Opinion
No. 5-556 / 05-0917
Filed July 27, 2005
Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.
A mother appeals from the juvenile court order terminating her parental rights to her daughter. AFFIRMED.
Kelly K. Salker of Berenstein, Moore, Berenstein, Heffernan Moeller, L.L.P., Sioux City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for appellee.
John S. Moeller, Sioux City, for father.
Michelle Dreibelbis of Juvenile Law Center, Sioux City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Kendra, the mother of Jasmine, appeals from the juvenile court order terminating her parental rights to her daughter. She contends the State did not prove any of the statutory grounds for termination by clear and convincing evidence and that termination is not in Jasmine's best interest. On de novo review, we affirm.
Background facts and proceedings.
Jasmine was born in August 2003. The State removed Jasmine from her parents' home in February 2004 following a police drug raid there that resulted in her parents' arrest. Throughout the pendency of this case, Jasmine was placed "under the care" of her paternal grandparents. At the adjudicatory hearing in June 2004 the court, in finding Jasmine was in need of assistance, noted:
Ongoing services have been provided by the department since the initiation of the Child Protective Service assessment in early March 2004. Notwithstanding these services, Jasmine would be placed in harm's way if returned to the custody of either parent. At the current time there is a hostile/strained relationship between the parents, neither parent has their own residence, Kendra was recently arrested for OWI, Benjamin [the father] has reportedly been out drinking in the early morning hours, the criminal drug charges are unresolved, and neither parent is employed. Accordingly, it would be contrary to the welfare of Jasmine to place her under the supervision of either parent at this time.
In the period between the adjudicatory hearing and the dispositional hearing in August 2004, Kendra was offered, and took advantage of, skill development and parenting skill services. She also was consistent in exercising visitation. She continued to have problems with substance abuse. She missed drug tests. Kendra and Benjamin continued to have a volatile relationship that necessitated police intervention. They did not follow through with couples therapy.
By the time of the dispositional review hearing in December, Kendra had submitted to all required drug tests and all were negative. She participated in a substance abuse evaluation and was attending outpatient treatment. She was cooperating with reunification services, including couples therapy with Benjamin. Because Kendra did not have housing of her own, she moved in with Benjamin. Visitation with Jasmine was going well, and the court expected Jasmine would be placed back in Kendra's care on a full-time basis in the near future. The court scheduled a permanency hearing at the end of May 2005.
Within a week of the December dispositional review hearing, Kendra and Benjamin's relationship was "on the rocks." The in-home service provider noted in her January 8, 2005 report that the parents "have not made any progress during the reporting period, and in fact have completely backslid to the day when [the Department of Human Services] initially got involved in their lives." Kendra had relapsed into alcohol abuse. Police had to intervene in domestic incidents between Kendra and Benjamin at least twice in January 2005. Reciprocal no-contact orders were put in place. In early February Kendra moved into her own apartment. A service provider, who visited the apartment, observed "fifty or more liquor bottles laying in the apartment and in the windowsills, some emptied and some full."
In late February the State petitioned to terminate both parents' rights to Jasmine and moved to expedite the permanency hearing and have it held in mid-May at the same time as the hearing on the termination petition. In early March, Kendra was jailed for a week for violating the no-contact order. Shortly before the permanency/termination hearing, Kendra was involved in another physical confrontation, this time with a female friend. Kendra exercised visitation with Jasmine twice weekly for two hours. Kendra obtained employment, but was dependent on others for transportation because her license was suspended as a result of an OWI conviction.
After a hearing, the court terminated Kendra's parental rights to Jasmine under Iowa Code sections 232.116(1)(d) and (h) (2005). It terminated Benjamin's parental rights under sections 232.116(1)(d), (e), and (h), and he has not appealed. The court noted that both parents agreed Jasmine should be adopted by the family physician and his wife. This adoptive placement also was supported by Jasmine's grandparents. Robin Garraway, the case manager, testified Jasmine was being cared for during the day by the prospective adoptive parents and that the plan would be for a semi-open adoption that could allow for visitation by the grandparents.
Claims on appeal.
Kendra contends the grounds for termination are not supported by clear and convincing evidence. Concerning section 232.116(1)(d), she argues the circumstances leading to Jasmine being found to be a child in need of assistance no longer exist. Concerning section 232.116(1)(h), Kendra argues Jasmine could be returned to her care. She points to evidence she exercised as much visitation as she could and was appropriate in her interaction with Jasmine. She has maintained suitable housing since early February and steady employment since early March. She has been participating in a chemical dependence treatment program and attending Alcoholics Anonymous meetings. She has ended her relationship with Benjamin. Kendra also contends termination of her parental rights is not in Jasmine's best interest, citing the rebuttable presumption a child's best interest is served when custody remains with the natural parents.
The State contends Kendra has not preserved error on her insufficient evidence claim by not raising it at the termination hearing and also has waived it on appeal. The State argues Kendra did not claim Jasmine could be returned to her care at the termination hearing, but instead asked for more time to demonstrate her stability and ability to keep Jasmine safe, thus tacitly conceding Jasmine could not be returned to her care at that time. It also argues Kendra neither cites authority nor argues Jasmine could have been returned to her care a the time of the termination hearing, thus waiving that claim. See Iowa R. App. P. 6.14(1)( c). The State also contends Kendra waived her best-interest claim by not making any argument that supports her claim. See id.
Scope and standard of review.
We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). "Clear and convincing evidence" means there are no serious or substantial doubts as to the correctness of conclusions of law drawn from the evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996).
Discussion.
From our de novo review of the record, we find clear and convincing evidence supports termination under section 232.116(1)(h). There is no dispute the first three elements of this subsection were met. At the time of the termination, Jasmine was not yet two years old. She was found to be in need of assistance pursuant to Iowa Code section 232.96. She had been out of Kendra's care about fourteen months with no trial periods at home. The only issue is whether or not she could be returned to Kendra's care at the time of the termination. We find clear and convincing evidence she could not.
As we consider whether or not Jasmine could be returned to Kendra's care, we gain insight into her prospects if returned by reviewing evidence of Kendra's past performance, for it may be indicative of her future capabilities. See In re M.S., 519 N.W.2d 398, 400 (Iowa 1994); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Kendra has a history of alcohol abuse, anger management problems, and violent interaction with Jasmine's father and others, with the most recent incident only a week or two before the termination hearing. To her credit, she has sought to address her substance abuse problem and has obtained employment and housing. These positive changes, however are recent. Once the statutory period of patience for parents has passed, we view cases with a sense of urgency. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). Jasmine needs and deserves permanency now. She has been with her paternal grandparents most of her life. Returning Jasmine to Kendra's care now would place her at risk. By asking for more time to demonstrate her current stability, Kendra tacitly acknowledged Jasmine could not be returned to her care at the time of the termination hearing. Our statutes are preventative as well as remedial; we need not wait for harm to occur. See Dameron, 306 N.W.2d at 745. Jasmine's "crucial days of childhood" need not be suspended while Kendra tries to address her problems. See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). "Time is a critical element." In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).
Kendra also contends termination is not in Jasmine's interest. Once we conclude all the criteria for termination of parental rights have been satisfied, we still must make a determination whether termination is in the child's interest. See In re T.R., 483 N.W.2d 334, 337 (Iowa Ct.App. 1992). There is a rebuttable presumption the best interests of a child are served when custody remains with the natural parents. See Iowa Code § 232.1; In re S.J., 451 N.W.2d 827, 830 (Iowa 1990); In re Chad, 318 N.W.2d 213, 218 (Iowa 1982) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)).
In this case, we conclude the State rebutted the presumption Jasmine's interests would best be served in the custody of her parents. While we acknowledge the efforts Kendra made shortly before the court terminated her parental rights, we conclude they were too little, too late. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997) (quoting In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993)); see also In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). "Children simply cannot wait for responsible parenting." L.L., 459 N.W.2d at 495. Jasmine has spent more than two-thirds of her young life out of the care of her parents. Kendra has not yet progressed to the point she can care for Jasmine. Because of concurrent planning, a potential adoptive placement has been found for Jasmine. The placement should still allow the grandparents to have contact with Jasmine. We conclude, under the circumstances before us, that termination of Kendra's parental rights will serve Jasmine's interest.
Conclusion.
Having found clear and convincing evidence supports termination under Iowa Code section 232.116(1)(h) and that termination is in Jasmine's interest, we affirm the decision of the juvenile court to terminate Kendra's parental rights.