Opinion
No. 2-168 / 02-0148.
Filed March 27, 2002.
Appeal from the Iowa District Court for Buchanan County, DANIEL BLOCK, District Associate Judge.
The mother appeals from the order of the juvenile court terminating her parental rights to her two girls. AFFIRMED.
Mary Kennedy, Waterloo, for appellant.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, Allan W. Vanderhart, County Attorney, and Andrea Dryer, Assistant County Attorney, for appellee-State.
Linnea Nicol, Waterloo, for minor children.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Cheryl, the mother of Mellony, born in August of 1988, and Crystal, born in March of 1993, appeals from the January 7, 2002 order of the juvenile court terminating her parental rights to the two girls. Cheryl contends that (1) reasonable efforts were not made to reunite her with her children; (2) the State failed to show by clear and convincing evidence that the children could not be returned to her care; and (3) the State failed to prove by clear and convincing evidence Cheryl had not maintained significant and meaningful contact with the children and had made no reasonable effort to resume their care, despite being given the opportunity to do so, within the scope and meaning of Iowa Code section 232.116(1)(d) (2001). The State contends that error was not preserved on the issues raised. The guardian ad litem and attorney for the children asks that the juvenile court order terminating the children's parental rights be affirmed.
The children have different fathers. Neither father has given his child any support, financial or otherwise, and these fathers are not parties to this appeal.
This case comes before us on Cheryl's request to reverse the termination or to enter an order setting this case for full briefing. This case involves the application of well-settled rules of law, and the focal issue is whether the evidence is sufficient to support the juvenile court's factual findings. The petition on appeal, together with the transcript of proceedings and copies of exhibits, is sufficient for us to adequately address the issues Cheryl raises on appeal. Further briefing is unnecessary and would only delay disposition of this case.
See Iowa R. App. P. 6.151.
We affirm the decision of the juvenile court by memorandum opinion.
Iowa Rule of Appellate Procedure 6.154 provides in applicable part:
(1) After reviewing the petition on appeal, any response, and the record, the appellate court may, by opinion in conformity with Sup. Ct. R. 21.29, affirm the juvenile court decision, reverse the juvenile court decision, remand the case to the juvenile court, or set the case for full briefing pursuant to rules 6.13 and 6.17 or as directed by the court.
Iowa Court Rule 21.29 provides in applicable part:
(1) When appropriate. Memorandum opinions may be used by the court of appeals and supreme court to dispose of cases when appropriate. A short memorandum opinion may be used when any of the following occur:
a. The issues involve only the application of well-settled rules of law to a recurring fact situation.
b. The issue is whether the evidence is sufficient to support a jury verdict, a trial judge's finding of fact or an administrative agency's finding, and the evidence is sufficient.
We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The children were removed from Cheryl's care on August 24, 2000. Cheryl struck Mellony several times and then held a piece of broken mirror near her throat and told her she would slit Mellony's throat if she did not behave. The child became frightened and spent the night with a friend. The Iowa Department of Human Services (DHS) was advised of the incident, and a worker interviewed both children and Cheryl the next morning. In reporting the incident, Mellony said her mother had hit her before. Crystal witnessed the incident and supported her sister's rendition of the facts. Cheryl admitted she had held the broken mirror near the child's throat but claimed she had never intended to hurt her. She also admitted she yelled at the children. Mellony had no physical signs of injury that day, and there was no evidence of any physical injuries at any other time.
There is little evidence as to what caused the blow-up between Mellony and Cheryl. Apparently the children had been living with Cheryl's mother for some months before the incident and had more freedom in that home than Cheryl gave Mellony.
After an investigation of the incident, Cheryl was offered in-home family preservation services as well as a mental health evaluation. She was adamant that she did not need to meet with a therapist and said they were not going to do any good anyway. Cheryl did, however, attend some sessions and was forthright with the therapist about her past history and her current problems. She said she had used drugs and alcohol to excess in her earlier life, but contended she had nearly abstained from them completely for the last four years. The children, who were not found to have any significant physical or mental health issues at the time, were removed from Cheryl's home and placed in a family foster care home where the parents had two adopted girls, ages thirteen and nine, and several grown children.
Mellony and Crystal were found to be children in need of assistance on October 9, 2000. At the time of the termination hearing on October 30, 2001, the foster parents wanted to adopt the children through a subsidized adoption. The children wanted to be adopted and wanted no contact with their mother. After the termination hearing, the juvenile court determined the children could not be safely returned to Cheryl's care and had been out of her home for over twelve months.
Cheryl first contends that the State did not make reasonable efforts. She complains that the failure to allow her contact with the children made any attempt towards reunification of her family meaningless. The State contends that error is not preserved. The State alleges that there is no showing how error was preserved and any challenge to services should have been made when the case plan was entered. The State also argues that numerous services were offered, but that it was recommended that Cheryl only have contact with her children after she worked with a mental health agency. She was hostile and uncooperative with potential providers and refused services and medication.
There is a requirement that reasonable services be offered to preserve the family unit. See In re A.L., 492 N.W.2d 198, 201 (Iowa Ct.App. 1992); In re B.L., 491 N.W.2d 789, 791-93 (Iowa Ct.App. 1992); In re A.W., 464 N.W.2d 475, 478 (Iowa Ct.App. 1990); In re M.H., 444 N.W.2d 110, 113 (Iowa Ct.App. 1989). A court is required to find reasonable efforts have been made to eliminate the need for removal before a removal is ordered. See Iowa Code § 232.102(4); see also 42 U.S.C. § 671(a)(15).
The State has the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993). The core of the reasonable efforts mandate is that the child welfare agency must make reasonable efforts to prevent placement or to reunify families in each case. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997).
Cheryl testified at the termination hearing that she did not want to work with the providers because she did not need treatment and that all they would do was tell the DHS what she told them. Cheryl testified that she was a private person who took care of herself. Cheryl's extended family was questioned about helping her seek mental treatment, and they indicated they were afraid of doing so.
Although Cheryl was distressed that she had been kept from her children, it appears that the children had been living with Cheryl's mother prior to the incident and at least Mellony wanted to return there.
Cheryl's contacts with her child were severely limited. Cheryl took clothes for one of the children to school and was arrested for trespassing. Also, on Christmas Eve, not having money for gifts, she took porcelain dolls from a collection she had and put them on the foster parents' doorstep. Again she was arrested for trespass. She also attended a therapy session with Mellony some time in the fall or winter of 2000. The children indicated a need to see their mother shortly after they were placed in the foster home. Cheryl's mother was given visitation with the children, but Cheryl was not.
We agree with Cheryl's argument that family reunification is difficult if a parent or parents are precluded from having any involvement with their children. We recognize that Cheryl was limited in what she could do in that she had no income and had difficulty obtaining any employment that provided an adequate living. Cheryl questions the effect on the children of immediate and total separation from their immediate family and extended family. She advances that the case plan should not have been driven by the desires of young girls to move to better surroundings, and she questions how these children will look back on this experience, specifically wondering if their isolation from her is healthy for them. She suggests that they may regret their decision later in life. While the children's needs and wishes have been taken into consideration, we disagree with Cheryl that this case was driven by the children's desires only. Their fear of her was justified, considering the context of the events that led to removal. While the limitation on visitation that Cheryl experienced should be the exception rather than the norm, the juvenile court was in a better position than are we to assess whether the case plan fit the circumstances of this family.
To Cheryl's credit we do note the children were in good health at the time of removal and took no medications. Neither has been hospitalized for any concerns. Both children were on target with their developmental milestones. But the children were not without problems. Mellony is easily agitated and is sometimes threatening to Crystal. She has difficulty controlling her impulses and cooperating with authority. She has a number of friends and seems to be influenced by her peer group. At the time she was placed in foster care she was doing poorly in school, although she had never failed a grade. Crystal is a good student.
Cheryl was offered services and for the most part she failed to cooperate with the service providers. While we recognize that she felt the help was not needed, the facts at the time of the children's removal were that she had made a serious threat to her older daughter and that there was substantial discord in their family unit. She was offered reasonable services to resolve her family difficulties but failed to utilize them. We affirm the juvenile court on this issue.
Cheryl next contends that the State did not prove by clear and convincing evidence that the children could not be returned home. The State contends error on this issue was not preserved. We disagree that error has not been preserved but find the State has met its burden of proof on this issue.
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). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D.Iowa 1975). A parent's right to have custody of his or her child should be terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). 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, 231-33, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15, 34-35 (1972).
The issue of whether or not to legally sever the biological ties between parent and child is an issue of grave importance with serious repercussions to the child as well as the biological parents. See R.B., 493 N.W.2d at 899. The goal of a child-in-need-of-assistance proceeding is to improve parenting skills and maintain the parent-child relationship. An underlying issue in a termination action is whether the parent is beyond help. A parent does not have an unlimited amount of time in which to correct his or her deficiencies. See In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990).
Nothing in the record indicates that the problems that existed when the children were removed from Cheryl's care have been resolved. While Cheryl had just recently qualified for an SSI payment of a little over $500 a month, there is no evidence that she has adequate housing or that the hostility that existed between her and her daughters has been resolved.
Cheryl's last contention is the State did not prove by clear and convincing evidence that Cheryl had not maintained significant and meaningful contact with the children and made no reasonable effort to resume their care despite being given the opportunity to do so within the scope and meaning of section 232.116(1)(d).
Cheryl correctly argues she was not given an opportunity to be with her children, and she has made efforts by attending court hearings and seeing mental health providers and family therapists. She said she lost all of her income when the children were removed and was unable to obtain employment. She said she tried to comply with the court's directives, but that she was homeless and had no telephone or means of transportation.
We agree with Cheryl that she has made some efforts. However, her efforts have not been successful, and her failure to cooperate with providers thwarted her chances to work directly with her daughters. We cannot find evidence from this record that Cheryl can control her daughters and refrain from dangerous discipline if they are returned to her care. The children's refusal to be with their mother and their determination to be adopted by their foster parents is further evidence that Cheryl would be unable to control them. We note, too, that the children were out of Cheryl's care and with her mother prior to their removal.
The juvenile court had the parties before it. Giving the required deference to its findings, we affirm it on this issue.
AFFIRMED.