Opinion
No. 05-0011
Filed September 14, 2005
Appeal from the Iowa District Court for Iowa County, Patrick R. Grady, Judge.
Both parents appeal from an order terminating their parental rights. AFFIRMED IN PART AND REVERSED IN PART.
Sheree L. Smith, Cedar Rapids, for appellant-Mother.
Richard L. Pazdernik, Jr., of Nazette, Marner, Wendt, Knoll Usher, L.L.P., Cedar Rapids, for appellant-Father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Lewis McMeen, County Attorney, and Timothy D. McMeen, Assistant County Attorney, for Appellee.
Dennis Mathahs, Marengo, guardian ad litem for the children.
Considered by Huitink, P.J., and Hecht and Vaitheswaran, JJ.
A mother and father appeal the termination of their parental rights to Bryan and Richard, born in 1998 and 2000 respectively. Both parties contend the termination ruling is not supported by clear and convincing evidence and is not in the children's best interests. We affirm in part and reverse in part.
I. Background Facts and Proceedings
Roberto and Maria, both undocumented aliens, lived in Georgia with American-born sons Bryan and Richard, as well as an older child of Maria. Roberto earned a living driving a truck. Maria cared for the children.
In May 2003, a relative of Roberto's asked him to drive to Iowa with his family, pick up a person in Marshalltown, and return to Georgia. The relative told Roberto he would receive a car and cash for his trouble. Roberto agreed.
Roberto, Maria, Bryan, and Richard traveled to Iowa. Roberto picked up the man and began the return trip in a green vehicle. Meanwhile, an Iowa State trooper received a tip that a green vehicle traveling on Interstate 80 might be carrying drugs. The trooper stopped and searched the vehicle in which Roberto and his family were passengers. He found methamphetamine and cash. The adults were arrested and the children were placed in the custody of the Iowa Department of Human Services.
Roberto eventually pled guilty to conspiracy to distribute methamphetamine, and began serving a ten-year federal prison sentence. Maria pled guilty to misprision of felony, defined as the knowing concealment of or failure to make known the actual commission of a felony. 18 U.S.C. § 4. She began serving a twenty-one month out-of-state federal prison sentence.
The children who, prior to the trip to Iowa, had no contact with the State, were transferred five times among several Iowa foster homes. Eventually, the State petitioned to terminate their parents' rights. Following two hearings, the district court granted the petition.
II. Mother A. Grounds for Termination.
The district court terminated Maria's parental rights pursuant to Iowa Code sections 232.116(1)(f) and (h) (requiring proof of several elements including proof that child cannot be returned to parent's custody). At the time of the second termination hearing, Maria was still serving her federal sentence but was expected to be discharged within a month. Despite the imminence of her release, the fact remained that, at the time of the termination hearing, she was not in a position to have the children returned to her. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). For this reason, we affirm the district court's conclusion that the key statutory elements of Iowa Code sections 232.116(1)(f) and (h) were satisfied.
B. Best Interests.
We turn to the next issue, whether termination of Maria's parental rights was in the children's best interests. Iowa Code §§ 232.16(2), (3). On this question the district court stated:
Though the boys were very bonded to their mother at the time of her arrest, that bond has naturally diminished. Bryan and Richard are clearly bonded to their current foster parents who have gone to great lengths to assist the boys in maintaining contact with their mother and will likely continue that contact in the future. Because of the passage of time and the lack of another practical alternative, Bryan and Richard are now fully integrated into the English-speaking, Iowa culture. They are six- and four-year-old boys who were dual citizens of Mexico and the United States but who have never been to Mexico. They live in a safe, nurturing home with foster parents who hope to adopt them and will encourage the boys to remain aware of their now dual heritage. Termination of parental rights is clearly in their best interests.
On our de novo review of the record, we conclude otherwise. We will address several factors contained in the district court's ruling or raised by the parties.
1. Practical Alternative.
The district court stated there was no "practical alternative" to termination of Maria's parental rights. The record indicates, however, that from the outset, Maria sought to have her children placed with relatives and assumed this had been accomplished. When a Department employee advised her the children were actually in foster care with Iowa families, Maria "began crying and was quite distraught."
Maria immediately gave the employee the names and addresses of several relatives who could serve as caretakers of the children, including her sister in Mexico. She told a Department employee that it was her plan to return to Mexico upon the expiration of her prison term and live with her sister, with hopes that her children would be placed there. This was not a speculative reunification option. As early as January 2004, Maria's criminal attorney advised the Department that, according to immigration authorities, Maria would "be deported upon completion of her prison sentence. . . ."
The Consulate of Mexico arranged for a home study of the sister and her family. Mexico's counterpart to the Department of Human Services performed the home study and issued a report that was forwarded to the Department. The report stated Maria's sister lived in an independent house located in an urban area with public electricity, drinking water, pavements, green areas, curbs, transportation, drainage, public telephones, a watchman, sports, and cleaning services. After listing the sister's income and expenses, the report concluded the sister "is economically and emotionally stable to receive her nephews, also she has the sufficient economic resources, space and time so that her nephews have a good physical and moral development."
In addition to transmitting this report, the Consulate of Mexico advised the Department that "if the children are reunited with family members this Consulate will make all arrangements so that the children can reunite with their relatives at the earliest possible date either by traveling with them to the city where their relatives will assume custody or by having the relatives come here for them." The Consulate also advised the Department that the agency in Mexico with the same function as the Department would continue supervision of the children and assure their well-being. The Consulate noted it was "currently negotiating with the DHS and the State of Iowa a memorandum of understanding that will provide the periodic sharing of information between both agencies, and which will ultimately result in a reduction of the caseload that court handles."
The Consulate's role did not end there. Staff performed a criminal record check of Maria's sister and brother-in-law and forwarded the results to the Department. Neither had a criminal history. The Consulate also documented that Bryan and Richard were citizens of Mexico as well as the United States.
Recognizing that the Department remained skeptical of this potential placement option, counsel for Maria submitted recent photographs of the sister's home. When shown these pictures, a Department social worker admitted the home "looks safe to me." She also admitted the home looked clean and well-maintained. Although she expressed concern about the fact the home study report was becoming dated, she acknowledged she had done nothing to update the information. She also did not point to any evidence suggesting the report was inaccurate.
In addition to the documentation set forth above, Maria testified at the termination hearing about the specific dates of her release. She stated her sentence would end on November 27th, 2004, one month after the second termination hearing. At that point, she believed the deportation process would take "[a] week." Specifically, she was to be released on November 26th, 2004, the immigration officials were to pick her up on the 29th, and she expected to be back in Mexico a week from the 29th of November, 2004.
The district court ruling stated, "[e]ven at the time of the filing of this ruling, Maria had just discharged her sentence but remains incarcerated, awaiting removal at some unspecified time."
The State did not refute this assertion or introduce evidence that her deportation would be delayed.
Maria also addressed financial and oversight issues. She stated that on her return to Mexico, she intended to live with her sister and work at her brother-in-law's business as a secretary. She expressed a willingness to contact the "Human Services from Mexico and stay in contact with them." She stated they provided the same type of services that the Department of Human Services had been providing in Iowa.
Based on this record evidence, we conclude there was a practical alternative to foster home placements in Iowa. This alternative was explored extensively by Mexican authorities and, in our view, more than satisfied the Department's expectation that the parents provide for "a stable and structured environment for their children to reside in."
2. Bond with Iowa culture.
The State next argues termination is in the children's best interests because "the children are now bonded into the English-speaking, Iowa culture."
The best interests analysis is focused on whether leaving children where they are would further the "long-term nurturing and growth of the child" and the "physical, mental, and emotional condition and needs of the child." Iowa Code § 232.116(2). Part of that consideration is "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining that environment and continuity for the child." Id. § 232.116(2)(b)(1).
By the Department's own admission, the children were not in such an environment for a substantial portion of the time they were in foster care. After they were removed from their parents in May 2003, they, not surprisingly, "had difficulty being separated and fear of being left." This reaction was exacerbated by several moves over the next eighteen months. The children first had a brief weekend stay with one set of foster parents, then were transferred to another foster home which ultimately proved to be inadequate, and then to the home of a teacher and her husband, where they stayed from June 2003 to the end of February 2004. When the teacher began the process of adopting another child in her care, the Department determined that Bryan and Richard should be moved from her home and returned to the second foster home that was later found inadequate. The teacher testified that, while she had initially envisioned the children's stay with her as temporary, she did not ask to have them moved and was told the move would be brief. Nevertheless, Bryan and Richard remained in their new foster home for several months. The parents at this new home cared for six other children, some with severe behavioral problems. The mother worked full-time, leaving the father to serve as primary caretaker. He recently had a heart attack. He testified his health problems would not impede his ability to care for the children, but a Department social worker stated, "any parent that has eight children and has some health issues would be overwhelmed."
Just before the second termination hearing, the Department received complaints that these parents were using alcohol to excess and may have engaged in sex parties. Bryan and Richard were removed from the home and returned to the teacher's foster home where they remained through the second termination hearing. A child abuse report discounted the sex party allegation and stated it could not be determined "that the children were in danger in the foster home." However, the report continued,
There are certainly concerns with the drinking in the foster home. Bryan and Richard were moved to another foster home the date the report was received. It is this worker's understanding that they will not be returning to the . . . foster home.
A Department social worker acknowledged the disruptions these foster placements had caused, stating, "when we have to move foster kids — it's very challenging to keep moving kids. That's kind of the downfall of the system that we are in. And I guess as a team with the Department, we discussed trying to keep some continuity and stability with the kids."
Despite these disruptions, Bryan and Richard adapted to the changes and "to the English-speaking Iowa culture." All concerned, however, attributed this adaptability to the good parenting they received before the Interstate 80 incident.
The children knew Spanish but lost their ability to speak it over the course of the eighteen months in Iowa.
The most recent foster mother characterized the children as "delightful" and ascribed their behavior to their mother. She stated,
The children were very well behaved. They seldom did anything that you would scold them for and that was very refreshing in our home considering our other experience with foster kids. They were well behaved. They were very loving. Bryan was very protective of Ritchie, just a wonderful big brother, although he was only five, to his little brother. And so, I mean, I told Bryan's kindergarten teacher, I said, "for what ever else the mother did, she was a wonderful parent," and it was reflected in Brian's behavior at school, Bible school, Sunday school, in our home. They were just very well parented I thought.
The foster mother also noted that Maria maintained regular contact with the children. She sent them cards, drawings, and letters, crocheted hats for them and for the foster mother's son, telephoned them regularly, and sent calling cards to allow them to talk to their half-brother in Georgia. Maria also corresponded with the foster mother even when the children were out of her care. In one letter, she thanked the foster mother for her care and expressed hope that she could repay her some day.
A Department employee essentially seconded these opinions concerning Maria's parenting skills, stating, "I certainly believe these children received good parenting in their past. They're very well-behaved children, polite children. Bryan was enrolled in Head Start in an academic setting." She continued, "They're both very social children, get along with other peers, not a lot of negative or aggressive behaviors. Just easy-going, fun kids." She noted there was no service provider going into the foster homes to attend to the children "because the children really didn't display any negative or challenging behaviors for the foster parents." When asked if all the children's needs had been met by the parent she answered "yes."
In light of this evidence of Maria's good parenting, the fact that the children adapted to their circumstances in Iowa favors their return to Maria rather than continued placement with foster parents.
3. Bond with Foster Parents.
The State argues termination is in the children's best interests because "the children have bonded to the foster family and the foster family hopes to adopt them." Notably, the children's foster mother at the time of the second termination hearing testified that, although she could provide the children with significant opportunities, she believed it was in their best interests to return to their mother. She stated, "we would really hope that [Maria] would be considered to have her kids back and if that's not the consideration, we would hope that we could be considered to adopt them."
The foster mother's testimony is compelling. Despite the bond she developed with Bryan and Richard and her wish to adopt them, she willingly advocated for a return of the children to their mother. Her testimony refutes this asserted ground for upholding the termination ruling.
4. Children's Unfamiliarity with Mexico.
The State argues termination of Maria's parental rights is in the children's best interests because "these children have never lived in Mexico and they do not know the relatives in Mexico." This is true, but, as a Department employee admitted, the children had never lived in Iowa before the parents drove down Interstate 80, and had never lived with foster parents in Iowa. They nevertheless adjusted to their varied and sometimes harsh circumstances. The employee ultimately acknowledged, "I guess it shouldn't matter" that the children had never been to Mexico.
Given the children's relative youth, their proven adaptability, and the fact that they will not be living with strangers in Mexico but with the mother who cared for them since their birth, we conclude this factor does not support the termination decision.
5. Bond with Mother.
The question Maria focuses on is whether the children continue to share a bond with her. Iowa Code § 232.116(3)(c). There is no question they do. A Department employee acknowledged that, during a telephone call with a parent, Bryan drew a picture of a family of five people. All had lines on their faces which, according to the child, meant they were crying. The employee admitted this was a sign that the child identified with his family unit of five people. She also stated "I don't have any doubt the Bryan and Richie miss their parents." This view was seconded by the children's foster mother at the time of the second termination hearing, although she acknowledged that, with time, the bond would diminish.
As for Maria's bond with the children, the Department employee testified the majority of the correspondence she received from Maria related to the children, "asking how they were, she missed them, she loves them, how are they in the foster home." She admitted the parents' expressions of missing and loving their children were genuine. She also admitted her statement in the case plan that "[Maria] cares about her children and misses them" remained her opinion.
We conclude Maria and the children shared a close bond despite the passage of eighteen months from the time they were removed to the second termination hearing.
6. The Conviction.
The State argues that Maria's role in the "drug run" is the reason for the loss of her relationship with the children and a ground for affirming the termination ruling. We accept the State's contention that Maria pled guilty to knowingly concealing a crime and, accordingly, her present attestations of innocence are immaterial. We do not accept the contention that her conviction rendered her an inappropriate parent for all time. See In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993) (rejecting notion that "termination is a necessary result of conviction of a crime and resulting imprisonment").
It has often been stated that a parent's past performance may be indicative of the quality of future care. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). In this case, Maria's past performance as it related to her children was, by all accounts, exemplary, with the single exception of the misprision of felony conviction. A Department social worker was asked "was there anything outside of the allegations that you were investigating — was there anything outside of that that caused you alarm about either of the children?" Her answer was "no."
It is clear, therefore, that the case for unfitness turned on Maria's conviction for misprision of felony. With respect to this conviction, Maria offered a letter from the United States Department of Justice which stated, "I do want to let you know that [Maria] was permitted to plead guilty to misprision of felony because her level of culpability was much less than the other persons involved. It was not a charge bargain. I'm not sure the State has any equivalent charge, but basically it involves not affirmatively coming forward with information about a criminal offense, in this case, the drug activity of her husband and others." The letter continued, "I write to you because I want to make sure that any decision is made with full knowledge of [Maria's] lower level of culpability."
We believe this "lower level of culpability" is significant. Maria did not plead guilty to a crime involving "drug running," or drug delivery or manufacture. She pled guilty to not divulging a crime committed by a man she thought of as her husband. We are not convinced she should, as a result, be deprived of her children, given her otherwise impeccable parenting history. See In re C.B., 611 N.W.2d at 492 (stating termination provision generally contains "the dual elements of parental unfitness and the failure of the parent to become minimally fit to parent the child").
In reaching this conclusion, we have considered the "outcomes" the Department wished to achieve. Maria achieved all of them, establishing she took responsibility for her actions. See In re M.M.S., 502 N.W.2d at 8.
The parents were to "comply with their criminal charges and the expectations of any type of criminal charges they are/may be facing." Maria did. In fact, despite the absence of any evidence that she abused drugs or alcohol or had trouble controlling her temper, she voluntarily participated in Alcoholics Anonymous and anger management courses within the prison. She also participated in a Bible study class and learned English as a second language.
The parents were also to "refrain from any and all drug and criminal activity." With the exception of her misprision of felony conviction, there was scant evidence Maria engaged in criminal activity that warranted termination of her parental rights. Maria testified she never used illegal drugs and the State did not refute this assertion. There was also no evidence Maria allowed others to use drugs in the children's presence. While there is evidence Maria was in this country illegally, the Department at no time argued that her illegal status was grounds for termination. Cf. In the Interest of M.M., 587 S.E.2d 825, 832 (Ga.Ct.App. 2003) (rejecting juvenile court's termination of parental rights based in part on the father's status as an undocumented alien and the child possibly facing "an unknown future in Mexico"). Moreover, that status was to change imminently.
The prosecutor pointed out she did not have car seats for the children when the green vehicle was stopped. Maria noted she was not ticketed for this.
The parents were also expected to "have a violence-free, drug-free, and criminal free environment for their children to reside." The home study and criminal background checks provided by the Consulate of Mexico verified Maria had arranged for such an environment.
We conclude Maria's conviction and subsequent sentence do serve as grounds for termination but do not serve as grounds to uphold the termination in the face of a challenge grounded on the children's best interests. We further conclude termination of Maria's parental rights was not in the children's best interests. We reverse the ruling terminating her parental rights.
III. Father A. Grounds for Termination.
Roberto's parental rights were terminated pursuant to Iowa Code section 232.116(1)(j) (requiring proof of two elements including proof that the parent has been imprisoned and is unlikely to be released for five or more years).
The district court cited Iowa Code section 232.116(1)(i), but the language the court quoted is actually contained in Iowa Code section 232.116(1)(j).
Roberto appears to argue that the record lacks clear and convincing evidence to support this ground for termination. By Roberto's own admission, he would remain incarcerated for at least eightadditional years following the termination hearing. Therefore this ground for termination was satisfied.
B. Best Interests.
Roberto argues that termination was not in the children's best interests, given their Mexican heritage and the fact that Maria's Mexican relatives are willing to assume their care. We believe these concerns are addressed by our reversal of the termination decision as it relates to Maria.
Roberto's argument also could be construed as a request not to terminate his rights based on the fact that there is a relative available to care for the children. Iowa Code § 232.116(3)(a). Given the length of his prison sentence and the inability to predict his circumstances eight to ten years from now, we believe termination of his parental rights should not be deferred. Additionally, while we do not question Roberto's love for the children, he is in no position to maintain and foster a bond with them in the near or long-term future. Therefore, we agree with the district court that termination of his parental rights is in the children's best interests.
IV. Disposition
We affirm the termination of Roberto's parental rights to Bryan and Richard and reverse the termination of Maria's parental rights to Bryan and Richard.