Opinion
No. 3-105 / 02-2032
Filed July 10, 2003
Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.
Fatherappeals a juvenile court order terminating his parental right to his son. AFFIRMED.
William Binkard, South Sioux City, Nebraska, for appellant father.
Richard Moeller, Sioux City, for appellant mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Thomas Mullin, County Attorney, and Dewey Sloan, Sr., Assistant County Attorney, for appellee-State.
Marchelle Denker, Juvenile Law Center, Sioux City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
George G. appeals from the termination of his parental rights to his son. George is the father and Alissa is mother of a son, Lance, born May 2, 1998. Alissa is also the mother of Mark, born July 14, 1991, and Mikeal, born September 25, 1992. David V. is the father of Mark and Mikeal.
The record reveals a history of dysfunction in the background of each of the children's parents. On April 27, 2001, Alissa left her two older children with a babysitter and did not return. As of April 30, the children were staying with their paternal grandparents and Alissa's whereabouts were unknown. The next day Lance was located with his mother at the family residence. The residence was in a state of total disarray and flammables were stored near the furnace and water heater. The housing authority red-tagged the home. Lance and his half brothers were removed from their mother's care on May 1, 2001, based on a denial of critical care. At the time, George was working in Ames and living there with another woman.
The children were adjudicated in need of assistance on June 27, 2001. All three children have significant behavioral and emotional problems. In its adjudicatory order the juvenile court found the children had suffered neglect as a result of Alissa and George's inattention to their nutritional needs, medical needs, and environmental hygiene. The court further found George had physically abused the children. The juvenile court's initial dispositional order was delayed because of George's lack of cooperation with a psychosocial evaluation. When the order was filed in November of 2001, the court noted that George remained in denial as to why the children were removed and presented himself in a guarded and rather hostile, irritable manner during the psychosocial evaluation. Psychological testing indicated problems with suspiciousness, antisocial behavior, compulsiveness or rigidity, physical signs of depression, stress, impulsivity, and anxiety.
The juvenile court terminated George's parental rights to Lance under Iowa Code section 232.116(1)(d), (e), and (f). The juvenile court also terminated Alissa's parental rights to Lance and his two half brothers. The father of the older two children is serving a ten-year prison term. He consented to the termination of his parental rights. Both George and Alissa appealed. Alissa's appeal has been dismissed as untimely. As a result, only George's parental rights to Lance are at issue in this appeal. George contends the grounds utilized by the juvenile court for termination were not proved by clear and convincing evidence. He also contends termination is not Lance's best interest.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993); In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). The grounds for termination must be proved by clear and convincing evidence. In re M.W., 458 N.W.2d 847, 850 (Iowa 1990). Our primary concern is the best interest of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
The rights of a parent may be terminated under section 232.116(1)(d) when (1) a child or his or her sibling has been adjudicated in need of assistance and (2) the circumstances continue to exist despite the receipt of services. Based on our de novo review of the record, we conclude the juvenile court properly terminated George's parental rights under authority of this provision.
We agree with the juvenile court's observation that the family unit for Lance and his half brothers was fractured by their parents long ago. Lance has been out of his parents' care since May 1, 2001. George's relationship with the Alissa is controlling and dysfunctional. When the children were removed from the mother's care, George had already been separated from Alissa and the children for months. After the children were removed, George was slow to make an appointment for a psychological evaluation, and slower in attending to recommendations. In November 2001 George was asked to leave his required parenting class because his behaviors were so disruptive that his classmates were affected. Later, his supervised visits were suspended because he used inappropriate discipline. When George resumed visits with his son, Lance's foster mother reported that he would eat very little for days and become quiet, distant and inactive. George is unable to arrive at appointments on time. He excuses this behavior by citing his lack of reliable transportation. At the time of the termination hearing, George was still not involved in gainful employment. He acknowledged that he had earned less than $800 in the ten month prior to the hearing. George still lacks insight into the reasons Lance was removed from parental custody.
When the termination hearing was held, George and Alissa had reunited and were living in a two-bedroom apartment in subsidized housing. Alissa was working and the couple had apparently been living together for about a year. We acknowledge that George made some progress toward maintaining a stable home environment for Lance. For the most part, this progress occurred after the petition for termination of parental rights was filed in August of 2002. Despite some apparent improvements in George's lifestyle, we agree with the juvenile court's conclusion that Lance could not be safely returned to George's care at the time the termination hearing was held. Because we find the grounds for termination under section 232.116(1)(d) have been met, we need not consider the other grounds upon which George's parental rights were terminated. In re A.J., 553 N.W.2d 909, 911(Iowa Ct.App. 1996) (stating we only need to fine grounds to terminate parental rights under one of these sections cited by the juvenile court in order to affirm).
George also contends that, even if the statutory grounds for termination were met, termination is not in Lance's best interest. We disagree. Lance is a special needs child who has serious problems functioning in any home. He spits, bites, pushes, and hits people. He destroys property. He has a history of abusing family pets and injuring himself. He is cognitively delayed by about a year and a half. Lance needs a parent with outstanding parenting skills and considerable patience. He needs a high level of structure and will require a parent who can advocate for his needs. Fortunately, Lance is making steady gains in foster care. George has proven unable to demonstrate structure in his own life in areas as basic as housing and employment. It is abundantly clear that he remains ill equipped to be an adequate parent for Lance. Every child deserves a chance at a promising future. We agree with the juvenile court's conclusion that this is Lance's chance. We find termination of George's parental rights is in Lance's best interests.
AFFIRMED.
Zimmer, J. and Vaitheswaran, J., concur; Sackett, C.J., dissenting.
I must dissent.
The sole question in this appeal is whether the State has shown grounds for terminating George's parental rights to Lance by clear and convincing evidence. I must depart from the majority's decision that it has. While I understand the majority's decision to adopt the juvenile court's findings and affirm, I fail to find evidence to support these findings. Rather, my reading of the evidence convinces me that the State did not introduce the evidence needed to meet its burden under Iowa Code section 232.116(1)(d) to show that at the time of the termination hearing Lance could not be safely returned to George's care. The State has not adequately demonstrated either that factors leading to Lance's removal were uncorrected, or that George failed to maintain contact with Lance or make efforts at continuing to be a parent.
The record made at the termination hearing would indicate this is a case where the department was able to correct the parents' deficiencies so that Lance could be returned to their care. George had a slow start with reunification efforts, but by the time of the termination hearing the record showed George kept all appointments for visits between August and mid-October. He visited with Lance and his mother and Lance's two half brothers from 2:30 to 4:30 every Thursday. George completed parenting classes and got a certificate. Other than being late for sessions, he was successful in working with skill-development programs. Since August he responded appropriately to feedback given by staff members, he was more pleasant, communicated a lot, and was cooperative and courteous.
Contrast this with the testimony of the social worker. She provided the majority of the evidence in support of termination. She said she had been with the department for about four years, testified she had a degree in psychology and sociology. She said she guessed she got this case in July of 2001. She gave the opinion that the children, including Lance, could not be returned home at this time. When asked why, the following exchange occurred:
Q. Why? What harm would come to them? A. Um, well, the-I mean, from the reasons the case first opened up, um-those concerns are still present. Um, I mean, there was concern with the dirty home when the case first opened. Um, from the time that they'd gotten their apartment over on Jennings, um, you know, the providers have gone in the home and constantly questioned why, you know, it hadn't been unpacked; why it was taking months to do that. Um, lack of concern for the kids, missed visits, um, missed staffings; missed appointments with providers. That doesn't show any major concern for the children's well-being to me, so I don't-If they can't make those type of appointments, how can they, you know, help their kids.
She was also asked:
Q. Why is it best to terminate rights as to Lance? A. Again, so we can ensure his safety. There was a concern at a visit. That's why visits were, um, temporary suspended. Um, because even in front of providers we had a concern with George's parenting, so again, to ensure Lance is never, ever put through what he has been in the past and to ensure his safety and make sure that he's number one in his parent's lives.
She did not elaborate as to what the specific concern was, although there is a reference to his restraining Lance and hurting his nose.
The worker also had concerns that George and his wife were frequently late for appointments, but this was her primary concern about their lack of structure. The worker paid a visit to their home in August of 2002. She said it was dirty, dishes were not done, and they had not picked up clutter. The clutter was described as papers on the floor and on the coffee table and dirty dishes in the sink and on the counter next to the sink. The worker testified that was about it. She was also concerned about a picture introduced in evidence of George showing the children with a squirrel he had hunted and killed. She was specifically asked about the home and the following exchange occurred:
Q. Even considering the clutter you saw, was the home suitable for two adults and three children? A. I would not place those kids into that home. I would like to have seen it clean, picked up.
Q. And when you say clean and picked up, you're talking abut the papers you just talked about and the dishes on the counter and in the sink, right? A. Yes. When you walk in-I mean, I just remember in my mind that's what I saw was a lot of clutter, you know, a lot of — not a lot of space to walk, a lot of stuff everywhere.
Q. We, now you're adding more things because I thought you just got done saying papers and dishes. Stuff. What stuff? A. With the papers-if there are papers on the floor, you wouldn't want to walk on the papers on the floor. They could be important. I don't know. I'm just saying.
Q. And how long had the condition of the papers on the floor been in existence at the time you were there? A. I don't know from what time they were there.
Q. And you did a drop-in. In other words, it was unannounced, right? A. They had about fifteen, twenty minutes before I had come over there.
. . . .
Q. You didn't have any concerns about the safety of any occupant there, right? In other words, could have been safely placed-excuse me, could have been placed in that home at that time and there would have been no risk to their personal safety. Would that be safe to say? A. Right. There would be nothing in the apartment that-I don't think that they could have been hurt, could have got hurt on.
Lance had initially been placed with an aunt. The foster parents had complained about destructive behavior when Lance came to live with them. The worker was asked in reference to that issue:
Q. Lance's destructive behaviors, as far as you know didn't start until he left the placement with his aunt? A. I don't know if he was or not.
There are scattered references to the fact that George had disciplined his stepchildren with a belt. The report came only from the children. There was no evidence of any injury except what they said. There is no claim that George ever used a belt on Lance or physically abused him.
The reports entered as exhibits make the following references to physical abuse of George's stepsons. (1) The stepchildren were assessed in April of 1997. At that time one child had a small bruise on the inside of his left thigh. The other child had a similar small bruise on his upper thigh and the lower portion of this leg. There was a report that a baby sitter caused this bruising and had touched the boys' genitals. Both children were then interviewed at the Child Protection Center. The older child, then six years old, gave conflicting information about being touched, and then said no one had touched him inappropriately. After the assessment it was found, "There was not sufficient credible evidence to indicate an abusive incident or condition had occurred." (2) There also was an assessment in April of 2000. The boys were unkempt, but after completion of an assessment it was determined, "There appears to be lack of sufficient credible evidence to substantiate that [the stepsons] had been the victims of abuse, specifically, Denial of Critical Care, Failure to Provide Proper Supervision." (3) An assessment in October of 2000 as to the three boys came to the same conclusion. (4) In one report made after the boys were removed from their mother's care there is a statement that the paternal great aunt of the two older boys was concerned "as their statement regarding George spanking them with a belt." Also in the summary completed in May of 2001, a worker indicated the two older boys told her George spanked them with a belt or hand on their bare bottoms and that the nine-year-old said he would be spanked nine times and the eight-year-old would be spanked eight times and that they would have bruises on their "butts." Despite these statements by the children, the abuse determined in the report to have occurred was denial of critical care by virtue of the condition of the home and not because of physical abuse.
While not a party to this appeal, it would appear that George and Lance would live with Lance's birth mother. As the majority has pointed out, her appeal was dismissed as untimely. Lance's birth mother as well as George, has completed parenting classes. She took a special class on working with ADD children. The case plan she received was reviewed with her while she testified at the termination hearing, and it appeared that she has attained the goals set out for her.
The parents have obtained adequate housing. They have both taken parenting classes. While I recognize that they have some limitations and live near the poverty level, there is no showing Lance will be in danger if returned to their care. The evidence introduced at the termination hearing failed to show clear and convincing evidence that Lance could not be returned to his father. Showing the parents continued to live in a cluttered house and were late for appointments is not sufficient to support a finding children cannot be placed in their care. While George has some deficiencies, they are not such that he should not be allowed to care for his son. I recognize the workers have concerns about returning the child to his home and the fear of the possibility there may be a problem in the future. This should not be our yardstick, as problems occur for children even in the best homes. Lance has suffered by being away from his parents. The majority appears to support its position in part by evidence that Lance was upset in the foster home after he returned from a visit to his father. While one could come to the assumption that this meant he did not want to see his father, the assumption that Lance was upset because he was unable to remain with his father is just as strong. The bond between Lance and his father is not as great as it would have been had he remained in his father's care. Whether things may have been better or worse for Lance in a foster or adoptive home is not the test. To terminate parental rights the State must prove the allegations by clear and convincing evidence. Such evidence is not in the record here.
Legislative dictates that termination or parental rights come more quickly have resulted in speedy affirmance by this court of a large number of juvenile court decisions terminating parental rights. With most of these decisions I have agreed. Yet in doing so I recognize that termination of parental rights does not guarantee that children will go to a good, permanent home, though I recognize that some do. Many children spend their childhood in foster care, and some are placed for adoptions which are not successful. The question of whether there could be a better home for Lance is not the issue because before that issue can be addressed, the State must prove that Lance cannot be returned home. I would reverse and remand for further proceedings to implement Lance's return to his father.