Opinion
No. 2-709 / 02-0873
Filed October 16, 2002
Appeal from the Iowa District Court for Woodbury County, BRIAN MICHAELSON, Associate Juvenile Judge.
R.R. and M.T. appeal the termination of their parental rights to B.M. AFFIRMED.
R. Douglas, Sioux City, for appellant father.
Dewey Sloan, Jr., Le Mars, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Michele Lauters, Assistant County Attorney, for appellee-State.
Lesley Rynell, Sioux City, guardian ad litem for minor child.
Considered by SACKETT, C.J., and HUITINK and MILLER, JJ. HECHT, J., takes no part.
Michelle and Robert appeal from the juvenile court's order terminating their parental rights to their eight-year-old daughter, B.M. We affirm.
I. Background Facts and Proceedings.
Michelle and Robert are the unmarried parents of B.M., born February 6, 1994. Their relationship ended when B.M. was two years old. B.M. was removed from Michelle's care based on evidence that Michelle physically abused B.M., abused substances, and experienced domestic violence with her live-in male companion. Upon her removal, B.M. was placed temporarily with Robert and his mother. This placement ended in September 2000 when it was discovered Robert was named as a perpetrator in a preexisting and founded sexual abuse report. B.M. was then placed with Michelle's brother and his wife.
In November 2000 B.M. was adjudicated a child in need of assistance. The statutory grounds for adjudication included Iowa Code section 232.2(6)(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 drug abuse results in child not receiving adequate care) (Supp. 1999).
The resulting dispositional order entered in April 2001 extended B.M.'s placement with Michelle's brother and his wife. The extent and terms of parental visitation were left to the discretion of the Department of Human Services. In addition, the dispositional order adopted the Department's permanency plan.
The State's petition to terminate parental rights was filed on February 15, 2002. Following trial on the merits of the petition, the court entered its findings of fact including the following:
After the dispositional hearing, Michelle did not appear for another hearing regarding [B.M.] until January 9, 2002. Michelle's visits with [B.M.] were suspended in early August 2001 due to Michelle's failure to participate in reunification efforts. Michelle had not followed through with chemical dependency treatment as recommended nor had she submitted to urinalysis drug screens. The suspension of visits by the department came after consultation with [B.M.'s] guardian ad litem and therapist.
. . . .
The service provider who was working with Robert on parenting skills reported that Robert was missing appointments or arriving late for scheduled appointments. The provider noted that Robert's inconsistent attendance at individual sessions prevented Robert from utilizing skill development concepts and visitations with [B.M.] and was indicative of Robert's ability to meet [B.M.'s] needs in the future.
. . . .
Therapist Julie Elbert authored a bonding assessment report dated December 12, 2001. Ms. Elbert reported her opinion that [B.M.] had suffered neglect, abuse, depression, and anxiety due to her situation and her wanting to belong to parents. Ms. Elbert opined that [B.M.] has sustained substantial damage due to her sense of safety and that she struggled to trust anyone. Because [B.M.] had remained in "foster care" for so long, she did not know who she belonged to or even if she will ever belong. [B.M.] idolized her parents because they were her "mom and dad" and believed that it was her fault she had been removed from her parents. Ms. Elbert concluded that [B.M.] desperately needed permanency and to be kept safe from family members who are at risk of harming her. She indicated that reunifying [B.M.] with one of her parents does not seem possible due to the risk of her being harmed more than she already has and that moving her to a new adoptive home may cause significantly more damage to her fragile sense of self.
Therapists Conner and Elbert both testified that they were recommending adoption by a nonrelative, however, both agreed that [B.M.] should remain with [Michelle's brother and his wife] until the prospective adoptive home is identified. They further testified consistently that [B.M.] and her adoptive parents, whether [Michelle's brother and his wife] or nonrelative placement, would need to engage in ongoing therapy to address [B.M.'s] individual issues, as well as the issues surrounding termination and adoption.
Michelle's parental rights were terminated pursuant to Iowa Code sections 232.116(1)(b) (abandonment), (d) (CINA for physical or sexual abuse, circumstances continue despite receipt of services), (e) (CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), (f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), (i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions), and (l) (CINA, parent has substance abuse problem, child cannot be returned within a reasonable time) (Supp. 2001). Robert's parental rights were terminated pursuant to Iowa Code section 232.116(1)(d) (CINA for physical or sexual abuse, circumstances continue despite receipt of services), (e) (CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), and (f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home). Both parents appeal.
In its order terminating parental rights, the court cites to Iowa Code §§ 232.116(1)(b), (c), (d), (e), (h), (k) (2001). However, the applicable law in this termination is correctly cited as Iowa Code §§ 232.116(1)(b), (d), (e), (f), (i), (l) (Supp. 2001) due to an amendment to § 232.116 that renumbered the sections but did not substantively alter them.
Again, in its order terminating parental rights, the court cites to Iowa Code §§ 232.116(1)(c), (d), (e) (2001). However, the applicable law in this termination is correctly cited as Iowa Code §§ 232.116(1)(d), (e), (f) (Supp. 2001) due to an amendment to § 232.116 that renumbered the sections but did not substantively alter them.
II. Scope of Review.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 6.14(6)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
III. The Merits. A. Michelle's Parental Rights.
Michelle does not dispute the sufficiency of the evidence supporting termination of her parental rights on any of the grounds relied upon below. She, however, contends the court need not have terminated her parental rights because B.M. was placed with a relative and B.M.'s long-term interests are advanced by continuing that placement. See Iowa Code § 232.116(3)(a) (court need not terminate if child placed with a relative). Michelle's argument is premised on B.M.'s limited prospects for adoption and presumptive benefits of extending her placement in a familiar family environment. We disagree.
The immediate unavailability of an adoptive placement does not justify preservation of a parent-child relationship that should otherwise be terminated. In re T.C., 522 N.W.2d 106, 109 (Iowa Ct.App. 1994). Moreover, the "determination to terminate a parent-child relationship is not to be countermanded by the ability and willingness of a family member to take the child." In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). In rejecting this alternative to termination, the juvenile court stated:
Upon review of the exhibits and record in this matter, it is clear that guardianship would not be in [B.M.'s] best interests. She needs to know who is responsible for her and who she can trust to be there, through thick and thin, for the rest of her life. She should not languish in an impermanent arrangement that can be challenged at any time just because it is the easiest and least painful resolution of a lose-lose situation today. Michelle has not done one single affirmative act towards reunification with [B.M.] and preserving her parental rights. She is perfectly happy with her brother raising her child and that fact alone sends up a red flag for the future of this arrangement.
These findings are abundantly supported by the record, and we adopt them as our own. We also note that these conclusions are consistent with the recommendations made by the psychologists who evaluated B.M.
Lastly, we find the termination of Michelle's parental rights pursuant to Iowa Code section 232.116(1)(e) was appropriate. B.M.'s adjudication as a child in need of assistance and her removal from Michelle's home for more than six months were not disputed. The fact that Michelle's visitation privileges were suspended in August 2001 based on her failure to participate in reunification efforts is sufficient to establish that she has not maintained significant and meaningful contact with B.M. Because we find the record sufficient to terminate on this ground, we need not consider the remaining grounds for termination relied on by the juvenile court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (when the juvenile court terminates parent's rights on more than one statutory ground, we only need to find grounds to terminate parental rights on one of the sections cited by the juvenile court in order to affirm). We affirm on this issue.
B. Robert's Parental Rights.
Robert raises the following three issues:
(1) The court erred in finding without clear and convincing evidence that Robert is an "untreated sex offender,"
(2) The court erred in basing its order on Robert's not submitting to a polygraph test, and
(3) The court erred when it stated, "the only thing Robert had done with any success on a consistent basis in addressing the issues identified by DHS and this court which led to B.M.'s adjudication and continued adjudication as a child in need of assistance has been his attendance at court hearings and supervised visits."
Robert's status as an untreated sex offender and failure to submit to polygraph testing were only two of several circumstances the juvenile court cited as evidence supporting its decision to terminate his parental rights. Because the record includes other evidence supporting termination, we reach the same result as the juvenile court without considering either of these circumstances.
As noted earlier, Robert failed to successfully complete parenting skills training as provided in the Department's case plan. Although this failure cannot serve as an independent ground for termination, it is nevertheless evidence of Robert's progress toward recognizing and correcting the circumstances which resulted in B.M.'s adjudication and loss of parental custody. In re J.L.P., 449 N.W.2d 349, 352 (Iowa 1989). Additionally, B.M. reported sleeping with Robert while he was naked and that she was sexually molested by Robert's half brother. We find this evidence sufficient to establish that B.M. cannot be safely returned to Robert's custody. The State has therefore met its burden of proof under section 232.116(1)(f) (Supp. 2001), and we affirm on this issue. Because we affirm on this issue, we need not consider the other grounds relied on by the juvenile court. A.J., 553 N.W.2d at 911.
Both Robert and Michelle contend it is not in B.M.'s best interests to have each of their parental rights terminated. B.M. is attached to both parents and wants to know when she can go "home." However, she has been making academic and emotional progress while living with her aunt and uncle. The child's physical, mental, and emotional needs are primary considerations. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Michelle and Robert both have anger management issues and have put B.M. in the middle of their troubled relationship. A child need not endlessly await the maturity of his or her natural parent. In re T.D.C., 336 N.W.2d 738, 744 (Iowa 1983). Securing an adoptive home will give B.M. the permanence and stability that she deserves. See In re K.F., 437 N.W.2d 559, 564 (Iowa 1989). In a September 2001 report, one of B.M.'s therapists recommended permanency for B.M. as soon as possible. Another therapist reported in December 2001 that B.M. desperately needed permanency and to be kept safe from family members who are at risk of harming her. A child's long-range and immediate interests are considered in the best interests analysis. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). Accordingly, it is in B.M.'s best interests that the parental rights of both Michelle and Robert are terminated.
We have considered all of the issues raised by the parties and find them to be either without merit or disposed of by the foregoing opinion. The juvenile court's decision terminating Michelle's and Robert's parental rights to B.M. is affirmed in its entirety.