Opinion
No. 1-948 / 01-0112.
Filed February 6, 2002.
Appeal from the Iowa District Court for Polk County, CONSTANCE COHEN, Associate Juvenile Judge.
V.V. and J.V. appeal the district court's decision to terminate their parental rights to their four children. AFFIRMED.
Diane Dornburg of Carney, Appleby Nielsen, Des Moines, for appellant-mother.
J. Michael Mayer, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, and Kathrine Miller-Todd, Assistant Attorney General, for appellee-State.
Christine Bisignano, West Des Moines, for minor child.
Considered by HAYDEN, PETERSON, and HARRIS, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Victoria V. and Jeffrey V. appeal the termination of their parental rights. The children affected by these proceedings are John, born October 15, 1988; Ashley, born February 23, 1991; Kayla, born December 19, 1992; and Joel, born June 13, 1994. We affirm the decision of the trial court.
These children first came to the attention of the juvenile court on January 25, 1999, when the State filed a petition asserting the children were in need of assistance within the meaning of Iowa Code sections 232.2(6)(c)(2), (n), (d) and (f) (1999). Following a contested hearing on March 22, 1999, Kayla and Ashley were adjudicated to be children in need of assistance under section 232.2(6)(f), and all four children were adjudicated to be children in need of assistance under section 232.2(6)(c)(2).
Numerous services were ordered including psychosocial evaluations of the parents and psychological evaluations of the children. All were ordered to cooperate with in-home services through Mid-Iowa Family Therapy. On May 5, 1999, the court determined Victoria presented a danger to the children's lives or physical, emotional or mental health and limited her contact with them. A dispositional hearing was held on May 26, 1999, at which time the children were allowed to remain in their parental home continuing the limitation of the contact between Victoria and the children. Victoria, Jeffrey, and the children were provided individual therapy sessions.
On June 9, 1999, John was hospitalized for mental health issues, and shortly thereafter legal custody of John was placed with the Iowa Department of Human Services (DHS) where it remained to date of trial.
After a contested hearing on August 31, 1999, the court transferred legal custody of Ashley, Kayla, and Joel to the custody of the DHS where they remained to date of trial. Upon disclosure by the children of sexual abuse by Victoria and Jeffrey, the court provided that neither parent have contact with the children. Except for limited contact by Victoria with John, no authorized contact by the parents with the children was permitted to the date of trial.
As the children were placed in out-of-home placement they independently began disclosing a history of numerous instances of incestuous sexual abuses within the family including all the children and both parents. The particular activities are unnecessary to be described within this opinion. Suffice it to say the activities described by the children were revolting and horrific. The description by the children revealed knowledge of experiences that would be highly unlikely for children of that age to conjure up from imagination. The children are suffering from conditions that are described by counselors as typical results of sexual abuse: sexual acting out, boundary issues, bedwetting, anger, pet abuse, and self harm. Jeffrey denies the existence of any sexual abuse.
There were six founded or confirmed child abuse reports between September 1988 and March 2000. Two of the reports related to sexual abuse.
On September 7, 2000, a petition to terminate parental rights was filed asserting Jeffrey's rights should be terminated pursuant to sections 232.116(1)(e) and (f), and Victoria's rights should be terminated pursuant to sections 232.116(1)(e), (f), and (j). After a contested hearing Jeffrey's and Victoria's parental rights to all the children were terminated on December 12, 2000. It is from this termination proceeding that the parents have appealed.
Victoria has been hospitalized and diagnosed for bipolar disorder, borderline personality disorder, depression, drug overdose, alcohol intoxication, and suicide attempts. She was hospitalized eight times in 1997, three times in 1998, six times in 1999, and five times in 2000. She has tested positive for methamphetamine. At the time of trial she was in the process of being admitted for mental health problems at Two Rivers Treatment Center in Kansas City. In 1988 her parental rights to a child of another union was terminated by the court.
At the time of trial criminal charges alleging three counts of sexual abuse involving the children affected by these proceedings were pending against Jeffrey. He had stopped participating in individual therapy asserting an unwillingness to acknowledge the "untrue allegations."
We review proceedings to terminate a parent-child relationship de novo. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct. App. 1998). The reviewing court may review the facts as well as the law and adjudicate the parents' rights anew on those issues properly preserved and presented to us. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Weight is to be accorded the findings of the juvenile court, particularly with respect to the credibility of witnesses whom that court heard and observed firsthand, but we are not bound by those findings. In re R.R.K., 544 N.W.2d 274, 275 (Iowa Ct. App. 1995); Iowa R. App. P. 14(f)(7). We necessarily consider what the future likely holds for the children if returned to their parents. Dameron, 306 N.W.2d at 745. Insight for the determination can be gained from evidence of the parents' past performance, for that performance may be indicative of the quality of the future care the parents are capable of providing. In re O'Neal, 303 N.W.2d 414, 422-23 (Iowa 1981).
The primary interest in termination proceedings is the best interests of the children. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). Courts look to the children's long-range, as well as immediate, interests. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). There exists a parental interest in the integrity of the family unit; nonetheless, we also are cognizant that this interest is not absolute, but rather may be forfeited by certain parental conduct. Dameron, 306 N.W.2d at 745. Because the State, as parens patriae, has the duty to assure that every child within its borders receives proper care and treatment, it must intercede when parents abdicate that responsibility. In re Yardley, 260 Iowa 259, 268, 149 N.W.2d 162, 167-68 (1967). To support termination of parental rights, the State must establish the grounds under section 232.116 by clear and convincing evidence. See Iowa Code § 232.116. "Clear and convincing" means there are no serious or substantial doubts as to the correctness or conclusions of law drawn from the evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Victoria complains that the State failed to make reasonable efforts to reunite her with her children. There is substantial doubt that Victoria has preserved error on this issue because the issue was not raised prior to the termination hearing. Parents should demand services prior to the termination hearing. In re C.D., 508 N.W.2d 97, 101 (Iowa Ct. App. 1993). Any challenges to the services should be made when the case plan is presented. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994). However, even if the error had been preserved, the claim would be denied. The trial court stated that throughout the course of this case the State made reasonable efforts to unify this family. In addition to those services already listed, the family was offered and/or received the following services: Golden Circle for the mother, psychiatric medication, visitation consistent with the therapists' recommendations, foster care, Beloit, Four Oaks PMIC, Gerard of Iowa PMIC, play therapy, art therapy, STARS program, protective daycare, day treatment for children, psychiatric care for mother and children, and CPT services. Substantial efforts and numerous services have been provided to assist this family. The record reflects that neither parent is ready to assume the care of these children at this time. The children had been out of the home for more than one year at the time the petition for termination was filed. When the statutory time standards found in section 232.116 are approaching, and a parent has made only minimal progress, the children deserve to have the time standards followed by having termination of parental rights promptly pursued. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). Children simply cannot wait for responsible parenting. In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).
Victoria continues to be challenged by mental health problems requiring periodic hospitalization. History indicates that her mental condition will not remain stable for any extended length of time. The rights and the needs of the children must take precedent over the desires of the mother.
Victoria contends that mental disability alone is not sufficient reason for the termination of the parental relationship. That statement is correct; however, it is a proper factor to consider and, when it contributes to a parent's inability to parent, may be determinative on the issue of whether termination is required in the children's best interest. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). Victoria made serious suicide attempts in the year before the termination hearing. She has stated that she is controlled by Satan and that she was going to start hurting people. In addition, she has failed to address or acknowledge the issues of incestuous sexual abuse and physical violence in the home.
Victoria states John is over ten years old and expresses a strong desire to return to his home. She contends section 232.116(3) provides for circumstances under which the court need not terminate parental rights. Section 232.116(3) provides, in pertinent part, as follows:
3. The court need not terminate the relationship between the parent and child if the court finds any of the following:
. . . .
b. The child is over ten years of age and objects to the termination.
Iowa Code § 232.116(3). The application of this section is within the sound discretion of the juvenile court, based upon the circumstances of the case before it and the best interests of the children. J.L.W., 570 N.W.2d at 781. It contains no mandatory language. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993). We find no abuse of discretion on the part of the trial court in the determination that other factors should have more significance than the application of this provision in the conclusions it reached.
One of the arguments presented by Jeffrey is a failure of the State to use reasonable efforts to reunite the family. As with Victoria, it is very doubtful that he has preserved this issue for trial. Jeffrey made no request for additional services prior to the initiation of the termination proceedings. Notwithstanding the failure to preserve the issue, his assertion would fail. The juvenile court may waive the requirement for making reasonable efforts if it determines aggravated circumstances exist. Iowa Code § 232.102(12). The circumstances described in section 232.116(1)(h) (physical or sexual abuse or neglect) constitute an aggravated circumstance. Iowa Code § 232.102(12)(b). The trial court made specific findings concerning the aggravating circumstances of sexual abuse that occurred in the home with Jeffrey in evaluating the reasonable efforts that were made to reunite the family and explored the risk of returning these children to the home. Reasonable efforts have been made under the circumstances in this case.
Jeffrey has failed and refused to follow through with individual therapy asserting that he is unwilling to accept responsibility for any abusive behavior. It is essential in meeting a child's needs that parents recognize and acknowledge abuse. In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988). Meaningful change cannot occur without this recognition. In re L.B., 530 N.W.2d 465, 468 (Iowa Ct. App. 1995).
The trial court correctly concluded the State established by clear and convincing evidence that Victoria's parental rights should be permanently terminated pursuant to sections 232.116(1)(e), (f), and (j), and Jeffrey's parental rights should be permanently terminated pursuant to sections 232.116(1)(e) and (f). These children deserve an opportunity for a safe and wholesome environment for the future. The decision of the trial court is affirmed.
AFFIRMED.