Opinion
No. 5-045 / 04-1939
Filed January 26, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Mother and Father appeal the termination of their parental rights to their child, E.E. AFFIRMED.
Thomas Graves of Jackowski Graves, Des Moines, for appellant-mother.
Jesse Macro, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee State.
Kimberly Ayotte, Des Moines, for child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Krystle and David separately appeal the termination of their parental rights to their daughter Erica, born in September of 2003. We affirm.
I. Background Facts and Proceedings
Erica first came to the attention of the Iowa Department of Human Services (DHS) on October 14, 2003, when it was reported that Krystle had shaken her when she was frustrated. Krystle admitted to shaking Erica twice in one week. It was also reported that David was actively using methamphetamine. On October 15, 2003, Erica was removed from her home and placed in the custody of DHS for foster care placement.
On January 27, 2004, Erica was adjudicated to be a child in need of assistance (CINA) as defined in Iowa Code section 232.2(6) subsections (b) (parent has physically abused or neglected child), (c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child), and (n) (parent's mental capacity or condition, or drug abuse results in child not receiving adequate care). On October 21 and November 3 the state's petition for termination of parental rights came on for hearing, The juvenile court subsequently terminated both Krystle's and David's parental rights pursuant to Iowa Code section 232.116(1)(d) (child CINA for physical or sexual abuse, circumstances continue despite the receipt of services) and (h) (child is 3 or younger, child CINA, removed from home for 6 of last months, and child cannot be returned home). Both Kyrstle and David appeal.
II. Scope of Review
Termination orders are reviewed de novo. See In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
III. Issues
A. David's Appeal
David contends the State did not prove by clear and convincing evidence that his parental rights should be terminated as he was making progress in his drug treatment. On our de novo review of the record, we conclude the juvenile court properly terminated David's parental rights under section 232.226(1)(h) (2003). The record indicates that DHS offered reasonable services to David, which included substance abuse treatment. David did initially participate in an outpatient drug treatment at Lutheran Hospital, but was ultimately discharged prior to his completion of the program. David later began participating in outpatient treatment at Powell Chemical Dependency Center, but was again discharged for noncompliance. David testified at the termination hearing that he does not even remember being in the Powell drug treatment program, which he thought was probably due to the fact that he used drugs throughout the pendency of Erica's case. At the time of the termination hearing, David was in jail, which, he testified, was the only reason he was sober. David is enrolled in a jail inpatient drug treatment program, but has not yet completed the program. In order to complete this program he must remain sober for 120 days and must complete an eight-month aftercare program. Yet, the longest he has ever been sober was "about three months."
David has not demonstrated an ability to remain drug free outside of incarceration. He has not taken adequate steps to address his substance abuse problem in order to be able to adequately parent Erica. Therefore, we find clear and convincing evidence that Erica cannot be returned to David at the present time, as the circumstances that led to the adjudication continue to exist. As David admitted on cross-examination, it is not fair for Erica to have to wait for him to beat drugs. See In re R.J., 436 N.W.2d 630, 636 (Iowa 1989) (noting that "patience on behalf of the parent can quickly translate into intolerable hardship for the children") (citation omitted).
B. Krystle's Appeal
Krystle argues that the State failed to meet its burden by producing evidence that clearly and convincingly indicates that her abuse of Erica posed a significant risk to the life of the child or constituted imminent danger to the child. Our review of the record reveals that Krystle has mental health issues. DHS, in making reasonable efforts to eliminate the adjudicatory harm, offered Krystle multiple services, including individual therapy to help her address these mental issues. Krystle responded by asserting that she felt she did not need individual therapy, and by refusing to participate in therapy. Krystle has not otherwise addressed the issues that led to the shaking of Erica. In addition, while Krystle did participate in many visits with Erica, she has made very little progress toward understanding the safety concerns she posed to Erica and ultimately in regaining her care. In sum, there is clear and convincing evidence that Krystle has not addressed her mental health issues, and that Erica cannot be safely returned to her following Krystle's shaking of her. See In Interest of L.L., 459 N.W.2d 489, 493, 494 (Iowa 1990) (providing that a parent's past behavior is an important factor in determining what the future holds for a child if returned to the parent's care and custody). Termination of parental rights is in Erica's best interests. As the other elements of Iowa Code section 232.116(1)(h) are not in dispute, we conclude the district court correctly terminated Krystle's parental rights pursuant to this provision.
In making this argument Krystle references the wrong subsection of Iowa Code section 232.116(1) as the subsections were amended 2001. See 2001 Iowa Acts ch. 67, § 9.