Opinion
No. 5-281 / 05-0249
Filed April 13, 2005
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. AFFIRMED.
J. Michael Mayer, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Jon E. Anderson, Assistant County Attorney, for appellee-State.
Kathy Miller, Des Moines, guardian ad litem for minor children.
Barbara Durden Romar, Des Moines, for father.
Considered by Huitink, P.J., and Mahan and Miller, JJ.
Sheila appears from a juvenile court order terminating her parental rights to two children. She contends the State did not prove the elements of the statutory grounds for termination relied on by the juvenile court. She also contends the juvenile court erred in finding termination was in the children's best interest. We affirm the juvenile court.
Sheila is the mother of Carissa, born in August 2000, and Brendan, born in June 2002 ("the children"). Carissa's father is Chris, and Brendan's father is Thomas.
Sheila is also the mother of Jayden, born in August 2004, who has been removed from Sheila's physical custody but is not involved in this termination of parental rights case.
Chris's and Thomas's parental rights to Carissa and Brendan respectively were terminated in this case, but their rights are not at issue in this appeal.
In late February 2002 Sheila was sixteen years of age, homeless, and tested positive for methamphetamine. Carissa, then eighteen months of age, was removed from Sheila's physical custody and placed in the custody of the Iowa Department of Human Services (DHS). Chris was incarcerated at the time. In late March 2002 Carissa was returned to Sheila's custody, under DHS supervision, on condition Sheila reside at and cooperate with the House of Mercy program. Carissa was adjudicated a child in need of assistance (CINA) in mid-April 2002, pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2001). The juvenile court's previous custodial order remained in effect.
Following Brendan's June 2002 birth, the juvenile court ordered that he remain in Sheila's custody, also under DHS supervision and on condition she remain at the House of Mercy. Brendan was adjudicated a CINA on September 9, 2002, pursuant to Iowa Code sections 232.2(6)(b) and (c)(2). The juvenile court continued in effect its previous custodial orders.
Sheila successfully completed the House of Mercy teen program, and in February 2003 she and her children entered a supervised independent living program. She had some difficulty in participating in required services and was placed on a probationary contract in mid-May 2003. Sheila thereafter made reasonable progress for a period of time. By August 2003 she had secured an apartment and was discharged from the independent living program. Carissa and Brendan remained in Sheila's custody, subject to DHS supervision.
Within a month of being discharged from the independent program Sheila stopped taking medication prescribed for her mental health problems and her participation in required in-home services deteriorated markedly, she stopped providing urine samples for drug testing and admitted to substance abuse relapse, and she was in danger of losing her housing. Carissa and Brendan were removed from her physical custody and placed in the legal custody of Carissa's paternal grandmother, subject to DHS supervision. The children have thereafter remained with Carissa's grandmother.
As of January 2004 Sheila was not receiving ordered drug treatment, and in February 2004 the juvenile court ordered her placed under the jurisdiction of the Polk County Family Drug Court. A June 2004 review order found Sheila was homeless, failed to meet with her in-home worker, and would not participate in needed therapy. In late August 2004 the juvenile court ordered that a petition for termination of Carissa's and Brendan's parents' parental rights be filed.
The State filed a petition and a hearing scheduled for October 28 was continued to a later date. Following a hearing the juvenile court entered an order on January 31, 2005, terminating Sheila's parental rights pursuant to Iowa Code sections 232.116(1)(b), (d), (e), (f) (Carissa), and (h) (Brendan) (2003). Sheila 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).
Sheila claims the State failed to prove the statutory grounds relied on by the juvenile court. However, when the juvenile court terminates parental rights on more than one statutory ground, in order to affirm we need to only find grounds to terminate under one of the provisions relied on by that court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). We choose to focus on sections 232.116(1)(f) and (h).
The first three elements of sections 232.116(1)(f) and (h) do not appear to have been at issue, were clearly proved, and are not subject to reasonable dispute on appeal. Thus only the fourth element, whether the State proved the children could not be returned to Sheila at the time of the termination hearing, is at issue in Sheila's appeal. This element is proved when the evidence shows the children cannot be returned to the parents because they remain in need of assistance as defined by section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.App. 1995). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Sheila had substance abuse, mental health, domestic abuse, housing, and employment issues which led to and required juvenile court intervention including Carissa's two removal's from Sheila's physical custody and Brendan's removal as well. As of the termination hearing Sheila had maintained employment for about three months. However, although she expressed a belated willingness and intent to participate in required and necessary services she had not done so to any substantial extent. Sheila had not been participating in required substance abuse treatment, despite a high potential for relapse. She had not been attending required mental health counseling, and had not been taking medication that had been prescribed for her depression and other mental health problems. In the months of August, September, and October 2004 she had resided at the YWCA, back and forth between her mother's and father's homes, and with an aunt and uncle. Sheila had earlier secured a no-contact order against Thomas, who had a history of substance abuse and a history of domestic abuse against Sheila. However, despite the no-contact order and in violation of it Sheila had resumed her relationship with Thomas about three months before the termination hearing, had begun living with him about one month before the hearing, and stated an intent to continue the personal and residential relationship with him.
We find, as the juvenile court did, that at the time of the termination hearing the children could not be returned to Sheila without being subject to the imminent likelihood of harm in the form of abuse or neglect. We conclude the State has proved by clear and convincing evidence the fourth element of sections 232.116(1)(f) and (h) and the grounds for termination pursuant to those provisions. We need not and do not address whether the State also proved one or more of the other three statutory grounds relied on by the juvenile court.
Sheila also contends that termination of her parental rights was not in the best interests of the children. 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). Despite Sheila's expression of a belated intent and willingness to participate in required and necessary services we conclude that termination is in the children's best interest. In arriving at this conclusion, we have considered what the future likely holds for the children if returned to Sheila. In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). We gain insight into the children's prospects by reviewing evidence of Sheila's past performance for it may be indicative of her future capabilities. Id.
Since Carissa's initial removal in February 2002, Sheila has been given almost three years to become settled and committed enough to resume unsupervised care of the children, yet has been unwilling or unable to do so up to the time of the termination hearing. She has not been willing to participate in the services necessary to address and resolve issues of substance abuse, mental health, domestic violence, and housing stability. She resides with and maintains an ongoing relationship with Thomas, who has an untreated history of substance abuse, an untreated history of domestic abuse directed at Sheila, is on probation, and despite the threat his presence presents to the children if returned to Sheila chooses to violate the existing no-contact order. Sheila apparently places more importance on her relationship with Thomas than on her desire to have the children returned to her.
The children had been removed from Sheila for fifteen months at the time of the termination hearing. Sheila's in-home worker, the DHS, and the children's guardian ad litem all feel Sheila has made little progress despite the offer and availability of services over an extended period of time and all recommend termination of parental rights. The children are doing well in the home of Carissa's paternal grandmother, a potential adoptive placement. They need permanency, security, and stability, and need and deserve them now. We conclude, as the juvenile court did, that termination of Sheila's parental rights is in the children's best interest.