Opinion
No. 3-038 / 02-1986
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
A mother and a father each appeal an order terminating their parental rights to one daughter. AFFIRMED.
Brad Schroeder, Des Moines, for appellant mother.
Bryan Tingle, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Celene Coffman, Assistant County Attorney, for appellee-State.
Amy Kepes of Youth Law Center, Des Moines, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Sherry and Patrick are the unmarried parents of Bailey who is three years of age. Each appeals the termination of their parental rights pursuant to Iowa Code sections 232.116(1)(e) (child adjudicated child in need of assistance (CINA), removed from parents at least six consecutive months, parent has not maintained significant and meaningful contact with the child) and (h) (child is three or younger, adjudicated CINA, removed from home for six of last twelve months, child cannot be returned home at the present time) (Supp. 2001).
We review termination proceedings de novo. . . . The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Sherry first claims the State failed to prove that circumstances which led to the CINA adjudication continue to exist despite the offer or receipt of services, a necessary element of the State's proof under section 232.116(1)(d). However, the juvenile court did not rely in whole or in part on that statute and we give this claim no further consideration.
Sherry does not challenge the termination of her parental rights under section 232.116(1)(e). "Failure in the brief to state . . . an issue may be deemed waiver of that issue." Iowa R.App.P. 6.14(1)( c). Although we could summarily affirm termination of Sherry's parental rights on the basis of section 232.116(1)(e) as she does not challenge that ground, we choose to address the merits of termination under that section.
Bailey was born in May 1999. She was adjudicated a CINA on January 31, 2002. She has been removed from the physical custody of her parents since November 7, 2001. Bailey was apparently living with Sherry in Georgia in January 2001, at which time Patrick obtained her custody in a Georgia court when Sherry defaulted by not appearing for a hearing. Patrick brought Bailey to Iowa, where she remained in his custody until November 2001. Sherry did not visit or see Bailey from January 2001 until January 2002, when she then had supervised visitations. In the visitation supervisor's opinion the visits did not go well, as Sherry paid more attention to a son she brought with her and Bailey did not recognize Sherry as her mother, as Sherry unrealistically expected her to. Sherry has not seen Bailey or taken part in visitation with her since January 2002. There does not appear to be a bond between them.
We find, as the juvenile court did, that the State has proven the grounds for termination of Sherry's parental rights under section 232.116(1)(e) and affirm the juvenile court under that provision. Because we only need to find grounds to terminate under one of the sections relied on by the juvenile court, we do not consider Sherry's remaining claim, that the State did not prove grounds for termination under another section. See In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
Patrick claims the State failed to prove grounds for termination under either of the two statutes relied on by the juvenile court. He further claims the juvenile court erred in finding termination to be in Bailey's best interest. We find the State proved the grounds for termination of Patrick's parental rights under section 232.116(1)(h), and need not address the other statute.
Bailey was three years of age at the time of the November 14, 2002 termination hearing, had been adjudicated CINA, and had been removed from the physical custody of her parents for more than a year. Patrick has a lengthy history of numerous criminal convictions for such offenses as motor vehicle license violations, harassment, disorderly conduct, criminal mischief, interference with official acts, assault, and domestic abuse, as well as numerous alcohol related offenses. He has had probation revoked and served prison time during the juvenile court proceedings in this case. Patrick has emotional, impulse control, and anger management problems. In November 2001 he found it difficult to take care of himself, much less take care of Bailey. He became so "stressed out" by his problems he was unable to deal with or take care of Bailey and sought Department of Human Services assistance out of fear he might harm Bailey. Bailey has remained in relative and foster care placement since then.
Patrick completed a batterer's education program, but has not taken an anger management class. He continues to have impulse control and anger management problems. In late August he became violent and destroyed property at his sister's home.
Patrick exercised some visitations after being released from prison in August 2002, but was inconsistent and missed many. He cut one visit short because he could not handle Bailey. He exercised visitation only once in the two months or more immediately preceding the termination hearing.
Patrick remains on probation. A probation violation complaint had been filed, and a hearing scheduled, before the termination hearing. However, the hearing was continued until shortly after the termination hearing. Patrick's probation officer intended to seek revocation of his probation.
At the termination hearing Patrick testified he wanted an additional extended time period to see if he could get his life together and take care of Bailey, and he thought that was in her best interests. He also testified quite candidly, however, that he felt she was better off where she was (foster care) than with him and should stay there, and that it would require about six months before he might be able to provide for her.
Patrick does not dispute the first three elements of section 232.116(1)(h). He has substantial, ongoing, unresolved legal problems, emotional problems, impulse control problems, anger management problems, stress problems, and an inability to deal with and provide for an active three year old. Clear and convincing evidence shows Bailey cannot at the present time, or for the foreseeable future, be returned to Patrick's custody without being exposed to the adjudicatory harm that led to her removal. We therefore find the section 232.116(1)(h) grounds for termination of Patrick's parental rights have been proven.
Patrick claims termination of his parental rights is not in Bailey's best interest. We must determine what the future likely holds for Bailey if returned to Patrick. In re J.K. and J.K., 495 N.W.2d 108, 110 (Iowa 1993). The best evidence for this determination is the parent's past performance because it may indicate the quality of future care the parent is capable of giving. Id. It is not in the best interests of children to keep them in temporary foster homes while the natural parents get their lives together. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). Allowing Patrick substantial additional time to get his life together is not in Bailey's best interests. We agree with the juvenile court that termination of Patrick's parental rights to Bailey is in her best interests.