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IN THE COURT OF APPEALS OF IOWA

No. 6-179 / 06-0124

Filed March 29, 2006

IN THE INTEREST OF T.M., Minor Child,

B.M., Mother,

Appellant,

P.H., Father,

Appellant.

______

Appeal from the Iowa District Court for Linn County, Robert H. Sosolla, Judge.

A child’s mother and father each appeal from a juvenile court order terminating their parental rights to the child. AFFIRMED ON BOTH APPEALS.

Melissa Petersen, Cedar Rapids, for appellant-mother.

Collin Olander, Cedar Rapids, for appellant-father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee.

Lorraine Machacek, Cedar Rapids, guardian ad litem for minor child.

Considered by Zimmer, P.J., and Miller and Hecht, JJ.


MILLER, J.

Brenda is the mother, and Paul is the father, of Tami, born in January 2005. Brenda and Paul each appeal from a January 2006 juvenile court order terminating their parental rights to Tami. We affirm on both appeals.

Brenda and Paul are both low functioning adults. Brenda is mentally retarded, with a full scale IQ of sixty-six. Paul has limitations, disabilities, and behavior problems that are at least in part the result of a brain injury.

Brenda gave birth to Tami in Brenda’s mother’s apartment, and was shortly thereafter transported to a hospital. Paul was in jail at the time, having been found in contempt of court for failing to participate in a batterer’s education program required as a result of one of his domestic abuse assault offenses.

Brenda previously had her parental rights to three children terminated because of her inability to adequately and properly parent them. These terminations occurred in 1999, early 2002, and later in 2002. Because of concerns regarding Brenda’s inability to parent children, an Iowa Department of Human Services (DHS) child protection case worker interviewed Brenda at the hospital and thereafter sought and secured an ex parte order removing Tami from her physical custody. The order placed Tami in the temporary legal custody of DHS for placement in foster care or with a relative. The State filed a petition seeking an adjudication that Tami was a child in need of assistance (CINA).

Following a temporary removal hearing in early February 2005, the juvenile court ordered that Tami continue in DHS custody for foster family care, a status in which she has thereafter remained. The court subsequently adjudicated Tami a CINA pursuant to Iowa Code sections 232.2(6)(b), (c)(2), (g), and (n) (2005).

The State filed a petition in late September 2005 seeking termination of Brenda’s and Paul’s parental rights. Following a hearing the juvenile court found the State had proved grounds for terminating both parents’ parental rights under Iowa Code sections 232.116(1)(b) (abandonment), (d) (child adjudicated CINA, circumstances continue despite services), (e) (child adjudicated CINA, child removed from parents’ physical custody at least six months, parents have not maintained significant and meaningful contact and have not made reasonable efforts to resume child’s care despite opportunity to do so), and (h) (child three or younger, adjudicated CINA, removed six of last twelve months (or last six consecutive months with any trial period at home less than thirty days), cannot be returned home at present time). It also found the State had proved grounds for termination of Brenda’s parental rights under section 232.116(1)(g) (child adjudicated CINA, court has terminated parent’s parental rights to another child who is a member of same family, parent lacks ability or willingness to respond to services to correct situation, additional time would not correction situation). The court also found that reasonable efforts had been made to alleviate the conditions that led to Tami’s adjudication as a CINA, found that termination was in Tami’s best interest, and ordered Brenda’s and Paul’s parental rights terminated. Brenda and Paul appeal.

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).

Brenda and Paul claim the State failed to establish that reasonable efforts were made and that adequate services were provided by the DHS. Each party’s claim includes an assertion that the State did not make reasonable accommodation for disabilities as required by the Americans with Disabilities Act. The State urges that error was not preserved on this claim.

We agree with the State. Not only the sufficiency of services, but also the issue of reasonable accommodation, should be raised at the removal or review hearing or when services are offered. In re C.M., 526 N.W.2d 562, 566 (Iowa Ct. App. 1994); In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). A challenge to the service plan must be made before the termination hearing. L.M.W., 518 N.W.2d at 807. Brenda and Paul were each represented by counsel throughout the underlying CINA case as well as the termination case. Neither Brenda nor Paul at any time prior to the termination hearing requested different or additional services or accommodation. On appeal they assert only that error was preserved by evidence presented at the termination hearing regarding whether accommodation or other services would have allowed them to keep Tami. They have not preserved error on this claim and we do not further address it.

Brenda and Paul claim the juvenile court erred in admitting State’s Exhibits “G” and “H.” State’s Exhibit “G” is a December 22, 2005 report to the DHS case manager who was the case worker for Tami’s case. The report, just over three pages in length, is from a staff member of a service provider. The staff member had supervised visitations and provided individual parenting sessions. The report indicates that copies were sent to Brenda and Paul. State’s Exhibit “H” consists of November 30 and December 20, 2005 one-page letters from the staff member to Brenda and Paul, with copies to the DHS case manager/case worker, outlining conditions imposed for exercise of visitations because of missed visitations.

At the commencement of the termination hearing Brenda’s and Paul’s attorneys objected to the two exhibits, on the grounds they had just received them. The juvenile court reserved ruling until the author of the documents had testified and the documents were reoffered. When that had occurred Brenda and Paul repeated their earlier objection, which was overruled, and the exhibits admitted.

For several reasons we find no reversible error in the admission of the two exhibits. First, review hearings had been held on August 12 and October 21, 2005. Thus any new information contained in the exhibits related only to the limited period of two months between October 21 and December 22. Second, any new information in the exhibits is largely limited to reporting that Brenda and Paul had failed to exercise visits following the October 21 hearing; reporting the service provider’s inability to contact Brenda and Paul after October 21, apparently because their cell phone had been disconnected; and reporting one additional incident of Paul becoming violently angry, something that had occurred on previous occasions. The exhibits thus contain little or no information that was not already known by all interested persons. Third, all or essentially all of the information in the two exhibits is merely cumulative to evidence admitted in the form of other documents and testimony. Finally, even if we were to find the admission of the two exhibits constituted error, any error was harmless because on our de novo review we find that even without this evidence the grounds for termination were overwhelmingly proved.

Brenda and Paul claim the State did not prove any of the section 232.116(1) grounds for termination found and relied on by the juvenile court. Upon our de novo review we find each of those grounds was proved by clear and convincing evidence, but choose to discuss in detail only one, section 232.116(1)(h). See In re A.G., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996) (“[W]e only need to find grounds to terminate parental rights under one of the sections cited by the district court in order to affirm . . . .”).

The first three elements of section 232.116(1)(h), Tami’s age, CINA adjudication, and period of removal, were not in dispute, were clearly proved, and are not an issue on appeal. Brenda’s and Paul’s claims relate only to the fourth element. This element is proved when the evidence shows the child cannot be returned to the parents because the child remains in need of assistance as defined by section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child’s initial removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).

The juvenile court found, in part:

Brenda has a very limited knowledge about basic child care. She does not comprehend child development stages. She is unaware of age appropriate activities for children. She is unable to engage and stimulate a child appropriately. Paul, as well, does not possess a basic knowledge of child care and development. He does not recognize child development milestones. He, too, is unaware of age appropriate activities and unable to engage and stimulate Tami to facilitate her development.

Both Brenda and Paul are low functioning. In Brenda’s case, this has resulted in her inability to parent in the past. Paul’s disability is apparently the result of a brain injury. He functions at a higher level than Brenda. He attended school through the tenth grade. As a result of these limitations, the [DHS] employed a “hands on” method of attempting to teach Brenda and Paul parenting skills. They would, for example, demonstrate how to mix the child’s formula and then walk the parents through the process step by step. Despite these efforts, neither parent progressed in parenting ability to a point that they could care for Tami in an unsupervised setting.

The case permanency plan also allowed for supervised visits between the parents and Tami. Brenda and Paul received parenting instruction at these visitation sessions. Each parent has been woefully inadequate in attending their allotted visits.3 When attending the visit[s], Brenda required a lot of direction. She was not able to read Tami’s cues very well. Paul, as well, struggled with basic parenting during the visits. He had difficulty taking any suggestions from the homemakers. Neither Brenda nor Paul has had any contact with Tami since October 21, 2005. Tami has not formed a bond with either Brenda or Paul.

. . . .

Another major concern is Paul’s anger issues that have resulted in his being assaultive toward domestic partners. . . . After almost two years, though, he has still not successfully completed [a batterer’s education program required both as a result of his conviction for domestic abuse assault and as a part of the case plan in the child in need of assistance case].

. . . .

. . . The case permanency plan directed Brenda and Paul to honor [an order that they have no contact with each other as a result of Paul being charged with assaulting Brenda]. With Brenda’s consent, Paul violated the no contact order.

Brenda has a history of involvement with violent partners. This being a concern, the case permanency plan required Brenda to complete domestic violence counseling. She has failed to do so.

The case permanency plan also directed each parent to obtain a psychological and a substance abuse evaluation. Neither has complied with those requirements. Brenda did complete a parenting class as required. Paul has failed to do so.

DHS has provided services to Brenda on prior occasions. These efforts go back at least eight years. These services have included parenting skill instruction, child development instruction, supervised visits, foster family care, and family centered services. Despite these efforts over the years, Brenda has shown little if any progress in gaining any insight as to proper and adequate parenting. The [DHS] has also provided Paul with services in relation to Tami. These have consisted of foster family services, supervised visits, parenting skill instruction, and child development instruction. Paul has not benefited from these services.

3 Brenda has attended 24 of 58 possible visits. Paul has attended 13 of 39 possible visits

We find these findings fully supported by the record, concur in them, and adopt them as our own.

At the time of the termination hearing, after services had been made available to Brenda and Paul for almost one year, neither had progressed beyond supervised visits, which each continued to fail or refuse to exercise. The juvenile court concluded, in part:

. . . At a minimum, the original grounds for adjudicating Tami in need of assistance continue to exist. Brenda and Paul remain unable to provide Tami with a minimal degree of parenting without direct assistance. . . . The sum and substance of it is that the overwhelming evidence is that Tami could not be returned to Brenda and Paul’s care at this time without remaining in need of assistance.

We find these conclusions fully supported by the record, concur in them, and adopt them as our own. We conclude the State proved by clear and convincing evidence the grounds for termination of each parent’s parental rights as provided for in section 232.116(1)(h).