Opinion
No. 2-124 / 01-1620.
Filed March 27, 2002.
Appeal from the Iowa District Court for Dubuque County, JANE MYLREA, Associate Juvenile Judge.
The father appeals from the termination of his parental rights to his two children. AFFIRMED.
Timothy Goen, Dubuque, for appellant.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, and Jean Becker, Assistant County Attorney, for appellee-State.
Clarence May, Dubuque, for minor child.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Mark Sr., the father of Megan, born in February of 1999, and Mark Jr., born in September of 2000, appeals from the termination of his parental rights to these two children. The children's birth mother, Samantha, consented to the termination at the time of the hearing and is not a party to this appeal. A third child, Mariah, born in 1997, who is the child of Mark Sr. and Samantha, is not a part of these proceedings. Mark Sr. contends that the State failed to prove the grounds for termination by clear and convincing evidence, and that reasonable efforts were not made to assist him in having the children returned to his care. We affirm.
Samantha has three other children who are not a party to these proceedings. They were in foster care at the time of the hearing concerning termination of parental rights of Megan and Mark Jr. It appeared from comments at the hearing that Samantha agreed to termination of her rights to these two children so that her three older children would soon be returned to her care.
The juvenile court terminated Mark Sr.'s parental rights under Iowa Code section 232.116(1)(g) (1999). Mark challenges this section only to the extent that he contends the State failed to show that the children could not be returned to his custody at this time.
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 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. R.B., 493 N.W.2d at 898; see also 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 issue of whether or not to legally sever the biological ties between parent and child is an issue of grave importance with serious repercussions for the child as well as the biological parents. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997).
We review de novo. Iowa R. App. P. 6.4; In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). However, we give weight to the juvenile court's findings of fact, especially regarding the credibility of the witnesses. Iowa R. App. P. 6.14(6)(g); In re W.G., 349 N.W.2d 487, 491-92 (Iowa 1984).
Formerly Iowa Rule of Appellate Procedure 4.
Formerly Iowa Rule of Appellate Procedure 14(f)(7).
Megan, Mark Jr., and their siblings were taken from Samantha's care in early December of 2000 because, among other things, she failed to provide adequate shelter, and her home was unclean and in a bad state of repair. At the time the children were placed in family foster care, the child protection worker spoke to Mark Sr., then in prison, who authorized his mother to take his three children. The family lived with Mark Sr.'s mother for over a year, and she has had substantial involvement with Mark Sr.'s children and stepchildren since their birth.
Following the children's removal, Samantha was provided services, and the service plans were all directed at reunifying her with the children. Samantha cooperated in part with service providers, but at other times she did not respond. Samantha has problems with mental health, and she was also using illegal substances. Services were focused on aiding her in these two specific areas. No services were offered by the State to Mark Sr. during this time, and case plans make few references to him.
On March 10, 2001 Mark Sr.'s three children were placed with his mother, the children's grandmother. The State notes that the children have bonded with their grandmother and that she wishes to be their guardian or to adopt the two children who are the subject of these termination proceedings.
Her intentions as to Mark Sr.' s older child are not evidenced by this record.
Mark Sr. did not personally appear at the termination hearing but did participate by telephone from the Federal Prison Camp in Yankton, South Dakota, where he was incarcerated following a March 27, 2000 sentence for possession of a firearm and possession of a controlled substance. He was twenty-four years old at the time of the hearing. He had received a GED, served in the military, and received an honorable discharge. He sought the discharge because Samantha was having mental problems and he hoped to help her care for her own children as well as their children. Following discharge he had several jobs and used drugs heavily. He may also have been a drug dealer. He was incarcerated for three months following his indictment in January 1999, which apparently was on a federal charge. He was released for a year but did little except mow at a cemetery because he was unsure when he would be sentenced. He was monitored during this time, and it appears he did not engage in the use of controlled substances. Mark Jr. was born after his father was incarcerated.
The record as to Mark Sr. is fairly sparse.
Mark Sr. recognizes in his brief that the State can argue that the children cannot be returned to him because he is incarcerated. Mark Sr. points to section 232.116(3)(a), however, which provides that the court has discretion and need not terminate the parent-child relationship if a relative has legal custody of the child. He contends that we should apply this section and not terminate his parental rights.
At the time of the termination hearing the children were with Mark Sr.'s mother. In terminating, the juvenile court found Mark Sr.'s mother had bonded with the children and that the children should be allowed to remain in her custody for legal adoption. We agree with Mark that because the children are with his mother and well cared for, the juvenile court does have the discretion not to terminate his rights.
The State points out that Mark Sr. has been in prison during all of Mark Jr.'s life and for much of Megan's. The State notes that after he was discharged from the Marine Corps, Mark Sr. used methamphetamines, sold methamphetamines, and used marijuana. His use of drugs adversely impacted his ability to care for the children.
The State also argues, with authority, that parental termination cases must be reviewed with a sense of urgency. See In re E.B.L., 501 N.W.2d 547, 551 (Iowa 1993); In re J.P., 499 N.W.2d 334, 337 (Iowa Ct.App. 1993).
Mark Sr. will not be released from prison until 2003. He has never seen Mark Jr. and hardly knows Megan. He had a relapse during pretrial release. We agree with the juvenile court that the fact that the children are in Mark's mother's custody should not prevent termination.
Mark Sr. has also challenged the alleged failure of the State to provide him with services to reunite him with his children. In most instances 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). The State had 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. H.L.B.R., 567 N.W.2d at 679; In re C.D., 508 N.W.2d 97, 101 (Iowa Ct.App. 1993); In re L.M.W., 518 N.W.2d 804, 806-07 (Iowa Ct.App. 1994).
Mark Sr. did not challenge the services during the child in need of assistance proceedings. We have generally said that if services are not demanded at the appropriate time the issue is not preserved for review. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). We note, too, that it would have been difficult, if not impossible, for the State of Iowa to provide services to Mark while he remained incarcerated in a federal prison. Even so, the services available to Mark in the federal facility were services directed to the problems that prevented the children from being placed in his care, and they satisfy reasonable efforts dictates. Mark Sr. has utilized these services, which include parenting classes, drug rehabilitation, and post-incarceration career preparation. Consequently, they meet the reasonable services dictate.
We affirm.
AFFIRMED.
SACKETT, C.J. concurs in part and dissents in part.
I concur with the majority opinion in all respects except that I would not terminate Mark Sr.'s parental rights. Rather, I find the facts here dictate the application of Iowa Code section 232.116(3)(a), which provides the court need not terminate if the children are in the custodial care of a relative. The decision as to whether this section is utilized should be governed by the particular circumstances of the case. Factors that should weigh on that decision are, first and foremost, whether the children's interests are better served by termination. Other factors that may weigh on the decision are (1) the circumstances of the caregiver; (2) the caregiver's attitude about whether parental rights should be terminated; (3) whether the caregiver can remain in that position as long as necessary; (4) the relationship between the caregiver and the parent; (5) whether the parent is making progress toward correcting the problems that led to the children's removal; and (6) whether the caregiver is in need of financial assistance and there is evidence that the parent can or will in the future be able to supply it.
At the time of the termination hearing in August and September of 2001, Mark Sr. had completed a twenty-four hour parenting course, a six-hour anger management course and an eleven-hour course in self-esteem. In addition, he had completed 239.5 hours of a 500-hour residential drug abuse program. This is evidence of his efforts to correct those problems that rendered him incapable of assuming custodial care of the children when they were removed from their mother's care.
Mark Sr. was enrolled in a plumbing apprenticeship and had completed 1503 hours of the 8000-hour program. This plumbing apprenticeship was certified through the United States Department of Labor, and hours earned in prison were transferable, allowing Mark Sr. to continue the apprenticeship upon release from prison. Mark Sr.'s good conduct time release date is projected to be March 29, 2003.
I recognize, as the majority points out, the problems Mark Sr. has had and that the children are bonded to his mother. What is unclear to me is whether it is his mother's intention to adopt the children or to instead be named guardian and retain custody under a permanency order. Everyone agrees Mark Sr.'s mother gives the children excellent care. Whichever method of custody, the record indicates no intention on her part to disassociate herself from Mark Sr. upon his release or to isolate him from these children. Therefore, although the State argues to the contrary, I do not believe a sense of urgency is a driving force in these proceedings.
Mark Sr.'s mother is in telephone contact with him once a week. She testified that he is concerned about the children. Mark Sr.'s mother and Samantha both testified that Mark Sr. was a good parent to all the children and was helpful with them. There is no evidence that Mark Sr. has been physically or sexually abusive to the children. The record does not indicate that there is any animosity between Mark Sr. and his mother.
Although the record is clear that Mark Sr.'s mother has been very involved in the children's lives, that she is bonded to them, and that she wants to keep them in her care, unfortunately the record does not indicate what her life circumstances are. The record does not tell me her age, her employment (other than that she works a second shift), or the state of her health. There is no evidence that she is able to support the children now or to their adulthood without financial assistance. The minimal evidence of the circumstances under which she took the children, her continuing contact with her son, and her belief that he is a good parent indicates to me she may be more interested in being their guardian than their adoptive parent.
There is no evidence Mark Sr. put the children at risk while they were in his care. The only evidence shows him to be a good and concerned caregiver. This evidence, together with Mark Sr.'s rehabilitative efforts and his continuing contact with his mother and children, along with the fact that this mother has not asked to have his parental rights terminated and my belief that he will be in a position in the next several years to contribute to the children's financial support, indicate to me it is in the children's interest not to terminate his parental rights because the children are in the care of his mother. A major factor in my decision is the fact that termination cuts off a parent's duty to support his or her children. Frequently, where future parents or guardians are not of sufficient financial means, the State is required to provide for or subsidize the children's care. While the State, in advocating termination, is understandably more concerned about the children's safety than their financial support, it does not seem advantageous to children or to society to relieve a parent who is able to contribute to a child's financial support from providing that support. I do not believe it to be in the interest of the child or of society to terminate the parental rights of an individual who poses no risk to the child but who is unable to care for or temporarily unable to provide support for the child. If custody can be arranged whereby the parent presents no risk to the child, but his rights to the child, and thus obligations, remain intact, I believe we should strive for that arrangement.
Mark Sr., in all probability, will be gainfully employed after his release. He, not his mother or the State, should support the children to adulthood. While I would not terminate, I would remand for a permanency order to place the children in Mark's mother's care and assure that they would not be released to Mark Sr.'s custody unless he was suitable to care for them. I would not relieve him of his duty to support his children.