Opinion
No. 3-699 / 03-1013
Filed October 29, 2003
Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.
A father and mother appeal from the juvenile court order terminating their parental rights to their daughter. AFFIRMED.
Robert J. Pierson, Sioux City, for appellant-mother.
H. Allan Sturgeon, Sioux City, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for appellee-State.
Michelle Dreibelbis, Sioux City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Scott and Pamela appeal from the juvenile court order terminating their parental rights to Abigayle. Both contend on appeal that the grounds for termination cited by the juvenile court are not supported by clear and convincing evidence. We affirm.
Background facts and proceedings.
Pamela is the mother of Abigayle, born September 3, 2002. Scott is the putative father, but paternity has never been established. Pamela and Scott never have been married. Scott is married to the mother of one of his other children. Abigayle was removed from the custody of her parents at the hospital on September 4 because of concerns about their ability to provide a safe, nurturing environment for her. She is a special-needs child with breathing problems requiring an apnea monitor, developmental concerns caused by having a small "soft spot" in her skull, and an abnormally shaped head. At the time of Abigayle's removal, petitions were pending to terminate Pamela's parental rights to three older children and to terminate Scott's parental rights to one of his children.
At the removal hearing on September 12, the court noted Pamela's continued noncompliance with reunification services concerning her three older children, her lack of interaction with them, her continued unemployment, the instability of her relationship with Scott, and the fact they once again had been homeless since the last hearing. The court found Scott continued to have problems controlling his anger. The court found Abigayle "would be in imminent danger" if placed with Pamela and Scott because of "their lack of parenting skills, Scott's anger control issues, and their unstable relationship . . . ."
After an October 1 hearing in conjunction with a termination hearing concerning her three older half-siblings, Abigayle was adjudicated a child in need of assistance (CINA) under Iowa Code sections 232.2(6)(b) (abuse or neglect), (c)(2) (lack of supervision), and (g) (lack of adequate food, clothing, or shelter) (2001). The court described at length the problems Pamela and Scott had, the efforts made and services offered by the State, and the failure of the parents to respond to the services. The court terminated the parents' rights to the three older children.
On December 10, the State petitioned to terminate Pamela's and Scott's parental rights to Abigayle under Iowa Code sections 232.116(1)(d) and (g) (2003). After a contested dispositional/aggravated circumstances hearing on January 7, 2003, the court found aggravated circumstances existed and waived the requirement for continued efforts toward reunification. The court encouraged both parents to stop smoking around Abigayle. Neither parent appealed from this order.
Although the termination petition identifies the year of the Iowa Code cited as 2001, it quotes subsections (d) and (g) in their entirety from the 2003 Code both times they are alleged. It is clear from the petition and from the termination order that the 2003 Code is intended.
Termination proceeding.
The combined dispositional review/termination hearing was held on April 11, 2003. Concerning Pamela, the court found "[a]reas of concern continued to be her smoking, unemployment, lack of parenting skills, lack of communication skills, co-dependency, domestic violence, lack of finances, and possible depression." Pamela was not seeking employment because her S.S.I. appeal was pending and she did not want to jeopardize the appeal. She testified she and Scott would now follow all counseling and therapy suggestions. The court found Pamela "continues to deny she has any problems in the areas of parenting, nurturing, and commitment. She has stated she has no goals for improving her relationship with Scott or to regain custody of Abigayle."
The court noted Scott continues to have financial problems. He pays child support for two of his children and was still married to the mother of one of them. He had to borrow money from his employer to secure the couple's apartment. Although he has insurance through his job, it does not cover Pamela or Abigayle. He has problems with controlling his anger, has used inappropriate force in disciplining Abigayle's older brother, has been unable to quit smoking, and denies his characterization by service providers as an angry and dominant individual.
By the time of the termination hearing, Scott's parental rights to this child had been terminated.
The court further found "neither parent is motivated to improve their parenting skills and provide for the return of Abigayle to their home." After concluding Pamela and Scott "have demonstrated an inability or unwillingness to internalize concepts provided to them through services which would serve to improve their parenting deficiencies," the court terminated the parental rights of both under Iowa Code sections 232.116(1)(d) (child adjudicated CINA and adjudicatory circumstances exist despite offer or receipt of services) and (g) (parental rights terminated to another child and parent lacks ability or willingness to respond to services) (2003). Both Pamela and Scott appeal.
Scope and standard of review.
Termination proceedings are reviewed de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We give weight to the findings of the juvenile court, but are not bound by them. Iowa R.App.P. 6.14(6)( g). The decision to legally sever the biological ties between parent and child is an issue of grave importance with serious repercussions both to the child and the biological parents. In re R.B., 493 N.W.2d 897, 899 (Iowa Ct.App. 1992). We require the State to prove by clear and convincing evidence the statutory grounds have been met. Iowa Code §§ 232.116(1); 232.117(2), (3); In re T.A.L., 505 N.W.2d 480, 481 (Iowa 1993). For evidence to be "clear and convincing," there must be no serious or substantial doubt about the correctness of conclusions drawn from it. Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.App. 1983). When the district 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 court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996); In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
Claims on appeal.
A. Pamela. Pamela claims no clear and convincing evidence exists in the record that she continues to lack the ability or willingness to respond to services (1) concerning "her continued unemployment or her smoking addiction," or (2) concerning "her alleged depression or her parenting skills."
B. Scott. Scott frames his claims as whether or not the State met its burden of proof that (1) he "failed to maintain significant and meaningful contact under Iowa Code section 232.116(d)(3)" or (2) "under Iowa Code section 232.116(g)(4) . . . the child cannot be returned to the custody of the child's parents as provided for in Iowa Code section 232.102 at the present time."
Analysis.
A. Pamela. Much of Pamela's first claim revolves around her contention the State did not provide reasonable services. The State responds these services were not requested, so the issue is not preserved for our review.
The goal of CINA proceedings is to improve parenting skills and maintain the parent-child relationship. In re H.H., 528 N.W.2d 675, 677 (Iowa Ct.App. 1995). "There is a requirement that reasonable services be offered to preserve the family unit." In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). That requirement may be waived if the court determines by clear and convincing evidence that aggravated circumstances exist. Iowa Code § 232.102(12). As noted above, the juvenile court, after a hearing, made such a determination and waived the requirement for continued reasonable efforts. Because no appeal was take from this decision, the principles of res judicata bar this claim to the extent it refers to a lack of services after the waiver. See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct.App. 1997) (citing In re Marriage of Guyer, 522 N.W.2d 818, 821 (Iowa 1994)). To the extent the claim relates to a lack of services before the waiver, the record does not reflect the parents requested any additional services or complained the services offered or received were inadequate. Parents have "the obligation to demand other, different, or additional services prior to the termination hearing." In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). We conclude the issue of whether services were adequate before entry of the waiver has not been preserved for appellate review. In re M.T., 613 N.W.2d 690, 692 (Iowa Ct.App. 2000). We note that, if unemployment and smoking were the only issues, we would agree with Pamela there is not clear and convincing evidence to support termination. There are more serious problems, however, which have not been corrected.
Pamela's claim concerning her "alleged" depression and lack of parenting skills is merely a denial there is clear and convincing evidence either issue exists. She argues there was no order requiring her to seek treatment for depression, so she has not ignored any instructions, "but has merely made a subjective, personal determination that any alleged depression she may have does not require medication." Such an argument reveals her lack of insight and understanding of the effect depression can have on an individual's ability to carry on normal daily activities or to provide consistent, reliable care for an infant, toddler, or young child. Our "statutory termination provisions are preventative as well as remedial, and therefore, mandate action to prevent probable harm to a child and do not require delay until after harm has occurred." In re D.T., 418 N.W.2d 355, 356 (Iowa Ct.App. 1987) (citing In re N.H., 383 N.W.2d 570, 572 (Iowa 1986)).
What Pamela characterizes as "a passive dependent nature and low intellectual functioning" also gives cause for concern for any child in her care. Scott has problems controlling his temper. He has used inappropriately excessive force in disciplining Pamela's older children. She has not demonstrated an ability to prevent such actions in the past or to protect her children effectively. We find nothing in our de novo review of the record to convince us she has changed so that the circumstances which led to the termination of her parental rights to her older children and to Abigayle's removal and adjudication no longer exist.
Pamela had services offered to her when her two oldest children were removed from her care. Her lack of response to services appears to have been a consideration in the removal of her third child. Her continued lack of response or change also was one ground for Abigayle's removal. It was a basis for the finding of aggravated circumstances and the resultant waiver of further reasonable efforts at reunification. See Iowa Code § 232.102(12)(c).
As we consider whether or not the juvenile court properly terminated Pamela's parental rights to Abigayle, we also review evidence of her past performance — for it may be indicative of her future capabilities. See In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). We give primary consideration to the physical, mental and emotional condition and needs of the child. In re J.W.D., 456 N.W.2d 214, 217 (Iowa 1990). Having considered the whole record before us, we conclude, as did the juvenile court, that clear and convincing evidence supports termination under Iowa Code sections 232.116(1)(d) and (g). We find circumstances for adjudication continue to exist after the offer and receipt of services and an additional period of time would not correct the problems because of Pamela's inability or unwillingness to respond to services.
B. Scott. The claims Scott raises on appeal reveal the continued confusion caused by the redesignation of most of the subsections of section 232.116(1) following the legislature's addition of a new subsection in 2002. See 2001 Iowa Acts ch. 67, § 9 (codified at Iowa Code § 232.116(1)(c) (Supp. 2001)). The State pled, and the juvenile court found clear and convincing evidence supporting, the grounds found in subsections (d) and (g) in the 2003 Code. Scott frames his issues based on the grounds found in subsections (d) and (g) of the 2001 Code. Part of this confusion appears to come from the termination petition, which referred to the 2001 Code, but quoted the 2003 Code.
From our review of the record, we agree with the findings of the juvenile court concerning Scott's anger management problems and financial difficulties. While neither is a ground for termination in itself, both relate to the adjudicatory grounds cited by the juvenile court after Abigayle's removal. We find the problems continue to exist after the offer or receipt of services and an additional period of time would not correct the problems because of Scott's inability or unwillingness to respond to services.
For the reasons set forth above, we affirm the termination of Pamela's and Scott's parental rights to Abigayle under Iowa Code sections 232.116(1)(d) and (g) (2003).