                      IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0254
                                 Filed 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.

AFFIRMED.



         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.
                                             2


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


1
  The State’s petition also sought to terminate the parental rights of S.I.’s father and was
successful, but the father is not a party to this appeal.
2
  The juvenile court noted the mother had not missed any hearings during the child-in-
need-of-assistance (CINA) case.
3
  The mother’s attorney informed the juvenile court that the Iowa Supreme Court delayed
its oral arguments until 10:00 a.m. that morning due to the overnight snowstorm.
4
   The record also showed the mother was slated to start inpatient substance-abuse
treatment the morning of January 23. The court suggested the mother’s absence could
                                           3


       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.



have related to her decision to begin inpatient treatment that day, though she knew about
the termination hearing date.
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       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 request for a continuance did not allude to any potential

constitutional violation in the event of a denial of the motion”).5


5
  Even if we bypassed error preservation, we would not likely find a violation of her rights.
See In re A.S., No. 17-1564, 2018 WL 739341, at *2 (Iowa Ct. App. Feb. 7, 2018) (“Even
if error had been preserved, her claim would fail; the mother received adequate notice of
the petition, a hearing, representation, and the opportunity to provide testimony, and was
thereby afforded due process.”); In re S.M., No. 17-0147, 2017 WL 1735917, at *2 (Iowa
Ct. App. May 3, 2017) (“[The mother] had notice, was represented by counsel, counsel
was present, and [the mother] had an opportunity to present her testimony in person. [Her]
due process rights were not violated.”); In re N.H., No. 15-0691, 2015 WL 5577069, at *3
(Iowa Ct. App. Sept. 23, 2015) (finding no due process violation where father “was
represented by counsel, who was present throughout the hearing, cross-examined
witnesses, and presented the father’s case to the juvenile court”); In re N.W., No. 12-1233,
2012 WL 3860661, at *1 (Iowa Ct. App. Sept. 6, 2012) (finding due process was not
violated where mother knew termination was imminent and she “had ample opportunity to
prepare and present a defense through an alternate means, such as a deposition”); In re
J.H., No. 04-1384, 2004 WL 2389438, at *2 (Iowa Ct. App. Oct. 27, 2004) (finding due
process satisfied where “the parent is represented by counsel at the hearing and is not
denied an opportunity to present testimony by deposition at the hearing, if requested”); In
re R.C., No. 03-0993, 2004 WL 144242, at *2 (Iowa Ct. App. Jan. 28, 2004) (finding no
denial of due process when a grandparent seeking placement of her grandchildren
received notice of the placement hearing, was present with counsel, and was able to
present evidence); In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991) (“Where a parent
receives notice of the petition and hearing, is represented by counsel, counsel is present
                                           5


       So we turn to the one question before us—the juvenile court’s exercise of

discretion in denying the motion to continue. “We may look at a parent’s past

performance in determining whether a continuance of a termination proceedings

should be granted.” See In re K.A., 516 N.W.2d 35, 37–38 (Iowa Ct. App. 1994)

(citing In re B.K.J., Jr., 483 N.W.2d 608, 611 (Iowa Ct. App. 1992)). In her petition

on appeal, the mother emphasizes her “perfect attendance” at hearings during the

CINA case. Indeed, the juvenile court considered the mother’s prior diligence and

gave her “the benefit of the doubt” by continuing the hearing on the first day.

       But when the mother failed to appear and failed to contact her attorney on

the second day, the court was entitled to consider the broader implications of a

delay. The State argued a continuance was not in S.I.’s best interests, stressing

the mother had not effectively engaged in services to address her substance abuse

during the eight months since S.I. was removed from her care at the hospital. The

child’s guardian ad litem also resisted the continuance, asserting, “I understand

the weather is difficult, but all parties have known about this and could have made

arrangements to get here. I do not believe it’s in the best interest of [S.I.] for us to

continue this. He deserves permanency. He deserves it now.”

       Under these circumstances, we find the juvenile court properly exercised its

discretion in denying the motion to continue. Waiting—not only for a rescheduled

hearing, but for the mother to engage in the treatment recommended by the DHS

case plan—was not in S.I’s best interests. See K.A., 516 N.W.2d at 37.

       AFFIRMED.



at the termination hearing, and the parent has an opportunity to present testimony by
deposition, we cannot say the parent has been deprived of fundamental fairness.”).
