Opinion
No. 4-854 / 04-1658
Filed January 26, 2005
Appeal from the Iowa District Court for Black Hawk County, J.D. Coil, District Associate Judge.
A mother and father appeal from the termination of their parental rights to their children. REVERSED AS TO MOTHER; AFFIRMED AS TO FATHER.
Andrew C. Abbott of Dunakey Klatt, P.C., Waterloo, for appellant-father.
Charles C. Brown, Jr., of the Law Office of Charles C. Brown, Jr., Ryan, for appellant-mother.
Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven Halbach, Assistant County Attorney, for appellee-State.
Kelly Smith, Waterloo, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
A mother and a father appeal from the termination of their parental rights to two children. We affirm the termination as to the father, but reverse as to the mother.
I. Background Proceedings.
Sabrina is the mother of Angelo L., born March 10, 1999, and Zoe M., born March 11, 2002. Robert is Zoe's father, while Joseph is Angelo's father. On May 1, 2003 Angelo and Zoe were removed from the home of Sabrina and Robert based on Sabrina's and Robert's positive tests for the presence of methamphetamine. On June 26, 2003, Zoe was adjudicated a child in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(n) (2003) based on both parents' positive tests for methamphetamine and Robert's "history of using illegal substances."
Angelo previously had been adjudicated CINA on February 5, 2001, pursuant to Iowa Code section 232.2(6)(c)(2) and (g) (2001).
The State later filed a petition seeking to terminate the parental rights of Sabrina, Robert, and Joseph. On October 4, 2004, the court granted the petition, terminating Sabrina's and Robert's rights to Zoe under sections 232.116(1)(e), (h), and (l), and Sabrina's and Joseph's rights to Angela under section 232.116(1)(e) and (f). Sabrina and Robert appeal from this order. II. Scope and Standards of Review.
Joseph does not appeal from the termination of his parental rights to Angelo.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern in termination proceedings is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proven by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995). 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. Merits.
On appeal, Sabrina maintains the evidence is insufficient to support termination under any of the provisions cited by the court, termination is not in the children's best interests, and the court should have deferred ruling on the termination petition for an additional six months. Robert asserts the evidence is insufficient to support the termination.
A. Sabrina.
We first address the sufficiency of the evidence regarding the termination of Sabrina's rights. As noted, Sabrina's parental rights to Angelo were terminated under subsections 232.116(1)(e) (child CINA, removed for six months, and parent has not maintained significant and meaningful contact with the child) and (f) (child is four or older, CINA, out of parent's custody for twelve months, and cannot be returned to parent's custody), while her rights to Zoe were terminated under subsections 232.116(1)(e), (h) (child three or younger, CINA, removed for six months, and cannot be returned to parent's custody), and (l) (child CINA, parent has severe, chronic substance abuse problem, child cannot be returned to parent). Upon our de novo review of the record, we conclude that while certain statutory elements supporting termination may have been proven by clear and convincing evidence, termination of Sabrina's parental rights to Zoe and Angelo is not in their best interests. We therefore reverse the order of termination at to Sabrina.
Initially, we reject any contention that Sabrina has not maintained significant and meaningful contact with Angelo or Zoe. See Iowa Code § 232.116(1)(e).
[S]ignificant and meaningful contact" includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.
Iowa Code § 232.116(1)(e)(3). After her release from inpatient drug treatment in April of 2004, Sabrina remained consistent in her visitations with the children. While those visitations never moved beyond one and a half hours per meeting and were always supervised, Sabrina's contacts with Angelo were nonetheless regular and meaningful. Moreover, as will be developed later in this opinion, Sabrina clearly was making a genuine effort to remain in her children's lives, and was making progress toward that goal when this termination order was entered. Clear and convincing evidence does not support termination under this subsection.
The termination of Sabrina's parental rights under the three remaining provisions all require a finding that the children could not be returned to her custody. See Iowa Code §§ 232.116(1)(f) (child cannot be returned to parent's custody if to do so would subject her to some harm which would justify adjudication), (h) (same), and (l) (cannot be returned "within a reasonable period of time"). Of primary significance to the district court in ordering termination was Sabrina's drug use. This, according to the district court, remains the primary impediment to reunification. Our review of the record does show that Sabrina's drug abuse justified removal of the children and arguably supports a finding that the children could not be returned to her care at the time of the termination hearing. Sabrina was apparently introduced to drugs by Joseph, Angelo's father, when she was still a teenager. After several years of involvement with DHS, Sabrina tested positive for methamphetamine, and the children were removed from her care on May 1, 2003. She was later arrested on November 27, 2003 for manufacturing methamphetamine. Clearly, Sabrina has had a drug problem, a problem that seriously impaired her ability to safely and effectively parent Angelo and Zoe.
Robert pled guilty and was sentenced to prison, where he was expected to remain until May of 2006 at the earliest, while Sabrina also pled guilty and was incarcerated for three months but was then allowed to enter inpatient drug abuse treatment.
However, while we do not minimize or ignore Sabrina's drug addiction, and we recognize that it remains a serious concern, we disagree with the district court's apparent opinion that her drug problem remained unremediated. Even the district court noted that, to Sabrina's "credit . . . she did participate in inpatient and residential substance abuse treatment programming and appears to have remained substance abuse free." It further characterized Sabrina's efforts to remedy the reasons for her children's removal as "sincere." Yet, despite these findings, the court still found Sabrina's efforts and progress to be inadequate.
Our review of the record reveals that Sabrina has made substantial progress in drug treatment, and that her prognosis and outlook for sobriety, although still guarded, is encouraging. At the time of the termination hearing in August of 2004, Sabrina had been substance free for approximately nine months. Sabrina successfully completed a residential substance abuse treatment program at Pathways in April of 2004, as well as an extended outpatient treatment program by June of 2004. Furthermore, she was an active participant in Narcotics and Alcoholics Anonymous meetings, having attended more than one hundred such meetings since her completion of the inpatient treatment program, and having served as a treasurer of one of the Narcotics Anonymous groups.
We also believe that, beyond her clear progress in addressing her drug issues, a number of other factors illustrate that Sabrina is turning the corner toward maturity, stability, and responsibility. At the time of the termination hearing, she had enrolled at Hamilton College in the business administration program and hoped to complete an associate's degree in the near future. She was employed full time, working as a waitress at The Flying J in Evansdale. Annette Krug, Sabrina's supervisor at The Flying J testified at the hearing that Sabrina was a valued and conscientious employee. With the money Sabrina earns, she is both saving some with plans to move to her own residence, and is also paying off old debts. She was engaged in individual counseling at the time of the termination hearing. We find all these factors to be indicators of her increased maturity and her sincere desire to place herself in a position to parent Angelo and Zoe.
It also appears that Sabrina had essentially complied with all of the requirements and expectations placed upon her by the Department of Human Services (DHS). In a March 5, 2004, permanency plan, the following specific behaviors were listed as expectations of Sabrina: no illegal drug use, proper supervision will be provided to the children, a drug-free lifestyle, actively participating in substance abuse evaluations, and maintaining a stable employment and living situation. DHS social worker Melissa Lammers admitted that, other than failing to find her own housing, Sabrina had maintained all these expected behaviors. Likewise, social worker Kathy Eighme, the author of the March 5, 2004 plan, expressed satisfaction with Sabrina's adherence to these goals. Thus, it appears that, at least in the eyes of DHS personnel, Sabrina was doing all that was asked of her to achieve reunification with her children.
Sabrina testified that she was living with her mother at the time of the termination hearing. She reported that she had saved money from her job to use as a deposit for an apartment and that she was working with an individual who assists in securing housing for people needing such assistance. She hoped to move into her own apartment within a six-week timeframe.
We also find significant that there were few, if any, criticisms expressed regarding Sabrina's parenting skills. Kathy Eighme agreed on cross-examination that Sabrina had demonstrated sufficient skills required to parent her children. Family therapist and parent skill specialist Heidi Evenson, although expressing various concerns with Sabrina's prospects at reunification, characterized Sabrina's demeanor as "very cooperative" at the time of the termination.
In conclusion, Sabrina's commendable progress in drug treatment and satisfactory completion of the other DHS requirements lead us to conclude termination is not in the best interests of Zoe and Angelo. We therefore reverse the termination order as to Sabrina.
B. Robert.
The district court terminated Robert's parental rights to Zoe under sections 232.116(1)(e), (h), and (l). He now alleges clear and convincing evidence does not support termination under any of the sections cited by the court. Upon our de novo review of the record, we conclude the court properly terminated Robert's rights under section 232.116(1)(h).
The record establishes that Robert has a significant history of drug addiction and criminal involvement, and has spent a substantial amount of time incarcerated. In fact, the majority of Zoe's life he has been incarcerated and thus unavailable to parent her. Between 1998 and January of 2001, he was imprisoned at Anamosa and between April of 2004 and the time of the termination hearing he was at the Clarinda Correctional Facility. At the time of the hearing Robert had an expected parole date of June of 2006, with the possibility of moving that up to May of 2006 with jail credits. Social worker Melissa Lammers testified that even upon Robert's discharge, Robert would have to show a significant period of sobriety, stability, and employment before DHS would consider him as a suitable placement option.
We conclude the record establishes by clear and convincing evidence that Zoe cannot be returned to Robert's custody within any reasonable timeframe. Zoe cannot wait any longer for her father to be able to provide the stability and security she deserves. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). At some point, the rights and needs of the child rise above the rights and needs of the parents. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). We have reached that point and therefore affirm termination of Robert's parental rights.
REVERSED AS TO MOTHER; AFFIRMED AS TO FATHER.
Mahan, J., specially concurring; Sackett, C.J., joins special concurrence.
I concur with the decision reached in this case. Appellate courts must remain mindful that termination of parental rights is a drastic remedy with harsh consequences for the parents involved. It is true that termination is an appropriate remedy in the great majority of cases coming before us on appeal. However, there are cases where the remedy can be imposed prematurely. This is one such case.
It cannot be denied that Sabrina has considerable obstacles to overcome before she can be reunited with her children. However, the record before us indicates she is making a good faith effort to deal with her problems. As such, I agree that termination is not in the children's best interest.