Opinion
No. 5-778 / 05-1438
Filed November 9, 2005
Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman, Judge.
D.S. appeals from the termination of her parental rights. AFFIRMED.
Deborah Skelton, Walford, for appellant mother.
Thomas O'Flaherty, Swisher, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee State.
Ellen Ramsey-Kacena, Swisher, for minor children.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
I. Background Facts Proceedings
Desiree is the mother of Starlene, born in September 2000; Sasha, born in February 2002; Saranda, born in December 2002; and Skylar, born in March 2004. Desiree's husband, Gerald, is the biological father of all four children.
Starlene and Sasha were removed from the parental home on September 24, 2002 because both parents were using methamphetamine and because of domestic violence in the home. Both girls tested positive for exposure to methamphetamine; Starlene tested positive for exposure to cocaine and/or THC. Desiree was pregnant with Saranda at the time. Starlene and Sasha were placed in foster care. They were adjudicated children in need of assistance (CINA) on December 2, 2002.
Desiree gave birth to Saranda on December 27, 2002. A combined contested adjudication/disposition hearing was held on April 1, 2003, and all three children were adjudicated CINA. The dispositional order allowed Saranda to remain in her mother's care under the protective supervision of the Department of Human Services (DHS). Starlene and Sasha were placed on a trial home placement because both parents were complying with DHS expectations at the time.
In July 2003, despite the resistance of Desiree and Gerald, the court ordered that Gerald have no unsupervised contact with the three children and not reside in the family home. He had relapsed into substance abuse and had been arrested for domestic abuse. He was arrested for OWI third offense and driving with a suspended license. Desiree reported she was pregnant with a fourth child.
After his removal from the family home, Gerald lived in a van parked behind the house. In August 2003 he got drunk and vandalized the home and Desiree's car. Desiree refused to get a no contact order. Neither Desiree nor Gerald followed advice to seek counseling with regard to the domestic violence.
The three children were removed from the home and placed in foster care on November 3, 2003. In an order dated November 25, 2003, the court found Gerald did not take his alcoholism seriously, Desiree was not capable of protecting the children from Gerald, there was violence in the home, and the parents did not take responsibility for their actions.
Approximately three weeks into his probation for the OWI third offense, Gerald was arrested for theft. Desiree attempted to get him out of jail and showed more concern for Gerald than the children. Desiree was charged with third-degree theft for writing insufficient funds checks at area grocery stores in December 2003 and January 2004.
Skylar was born on March 2, 2004. A temporary removal order was obtained on March 3, and she was placed in foster care upon her discharge from the hospital. Following a hearing, the court allowed Skylar's placement with Desiree pending the next court hearing scheduled for May 12, 2004. Gerald was ordered to have no contact with Desiree. On April 22, 2004, a temporary removal order was entered due to Desiree's continued contact with Gerald in violation of the no contact order. Skylar was adjudicated CINA on May 3, 2004. She never returned to Desiree's custody from foster care.
In July 2004 Desiree and Gerald were found in contempt of court for violating the no contact order and received suspended sentences of five days in jail, pending no further violations for one year. Subsequently, Gerald was sentenced to five days in jail and received a thirty-day suspended sentence for further violations of the no contact order.
In July 2004 Desiree's electricity was shut off for nonpayment of her bill. In September her water was turned off for the same reason.
By November 2004 DHS was no longer recommending a trial home placement and advised the court it intended to pursue a termination of parental rights. The State filed a termination petition on December 28, 2004.
On August 30, 2005, the juvenile court filed an order terminating parental rights of both Desiree and Gerald pursuant to Iowa Code sections 232.116(1)(f) (2005) (child four or older, CINA, removed from home for twelve of the last eighteen months, and child cannot be returned home); and (h) (child three or younger, CINA, removed from home for six of last twelve months, and child cannot be returned home). The juvenile court found:
Desiree has been offered appropriate services to assist her in dealing with her abusive history with Gerald and her substance abuse. Despite this, Desiree has not been successful in making the choices to alter her lifestyle so that she could safely parent the children. She does not have a feasible long term plan to care for the children. She has had problems with keeping a clean and safe home, and it was not until her visits with the children returned to fully supervised that the State saw beneficial changes in the way Desiree maintained her home. She did not follow through on staying away from Gerald and would greatly minimize occasions of domestic violence. Desiree has also had legal problems caused by driving while her license was suspended and for writing bad checks. Having to serve jail time interfered with visitations with the children. She has continued to drink, although she has been advised to refrain from any substance use. She tested positive for cocaine in January 2005. Both parents have been less than honest with DHS through the course of their involvement with the Department. Given the length of this case, given there has only been slow progress by the parents, and given that the Department continues to deal with the same issues that existed when the . . . family first came to DHS's attention, the court cannot but conclude that it is unlikely that additional time could benefit the four children involved here. . . . In spite of all the services rendered, the court finds that the parents are unable to care for their children.
Desiree appeals the termination of her parental rights. Gerald has not appealed.
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).
Even if the statutory requirements for termination are met, the decision to terminate must still be in the best interests of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In assessing the best interests of the children, we evaluate the children's long-range and immediate interests and consider what the future likely holds for the children if returned to their parents. Id. The parent's past performance provides insight into the children's prospects — "for it may be indicative of the parent's future capabilities." Id. III. Discussion
Desiree concedes subparagraphs (1), (2), and (3) of Iowa Code sections 232.116(1)(f) and (h) have been established with regard to all four children. She argues on appeal that the State failed to prove there is clear and convincing evidence that at the present time the children cannot be returned to the care of their mother. See Iowa Code §§ 232.116(1)(f)(4), (h)(4).
Iowa Code sections 232.116(1)(f)(4) and (h)(4) provide for termination if there is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102. The relevant provision of section 232.102 provides:
Whenever possible the court should permit the child to remain at home with the child's parent, guardian, or custodian. Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that:
. . . .
(2) The child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance and an adequate placement is available.
Desiree argues she has addressed the issues of domestic violence and substance abuse that gave rise to the children's original adjudication. She contends "one slip-up" — a positive test for illegal substances in January 2005, after learning that DHS was seeking termination of her parental rights — does not constitute an ongoing substance abuse problem. In addition, she argues termination is not in the children's best interest.
It is apparent from the record that the court did not base its termination decision solely on "one slip-up." Rather, as the portion of the court's order quoted above demonstrates, the court based its termination decision on ongoing obstacles to reunification that still existed at the time of the termination hearing: substance abuse, domestic violence, parenting ability and the ability to provide a safe and stable home for the children. We conclude the State presented clear and convincing evidence that, at the time of the termination hearing, the children could not be returned to Desiree's custody without the risk of suffering adjudicatory harm.
Moreover, we conclude the termination of Desiree's parental rights is in the best interests of the children. These four young girls have been in foster care for most, if not all, of their lives. They are all living in the same foster family, and the family has indicated a willingness to adopt all of them. The children need and deserve permanency and stability. We affirm the juvenile court's order terminating Desiree's parental rights.