Opinion
No. 3-175 / 03-0215
Filed March 26, 2003
Appeal from the Iowa District Court for Fayette County, Allan D. Allbee, Associate Juvenile Judge.
Mother and father appeal from the termination of their parental rights to their three children. AFFIRMED.
David Baumgartner, Strawberry Point, for appellant father.
Charles Hallberg of the Hallberg Law Office, Oelwein, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Nathan Lein, Assistant County Attorney, for appellee-State.
John Hofmeyer III, Oelwein, guardian ad litem for minor children.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Danny and Rebecca are the parents of three children: Sierra, born June 8, 1994; Zandrea, born December 20, 1996; and Zavier, born June 22, 1999. Danny and Rebecca have never married, but resided together from the summer of 1992 until Danny entered the West Union Residential Facility in July of 2002. All three children were temporarily removed from the home on August 20, 2001, and placed in the care of relatives. Sierra and Zandrea were initially placed with their paternal grandmother, but later were removed from her care and placed with a foster family. Zavier was placed with his paternal uncle. The children were adjudicated to be children in need of assistance (CINA) by a court order entered October 8, 2001, which found the children had been left unsupervised as a result of their parents' substance abuse or chemical dependency.
The State petitioned for the termination of Danny and Rebecca's parental rights on September 6, 2002. The termination hearing was held on January 16 and 17, 2003. The juvenile court issued its findings of fact, conclusions of law, and order on January 23, 2003, terminating both Danny and Rebecca's parental rights to all three children. The parents' rights to Sierra and Zandrea were terminated pursuant to Iowa Code section 232.116(1)(f) (2001), and their rights to Zavier were terminated pursuant to section 232.116(1)(h). Both parents appeal, alleging the State did not present clear and convincing evidence supporting the conclusion that the children could not be returned to the care of their father. Danny also contends that clear and convincing evidence did not support the conclusion that termination of his rights was in the best interests of the children. They also argue the juvenile court should have entered a permanency order and placed the children with either their paternal grandmother or paternal uncle.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
The parents challenge the juvenile court's finding that the children could not be returned to the custody of their father as contemplated by Iowa Code sections 232.116(1)(f) and (h). Upon our de novo review of the record, we conclude that clear and convincing evidence supports the conclusion that the children could not be safely placed with their father at this time. The three children were removed from the home in August of 2001. Despite Danny and Rebecca's drug use being the cause of this removal, Danny did not seriously pursue substance abuse treatment until he was forced to. After receiving a suspended sentence following a guilty plea to drug charges, Danny was placed in a residential facility where he was required to undergo substance abuse counseling. Eleven months after his children had been removed from his home, Danny entered the facility, began counseling, and stopped using drugs. In spite of the rigid structure of his daily life in the facility, Danny relapsed in October of 2002 and tested positive for methamphetamine use.
At the termination hearing, Danny testified he had been clean since the October incident. He indicated that the shame of his relapse in October, coupled with the contemporaneous removal of his daughters from his mother's care, provided the incentive he needed to fight his addiction. At the time of the termination hearing, Danny was one meeting away from successfully completing his substance abuse program and within a few weeks of qualifying for the "seven day furlough," which means he will be allowed to live outside the residential facility, checking in once a week. He plans to reside with his mother until he saves the money to rent a place of his own. He claims that, for the first time in his life, he has made an affirmative commitment to abstain from all drug use.
While we commend Danny's recent change in attitude and apparent abstinence, unfortunately it is in this recent change that our concern lies. All of Danny's commendable behavior has been recent-too recent for us to have confidence in its continuation upon Danny's release from the residential facility. The fact is, despite his children being removed from his home in August of 2001 and being given repeated warnings that his parental rights could be terminated, Danny had not successfully completed a substance abuse program or been released from the residential facility before the termination hearing. While patience is allowed parents to remedy their deficiencies, that time must be limited because the delay may translate into intolerable hardship for the children. In re E.B.L. 501 N.W.2d 547, 551 (Iowa 1993). "A parent cannot wait until the eve of termination, after the statutory time periods for reunification have expired, to begin to express an interest in parenting." In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). The experts who testified at the termination hearing expressed great reservation about Danny's ability to maintain a sober lifestyle after his release, and we share those fears. We find clear and convincing evidence that the children cannot be returned to the custody of their father as provided in Iowa Code section 232.102, within the scope and meaning of section 232.116(1)(f) and (h).
Danny also argues that the juvenile court erred in finding that the termination of his parental rights was in the best interests of the children. Iowa Code section 232.116(3)(c) gives the juvenile court discretion not to terminate the parent-child relationship if clear and convincing evidence demonstrates that the termination would be detrimental to the child because of the closeness of the parent child relationship. After a de novo review of the record, we acknowledge that there was testimony indicating Danny has a close relationship with his children, particularly Sierra, and that termination of that relationship would cause Sierra emotional harm. However, the testimony also indicated that Sierra would suffer more harm if Danny relapsed after regaining custody of the children. The experts also testified that what the children need more than anything is stability, something Danny is not able to provide at this time. We find termination of Danny's parental rights is in the children's best interests notwithstanding their relationship with their father.
Danny and Rebecca contend the juvenile court abused its discretion by not entering a permanency order placing the children in the guardianship of either their paternal grandmother or paternal uncle. We find no abuse of discretion. Although two of the three children had initially been placed with their paternal grandmother, she was ultimately determined to be an unsuitable caretaker and the children were removed from her care. The paternal uncle has not demonstrated a serious commitment to continuing care for Zavier, and, in fact, did not even attend the termination hearing. The district court did not abuse its discretion by failing to place the children in the guardianship of either of these relatives.