Opinion
No. 3-363 / 03-0682
Filed June 13, 2003
Appeal from the Iowa District Court for Davis County, William S. Owens, Associate Juvenile Judge.
A.C. and J.H. appeal the termination of their parental rights to J.H. and J.H. AFFIRMED.
R. Swain of Swaim Law Office, Bloomfield, for appellant mother.
Mary Krafka of Swanstrom Krafka, Ottumwa, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Rick Lynch, County Attorney, for appellee-State.
John Silko, Bloomfield, for minor children.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Angela and Jeff appeal the termination of their parental rights to J.H., age five and J.H., age five.
I. Background Facts and Proceedings.
On March 26, 2001, J.H. and J.H. were removed from Angela's care and placed with their paternal great aunt and uncle. On May 21, 2001, J.H. and J.H. were adjudicated children in need of assistance pursuant to Iowa Code section 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child) (Supp. 2001). Pursuant to the adjudicatory order, the children were placed with their maternal grandmother. The dispositional order entered August 27, 2001, maintained the children's placement with their maternal grandmother. The children were eventually returned to the care of their paternal great aunt and uncle. The great aunt and uncle have committed to being a permanent placement for the children if parental rights are terminated. An evaluation of their home stated it is an excellent placement resource for the children, and the home should be considered for potential adoption. The Department of Human Services offered family centered services, family preservation services, substance abuse evaluation and treatment for Angela and Jeff, random drug testing for Angela and Jeff, psychiatric assessments for Angela and Jeff, individual mental health services and medication management for Jeff, and supervised visitation for Angela and Jeff.
On August 26, 2002, the State petitioned to terminate the parental rights of Angela and Jeff. On March 31, 2003, the juvenile court terminated the parental rights of Angela and Jeff with respect to J.H. and J.H. pursuant to Iowa Code section 232.116(1)(f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home). Both parents appeal.
Angela raises the following issues on appeal:
(1) Since it is conceded that mother now lives in a clean home and has her substance abuse issues under control, the concerns of the Department do not rise to the level of clear and convincing evidence precluding the return of the custody of the twins to the mother, thus the statutory basis for termination has not been proven.
(2) Even if the State proved a statutory basis for termination, should the parent-child relationship between the minor children and their mother be terminated when the State has not shown by clear and convincing evidence that termination is in the children's best interests?
Jeff raises the following issues on appeal:
(1) Termination of parental rights is not in the children's best interests where father has addressed his substance abuse and mental health issues through therapy.
(2) Termination of parental rights is not in the children's best interests where father has corrected the circumstances which gave rise to the adjudication and had achieved the means to provide for his children by the time of the termination of parental rights hearing.
(3) Termination of parental rights is not in the children's best interests where father has maintained meaningful contact with his children.
(4) Clear and convincing evidence does not exist in the record to support termination of parental rights where father has cooperated with court-ordered services.
II. Standard of Review.
Our review in termination of parental rights cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). 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. Angela's Parental Rights.
Angela argues that insufficient evidence supports the termination of her parental rights. Because J.H. and J.H. are five years old, have previously been adjudicated children in need of assistance, and have been out of the home since March 26, 2001, the dispositive issue is whether J.H. and J.H. can safely be returned to Angela's care. See Iowa Code § 232.116(1)(f). Section 232.116(1)(f)(4) provides 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 provisions of 232.102 provide:
5. a. 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:
(1) The child cannot be protected from physical abuse without transfer of custody; or
(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.
In terminating Angela's parental rights, the juvenile court found:
Years of services have been provided to these parents designed initially to prevent removal, and later to make it possible for the children to be returned. Despite services involving these, and her other children, Angela has a history of neglecting her children, and she continues to place her interests, and those of a paramour ahead of her children. Every shred of credible evidence presented establishes that [J.H. and J.H.] cannot be placed with Angela now, or in the reasonably foreseeable future.
That Angela's home has recently been clean is noteworthy. However, we agree with the juvenile court that Angela's paramour's demands for a clean home are the reason for the change, not an independent effort on her part to provide a clean, safe home for her children. Angela and her paramour, Tom, live in the upstairs unit of a duplex. Angela's other children live in the downstairs unit. If J.H. and J.H. were returned to Angela, she planned to have them live without direct adult supervision in the downstairs unit with her other children. Additionally, Angela works in the evenings, making Tom the primary caretaker for the children. When asked about this arrangement if J.H. and J.H. were returned, Tom replied, "no f-ing way." Furthermore, Angela is also dependent upon Tom for transportation because she is not a licensed driver. Clearly, Angela's priority is not the children.
We, like the juvenile court, find the risks of harm resulting in the adjudication of J.H. and J.H. remain the same because of Angela's failure to address these issues. J.H. and J.H. are doing well in their current placement, and their caregivers are interested in adopting them.
Next, Angela argues that termination of her parental rights is not in the children's best interests. The juvenile court made the following findings:
Clearly [J.H. and J.H.] cannot be returned to either parent at this time. Although the children are placed in relative care, it is clear that unless parental rights are terminated this would not be a long-term placement. The [great aunt and uncle] have indicated they would adopt the children, but are not interested in guardianship, or long-term foster care. In addition, granting the parents additional time would only serve to postpone establishing the permanency that [J.H. and J.H.] desperately need. The most credible evidence presented establishes that the only way that [J.H. and J.H.] can achieve permanency is to grant the Petitioner's request and terminate their parents' parental rights.
Based on the record made it would be in the best interests of [J.H. and J.H.] if their parents' parental rights were terminated. The children have been in out of home placement for nearly two years. Although there is a bond between [J.H. and J.H.] and their parents, as well as between the children and their half-siblings, these factors are outweighed by the need for the children to achieve permanency. [J.H. and J.H.] are in a loving home with relatives who care for them deeply, and who are willing to adopt them if parental rights are terminated.
These conclusions find abundant support in the record, and we adopt them as our own. "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). In the best interests analysis, we consider both the long-term and immediate interests of the child. In re C.W., 554 N.W.2d 279, 283 (Iowa Ct.App. 1996). A parent's past performance is indicative of the future care the parent is capable of providing. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). With these principles in mind, we find the record supports the termination of Angela's parental rights to J.H. and J.H.
IV. Jeff's Parental Rights.
Jeff argues that termination of his parental rights is not in the children's best interests because he has received therapy for his substance abuse and mental health issues, corrected the circumstances which gave rise to the adjudication and can now provide for the children, and maintained meaningful contact with the children. He also argues that insufficient evidence supports the termination because he has cooperated with court-ordered services.
With respect to Jeff's last argument regarding the sufficiency of the evidence, we note that cooperation with court-ordered services is not an element of Iowa Code section 232.116(1)(f), the ground upon which his parental rights were terminated. We therefore consider his cooperation with services with the other factors he cites in his best interests arguments.
The best interest of the children is paramount. Iowa R.App.P. 6.14(6)( o). As previously noted, a parent's past performance is indicative of the quality of care he is capable of providing. Dameron, 306 N.W.2d at 745.
The juvenile court made the following findings with respect to Jeff and the children's best interests:
For much of the time the children have been in out of home placement Jeff maintained a relationship with a woman who he knew was unacceptable, and a potential danger to his children. Despite months of urging by the department to end that relationship Jeff did not stop seeing [the woman] until it suited him to do so. Jeff has a history of entering into relationships with women who do not make good choices regarding their children, and he is now in a new relationship that he was not initially honest about. Although he is currently participating in services, Jeff has not been consistent in availing himself of services, or in visiting the children. Jeff does not have his own home, and has no firm timetable for establishing his own residence. As [the DHS worker] testified, Jeff clearly has good intentions, but despite two years of services he does not have the stability to parent [J.H. and J.H.] on a long-term basis.
These findings are also supported by the record and we adopt them as our own. While we commend Jeff for the periods in which he participated in services, exercised visitation, and maintained his mental health status, sobriety, employment, and a residence, we note there have been serious concerns with respect to his parenting abilities. Jeff's cooperation with services has not been consistent, and he has not consistently demonstrated stability. Jeff maintained a relationship with a woman who had been incarcerated on child endangerment charges even though DHS workers, familiar with the woman, told Jeff his continued association with her would impede his chances for reunification with J.H. and J.H. We agree with the juvenile court that the best interests of J.H. and J.H. require the termination of Jeff's parental rights.
We affirm the juvenile court's order termination the parental rights of Angela and Jeff with respect to J.H. and J.H.