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In re S.I.

Court of Appeals of Iowa

April 17, 2019

IN THE INTEREST OF S.I., Minor Child, B.I., Mother, Appellant.

          Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.

         A mother appeals the order terminating her parental rights to her son.

          David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant mother.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          Lynn Vogan of Youth Law Center, Des Moines, guardian ad litem for minor child.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          TABOR, JUDGE.

         Back-to-back days of winter storms posed a quandary for the juvenile court scheduled to hear evidence in the termination-of-parental-rights case involving the mother of then eight-month-old S.I.[1] On the first day of inclement weather, January 22, 2019, the mother called her attorney and reported she could not make it to the courthouse. The hearing was originally set for that day and the next morning. The juvenile court agreed to continue the proceedings until the next day.[2] But the snow and cold persisted-forcing school closures and city bus delays on January 23. The mother did not appear at the courthouse on the second day and did not contact her attorney. Her attorney was frank with the court:

I think the weather here is probably worse than it was yesterday. For the record, Des Moines Public School District is closed. I checked the DART bus station, and they're running delayed. I don't think any of the routes are canceled, but they're delayed. I don't know why my client is not here. I would assume it's weather related. I just don't know that to be true.

         The mother's attorney asked for "a short continuance" so "we can come back and actually put some testimony on."[3] The juvenile court delayed the hearing for fifteen minutes, but when the attorney was still unable to reach his client, the court denied a renewed motion to continue. The court explained, "I would need to have some communication at least stating that it's the weather that's delaying [her], and I don't have that."[4]

         The mother now appeals the juvenile court's decision to proceed with the termination hearing in her absence. She alleges both an abuse of discretion and a violation of her due process rights. We review the denial of a motion to continue a termination trial for an abuse of discretion. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). "Denial of a motion to continue must be unreasonable under the circumstances before we will reverse." In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996). We review constitutional claims, such as the deprivation of due process, de novo. Id. Likewise, our overarching review of termination-of-parental rights proceedings is de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). In that review, "our fundamental concern" is S.I.'s best interests. See M.D., 921 N.W.2d at 232.

         After denying a continuance, the court accepted numerous exhibits from the State and took judicial notice of the underlying CINA file. The State did not present any live witnesses but argued it had proved by clear and convincing evidence termination was proper under Iowa Code subsections 232.116(1)(d), (h), and (i) (2019). One of the State's exhibits, the January 2019 Iowa Department of Human Services (DHS) report to the court, explained S.I. tested positive for methamphetamine at birth-leading to his immediate removal from his mother's custody in May 2018. The mother acknowledged using the drug while pregnant and struggled with her addiction through the summer and fall of 2018. She did not successfully complete substance-abuse treatment and did not consistently attend scheduled visitations with S.I., according to the DHS report.

         The juvenile court terminated the mother's parental rights under Iowa Code section 232.116(1)(d) and (h). She does not challenge the evidence supporting those grounds on appeal. She argues only that the order terminating her parental rights should be vacated because the denial of her motion to continue was an abuse of discretion and a due process violation.

         We do not reach the due process question because the mother did not preserve error on that issue during the termination proceedings. See In re S.V.G., 496 N.W.2d 262, 264 (Iowa Ct. App. 1992) (holding "matters not raised in the trial court, including constitutional questions, cannot be effectively asserted for the first time on appeal"); see also In re L.J., No. 18-0910, 2018 WL 3472199, at *1 (Iowa Ct. App. July 18, 2018) (finding parent "failed to preserve error on her due process claim, as her counsel's ...

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