Opinion
No. 3-358 / 03-0655
Filed June 13, 2003
Appeal from the Iowa District Court for Buchanan County, Alan D. Allbee, Associate Juvenile Judge.
The mother of two children and the father of one child appeal the orders terminating their parental rights. AFFIRMED.
James Peters, Independence, for appellant-mother.
Franklin Sauer, Independence, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Allan W. Vanderhart, County Attorney, and Andrea Dryer, Assistant County Attorney, for appellee.
A. J. Flickinger of Craig, Wilson, Flickinger, Independence, guardian ad litem for child.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Cheyenne K. is the mother of Kaleb K., born July 16, 1999, and Patrick K., born August 22, 2000. Shawn F. is the father of Patrick. On March 11, 2002, the children were adjudicated in need of assistance, pursuant to Iowa Code sections 232.2(6)(c)(2) and (o) (2001), after it was discovered Cheyenne had exposed them to the use of methamphetamine. On May 3, 2002, Kaleb and Patrick were removed from their mother's home and placed in foster care after Cheyenne again tested positive for methamphetamines, could not provide a home for the children, and failed to make suitable arrangements for their care.
Kaleb's father, Kenneth N., is not a party to this appeal.
On December 19, 2002, the State filed a petition seeking to terminate Cheyenne's parental rights to Kaleb and Patrick, as well as Shawn's rights to Patrick. Following a hearing, the juvenile court terminated both Cheyenne's and Shawn's rights pursuant to section 232.116(1)(h) (2003). Shawn and Cheyenne appeal this order.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children . In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Cheyenne. Cheyenne first contends Kaleb did not meet the age requirement for Iowa Code section 232.116(1)(h)(1), which necessitates a finding the child is "three years of age or younger." Kaleb was born on July 16, 1999. At the time of the filing of the termination petition he was approximately three years, five months old, while at the time of the termination hearing he was approximately three years, eight months old. The Code does not state whether this provision is inapplicable to children who are one day past his or her third birthday. However by looking to another subsection, we easily see the intent behind the particular language used. Section 232.116(1)(f) relates to a child, "four years of age or older." Should we determine subsection (h) does not apply to any child over three, but less than four years of age, a gap in the Code would allow an entire group of children to fall through the technical cracks and serve no useful purpose. See Iowa Code § 4.4(3) (presumption that reasonable result of statute intended); Baldwin v. City of Waterloo, 372 N.W.2d 486, 493 (Iowa 1985) (statute interpreted so as to "make sense"). Accordingly, we hold Iowa Code section 232.116(1)(h) applies to all children three years of age or younger which includes children up to the day before their fourth birthday. Hence, Kaleb was indeed "three years of age or younger."
Second, Cheyenne maintains the evidence failed to establish Kaleb and Patrick cannot be returned to her custody as provided in Iowa Code section 232.102. On our de novo review of the record we disagree. Cheyenne has a history of drug abuse and mental health problems that have affected the children in the past. She also has a history of serial relationships and questionable choices in paramours which likely will continue to endanger the children if returned to Cheyenne's care. Her current boyfriend has an extensive history with the law, including domestic violence, and substance abuse. Therapist Julie Lange noted Cheyenne shows an inability to effectively demonstrate the parenting skills she was taught and demonstrates a lack of interest in her children's lives. Finally, at the time of the termination hearing, Cheyenne was unemployed, expecting another child, and unable to show progress after having received many services. We believe the foregoing supports the conclusion neither Kaleb nor Patrick can be returned to her custody and therefore affirm the termination of Cheyenne's parental rights.
Shawn. Shawn first asserts the court erred in allowing the State to amend its petition after the hearing, which altered the Code section under which the State was seeking termination. We conclude this issue has not been preserved for our review. See In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990) (noting we will not address issues not addressed below). The record is unclear as to how this matter came to the attention of the court. However, in its March 19th order, the court granted the State until March 25 in which to file an amended petition and allowed the parents to file an objection thereto until March 31. Shawn did not file any such objection, and we thus decline to address it on appeal.
The code section change which has engendered some confusion with both the bench and bar was caused by the code editor's relettering of the subsections under 232.116(1). In reviewing the narrative portion of the termination petition and Shawn's responsive pleading, it appears Shawn was aware of the subsection under which the State was proceeding. In addition, the evidence was geared to the amended subsection. Although this issue is not preserved for our review, we note it appears the pleadings were properly amended to conform to the evidence. See Iowa R.Civ.P. 1.457.
Shawn next contends the State did not provide clear and convincing evidence that Patrick cannot be returned to his custody. See Iowa Code§ 232.116(1)(h)(4). We agree with the juvenile court's conclusions. Shawn has a significant criminal history, including convictions for extortion, assault, false imprisonment, obstruction of justice, possession of methamphetamine, and stalking. In addition he has a fairly recent history of drug and alcohol abuse. Shawn initially failed to acknowledge paternity and only did so after paternity testing was done in June of 2002. Patrick has thus been in foster care for longer than Shawn has even acknowledged his fatherhood. In addition, Shawn could not demonstrate that Patrick could be placed in his care, as at the time of trial, Shawn had not yet even been granted home or overnight visits with Patrick. While we commend some recent improvements in Shawn's lifestyle, we are simply unconvinced, as was the juvenile court, he will remain free of drugs and criminal activity so as to effectively parent Patrick. Shawn, who has never been Patrick's caregiver, offers too little certainty and stability to risk Patrick's safety. See In re L.L., 459 N.W.2d 489, 493 (Iowa 1990) (noting we consider what the future likely holds for the child if that child is returned to his or her parents).
In consideration of Patrick's young age, the little amount of time he has spent with Shawn, and Shawn's unstable and criminal past coupled with the uncertainty of his future behavior, we believe the juvenile court correctly concluded Patrick cannot safely be placed in Shawn's custody. Iowa Code section 232.116(1)(h)(3) establishes a six-month standard during which parents may prove their ability to parent, and once that time frame is met we view the case with a sense of urgency. See In re A.C., 415 N.W.2d 609, 14 (Iowa 1987). Patrick is now in pre-adoptive foster placement, in a home in which he can remain with his brother, Kaleb, to whom he is strongly bonded. As was the juvenile court, we are influenced by the testimony regarding the bond between Patrick and Kaleb and especially testimony regarding the likely devastating emotional effect of separating the brothers. Court-appointed special advocate Sandra Osterhaus expressed concerns that Shawn would not facilitate a continued relationship between Patrick and Kaleb, should they be separated, despite their significant bond and Patrick's dependence on Kaleb. Given that situation, and in light of all the other evidence received, we believe the best interests of Patrick call for termination of Shawn's parental rights.