Opinion
No. 2-1015 / 02-1768.
Filed December 30, 2002.
Appeal from the Iowa District Court for Linn County, SUSAN FLAHERTY, Judge.
Mother appeals an order terminating her parental rights to two daughters. AFFIRMED.
Stephen A. Swift of Klinger, Robinson Ford, L.L.P., Cedar Rapids, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Denver Dillard, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee-State.
Pamela Jo Lewis of the Lewis Law Office, Cedar Rapids, guardian ad litem for children.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Corrinna M. is the mother of Jessica M., born February 18, 1990, and Janelle M., born March 10, 1994, as well as two other children, rights to whom are not at interest in this appeal. In 1999, while working with a counselor, Corinna revealed years of abuse by her stepfather, Harry Lanham. She also expressed concerns Lanham had sexually abused her oldest daughter, Shawna. Because of concerns that Lanham had access to Janelle and Jessica, the Department of Human Services (DHS) removed the two girls. The juvenile court later, pursuant to a stipulation, adjudicated them to be in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(1) and 232.2(6)(d) (1999).
Lanham and his wife, Janet, had guardianship of the girls at the time.
Substantial services were subsequently provided to Corinna and she largely complied with them; however, she continued to give the Lanhams access to Janelle and Jessica, despite warnings from DHS. Also, during that time frame a founded sexual abuse report was entered against Corinna, with her daughters as the victims. Following a hearing on the State's petition, the court terminated Corinna's parental rights to Janelle and Jessica pursuant to sections 232.116(1)(d) and (f) (Supp. 2001). Corinna appeals.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we only need to find grounds to terminate parental rights under one of them in order to affirm. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
Corinna first asserts she was denied her right to due process of law and her right to confrontation when the juvenile court denied her request to subpoena Janelle and Jessica and call them as witnesses at the trial. We decline to address this issue. Our review of the record reveals that Corinna did not argue the deprivation of any constitutional right before the juvenile court. We therefore conclude she has failed to preserve these particular contentions for our review. See Eastabrook v. Iowa Civil Comm'n, 283 N.W.2d 306, 311 (Iowa 1979) ("We do not address issues, even of constitutional magnitude, not presented to the trial court.").
However, even if error were preserved, we would still reject Corinna's contentions. First, the trial court is given discretion in determining whether child witnesses must testify. See Mauk v. State Dep't. of Human Services, 617 N.W.2d 909, 913 (Iowa 2000); In re D.J.R., 454 N.W.2d 838, 846 (Iowa 1990) (noting there is no Sixth Amendment right to confrontation in civil termination proceedings). Furthermore, although it is well established a birth parent has due process rights at parental termination proceedings, see In re A.M.H., 516 N.W.2d 867, 870 (Iowa 1994), the fundamental requirement of due process generally is an opportunity to be heard. See id. (citing Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287, 299 (1970)). We believe the proceedings here adequately protected that right. Corinna was allowed to present substantial evidence and the court received videotapes made of the girls discussing the allegations in this case.
Corinna next contends the district court erred in the admission of a number of exhibits at trial. In particular, she objected to those exhibits on grounds of hearsay, right to confrontation, and due process. First, our supreme court has resolved the issue of whether hearsay evidence is admissible in a termination of parental rights hearing against Corinna's position. See, e.g., In re E.J.R., 400 N.W.2d 531, 532-33 (Iowa 1987) (holding hearsay evidence is admissible in a termination of parental rights hearing). Furthermore, in equity cases evidence that is objected to should be admitted subject to the objection. In re Estate of Evjen, 448 N.W.2d 23, 24 (Iowa 1989). Thus, evidence which under ordinary rules of evidence applicable to a civil trial would be excluded as hearsay, is admissible in a juvenile proceeding, and the nature of the evidence is considered for its probative value rather than its admissibility. In re H.R.K., 433 N.w.2d 46, 48 (Iowa Ct.App. 1988), citing Harter v. State, 260 Iowa 605, 608, 149 N.W.2d 827, 829 (1967). Accordingly, we reject Corinna's contention the court erred in the admission of this evidence.
Finally, Corinna argues the evidence is insufficient to warrant termination under either of the sections cited by the juvenile court. On our de novo review of the record, we conclude the court properly terminated Corinna's parental rights under section 232.116(1)(f). In order to terminate under this section, the State must establish by clear and convincing evidence that the child (1) is four or older, (2) has been adjudicated in need of assistance, (3) has been removed from her parent's physical custody for the last twelve consecutive months, and (4) cannot be returned to the custody of her parents.
There does not appear to be any serious dispute over the first three requirements. Regarding the final element, we believe the juvenile court correctly determined Janelle and Jessica could not be returned to Corinna's care. Corinna herself was the victim of a twenty-year sexual abuse ordeal, at the hands of her stepfather, Harry Lanham, beginning when she was thirteen. Despite this, Corinna allowed the Lanhams total contact with her children. In 1999, responding to directions from her counselor, Corinna finally reported to DHS personnel that she had concerns Shawna was being sexually abused by Mr. Lanham as well. At that time, Corinna's daughters were living with the Lanhams in Lisbon while Corinna was living in Cedar Rapids. After this disclosure, Corinna was allowed to bring Shawna home with her, but explicitly advised not to allow contact with Mr. Lanham. Despite this directive, Corinna allowed Shawna to return to the Lanhams' home.
After Janelle and Jessica were adjudicated and placed in foster care, Corinna was allowed weekend, overnight visits with them. DHS soon discovered, though, that Corinna was allowing the girls to have contact with the Lanhams. They also learned that Corinna had told the girls not to reveal the contact.
Furthermore, while the family was working toward reunification, Janelle related to her counselor a game she and her sisters played with Corinna called the "mommy and daddy game." It became apparent to the counselor that this game involved sexual contact. After an assessment by DHS, a founded report of child sexual abuse was completed, with Corinna named as the perpetrator.
Because of the high risk of subjecting Jessica and Janelle to sexual abuse, we agree they cannot be returned to Corinna's care. In reaching this determination, we have considered what the future holds for Jessica and Janelle if returned to Corinna's custody. We gain insight for this determination from evidence of Corinna's past performance, because that performance may be indicative of the quality of the future care she is capable of providing. In re C.M.W., 503 N.W.2d 874, 875 (Iowa Ct.App. 1993). Our statutory termination provisions are preventative as well as remedial, and are designed to prevent probable harm to a child. Id. We therefore affirm the termination of Corinna's parental rights to both Janelle and Jessica.