Opinion
No. 5-408 / 05-0580
Filed June 15, 2005
Appeal from the Iowa District Court for Clinton County, Arlen J. VanZee, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. AFFIRMED.
J. David Zimmerman, Clinton, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Michael L. Wolf, County Attorney, and Matthew Brisch, Assistant County Attorney, for appellee.
Robert McGee, Clinton, guardian ad litem for minor children.
Mary Wolfe of Wolfe Law Offices, Clinton, for father.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Tina appeals from a juvenile court order terminating her parental rights to her children Ashley and Brandon (the children), who were born in February 1992 and February 1993 respectively. The order also terminated the parental rights of the children's father, Brian, but he is not a party to this appeal. We affirm.
Ashley and Brandon came to the attention of the Iowa Department of Human Services (DHS) due to their truancy and unmet medical needs. Ashley has had severe behavioral problems and is in special education. Brandon suffers from cerebral palsy and has been in special education. Tina has had substance abuse issues and ongoing mental health issues. Services to the family began in early 2000.
The children were adjudicated children in need of assistance (CINA) in May 2000. A June 2000 dispositional order placed them in the custody of their parents, subject to DHS supervision. The children were later placed with their paternal grandparents. In February 2002 the juvenile court ordered the children placed in the legal custody of the DHS for placement in family foster care. They have thereafter remained in a combination of family foster care, shelter care (Ashley), residential treatment (Ashley), and therapeutic foster care (Brandon), except for a brief period Ashley spent in her father's home some two years before the termination hearing.
The State filed a petition in December 2004 seeking termination of Tina's and Brian's parental rights. Following a January 31, 2005 hearing, on February 2, 2005, the juvenile court entered an order terminating the parents' parental rights pursuant to Iowa Code section 232.116(1)(f) (2005) (child four or older, adjudicated CINA, removed from physical custody of parents for twelve of last eighteen months or for last twelve consecutive months, cannot be returned to parents at present time). The court thereafter sustained Tina's application to reopen the record and her motion to amend or enlarge findings of fact, conducted a further evidentiary hearing on March 16, 2005, and on March 23, 2005, filed an order reaffirming its previous findings and conclusions and making additional findings of fact. Tina 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).
Tina does not claim the State did not prove the grounds for termination under section 232.116(1)(f). Instead, she questions whether the juvenile court "fail[ed] to properly weigh the factors set out in Iowa Code Sections 232.116(2), (3)."
Even if statutory requirements for termination are met, the decision to terminate must still be in the best interest of a child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Section 232.116(3) is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the sound discretion of the juvenile court, based on the unique circumstances before it and the best interests of the child, whether to apply section 232.116(3). We conclude it is similarly within the sound discretion of the juvenile court whether to avoid otherwise permissible termination based on the considerations set forth in section 232.116(2).
Section 232.116(2) provides in part that in considering whether to terminate rights of a parent as to a child who has been placed in foster family care the court may consider "whether the child had become integrated into the foster family to the extent that the child's familial identity is with the foster family," and may consider "whether the foster family is able and willing to permanently integrate the child into the foster family."
Tina first claims the juvenile court erred in terminating her parental rights to Ashley because the evidence does not show that Ashley is integrated into her present foster home. The children had been out of both Tina's legal and physical custody for three years at the time of the termination hearing. Tina left a substance abuse treatment program in July 2001 without completing it and moved to Rockford, Illinois. The State of Illinois reported that she had thereafter been largely noncompliant in her treatment for mental health and substance abuse. Tina has had only limited contact with Ashley since some time before moving to Rockford, and had not seen her in about one year at the time of the termination hearing.
Ashley was in a residential treatment program for about a year, ending in September 2004. She thereafter had two foster family placements before being placed with her current family in late October 2004. Ashley continued to have oppositional and behavioral problems both at school and in her foster family home. However, a report noted by the juvenile court in ruling on this issue stated, in part:
The foster family is working with Ashley on regaining control of her behaviors and maintaining her in the community. A psychological/psychiatric evaluation is being considered. She is participating in medication monitoring and individual therapy at a local mental health center. Ashley is maintaining that she wants to be adopted and she does not want to wait any longer for her parents to work on their issues to regain custody of her.
The juvenile court also noted the report's statement that the foster family "feel[s] that they can provide a home for Ashley long term." It concluded Ashley was "in the process of being integrated into her new foster/adoptive family and that the family states they are willing to integrate her into their home."
The juvenile court's findings and conclusions on this issue are fully supported by the record and we adopt them as our own. Although Ashley had not become integrated into the foster family to the extent that her familial identity was with the foster family, that process had begun and was underway. Although Tina wished to have Ashley remain in foster care without termination of Tina's parental rights, Tina remained unable or unwilling to adequately participate in the services necessary to deal with her own problems and have Ashley returned to her. Under the circumstances before it and in Ashley's best interests the juvenile court's decision concerning section 232.116(2) factors constitutes an appropriate exercise of its discretion, a decision with which we agree on our de novo review. We therefore affirm on this issue.
Tina claims her parental rights to Brandon should not have been terminated because he does not accept the possibility of termination, does not accept the idea of being adopted, and his foster parents have stated they do not intend to consider or discuss adoption with him at this time. Her claim appears to implicate section 232.116(3)(b) which provides that the court need not terminate if it finds "[t]he child is over ten years of age and objects to the termination."
In ruling on this issue the juvenile court noted and quoted from a report from the family services provider which opined Brandon very much needed permanency and closure. The report noted Brandon's struggles in coping with feeling torn between his foster and biological families, and Brandon's fearing his family will forget about him if parental rights are terminated. It noted that Brandon knew he needed, wanted, and deserved a permanent, stable home, and believed he could achieve that in his current foster home but felt that until the judge told him his "dad's time is up" he would hold out hope things would change and he would get to go home.
The juvenile court also noted and quoted from a report to the court from Brandon's therapeutic family foster parents. The report noted their commitment to raise Brandon and willingness to adopt him if allowed to do so. They further stated their belief it would not be in his best interest "to rush him to commitment to adoption at this time," apparently meaning before termination occurred and Brandon became certain he would not be returned to his father. The court concluded Brandon needed closure and permanency, which could only occur through termination of parental rights.
These findings and conclusions by the juvenile court are also fully supported by the record and we adopt them as our own. Tina had not taken steps necessary to regain custody of Brandon, and has had very little contact with him over the last two years. Although Brandon continued to struggle because of lingering hope his dad would make changes and be able to have custody of him, it had become apparent that would not occur. Brian has not actively participated in services or maintained contact with service providers. He has had very little contact with the children in the last two years. Brian did not attend the termination hearing, and has not pursued an appeal from termination of his parental rights. Under the circumstances before it and in Brandon's best interests the juvenile court's decision concerning section 232.116(3)(b) constitutes an appropriate exercise of its discretion, a decision with which we agree on our de novo review. We therefore affirm on this issue.