Opinion
No. 3-774 / 03-1509
Filed October 29, 2003
Appeal from the Iowa District Court for Lee South County, Gary R. Noneman, District Associate Judge.
A mother appeals the juvenile court order terminating her parental rights to her two children. AFFIRMED.
Thomas D. Marion of Marion Law Office, Keokuk, for appellant-mother.
Carl McMurray, Keokuk, for father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Michael Short, County Attorney, and David Andrusyk, Assistant County Attorney, for appellee-State.
Kendra Abfalter, Keokuk, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Appellant, Mary Jo, challenges the juvenile court order terminating her parental rights to her two children. She contends 1) the State failed to make reasonable efforts at reunification, 2) there was not clear and convincing evidence the children could not be returned to her care at the time of the termination, and 3) termination is not in the best interest of the children. We affirm.
David and Mary Jo are the parents of William, born in February 1999, and Rose, born in January 2000. David has a history of abusing Mary Jo. The family first came to the attention of the Department of Human Services (DHS) in June 2000 based on child protection concerns, physical abuse by David, and a red-tagged home. Both children were adjudicated as children in need of assistance (CINA) in December 2000 under Iowa Code section 232.2(6)(c) (1999) and left in their parents' care subject to DHS supervision. In February 2001, the children were removed from their parents' care after Rose was treated for thirteen suspicious burns on her arms and legs. David was arrested and jailed on charges of child abuse. Mary Jo was given supervised visitation, but David was ordered to have no contact with the children. David and Mary Jo separated.
In March, David pled guilty to child endangerment. Some time after his release from jail, the couple reunited and sought reunification with their children. They participated in a variety of services, including psychosocial evaluations, mental health counseling, family-centered services, supervised and unsupervised visitation, parent skill development, marital counseling, and a batterer's education program for David.
In November 2001 Mary Jo reported she had consulted an attorney about separating from David so the children could be returned to her. In December 2001 the couple, against court recommendation, moved to Illinois for better jobs, but returned weekly to Iowa for visitation. In March 2002, the foster care review board recommended giving the parents six more months to work on permanency goals before pursuing termination. In May, the couple moved back to Iowa.
In July 2002 William reported he and Rose were being hit by David. In August, Mary Jo was treated at an emergency room after an assault by David. He was arrested on domestic abuse assault charges. The next day he was arrested again for violating the no-contact order. Mary Jo informed her social worker she planned to file for divorce. By January 2003, Mary Jo still had not filed for divorce.
Following a permanency hearing in September and October 2002, the court changed the permanency goal to termination of parental rights. The court gave DHS discretion in allowing visitation. Between the permanency hearing and the termination hearings in June 2003, Mary Jo was evicted from one home and sued by the landlord for back rent, damages, and missing appliances.
The State filed its petition to terminate the parental rights of David and Mary Jo on March 27, 2003. On April 4, DHS moved the children from their foster home to a pre-adoptive foster home. DHS stopped allowing visitation after that time. Mary Jo continued to request visitation.
The termination hearing was held on June 5 and 17, 2003. Mary Jo attended the first date; David was a fugitive and did not attend. Just before the second date, David and Mary Jo were arrested at her home on charges of forgery. David also was in violation of the no-contact order. David attended the hearing on the second date. Mary Jo did not attend, having gone to Illinois. The juvenile court terminated David's parental rights to William under Iowa Code section 232.116(1)(b), (e), and (f) (2003); and to Rose under section 232.116(1)(b), (e), and (h). The court terminated Mary Jo's parental rights to William under section 232.116(1)(e) and to Rose under section 232.116(1)(h). The court concluded:
Mary Jo has had a spotty and unsatisfactory record of compliance with services. Though extraordinary efforts were made to accommodate [her] throughout the course of the CINA and TPR proceedings including dealing with her move to Illinois, adjusting to her frequent moves out of county, and provision of services tailored to her movement, [she] is no closer to obtaining the return of her children at the present time [than] she was before these cases began. The children remain CINA as they have been since December of 2000. They remain out of home in foster placement. Mary Jo's track record of deceptiveness, evasion, and half-hearted compliance with service provision remains an insurmountable obstacle to reunification. She cannot be trusted to either tell the truth or to protect her children from David. Her recent alleged criminal activities compound the other problems in this case. . . . There is no reasonable likelihood that the children can be returned to Mary Jo's home at any time now or in the relevant future.
We review de novo. In re S.J., 620 N.W.2d 522, 524 (Iowa Ct.App. 2000). The State has the burden of proving the grounds for termination by clear and convincing evidence. In re M.T., 613 N.W.2d 690, 691 (Iowa Ct.App. 2000). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972). The Iowa Supreme Court has recognized there exists a parental interest in the integrity of the family unit, but that such interest is not absolute and may be forfeited by certain conduct. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
Mary Jo first contends the State did not make reasonable efforts at reunification in that it terminated her visitation with the children about a month before the termination hearing.
[T]he reasonable efforts requirement is not viewed as a strict substantive requirement of termination. Instead, the scope of the efforts by the DHS to reunify parent and child after removal impacts the burden of proving those elements of termination which require reunification efforts. The State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to the care of a parent.
In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (citations omitted). Our focus is on the services provided and the parent's response, not the services a parent claims should have been offered. See id. at 494. One of the primary concerns to be addressed before the children could be returned is their safety from abuse. Mary Jo has not alleged how continuing her visitation would have helped resolve this concern. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). We noted above some of the efforts made by the State to resolve the parents' problems which led to the CINA adjudication and continued placement of the children outside the home. We find clear and convincing evidence the State made reasonable efforts at reunification.
Mary Jo next contends the children could have been returned to her custody. See Iowa Code §§ 232.116(1)(f)(4) and 232.116(1)(h)(4). When considering whether or not a child can be returned to a parent's care as set forth in these statutory provisions, we apply considerations similar to those in Iowa Code section 232.102(5)(a), which relate to the child's removal. See In re M.W., 458 N.W.2d 847, 850 (Iowa 1990). They include lack of protection from physical abuse or some harm which would justify a CINA adjudication. A child cannot be returned home if any of the definitional grounds of section 232.2(6) still exist. Cf. M.B., 553 N.W.2d at 345; In re B.K.J., Jr., 482 N.W.2d 608, 610 (Iowa Ct.App. 1992). Mary Jo has not demonstrated an ability to protect the children from abuse by their father. She has been unable or unwilling to remove herself from a dangerously abusive relationship with David or to keep him out of the home. Even in the days surrounding the termination hearing, Mary Jo chose to be with David, even though it meant he was violating a no-contact order with her. We find clear and convincing evidence William and Rose could not be returned to Mary Jo's care at the time of the termination.
Mary Jo also contends termination is not in the best interest of William and Rose. "[W]e give primary consideration to the child's safety, to the best placement for furthering the long-term nurturing and growth of the child . . . ." Iowa Code § 232.116(2). Part of that consideration may be "whether the foster family is able and willing to permanently integrate the child into the foster family." Iowa Code § 232.116(2)(b). The evidence shows the pre-adoptive foster home is interested in adopting both children. We also "consider what the future likely holds for the child if that child is returned to his or her parents." In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Insight for that determination may be gained from evidence of a parent's past performance, for that performance may be indicative of the quality of future care a parent is capable of providing. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). As noted above, Mary Jo has not demonstrated the ability to protect her children. We find termination of her parental rights is in their best interest.