Opinion
No. 3-579 / 03-1014
Filed August 27, 2003
Appeal from the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.
A father appeals from the termination of his parental rights to his minor children. The children's paternal aunt appeals the juvenile court's refusal to place the children with her. AFFIRMED.
Bethany Brands of Brands Law Office, Spirit Lake, for appellant intervenor.
Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant father.
James Clarity, Spirit Lake, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Rosalise Olson, County Attorney, for appellee-State.
Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, for minor child.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Russell appeals from the termination of his parental rights to his minor children. Sheryl, the children's paternal aunt, appeals the juvenile court's refusal to place the children with her. We affirm.
Russell and Mary are the parents of Brittany, born in January 1997; Stacy, born in March 1999; and Cheyenne, born in October 2001. The children were removed from their parents' care in December 2001 when it came to the attention of the Department of Human Services (DHS) that both parents had been arrested for domestic assault and child endangerment. The children initially were placed with their paternal aunt, Sheryl. After about three months, Sheryl underwent gallbladder surgery, and DHS transferred the children to a temporary foster home. On April 3, 2002, a contested dispositional hearing was held, and the court allowed Sheryl to intervene in the proceedings. Following the hearing, the court determined it was in the best interests of the children to continue their placement in foster care due to the ongoing parental conflict that the children were exposed to while in the custody of their aunt. While the children were in foster care, Sheryl exercised visitation with a view toward obtaining custody.
In February 2003 the State filed a petition to terminate the parents' rights. The juvenile court terminated Russell's parental rights under Iowa Code sections 232.116(1)(f), (h), and (l) (2003). Mary also had her parental rights terminated but is not part of this appeal. Regarding Russell, the juvenile court concluded he has a severe, chronic, substance abuse problem and although he claims to be in remission, he still presents a danger to his children as evidenced by his prior acts, including acts of domestic violence which the court believed were exacerbated by substance abuse. The court further found it would not be in the best interests of the children to have them transferred to the care of the paternal aunt. Russell and Sheryl appeal. Our review is de novo. Iowa R.App.P. 6.4.
I. Russell contends the State did not engage in reasonable efforts to reunite him with his children. He asserts the juvenile court improperly restricted his visitation with his children.
Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). Generally, the DHS must make reasonable efforts to provide services to eliminate the need for removal. In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994). The reasonable efforts concept would broadly include a visitation arrangement designed to facilitate reunification while protecting the child from the harm responsible for the removal. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). The nature and extent of visitation is controlled by the best interests of the child. Id.
Under the facts of this case, we find the State acted reasonably in not offering Russell additional unsupervised visitation. Although Russell did participate in services, he did not demonstrate that he has learned from the services that were provided. During visitation, Russell had a difficult time providing appropriate care for all three children at the same time. In addition, the visits became problematic for the children, and they began displaying inappropriate sexual behaviors. We find the DHS provided adequate services designed to permit reunification in the instant case, even without unsupervised visitation.
II. Russell contends the State did not present sufficient evidence to warrant termination of his parental rights. When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). We determine Russell's parental rights were properly terminated under section 232.116(1)(f).
Russell asserts the State did not show his children could not be returned to his care at the present time, which is an element of Iowa Code section 232.116(1)(f). We disagree. Despite being offered extensive services, Russell has not demonstrated the ability to care for his children. He has not progressed beyond supervised visitation. Furthermore, Russell has an extensive history of substance abuse and was arrested during the course of these proceedings for possession of illegal drug paraphernalia. "At some point, the rights and needs of the child rise above the rights and needs of the parents." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). We find there is clear and convincing evidence that the children cannot be returned to their father. It is clearly in the children's best interests that Russell's parental rights be terminated.
III. Both Russell and Sheryl contend that she should have been awarded custody and guardianship of the children. Iowa Code section 232.117(3) lists the options for placement of children if the court terminates parental rights. Iowa Code § 232.117(3) (2003). The juvenile court has the authority to place the children with DHS, a suitable child-placing agency, or a relative or suitable person. Id. There is no statutory preference for a relative. In re R.J., 495 N.W.2d 114, 117 (Iowa Ct.App. 1992). The paramount concern is the best interest of the children. Id.
The juvenile court judge, after hearing all the evidence, wrote a detailed and specific decision concerning his reasons for awarding custody and guardianship to the DHS for purposes of adoption by the children's current foster family. The juvenile court found that both the foster home and the aunt's home were suitable homes and the children would do well in either place. The court balanced a number of factors in reaching its decision and then concluded that "the scales tipped in favor of the current foster home based primarily on the children's ongoing placement in that home, during which time they have experienced a stable, satisfactory environment in which they have thrived, and during which time they have bonded with and integrated into the foster family."
We have carefully reviewed the evidence and the juvenile court's decision. We agree with the juvenile court that either home would provide a safe, stable environment for the children. In this case we defer to the decision of the juvenile court judge who is closer and more able to observe the parties and the actual family dynamics. See In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct.App. 1991). Therefore, we find the placement ordered by the juvenile court was in the children's best interests and affirm the decision of the juvenile court.