Opinion
No. 3-654 / 03-0318
Filed October 15, 2003
Appeal from the Iowa District Court forJohnson County, Stephen C. Gerard, II, District Associate Judge.
A mother appeals juvenile court orders finding aggravated circumstances exist and waiving reasonable efforts to preserve and unify a family. AFFIRMED.
Amy Evenson of Larson Evenson, Iowa City, for appellant-mother.
Sue Kirk, Iowa City, for father.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, J. Patrick White, County Attorney, and Deborah Farmer Minot, Assistant County Attorney, for appellee.
L. Jay Stein, of Stein, Moreland, Moore Egerton, L.L.P., Iowa City, for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
A mother appeals the juvenile court's waiver of the State's obligation to make reasonable efforts to preserve and reunify the family as to her infant son, Jeremy, following his adjudication by the court as a child in need of assistance (CINA). She contends the State failed to prove by clear and convincing evidence that its obligation to provide reasonable services toward reunification should be waived. We affirm.
Allison was born October 5, 1981 and was twenty-one years old at the time of the ruling at issue here. Allison is the biological mother of Zachary, born December 7, 2001, and Jeremy, born October 31, 2002. Allison moved in with Paul, the biological father of both boys, in January of 2001. At the time Paul had custody of his three children from prior marriage. In May of 2001 these three children were removed from Allison and Paul's home due to the unsanitary, cockroach-infested conditions of the home. They were adjudicated children in need of assistance in June 2001. Paul later stipulated to a termination of his parental rights to the two younger children. His oldest child was placed in residential treatment where he remains today after it was discovered he had perpetrated sexual abuse on his two younger sisters. Paul still hopes to regain custody of his son and have him reside with him and Allison after his son is released from residential treatment.
Zachary was removed from his parents shortly after his birth pursuant to an emergency removal order based on concerns of the history of abuse and neglect by Paul and Allison of Paul's other three children, and ongoing concerns about the cleanliness and safety of their home. Various social services were initiated for Paul and Allison in December 2001, including family-centered services, family therapy services, supervised visitation, protective day care, mental health evaluations and treatment, and Iowa Department of Human Services (DHS) case management services. They have also received numerous services and assistance from their local church, including transportation and supervision of visitation. By stipulation of the parties Zachary was adjudicated a CINA in February 2002.
In October of 2002 Allison gave birth to Jeremy. Pursuant to a DHS custody agreement with Allison and Paul, Jeremy joined Zachary in his foster home immediately following Jeremy's birth. A CINA petition was filed as to Jeremy in November 2002. It included a request for a waiver of reasonable efforts to reunify Jeremy with Paul and Allison so Jeremy could be placed in a permanent home as soon as possible. In conjunction with this petition the State filed a motion to consolidate the CINA hearing with the trial on the State's petition to terminate Allison and Paul's parental rights as to Zachary. The court granted the State's motion to consolidate and all matters were heard at trial on December 4 and 5, 2002.
In an order filed January 3, 2003 the juvenile court terminated both Paul and Allison's parental rights as to Zachary pursuant to Iowa Code section 232.116 (2003). In an order filed January 8, 2003, it (1) adjudicated Jeremy a CINA pursuant to Iowa Codes sections 232.2(6)(b) (parents imminently likely to abuse or neglect child), 232.2(6)(c)(2) (child is imminently likely to suffer harm due to parent's failure to exercise care in supervising child), and 232.2(6)(n) (parent's (Allison's) mental capacity and condition would result in child not receiving adequate care), and (2) found that aggravated circumstances existed, pursuant to the provisions of section 232.102(12)(c), for the court to waive the requirements for making reasonable efforts to achieve family reunification. A dispositional hearing was held and the juvenile court entered a dispositional order on February 26, 2003 continuing to waive the requirement of reasonable efforts, and ordering that visitation of the parents with Jeremy be suspended.
On appeal Allison does not challenge the court's adjudication of Jeremy as a CINA. The appeal challenges only the court's waiver of the State's obligation to make reasonable efforts to preserve and reunite the family. Paul does not appeal from any of the juvenile court's orders. Our review of an action arising from CINA proceedings is de novo. Iowa R.App.P. 6.4; In re B.B., 598 N.W.2d 312, 315 (Iowa Ct.App. 1999). Although on review we are not bound by them, "we give weight to the juvenile court's findings of fact because the juvenile court has had the unique opportunity to hear and observe the witnesses firsthand." In re S.V., 395 N.W.2d 666, 668 (Iowa Ct.App. 1986); Iowa R.App.P. 6.14(6)( g). The State has the burden of proving by clear and convincing evidence the existence of aggravated circumstances justifying waiver of reasonable efforts to preserve and unify the family. Iowa Code§ 232.102(12).
DHS has an obligation to make reasonable efforts to reunite parents with children. Iowa Code§ 232.102(7). However, the juvenile court may waive reasonable efforts when aggravated circumstances exist. Iowa Code § 232.102(12). One such aggravated circumstance is when the parent's rights have been terminated under section 232.116 with respect to another child who is a member of the same family, and there is clear and convincing evidence that the offer or receipt of services would not be likely within a reasonable time to correct the conditions which led to the child's removal. Iowa Code § 232.102(12)(c). In a detailed and well-reasoned ruling, the juvenile court determined such aggravated circumstances exist here. We agree with the juvenile court's conclusions and findings and adopt them as our own. We note and emphasize the following facts set forth in the record in support of our conclusion.
It is clear Allison was unable to adequately care and provide for Paul's three children from his prior marriage, as they were removed from her and Paul's home shortly after they moved in together. Allison has a history of significant mental illness, including dysthymic disorder, major depression of a recurrent nature, and a non-specified personality disorder, which she apparently refuses to admit the full extent of or seek and continue adequate treatment for. According to the medical evidence in the record such illnesses would cause a "major impairment in her ability to parent," there would be "difficulty in caring for the physical needs of both herself and her child," and "the paranoid and avoidant features would make it very difficult for her to establish relationships." Allison testified she is not taking her medication for these disorders because she feels better now and does not believe she needs the medication or therapy, or even that she has depression. However, the very nature of her disorders may allow for short periods of time when the symptoms do not seem as severe, but this does not mean the illness is gone. Thus, although Allison has been offered appropriate treatment for her mental illnesses, she has not taken significant advantage of it. She does not take her medication, continues to refuse to attend therapy, and does not express a willingness to do either in the future.
In addition, despite the fact Paul has been receiving extensive services since 1998 and Allison since December of 2001, neither has made significant progress in their parenting skills. Although some service providers seem to acknowledge Allison is doing better taking care of herself, all of the evidence indicates she is far from ready now, and will not be ready in the reasonably foreseeable future, to take on the added and weighty responsibility of providing care for an infant. The DHS caseworker testified he could not foresee Jeremy safely returning home even after a year of additional services to Paul and Allison. Finally, there is the added concern of the harm to which Jeremy may be exposed if, pursuant to both Paul and Allison's stated desires, Paul's oldest son were to return to reside with them after his release from residential treatment for the sexual abuse of his two younger sisters.
For all of the reasons set forth above, we conclude the juvenile court was correct in finding the State proved by clear and convincing evidence that aggravated circumstances as described in Iowa Code section 232.102(12)(c) exist which justify waiving the requirements for making reasonable efforts to achieve family reunification.