Opinion
No. 5-086 / 04-1990
Filed February 9, 2005
Appeal from the Iowa District Court for Bremer County, Peter B. Newell, District Associate Judge.
Mother appeals the termination of her parental rights to her children, C.L, C.J.L., and C.M. Father appeals the termination of his parental rights to his children C.L. and C.J.L. AFFIRMED.
Linda Hall, Gallagher, Langlas Gallagher, P.C., Waterloo, for appellant-mother.
Lana Luhring, Waverly, for appellant-father.
Tammy Banning, Waterloo, for appellee-father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Casey Wadding, County Attorney, for appellee-State.
Linnea Nicol, Assistant Public Defender, Waterloo, for child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Darla appeals the termination of her parental rights to C.L. born in January of 1998, C.J.L. born in February of 1999, and C.M. born in December of 2000. Jerry separately appeals the termination of his parental rights to C.L. and C.J.L. We affirm.
C.M. is in the custody of her father, Justin, and there are no concerns with this placement.
I. Background Facts and Proceedings.
All three children came to the attention of the Iowa Department of Human Services (DHS) in October of 2001 when illegal substances were found in their home while the children were present. On June 6, 2002, the juvenile court adjudicated each of the children as being a child in need of assistance (CINA). On December 3, 2004, Darla's parental rights to C.L. and C.J.L. were terminated pursuant to Iowa Code section 232.116(1)(f) (2003) (child four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home). Darla's parental rights to C.M. were terminated under Iowa Code section 232.116(1)(h) (child three or younger, child CINA, removed from home for six of last twelve months, and child cannot be returned home). Jerry's parental rights to C.L. and C.J.L. were terminated pursuant to Iowa Code section 232.116(1)(l) (child CINA parent has substance abuse problem, child cannot be returned home). Both parents appeal.
II. Scope of Review.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Issues.
A. Darla's Appeal.
Darla asserts on appeal that there was insufficient evidence to support the conclusion that the termination of her parental rights is in the best interest of the children, that the children could not be returned to her in a reasonable period of time, and that the State provided her with adequate services.
A child cannot be returned to parental care if the child would be placed in danger of harm that would warrant a child in need of assistance adjudication. See In re S.N., 500 N.W.2d 32, 34 (Iowa 1993).
Our review of the record indicates that after Darla initially exposed her children to drugs and individuals using drugs she was offered services. In fact, DHS was pleased enough with her progress in February 2003, that it recommended and the State moved to dismiss the juvenile proceedings. However, on the eve of the hearing to dismiss, Darla decided to "celebrate" the anticipated dismissal and was arrested and charged with possession of marijuana, possession of methamphetamine, and possession of drug paraphernalia. The children were removed from her care. At a review hearing on May 9 the juvenile court received reports that Darla had cooperated with all the services recommended by DHS. Darla was given a second chance as the juvenile court continued the care and custody of the children with DHS but approved placement in Darla's home.
Nevertheless, this second chance was short lived, as on July 30 Darla again exposed the children to amphetamine and methamphetamine. The children were again removed. C.M. has since remained in the custody of her father, Justin, while C.L. and C.J.L. have remained in foster care.
Darla initially tested positive for methamphetamine, but this test result was later found to be a "false-positive." However, other evidence was presented to the juvenile court that Darla had used methamphetamine and quite significantly a hair stat testing of the children resulted in C.L. testing positive for amphetamines and methamphetamines.
On December 30, 2003, Darla left her home, and DHS had trouble locating her as she was reportedly homeless and unemployed. Darla tested positive for methamphetamine in April of 2004. Darla did enter inpatient substance abuse treatment in August of 2004, but walked out four days later against the advice of the treatment staff. By the time the termination hearing began on October 7, Darla was not employed, did not have a residence, and was not attending either mental health treatment or substance abuse treatment as recommended. By November 5, the resumption of the hearing, Darla was residing with a paramour who was arrested the preceding evening for possession of methamphetamine and domestic abuse assault resulting from an altercation he had with Darla.
We find that this evidence clearly and convincingly demonstrates that despite the reasonable efforts made to offer Darla services to remedy the problems leading to the adjudication of her children as CINA, the children cannot be returned to Darla within a reasonable time. As none of the other requirements of Iowa Code section 232.116(1)(f) or (h) are in dispute, we accordingly affirm the juvenile court's termination of Darla's parental rights under these provisions.
Moreover, we find that even though the children are bonded to Darla and to each other, it is not in the best interests of the children for them to be returned to Darla as her past performance indicates that they are likely to be exposed to the same dangers that led to their adjudication as CINA. See In Interest of L.L., 459 N.W.2d 489, 493-494 (Iowa 1990) (noting that in "deciding what is best for the child we look to the child's long-range as well as immediate interests . . . we necessarily consider what the future holds for the child if returned to the parent . . . we look to the parent's past performance because it may indicate the quality of care the parent is capable of providing in the future").
B. Jerry's Appeal
Jerry was in prison on a conviction of possession with intent to deliver methamphetamine for most of the pendency of the juvenile proceedings. On appeal he argues that the State did not make reasonable efforts to include him in the proceedings while he was incarcerated or to provide him with services during and after his incarceration. Jerry also avers that the State did not present clear and convincing evidence indicating that his parental rights should be terminated.
Our review of the record reveals that on January 2, 2004, while Jerry was incarcerated, he complained that DHS was not communicating with him. He requested that he be allowed to communicate with his children and have visits with them. The juvenile court ordered that he be allowed to send his children cards and letters and that DHS communicate with his attorney at least one week in advance of the scheduled review hearings.
Following his release from prison in March of 2004, Jerry was placed in the Waterloo Residential Facility. He was enrolled in family centered services, given a psychosocial evaluation, and offered substance abuse treatment. In July, the juvenile court held a permanency hearing in which it ordered that Jerry be allowed visitation with his children pending a hearing on the State's petition to terminate his and Darla's parental rights.
The juvenile court also learned at this hearing that Darla had tested positive for methamphetamine in April of 2004.
On September 22, Jerry tested positive for methamphetamine. Again, on October 6, the eve of the termination hearing, he tested positive for methamphetamine. The juvenile court then continued the termination hearing to October 29 and ordered that Jerry not be allowed any visitation until he provided two clean urinalysis samples. At the time of the resumption of the termination hearing on October 29, Jerry had not provided any samples. Further hearing was set for November 5. On November 5 the juvenile court received a report indicating that Jerry had lost his employment, missed appointments with his parole officer, and that a warrant had been issued for his arrest. Jerry testified at the hearing and was subsequently arrested.
Although special arrangements were made so that Darla could attend this hearing, she failed to appear in person.
We find that this evidence sufficiently demonstrates that the State made reasonable efforts to provide Jerry with services, but that he squandered these services in favor of methamphetamine use. The evidence clearly and convincingly demonstrates that Jerry's children were adjudicated CINA, that Jerry has a substance abuse problem, and that because of Jerry's substance abuse problem the children cannot be returned to him within a reasonable time. In re H.L.B.R., 576 N.W.2d 675, 677 (Iowa Ct.App. 1997) (stating that a parent does not have an unlimited amount of time to correct his or her deficiencies); In re C.K., 558 N.W.2d 170, 173 (Iowa 1997) (noting that patience with parents can soon translate into intolerable hardship for the child). Therefore, we affirm the district court's termination of Jerry's parental rights under Iowa Code section 232.116(1)(l).