Opinion
No. 5-337 / 05-0354
Filed April 28, 2005
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
Mother and father appeal from order terminating their parental rights to their daughter. AFFIRMED.
R.E. Breckenridge of Breckenridge Duker, P.C., Ottumwa, for appellant-father.
H. Michael Neary of H. Michael Neary Law Office, P.C., Ottumwa, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Mark Tremmel, County Attorney, and Rose Anne Medford and Jason Helm, Assistant County Attorneys, for appellee.
Sam K. Erhardt of Erhardt Erhardt, Ottumwa, for child.
Considered by Mahan, P.J., and Zimmer and Miller, JJ.
Rogelio G. and Pearl G. appeal from a juvenile court order that terminated their parental rights to their daughter, A.G. Upon our de novo review, we affirm the juvenile court's decision.
I. Background Facts and Proceedings.
Rogelio G. and Pearl G. are the parents of A.G., born April 24, 2003. On May 31, 2003, A.G. suffered first and second degree burns while under the care and supervision of Rogelio. Rogelio had begun to bathe the child in the sink without first testing the temperature of the water. The water was extremely hot and burned A.G.'s arm, side, and back. Rogelio attempted to treat the burns himself. A.G. was not taken to the hospital until after Pearl returned from work one to two hours later.
As a result of this incident the Department of Human Services (DHS) made a founded report of denial of critical care and failure to provide proper supervision. Rogelio and Pearl agreed to voluntary services, including visits from an in-home nurse. On June 10, 2003, the nurse noticed a small bruise on A.G.'s jaw. Rogelio stated that the previous evening A.G. was lying on the couch while he was attending to her burns, and that A.G. had rolled off the couch when he got up to answer the door. The nurse reported the bruising to DHS, which removed A.G. from Rogelio and Pearl's care.
A.G. was placed in emergency foster care. The foster care provider noticed an additional bruise on A.G.'s forehead, and became suspicious that there was also something wrong with A.G.'s back. A.G. was taken to the local hospital, where x-rays revealed up to nine rib fractures. On June 11 a University of Iowa Hospitals physician confirmed A.G. had multiple rib fractures which were the result of a compression or squeezing of the rib cage. The physician also noted a third bruise, located on A.G.'s back. A subsequent skeletal survey revealed additional rib fractures and a healing fracture of the left wrist. The wrist fracture was typical of one where the arm was pulled or shaken vigorously.
The State filed a petition seeking to adjudicate A.G. as a child in need of assistance (CINA). While the CINA matter was pending Rogelio was charged with, but acquitted of, child endangerment. On February 10, 2004, A.G. was adjudicated CINA as defined in Iowa Code section 232.2(6)(c)(2) (2003), as a child likely to suffer harm due to her parents' failure to exercise care in supervision. The court found that A.G.'s injuries were inflicted injuries, but that there was insufficient evidence to establish the injuries were caused by the actions of either Rogelio or Pearl.
On June 4, 2004, the State filed a petition to terminate Rogelio's and Pearl's parental rights pursuant to Iowa Code section 232.116(1)(h) (child is three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home) and (i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions). While the termination petition was pending, Rogelio and Pearl's second child, R.G., was born. He was removed from his parents' care at the hospital, and later adjudicated CINA. R.G. remained in foster care at the time of the contested hearing to terminate Rogelio's and Pearl's parental rights to A.G.
On February 15, 2005, following the contested hearing, the juvenile court terminated Rogelio's and Pearl's parental rights pursuant to section 232.116(1)(h). The court concluded A.G. was subject to substantial risk for being reinjured while in Rogelio's care, and that Pearl would be unable to keep the child from adjudicatory harm. Rogelio and Pearl both appeal. They contend that DHS did not provide reasonable efforts to reunite the family, that there was not clear and convincing evidence their parental rights should be terminated, and that termination was not in A.G.'s best interests.
II. Scope and Standard of Review.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court's fact findings, especially when considering witness credibility. 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 2001). Our primary concern is the best interests of the child. C.B., 611 N.W.2d at 492.
III. Discussion.
The court terminated Rogelio's and Pearl's parental rights pursuant to Iowa Code section 232.116(1)(h), which applies when the child is three years old or younger, has been adjudicated CINA, has been removed from the parent's physical custody for at least six of the last twelve months, and where "[t]here is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time." As part of its proof that the child cannot safely be returned to the parents, the State was required to show reasonable efforts had been made to reunify the family. C.B., 611 N.W.2d at 493.
Rogelio and Pearl do not dispute the age, adjudication, and time removal elements. However, they assert the State failed to show that A.G. could not be returned to their care at the time the termination hearing was held without suffering further adjudicatory harm. We reject this assignment of error.
First, we note that while the State has an obligation to provide reasonable services aimed at reunification, Rogelio and Pearl had the obligation to challenge the offered services, or demand different or additional services, at the time the services were provided. See In re L.M.W., 518 N.W.2d 807 (Iowa Ct.App. 1994). Here, Rogelio and Pearl do not identify any other services that should have been provided by DHS, nor is there any indication that they requested additional services or otherwise challenged the offered services at the time the case plan was entered. Their failure to timely challenge the services provided waives error on appeal. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Accordingly, in considering the sufficiency of evidence to support termination, our focus is on the services actually provided by DHS, and Rogelio's and Pearl's response to those services.
The record reveals the State provided numerous services, all aimed at family reunification. These services included, but were not limited to, psychosocial assessments, in-home services, family-centered services, CASA services, supervised visitation, parent skill development, individual and domestic abuse victim's counseling for Pearl, and a batter's education course, anger management counseling, psychiatric services, and medication management for Rogelio. The reports and testimony offered by the State clearly demonstrate that Rogelio and Pearl failed to take full advantage of these services, and moreover that they failed to progress to the point that A.G. could be returned to their care at the time of the termination hearing.
Rogelio and Pearl assert that we must look beyond the recommendations and opinions of DHS workers and service providers, as such evidence is tainted by a bias against reunification. They assert DHS did "everything in its power to ensure termination." Rogelio and Pearl contend any assertions that they have been dishonest or untruthful are in fact founded on simple misunderstandings between themselves and DHS, and have been blown out of proportion by an agency all but driven to terminate their parental rights.
Looking to the totality of the record, including the juvenile court's decision, it is clear that, as to several salient points, the court found the State's evidence to be more credible than that of the parents. We give weight to such assessments. C.B., 611 N.W.2d at 492. When we do so, we agree the record contains clear and convincing evidence A.G. could not be returned to her parents' care at the time of the termination hearing.
Rogelio failed to fully and actively participate in visitation with A.G. and to make progress in parental skill development. He was inconsistent in his explanations of and failed to take responsibility for A.G.'s injuries. See In re C.H., 652 N.W.2d 144, 150 (Iowa 2002) ("A parent's failure to address his or her role in the abuse may hurt the parents' chances of regaining custody and care of their children."). He also tended to minimize the history of domestic abuse between himself and Pearl. Of particular concern is Rogelio's potential to become impulsive and angry when frustrated, as well as the fact that he self-reported feeling anger and frustration both when A.G. was burned and when she fell off of the couch. In light of the foregoing we agree with the juvenile court's determination that A.G. "is at substantial risk for being reinjured were she returned to her father's care."
Although Pearl made greater strides than did Rogelio, she too has been less than successful in improving her parenting skills, and has failed to progress beyond supervised visitation. We also echo the juvenile court's concerns about Pearl's ability to protect A.G. from further injury, or report an injury if one occurred. Pearl remains in a relationship with Rogelio, and has a history of being passive and submissive to him. She also continues to support Rogelio's various explanations of A.G.'s injuries, and like Rogelio continues to minimize those injuries. In addition, Pearl has a history of attempting to harm herself when highly distressed, impairing her ability to be available for A.G. Although DHS has recommended mental health counseling in relation to both the domestic abuse and self injury, Pearl has failed to take advantage of the offered service. We agree that Pearl would be unable to protect A.G. from adjudicatory harm if the child were returned to her care.
Given all the foregoing, we reject Rogelio and Pearl's contentions that the Department of Human Services did not provide reasonable efforts to reunite the family, and that there was not clear and convincing evidence their parental rights should be terminated. We therefore turn to their contention that termination was not in A.G.'s best interests.
Even if the statutory requirements are met, termination of Rogelio's and Pearl's parental rights must still be in A.G.'s best interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In determining A.G.'s best interests, we consider both her long-range and immediate best interests. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). When we do so, we agree with the juvenile court's decision to terminate Rogelio's and Pearl's parent rights.
At the time of the termination hearing A.G. had been out of her parents' care for over a year. During that time Rogelio was non-compliant with a number of offered services, including visitation and mental health services. He has failed to demonstrate a willingness to alter his behavior to meet A.G.'s needs, and there is no indication that, given additional time, Rogelio could progress to a point where A.G. could be returned to his care. While Pearl has been more compliant and shown greater progress than has Rogelio, she is either unable or unwilling to appreciate that her continued relationship with Rogelio poses a danger to A.G. There is also convincing evidence in the record that A.G. is not well-bonded with her mother. As with Rogelio, we are not convinced that, given additional time, Pearl could progress to a point where A.G. could be returned to her care.
Children should not be forced to endlessly await the maturity of a natural parent. C.B., 611 N.W.2d at 494. At some point the rights and needs of the child must rise above the rights and needs of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997). A.G. is doing well in her foster placement and is well bonded with her foster family. The family has expressed a willingness to adopt her. We agree with the juvenile court that termination is in A.G.'s best interests. Accordingly, the juvenile court's decision is affirmed.