Opinion
No. 6-049 / 05-2059
Filed February 15, 2006
Appeal from the Iowa District Court for Johnson County, Stephen Gerard, District Associate Judge.
K.B. appeals from the termination of his parental rights. AFFIRMED.
Sally Weyer of Bergan Weyer, L.L.P., Iowa City, for appellant father.
Patrick Ingram of Mears Law Office, Iowa City, for mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, J. Patrick White, County Attorney, and Deborah Minot, Assistant County Attorney, for appellee State.
Amy Evenson of Larson Evenson, Iowa City, guardian ad litem for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
K.B. appeals from the juvenile court's order terminating his parental rights concerning A.D.B. We affirm.
I. Background Facts Proceedings.
A.D.B. was born in September 2004. Because his mother, R.H., had a substantial history of drug abuse, the Iowa Department of Human Services (DHS) obtained an emergency removal order placing A.D.B. in family foster care upon his release from the hospital.
On December 14, 2004, R.H. and K.B. stipulated to A.D.B.'s adjudication as a child in need of assistance under Iowa Code sections 232.2(6)(b) (2003) (parent has physically abused or neglected child (or is imminently likely to do so)), (6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child), (6)(n) (parent's mental capacity (or condition, or drug or alcohol abuse) results in child not receiving adequate care), and (6)(o) (illegal drug present in child). On December 16, 2004, the juvenile court entered an adjudicatory order in accordance with that stipulation. The court also ordered A.D.B.'s continued placement in family foster care. The adjudicatory order included the following findings of fact and order
[A.D.B.] was removed from [R.H.'s] care immediately following his birth. [R.H.] had exposed [A.D.B.] to methamphetamine and cocaine in utero. [R.H.] is a drug addict unable to control her addiction to methamphetamine at this time. [R.H.] stipulates to the State's Motion to Waive Reasonable Efforts.
[K.B.] is likewise a drug addict, addicted to the use of methamphetamine. Further, he is incarcerated awaiting sentencing for a number of criminal charges. He has been incarcerated since before [A.D.B.'s] birth. The plea agreement recommends a sentence of 15 years in prison. [K.B.] hopes for a suspended sentence and placement in a half-way house. If so placed, he will spend at least 6 months in a community based correctional facility. He may spend several years in prison.
Neither parent, even under the best of circumstances will be available to parent [A.D.B.] for some time and clearly for more than the next 3 months. [A.D.B.] has spent his entire life in foster care where his special needs as a drug affected baby are being addressed.
. . . .
The Court finds pursuant to the provisions of Iowa Code Section 232.102(12)(b), that clear and convincing evidence establishes that aggravating circumstances exist that the child meets the definition of a child in need of assistance; that the child suffered abuse and neglect which posed a significant risk to the child's life and health; and that the furnishing of services would not work to correct the conditions within a reasonable period of time as provided by Iowa Code Section 232.116(1)(i). Accordingly, reasonable efforts to achieve family unification should be waived and the Department directed to plan for termination of parental rights and adoption
On December 17, 2004, the State filed a petition to terminate parental rights under Iowa Code sections 232.116(1)(d) (child CINA for physical or sexual abuse (or neglect), circumstances continue despite receipt of services), (1)(g) (child CINA, parents' rights to another child were terminated, parent does not respond to services), (1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home), (1)(i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions), and (1)(l) (child CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). On March 7, 2005, an amendment to the petition to terminate parental rights was filed alleging R.H.'s rights should be terminated under Iowa Code section 232.116(1)(a) (parents consent to termination) and K.B.'s rights should be terminated under Iowa Code section 232.116(1)(j) (child CINA, parent imprisoned and is unlikely to be released for five or more years).
Following a hearing on the merits, the juvenile court found:
The child's mother and father were not in a committed relationship and the pregnancy was not planned. The child's mother used methamphetamine during the pregnancy and engaged in other criminal acts with the child's father. Both parents will be incarcerated for a period of time which will prevent them from being available to parent this child.
The child's mother has consented to the termination of her parental rights. The child should not be required to wait until his father is released from prison to find out if his father can ever be a suitable parent. Neither the child's father nor mother has parented the child since his birth.
Based on these findings, the juvenile court terminated K.B.'s parental rights pursuant to Iowa Code section 232.116(1)(h).
On appeal, K.B. raises the following issue:
The trial court erred in finding that there was clear and convincing evidence that A.D.B. could not be returned to the custody of his father, K.B.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). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
III. The Merits.
Iowa Code section 232.116(1)(h) provides for termination of parental rights if the court finds there is clear and convincing evidence that (1) the child is three years of age or younger, (2) the child has been adjudicated a child in need of assistance, (3) the child has been removed from the physical custody of a parent for six of the last twelve months, and (4) the child cannot be returned to the physical custody of the parent. "`Clear and convincing' evidence connotes the establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond reasonable doubt." In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citing In re Henderson, 199 N.W.2d 111, 121 (Iowa 1972)). While "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 chapter 232." In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct.App. 1993.
We, like the juvenile court, find A.D.B. cannot be returned to parental custody. At the time of the termination hearing, K.B. was serving an indeterminate ten-year term of incarceration on a drug related offense. He has a substantial criminal record, including multiple burglary and possession of methamphetamine convictions. Moreover, K.B. concedes his addiction to methamphetamine, and there is no indication that his resulting treatment for substance abuse has been successful. K.B. nevertheless maintains he will be able to assume custodial care of A.D.B. upon his release from prison.
K.B.'s incarceration is no excuse for his unavailability to assume custody of A.D.B. See In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994) (citing In re R.L.F., 437 N.W.2d 599, 602 (Iowa Ct.App. 1989)). Additionally, "[a]n incarcerated parent must take full responsibility for the conduct which has resulted in his confinement." J.L.W., 523 N.W.2d at 624. The juvenile court correctly concluded that the statutory time period for reunification has elapsed and K.B. is still unable to care for A.D.B. We therefore affirm the juvenile court's decision to terminate K.B.'s parental rights.