Opinion
No. 3-800 / 03-1236
Filed October 29, 2003
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
J.S., L.A., and L.A. appeal from the termination of their parental rights to their minor children. AFFIRMED.
Cathleen Siebrecht of Borseth, Siebrecht Siebrecht Law Offices, Altoona, for appellant mother.
Susan R. Stockdale of Terrill, Martens, Hulting Stockdale, Ames, for appellant father, J.S.
Scott T. Hunter of Law Offices of Michael H. Said, Des Moines, for appellant father, L.A.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Navis, Assistant County Attorney, for appellee-State.
Tom Clark, Jr., Des Moines, for father, A.V.
Christine Bisignano, West Des Moines, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
I. Background Facts Proceedings
Leanna is the mother of Jennie, born in 1994; Victoria, born in 1996; Kelsey, born in 1998; Ryan, born in 2000; and Edward, born in 2001. Jennie's father is Anthony. The father of Victoria and Kelsey is Jamie, and the father of Ryan and Edward is Larry. Leanna is married to Larry.
The children came to the attention of the Department of Human Services in November 2001 due to allegations of domestic violence and child abuse. A no-contact order was entered against Larry, but Leanna continued to allow him to have contact with the children. The children were removed from the home in March 2002 and adjudicated to be children in need of assistance (CINA). Jennie, Victoria, and Kelsey were placed with a paternal aunt. Jennie was later placed with her father. Ryan and Edward were placed in foster care.
Leanna has a history of relationships with violent men. Leanna has very little understanding of how domestic abuse could negatively affect the children. Leanna and Larry had a very inconsistent relationship, separating and reuniting several times. They were not honest with social workers. Leanna, Larry, and Jamie have had problems with substance abuse.
There have also been problems with criminal behavior. Jamie was in prison at the time of the CINA adjudication. He did not participate in services, even after he was released from prison. In January 2003 Larry was sent to prison for a probation violation. Leanne stated she had ended her relationship with Larry, but prison records showed she had called and visited him several times. Larry has been diagnosed with a fatal disease.
In March 2003 the State filed a petition to terminate the parental rights of Leanna, Larry, and Jamie. The juvenile court terminated Leanna's parental rights to pursuant to Iowa Code sections 232.116(1)(d), (f) (Jennie, Victoria, and Kelsey), and (h) (Ryan and Edward) (2003). Larry's parental rights to Ryan and Edward were terminated under sections 232.116(1)(d) and (h). Jamie's parental rights to Victoria and Kelsey were terminated under sections 232.116(1)(d) and (f). The court found the children had been damaged by the violence and instability in the home. The court determined the children needed permanency for healthy development. Leanna, Larry, and Jamie have each appealed the juvenile court's decision.
II. Standard of Review
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).
III. Leanna A. Leanna claims there is insufficient evidence in the record to support the termination of her parental rights. We find there is clear and convincing evidence the children could not be returned to the mother's care at the present time. The mother continued to put her relationships with men before her relationship with the children. Leanna did not understand how her abusive relationships affected the children. Because the mother was unable to keep herself safe, it is unlikely she would be able to keep the children safe in the future. There were also concerns that Leanna continued to use illegal drugs. We determine Leanna's parental rights were properly terminated.
B. Leanne claims termination of her parental rights was not in the best interests of the children. She claims the children had a bond with her and will be separated if her rights are terminated. Leanna also points out that Jennie, Victoria, and Kelsey have been placed with relatives.
Under section 232.116(3)(a), the juvenile court need not terminate parental rights if a relative has legal custody of a child. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the sound discretion of the court, based upon the unique circumstances before it and the best interests of the child, whether to apply this section. Id. Also, whenever possible, siblings should be kept together; however, our paramount concern is the children's best interests. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994).
We determine termination of Leanna's parental rights is in the children's best interests. Leanna's unstable relationships were detrimental to the children. The children were afraid of Larry, but Leanna has continued a relationship with him. Leanna admitted it would be difficult to meet the needs of all five children.
C. Leanna claimed the State did not engage in reasonable efforts to reunite her with her children. In particular, she claims the service providers had constitutionally inadequate training in dealing with victims of domestic violence. 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. 1997). The State has an obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997).
The juvenile court found services were reasonable and appropriate, and "[t]he parents either did not cooperate with the services or did not utilize the services which they received." Leanna received individual counseling and attended the Family Violence Center. We find the services were reasonable under the facts of this case.
D. Leanna asserts she should be given additional time to improve her parenting skills. Patience with parents can soon translate into intolerable hardship for the children. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). A child should not be forced to endlessly await the maturity of the natural parent. Id. Leanna has been receiving services since late 2001, but is still unable to provide a safe environment for the children. We determine it is not in the children's best interests to give her additional time. We affirm the termination of Leanna's parental rights.
IV. Larry
Larry does not raise any arguments on his own behalf, but claims that the children should be placed with Leanna. We have already determined Leanna's parental rights were properly terminated. We also find Larry's parental rights to Ryan and Edward were properly terminated.
V. Jamie A. Jamie contends there is not clear and convincing evidence in the record to show his parental rights should be terminated. We find Victoria and Kelsey could not be safely placed in his care. Leanna stated Jamie had been abusive to her during their relationship. Jamie refused to complete parenting and anger management classes. At the present time, Jamie is not in a position to be able to meet the children's needs.
B. Finally, Jamie contends he received ineffective assistance of counsel at the termination hearing. He claims his attorney failed to impress upon him the importance of attending the termination hearing. He also claims his attorney should have called witnesses on his behalf.
Because a parent has a statutory right to counsel in a termination proceeding, the parent is entitled to effective assistance. In re D.W., 385 N.W.2d 570, 579-80 (Iowa 1986). The parent must show counsel's performance was deficient and actual prejudice resulted. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988).
We determine Jamie has failed to show he received ineffective assistance of counsel. The seriousness of the termination proceedings should have been apparent to everyone involved. He also fails to specify what witnesses could have been called on his behalf.
We affirm the decision of the juvenile court terminating the parental rights of the parents in this case.