Opinion
No. 3-799 / 03-1499
Filed October 29, 2003
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother and father appeal the juvenile court's order terminating parental rights to their child. AFFIRMED.
Jennifer Oetker, Des Moines, for appellant-mother.
Maria Ruhtenberg, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney and William Sales, Assistant Count Attorney, for appellee-State.
Alexandra Nelissen of Nelissen Law Office, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellant-mother, Rebecca, and appellant-father, Tommy, appeal the termination of their parental rights to their daughter, Andrea, under Iowa Code sections 232.116(1)(e), 232.116(1)(h), and 232.116(1)(i) (2003). On appeal they claim there was not clear and convincing evidence to establish (1) they had not maintained significant and meaningful contact with Andrea under section 232.116(1)(e)(3), (2) Andrea could not be returned to their care under section 232.116(1)(h)(4), and (3) services would not correct the conditions which led to Andrea's neglect under section 232.116(1)(i)(3). We affirm.
In its termination order the juvenile court concluded all of the grounds for termination in the petition had been proven. The petition sought to terminate under sections 232.116(1)(e), 232.116(1)(h), and 232.116(1)(i). In its order the court mistakenly referred to the sections in the petition as 232.116(1)(e), 232.116(1)(h), and 232.116(1) (1).
I. BACKGROUND FACTS AND PROCEEDINGS
Andrea was born on January 15, 2002. She is the legitimate child of Rebecca and Tommy. She was removed from her parents on April 26, 2002 due to concerns that Rebecca and Tommy were unable to provide a safe environment for her. Rebecca's and Tommy's home was filthy, there were runaway teenagers sleeping on the floor, Andrea was not being adequately nourished, she was not allowed to nap, and she was suffering from a chronic case of thrush. Her parents also allegedly stated their wish to shake or strangle her. Andrea was found to be a child in need of assistance under Iowa Code section 232.2(6)(c)(2) (2001) on June 27, 2002. Andrea has not been returned to her parents' care.
Rebecca, age twenty-one at the time of the May 22, 2003 termination hearing, and Tommy, approximately age twenty-five, have a history of unsteady employment, frequent moves, and unpaid debt. Tommy receives social security. Rebecca applied for benefits but was denied. At the time of the hearing she had been working at an inn for a month, and she was attempting to obtain her Grade Equivalency Diploma. At the time of the hearing Tommy did not have a job but testified he would be starting one the next day at a recycling plant. He was unaware what his wages or hours would be.
Tommy testified that if he does not get a job he will have his probation revoked and have to go to Fort Des Moines.
Tommy has served time in jail and is currently on probation. Apparently in 2000 he broke windows at East High School in Des Moines, and he also crawled into an abandoned house and was caught with a lighted torch while inside.
Both Rebecca and Tommy attended parenting classes at OSACS. They successfully completed two nine-week sessions, but they became less consistent in attending a third session. Dawn Narcisse of OSACS testified she did not believe Rebecca and Tommy, even after attending two sessions of parenting classes, would be capable of meeting Andrea's needs. Both Rebecca and Tommy have also been offered individual therapy services. Rebecca was discharged for failing to appear consistently. Tommy was also inconsistent in attending therapy. To her credit, in approximately mid-April 2003 Rebecca sought out another therapist at Broadlawns whom she began visiting every two weeks.
Success in a particular session is based upon attendance, not demonstration of competency.
Rebecca and Tommy have also been provided supervised visitation at different locations because they move frequently. Tommy did not consistently attend the visitation. Rebecca attended visitation more reliably, but she was unable to demonstrate adequate parenting skills during the visits. In one instance, Andrea was choking on a pretzel and neither of her parents reacted. Tommy testified they had not yet "covered" how to react in such situations.
During the month of December 2002, which was in the period of time in which services were being offered, Rebecca and Tommy allowed Rebecca's father, who had just been released from jail for sexual abuse and who had sexually abused Rebecca as a child, to live with them. In approximately April 2002 Tommy admitted he did not believe he could properly care for Andrea. Reports indicated Andrea admitted the same.
II. SCOPE OF REVIEW
We review cases in which parental rights are terminated de novo. Iowa R.App.P. 6.4. We give weight to the fact-findings of the district court but are not bound by them. Iowa R.App.P. 6.14(6)( g). If clear and convincing evidence supports even one of the statutory grounds upon which the district court based its decision, we may affirm the termination. See In re K.L.C., 372 N.W.2d 223, 227 (Iowa 1985).
III. ANALYSIS
We conclude, based upon the above evidence as well as both parents' own acknowledgement of their failure to fully cooperate with services and their inability to provide a safe and nurturing home for Andrea, that there is clear and convincing evidence that they had not maintained significant and meaningful contact with Andrea under section 232.116(1)(e)(3) (2003), Andrea could not be returned to their custody under section 232.116(1)(h)(4), and additional services, which were not effective in the past, would not correct the conditions which led to Andrea's neglect under section 232.116(1)(i)(3).
Given Tommy's and Rebecca's history of continuing instability, there is no reason to believe Andrea will ever enjoy permanency if she waits for them. Andrea is in a preadoptive home where she has bonded. We find termination is not in Andrea's best interest.