Opinion
No. 9-132 / 08-2021
Filed March 11, 2009
Appeal from the Iowa District Court for Linn County, Barbara Liesveld, District Associate Judge.
A mother appeals the juvenile court order terminating her parental rights. AFFIRMED.
Cynthia Finley, Cedar Rapids, for appellant mother.
John Bishop, Cedar Rapids, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee State.
Melody Butz, Center Point, for minor children.
Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ.
[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION HAS NOT BEEN DETERMINED. THE PRECEDENTIAL VALUE OF CASES WHICH ARE NOT YET PUBLISHED IS GOVERNED BY IOWA CT. R. 6.14 (5).]
A mother appeals from the juvenile court's order terminating her parental rights to her two children pursuant to Iowa Code section 232.116(1)(h) (2007). On appeal, she argues that the State failed to prove the children could not be returned to her care, the juvenile court erred in not granting her an additional six months to work towards reunification, reasonable efforts were not made to reunite her with her children, and termination of her parental rights in not in the best interests of the children. We affirm.
Charles and Jazmin are four and two years old, respectively. They are the children of Johnny and Shannon. The father, Johnny, is twenty-nine years old and currently in prison in Texas. He has been incarcerated since shortly after Jazmin was born. His release date is November 7, 2010. He is a registered sex offender, arising out of a sexual abuse conviction involving a fifteen-year-old girl, at a time when Johnny was seventeen.
When Jazmin was born on July 24, 2006, a meconium sample tested positive for cocaine. One week later, Charles's hair tested positive for cocaine. The State filed a petition and, on September 27, 2006, Charles and Jazmin were adjudicated children in need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2), 232.2(6)(n) and 232.2(6)(o) (2005). On November 9, 2006, the children were ordered removed from the home and placed in foster care. The mother, Shannon, was subsequently granted visitation with the goal of returning the children to her.
On December 14, 2007, the children began a trial home placement with Shannon. There were times when Shannon failed to get Charles to preschool or Jazmin to protective day care. When Jazmin was discovered with facial bruising, the placement was ended, and the children were returned to foster care. Shannon contends that Jazmin's injuries occurred when Charles hit Jazmin with a toy gun, but a child protective service assessment determined that the injuries did not match Shannon's explanation. Since January 2008, the children have again been in foster care, with Shannon having semi-supervised visitation.
Shannon has occupied the same apartment for over a year. There is no dispute that the apartment is clean and could be appropriate for keeping the children. Shannon works a regular shift at a convenience store. Shannon is twenty-four years old, but has never had a driver's license or a vehicle. She has taken and passed the written driver's test. Everyone agrees that lack of access to transportation has affected Shannon's ability to care for the children.
A recent assessment of Shannon at the University of Iowa determined that she has some cognitive difficulties. Shannon admits she has difficulty looking up and locating addresses.
Shannon tested positive for drugs in 2006 and 2007, but has had clean drug tests in late 2007 and 2008.
In June/July 2008 Shannon had an eighteen or nineteen year-old boyfriend living with her, although she did not disclose that fact to the family team.
Shannon generally has not attended her children's doctors' appointments. Accordingly, a plan was made that she would schedule those appointments herself. In August 2008, and again in September 2008, Shannon scheduled doctors' appointments for her children. She did not attend those appointments or call to cancel. Jazmin has an asthmatic condition. At times, there have been complaints about the children smelling of smoke after visits with Shannon. Also, on one occasion, a caseworker observed Jazmin wheezing and having difficulty breathing, and although Shannon was told to take Jazmin to the doctor, she did not do so.
Shannon agrees it is time for a decision to be made regarding the permanent status of the children.
On March 26, 2008, a petition for termination of parental rights was filed. Trial was continued because of the flooding in Cedar Rapids, but was ultimately held on October 14, 2008. On December 3, 2008, the juvenile court terminated Johnny's parental rights under sections 232.116(1)(b), (e) and (h) (20070 and Shannon's parental rights under section 232.116(1)(h). Johnny's untimely appeal was dismissed. Shannon's appeal is before us.
At the time of the filing of the petition, and of the hearing, Charles was three years old. He turned four on November 11, 2008. Shannon does not raise Charles's age as an issue on appeal.
The scope of review in termination cases is de novo. In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005). We give weight to the district court's factual findings, but are not bound by them. Iowa R. App. P. 6.14(6)( g); In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). The grounds for termination must be proved by clear and convincing evidence. In re T.P., 757 N.W.2d 267, 269 (Iowa Ct.App. 2008). Our primary concern is the best interests of the children. Iowa R. App. P. 6.14(6)( o); In re A.S., 743 N.W.2d 865, 867 (Iowa Ct.App. 2007).
On appeal Shannon contends there was not clear and convincing evidence that the children cannot be returned to her custody at the present time. See Iowa Code § 232.116(1)(h)(4). We respectfully disagree. The record shows that the trial home placement in December 2007/January 2008 was not satisfactory for the children. Since then, Shannon has apparently stabilized her employment situation, but she has been unable to attend properly to the children's medical needs when called on to do so. This is especially important because one of the children has significant medical issues, i.e., severe asthma.
Shannon also contends that the juvenile court should have exercised its authority under section 232.104(2)(b) to continue placement of Charles and Jazmin for an additional six months at which time the court would hold a hearing to consider modification of its permanency order. However, as noted by the juvenile judge, the children have already been away from their mother for approximately two years. They are now over four and two years of age respectively. In effect, Shannon has received an additional four months of time already, since the hearing was postponed due to last summer's flooding. Yet the concerns about Shannon's ability to attend to the children's needs remain. We believe the juvenile judge made the correct decision that the costs to the children outweigh the potential benefits of more time in this case. J.E., 723 N.W.2d at 800 (discussing that the legislature has provided parents with a time frame to remedy their deficiencies, and further patience can translate into intolerable hardship for children). Notably, Shannon herself testified at the hearing that it was time for a decision to be made regarding the permanent status of the children. "We view cases where the children have been out of the home for more than twelve months with a sense of urgency." In re R.C., 523 N.W.2d 757, 760 (Iowa Ct. App. 1994).
Third, Shannon contends that reasonable efforts were not made to enable the children to reunite with her. See Iowa Code § 232.102(10)(a) (defining reasonable efforts). The State asserts that Shannon has not preserved this issue for appeal because Shannon did not raise it prior to the termination hearing. See In re C.H., 652 N.W.2d 144, 148 (Iowa 1999) ("In general, if a parent fails to request other services at the proper time, the parent waives the issue and may not later challenge it at the termination proceeding."). In any event, we conclude that reasonable efforts were made. On the whole, the record in this case shows extensive services being provided to Shannon. There is no instance of services being requested and not provided. We agree with the juvenile court's finding on this point. For example, Shannon received a family support worker at the time of the trial home placement, but Shannon did not return her calls and eventually the services were withdrawn. Shannon also complains that the results of the cognitive testing from the University of Iowa were not shared with her counsel until the day of trial. However, that testing had only taken place six weeks before, and evidence was presented that services warranted by that testing were being provided to Shannon.
Lastly, Shannon urges that termination of parental rights is not in the best interests of the children. We agree with Shannon that there is a bond between her and both Charles and Jazmin. On the other hand, this consideration does not outweigh the children's need for safety and for a permanent home. See J.E., 723 N.W.2d at 802 (Cady, J., concurring specially) (indicating that "a child's safety and his or her need for a permanent home [are] the defining elements in a child's best interests"). Charles and Jazmin are adoptable and should not be forced to wait for responsible parenting. In re T.T., 541 N.W.2d 552, 557 (Iowa Ct.App. 1995) (discussing that temporary or even long term foster care is not in a child's best interest, especially when the child is adoptable). The children have been out of Shannon's care for nearly two years. "At some point, the rights and needs of the children rise above the rights and needs of the parents." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). Thus, we conclude that termination is in Charles and Jazmin's best interests. We affirm the decision of the juvenile court.
AFFIRMED.