Opinion
No. 3-918 / 03-1704.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
A father appeals from a juvenile court order terminating his parental rights to two children. AFFIRMED.
Karen A. Taylor of Taylor Law Offices, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee-State.
Jane White, Des Moines, guardian ad litem for minor children.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
Chad is the father of Tristin (referred to as "Tristan" at various places in the record) who was born in March 1998, and Hayley, who was born in October 2000. In November and December 2001 the children were adjudicated children in need of assistance (CINA) and removed from the custody of their mother and placed with Chad. On January 17, 2002 they were removed from Chad's custody. In December 2002 the children began an extended visitation with Chad. Despite their social worker's concern about Chad's lack of insight regarding his anger management and substance abuse problems, the children were returned to his custody on January 3, 2003. On February 10, 2003, the parental rights of the children's mother were terminated.
In February 2003 the Department of Human Services (DHS) became aware Chad had not provided samples for drug testing as requested in December 2002, January 2003, and February 2003. Under pressure, he provided a sample on February 28. It tested positive for extremely high levels of "THC," indicating marijuana use. Chad told various, inconsistent, and highly doubtful stories about the recency and extent of his marijuana use.
On March 13, 2003, the children were again removed from Chad's custody. Chad had been charged with child endangerment as a result of spanking Gage, a five-year-old son of his girlfriend. Gage had substantial bruising on his lower back, buttocks, and upper thigh. Tristin reported that Chad had also spanked him, although Tristin's guardian ad litem, Chad's therapist, and Tristin's therapist had all recommended against spanking Tristin. Chad had not only a history of substance abuse, but also a prior criminal history of felony criminal mischief and assault with intent for which he had been imprisoned, and domestic abuse assault causing injury.
The juvenile court ordered that Chad not have contact with children under five years of age, and that he have supervised visitation with Tristin and Hayley only at the discretion of the children's therapist and DHS. Tristin's therapist concluded that because Tristin tended to blame himself for his removal and had a significant problem in trusting Chad, Chad needed to acknowledge to Tristin Chad's abuse of Gage and his use of marijuana, all as a condition of beginning visitations. The DHS child protective worker encouraged Chad to work with his own therapist in order that visitation could occur.
Chad failed or refused to provide a sample for drug testing on March 28, 2003. Although he did provide clean samples on March 31 and April 8, he failed or refused to provide samples on ten occasions from April 13 to July 21. As a result of a substance abuse evaluation, on May 11, 2003 it was recommended that Chad complete a five-week outpatient treatment program. Although he participated in individual therapy after the children were again removed from his custody in March 2003, Chad did not address his anger management and substance abuse issues during that therapy.
On June 5, 2003, the State filed a petition to terminate Chad's parental rights. Chad did not begin an outpatient substance abuse treatment program until July 16, 2003, after a July 14 order set the termination hearing for September 9. Chad did provide two "clean drug screens" while participating in the outpatient program, and completed the program on August 25. However, on August 30 he then again failed to provide a sample for drug testing, and as of the September 9 termination hearing had not begun to participate in a recommended aftercare program. Following the September 9 hearing the juvenile court entered an order on September 26, 2003, terminating Chad's parental rights to Tristin and Hayley pursuant to Iowa Code sections 232.116(1)(f) (2003) and 232.116(1)(h) respectively. Chad appeals.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Chad first claims that the State did not prove by clear and convincing evidence that returning the children to his custody would subject them to adjudicatory harm as defined in Iowa Code sections 232.2(6)(c)(2) (child imminently likely to suffer harmful effects as a result of failure of parent to exercise reasonable degree of care in supervising the child) or 232.2(6)(n) (child whose parent's mental condition or drug abuse results in child not receiving adequate care). We disagree.
Chad has a long-standing substance abuse problem which he has only belatedly and incompletely addressed. He has a history of assaultive behavior, including domestic abuse assault. The children were removed from his custody following, and as a result of, his assault upon and injury to a child of about his children's age. The assault occurred when he had recently been using marijuana to the extent he had an extremely high THC level. He has used spankings to discipline Tristin despite strong advice from several professionals that Tristin should not be spanked. He has not shown insight into, or adequately dealt with, his substance abuse problem, his anger management problem, or his problem with assaultive behavior. We fully agree with the juvenile court that clear and convincing evidence shows the children could not be returned to his custody without being subject to adjudicatory harm as defined in sections 232.2(6)(c)(2) and (n).
Chad claims reasonable efforts were not made and services provided in an attempt to effectuate reunification, as visitation was not allowed. However, contrary to Chad's assertion, visitation was allowed, but the juvenile court ordered that it be at the discretion of the DHS and the children's therapist. Tristin was aware that Chad had spanked Gage. Tristin tended to blame himself for his removal, and Tristin had a significant problem in trusting Chad, perhaps as a result of observing domestic abuse and as a result of being removed from Chad. Tristin's therapist concluded Tristin's therapy required that Chad acknowledge to Tristin that Chad's abuse of Gage and Chad's marijuana use had caused the children's removal. The therapist felt strongly that Chad's honesty regarding these matters was a necessary foundation for Tristin to end his self-blame and to regain lost trust in Chad. Under these circumstances we find that conditioning visitation upon Chad's acknowledgement of his abuse of Gage and his marijuana use was not a denial of reasonable efforts or a failure to provide reasonable services.
Although Chad acknowledged marijuana use, he refused to acknowledge the recency or extent of use that his THC level indicated or that his use was one of the causes of the children's removal. Although he pled guilty to assaulting Gage with resulting injury, and in doing so acknowledged that his spanking had caused Gage's bruising, he refused to acknowledge to Tristin's therapist or to Tristin that he had caused bruising.
Chad claims the State did not prove the third and fourth elements of section 232.116(1)(f) (as to Tristin) and did not prove the third and fourth elements of section 232.116(1)(h) (as to Hayley). In relevant part, the third element of section 232.116(1)(f) required the State to prove that Tristin had been removed from the physical custody of his parents for at least twelve of the last eighteen months, and the third element of section 232.116(1)(h) required the State to prove Hayley had been removed from the physical custody of her parents for at least six of the last twelve months. As of the September 9, 2003 termination hearing, the children had been removed from the custody of both parents since January 17, 2002, except for a December 13 to 16, 2002 visitation with Chad, a December 20, 2002 to January 3, 2003 visitation with Chad, and a January 3 to January 13, 2003 placement in Chad's custody. They had thus both been removed from the physical custody of both parents for about eighteen of the preceding twenty-one months, easily satisfying the elements in question.
The fourth element of both sections 232.116(1)(f) and (h) requires a showing that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102. This requirement is met when the child cannot be returned to the parental home because the definitional grounds of a child in need of assistance exists. In re M.L.W., 461 N.W.2d 609, 611 (Iowa Ct.App. 1990). In resolving Chad's first claim of error, above, we have determined that clear and convincing evidence shows the children would remain in need of assistance if returned to Chad's custody. This fourth element of sections 232.116(1)(f) and (h) is thus satisfied.
Chad also claims that termination of his parental rights is not in the children's best interest. Even if statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interest of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Chad has not adequately addressed his substance abuse problem. Since the children's last removal he has done little or nothing to address his problems with anger management and assaultive behavior. The children have been involved in juvenile court proceedings since November 2001. They have endured multiple placements as a result of their removals. The professionals involved in this case believe that the children, in particular Tristin, can no longer tolerate additional removals and the accompanying dislocations and uncertainty. At the time of the termination hearing they had been removed from Chad's custody for eighteen of the last twenty-one months. "While we recognize the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,' Iowa has built this patience into the statutory scheme of Iowa Code chapter 232." In re C.B., 611 N.W.2d at 494 (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)). The children need and deserve stability, security, and permanency. They need them now rather than at some indefinite time in the future. We agree with the juvenile court that the best interests of the children require termination of the parental rights of their father.