Opinion
No. 5-904 / 05-1707
Filed January 19, 2006
Appeal from the Iowa District Court for Poweshiek County, Michael R, Stewart, District Associate Judge.
H.S. appeals from the juvenile court's decision terminating her parental rights to L.S. AFFIRMED.
Dennis McKelvie, Montezuma, for appellant mother.
Jennifer Steffens of Bennett, Steffens Grife, P.C., Marshalltown, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Michael W. Mahaffey, County Attorney, and Rebecca Petig, Assistant County Attorney, for appellee.
Robert Clower III, Grinnell, for minor child.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
H.S. appeals from the juvenile court's decision terminating her parental rights concerning her child, L.S.
I. Background facts proceedings.
L.S. was born in October of 2003. The Iowa Department of Human Services (department) first intervened with H.S. after the birth of her first child in October 2002. At that time, H.S. received voluntary services to address unsafe and unsanitary conditions in her home. These services were terminated in December 2002 because H.S. failed to cooperate with the department. Voluntary services were reinitiated in April 2003 because of similar conditions found in the home in which H.S. was residing with her mother.
Because voluntary services failed to resolve the department's concerns, the State filed child in need of assistance proceedings concerning both L.S. and his older brother. On May 7, 2004, L.S. was adjudicated a child in need of assistance pursuant to Iowa Code section 232.2(6)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child).
On June 10, 2004, both L.S. and his brother were removed from H.S.'s custody because they were found unsupervised during a home visit by a service provider. L.S. was placed in family foster care. His brother was placed with his father.
At a July 2, 2004, dispositional hearing H.S. was informed of four conditions she was required to meet for the return of her children. These conditions were: (1) L.S. had to attend daycare; (2) H.S. would accept mental health counseling; (3) H.S. would clean her home; and (4) H.S. would meet weekly with an in-home service provider. The resulting dispositional order continued L.S.'s placement in foster care.
The department's December 27, 2004, permanency plan included a report on H.S.'s compliance with court-ordered services. The report concluded that the services provided to H.S. failed to resolve the circumstances necessitating L.S.'s adjudication. As a result, the department recommended termination of H.S.'s parental rights. The court declined to order the filing of a termination petition and continued L.S.'s placement and services for H.S.
At a June 3, 2005, permanency hearing, the department renewed its request for the initiation of termination of parental rights proceedings. The department based this recommendation on L.S.'s success in foster placement and H.S.'s failure to make any progress towards reunification.
On June 10, 2005, the State filed a petition seeking termination of parental rights pursuant to Iowa Code section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home). Following a hearing held on September 20, 2005, the court concluded that L.S.'s father consented to termination of his parental rights under Iowa Code section 232.116(1)(a) (parents consent to termination). The juvenile court terminated H.S.'s parental rights pursuant to Iowa Code section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home). The juvenile court found that despite receipt of family centered services, foster family care, supervised visitation, mental health services, family development services, and care management services, H.S. failed to address the circumstances necessitating L.S.'s adjudication as a child in need of assistance. The court also found he could not be safely returned to H.S.'s physical custody.
On appeal, H.S. raises the following issues:
I. Whether the court erred in its determination that there is clear and convincing evidence that the child cannot be returned to the custody of his mother? Section 232.116(1)(f)(4).
H.S. cites this section in her brief. The juvenile court did not terminate her rights under this section. For the purposes of her argument, we will assume she was referring to section 232.116(1)(h)(4), which has the same language as section 232.116(1)(f)(4).
II. Whether it was in "the best interest of the child" for the Court to terminate the parental rights of the mother?
II. Standard of Review.
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. Merits.
Iowa Code section 232.116(1)(h) provides for termination of parental rights if the court finds there is clear and convincing evidence that (1) the child is three years of age or younger, (2) the child has been adjudicated a child in need of assistance, (3) the child has been removed from the physical custody of a parent for six of the last twelve months, and (4) the child cannot be returned to the physical custody of the parent. "`Clear and convincing' evidence connotes the establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond reasonable doubt." In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citing In re Henderson, 199 N.W.2d 111, 121 (Iowa 1972)). The parent's failure to follow the department's permanency plan "can be considered evidence of the parent['s] attitude toward recognizing and correcting the problems which resulted in the loss of custody." In re J.L.P., 449 N.W.2d 349, 352 (Iowa 1989). While "the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,' Iowa has built this patience into the statutory scheme of chapter 232." In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct.App. 1993)).
We, like the juvenile court, find clear and convincing evidence supporting termination of H.S.'s parental rights to L.S.H.S. has received numerous services intended to improve her parenting and homemaking skills. Despite the receipt of these services, H.S. is still unable to maintain a safe and sanitary home environment for L.S. Moreover, H.S. has failed to avail herself of needed mental health services offered by the department. The unfortunate fact is that L.S. cannot be safely returned to H.S.'s care. L.S. "should not be forced to endlessly await the maturity of [his] parents." In re C.L.H., 500 N.W.2d 449, 453 (Iowa 1993) (citing In re T.D.C., 336 N.W.2d 738, 744 (Iowa 1983)). We affirm on this issue.
IV. Best Interests.
Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child's best interests. In re M.M.S., 519 N.W.2d 398, 400 (Iowa 1994). H.S. has received services on a periodic basis since 2002 and "[a] parent does not have an unlimited amount of time in which to correct his or her deficiencies." In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997).
In July 2004 H.S. was given four expectations she was to meet to keep custody of her children. She did not meet any of them. She has been provided with a variety of services through the department and has failed to take advantage of any of them. Providing L.S. with a permanent and safe environment is in his best interests, because a child should not be perpetually kept in foster care. In re J.P., 499 N.W.2d 334, 339 (Iowa Ct.App. 1993). L.S.'s interests would best be served by the termination of H.S.'s parental rights, because L.S. has thrived developmentally in foster care. H.S. has demonstrated that she cannot provide food appropriate for L.S. She has resisted any instruction on how to discipline L.S. effectively. She has not made her home safe for L.S. and demonstrated through her visitations with L.S. that she will not engage in play with L.S. that will assist him developmentally. Termination of parental rights is in L.S.'s best interests.