amanda showed some signs she might "be under the influence, and her testimony . . . questionable." The court inquired if she was under the influence of alcohol or any drug. Amanda responded, "No." The court inquired, "Are you sure?" Amanda stated, "Yes."
The court next recessed the proceeding to allow Amanda to confer with her attorney. Her attorney then stated that Amanda's last use of methamphetamine had been the previous Saturday. After further discussion he requested a continuance. The State and Jesse's attorney and guardian ad litem resisted. The court noted that Amanda's answers had been responsive, and opined that her substance usage was not impairing her from understanding the questions and responding appropriately. The court then stated that if Amanda's attorney remained concerned about her ability to participate by reason of her drug usage the court would be willing to find her in contempt and place her in jail to be certain she could be sober and participate in a continued hearing.
The court then took a second recess, following which it engaged in a colloquy with Amanda. Amanda assured the court she understood what the proceeding was, understood the questions being posed, and did not feel she was under the influence of the methamphetamine she had used two days earlier. She acknowledged she was tired and stated she was "scared of losing my child, that's all." The court thereafter continued with the hearing, which included an additional twenty transcript pages of direct and cross-examination of Amanda.
Amanda claims the juvenile court abused its discretion "by requiring the appellant/mother to choose between being placed in jail or agreeing to continue on with the hearing before it was established whether she was competent to testify on her own behalf." We disagree. The court did offer to have Amanda placed in jail if necessary to assure she was not under the influence of drugs at trial. However, at that point in the trial Amanda had denied being under the influence and the record rather clearly demonstrated that she was fully aware of and understood the proceeding and the questions being asked, and was able to and did respond appropriately to the questions. Under such circumstances we find no abuse of discretion in the juvenile court conditioning any grant of a continuance on action being taken to assure Amanda would not be under the influence at any subsequent continuation of the hearing. See, e.g., In re C.W., 554 N.W.2d 297, 281 (Iowa Ct.App. 1996) (holding denial of a motion for continuance is reviewed for an abuse of discretion and we will reverse only if injustice will result to the party seeking continuance.). We do note that the juvenile court's subsequent colloquy with Amanda, as well as her further testimony, demonstrate the validity of the juvenile court's initial determination that Amanda was competent to participate and testify.
Amanda's final claim relates to a termination of parent/child relationship report. A DHS case worker who had been assigned to the case since early March 2005 prepared an August 2, 2005 report to the court. The report was admitted into evidence, without objection, at an August 9, 2005 CINA review hearing. At the termination hearing the State requested judicial notice of the CINA file, which included the report that had been admitted into evidence. Amanda objected, stating: "I believe that absent — either the corporation of documentary termination report, as made an exhibit and offered as evidence into this case, there is no precedent history." The juvenile court overruled this rather unclear objection. Amanda claims on appeal that she "was not allowed to cross-examine the writer of the termination report because it was previously admitted during the CINA action for a different purpose."
For two reasons we find Amanda's final claim to be without merit. First, it is permissible for the trial court in a termination proceeding such as this to judicially notice the prior CINA case, including the evidence, provided certain procedural safeguards are followed. In re Adkins, 298 N.W.2d 273, 277-78 (Iowa 1980). Amanda makes no claim that procedural safeguards were deficient. Judicial notice was thus appropriate. Second, although the DHS case worker who wrote the report in question was present at the termination hearing, Amanda did not call her as a witness and thus cannot complain that her right to cross-examine the writer was violated. See In re Long, 313 N.W.2d 473, 479 (Iowa 1981) (holding that where although written report was available to mother before CINA adjudicatory hearing she did not exercise right to subpoena third parties whose statements were included in report and who were not otherwise called as witnesses by the State, mother could not complain her confrontation rights were denied by admission of report).
Upon our de novo review, we affirm the order of the juvenile court terminating Amanda's parental rights.