Opinion
No. 3-170 / 03-0211.
Filed March 12, 2003.
Appeal from the Iowa District Court for Dallas County, DONNA L. PAULSEN, Judge.
T.G. appeals from the termination of her parental rights to N.M. AFFIRMED.
Frank Steinbach, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Sean Wieser, Assistant County Attorney, for appellee-State.
Victoria Meade, Des Moines, for minor child.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
Teresa appeals the termination of her parental rights with respect to N.M., age eleven. The parental rights of N.M.'s father were previously terminated and are not at issue here.
On August 1, 2001, N.M. was removed from Teresa's home following Teresa's attempted suicide. N.M. has since remained in foster care. On October 24, 2001, N.M. was adjudicated a child in need of assistance pursuant to Iowa Code section 232.2(6)(n) (Supp. 2001) (parent's mental capacity results in child not receiving adequate care). The permanency plan adopted at the dispositional hearing required Teresa to participate in individual therapy and skill development, supervised visitation at the discretion of the Iowa Department of Human Services (DHS), family centered services, a psychiatric evaluation, and a substance abuse evaluation. DHS maintained custody of N.M. DHS offered the following services to address the adjudicatory harms necessitating N.M.'s placement in foster care: family centered services, public health nurse, Tri-County Case Management, individual therapy for N.M., individual therapy for Teresa, and foster family care.
On August 15, 2002, the State petitioned to terminate Teresa's parental rights pursuant to section 232.116(1)(f) (child four or older, CINA, removed from home for twelve of the last eighteen months, and child cannot be returned home).
The trial court cited the provisions that were in effect prior to the amendment of section 232.116(1) on April 24, 2001. We will cite the current form.
The juvenile court's findings of fact and conclusions of law entered following the termination hearing include the following:
Services have been offered but the child's mother has failed to comply with recommendations, has failed to consistently follow through with treatment, and has not made significant progress towards correcting the circumstances that led to the removal of the child from the home. Specifically, Ms. Gaver has not completed a substance abuse evaluation, only recently obtained a psychosocial evaluation, and has changed therapists/physicians repeatedly.
The child is not able to return to the mother's home at this time. The evidence presented is consistent with the recommendations of the Iowa Department of Human Services, the child's therapist, and the guardian ad litem, that the child cannot be safely returned to the mother's care.
. . . .
[N.M.] does not wish to return to the care of her mother. She has not visited her mother for over one year and recognized her mother's problems. Unfortunately, the pre-adoptive home where [N.M.] has been living for the past year will not be available for adoption. Although [N.M.] is older, eleven, the DHS believes, and the Court agrees, that a suitable adoptive family can be located. It is in the best interest of [N.M.] to grant the Petition to Terminate. [N.M.] needs a stable, safe and permanent home now.
A multitude of services have been provided and offered to the mother. Today we are in no better position than we were in 2001 when the case began, to have the mother successfully care for this child. The serious mental health issues of the mother have not been adequately addressed.
Based on these findings the juvenile court terminated Teresa's parental rights, resulting in this appeal.
On appeal, Teresa raises the following arguments:
(1) There is not clear and convincing evidence that at the present time the child cannot be returned to the care of her mother provided in section 232.102 of the Iowa Code, and
(2) In determining whether to terminate parental rights the best interests of the child should be given great weight and authority.
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).
Because N.M. is four years of age or older, has previously been adjudicated a child in need of assistance, and has been out of the home since August 1, 2001, the dispositive issue is whether N.M can safely be returned to Teresa'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.
The circumstances underlying N.M.'s original adjudication included Teresa's unresolved mental health issues. We, like the juvenile court, find the risks of harm resulting in N.M.'s adjudication remain the same because of Teresa's failure to address these issues.
Mental disability alone is not a sufficient reason for the termination of parental rights. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). However, it is appropriately considered when it affects a person's ability to parent and may be determinative of whether termination is in the child's best interests. Id. Mental disability alone justifies termination of parental rights "when the disabled parent lacks the capacity to meet the child's present needs as well as the capacity to adapt to the child's future needs." In re A.M.S., 419 N.W.2d 723, 734 (Iowa 1988). In the absence of any evidence that Teresa has addressed the mental health and substance abuse issues necessitating adjudication and foster care, we conclude the State has met its burden of proof and affirm on this issue.
Teresa also argues it was not in N.M.'s best interests to terminate her parental rights because of the current lack of an adoptive home for N.M. It is sufficient to note that "[w]e will not refuse to terminate the rights of parents who would otherwise be terminated because an adoptive home has not been secured." In re T.C., 522 N.W.2d 106, 109 (Iowa Ct.App. 1994).
The judgment of the juvenile court is affirmed.