Opinion
No. 5-901 / 05-1680
Filed December 7, 2005
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
A mother appeals from the termination of her parental rights. AFFIRMED.
Marla McCoid, Bondurant, for appellant mother.
Cathleen Siebrecht of Borseth, Siebrecht Siebrecht, Des Moines, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, for minor children.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
I. Background Facts Proceedings
Desiree is the mother of Codey, born in March 1993; Ricardo, born in August 1999; Esteban, born in February 2001; and Evan, born in September 2003. The four children all have different fathers. The parental rights of Codey's, Ricardo's, and Esteban's fathers were terminated and not appealed. Evan's father, Higinio, has custody of Evan.
Desiree was fourteen when Codey was born. He has never been in his mother's care. He lived with his maternal grandmother, Sandra, until May 2004.
Desiree has a long criminal and substance abuse history. She began using marijuana at age twelve and first used methamphetamine at age thirteen or fourteen. She became a more frequent abuser of those substances at age nineteen or twenty. Her criminal history includes guilty pleas to charges of theft, forgery, and possession of a controlled substance. She served probation and jail time for these charges.
Desiree was arrested and jailed on drug charges in November 2003. She pled guilty to possession of methamphetamine with intent to deliver in June 2004 and was incarcerated at the Mitchellville Women's Correctional Facility for eighteen months. Following Desiree's arrest, Ricardo and Esteban went to live with Sandra. Evan went to live with Kelly and Rick, friends of Desiree.
In May 2004, Codey, Ricardo, and Esteban were removed from their grandmother's care after they tested positive for cocaine. The three boys were placed in foster care. In June 2004, the court placed all four children with Kelly and Rick. The children were adjudicated as children in need of assistance on July 20, 2004. Placement with Kelly and Rick continued until May 2005, when Evan was placed in his father's custody for part of each week, under DHS supervision. Codey, Ricardo, and Esteban remained with Kelly and Rick at the time of the termination hearing.
During her incarceration, Desiree maintained contact with the children through regular visits and phone contact. She was placed in the Honors Unit at Mitchellville, which allowed her to live and work outside the facility. Child support was withheld from the paychecks she received. Desiree did not attend substance abuse treatment while in prison and was unsuccessfully discharged from the substance abuse treatment program while in jail.
Desiree was released from prison and placed on parole in May 2005. As a condition of parole, she was placed in a residential treatment facility, where she remained at the time of the termination hearing. There, she participated in in-patient substance abuse treatment, parenting classes, and counseling. She was also employed full-time. She had supervised visitation with the children once a week and phone contact during the week.
The State filed a petition to terminate parental rights in May 2005. The State requested termination of Desiree's parental rights pursuant to Iowa Code sections 232.116(1)(d) (2005) (child adjudicated CINA for physical or sexual abuse or neglect, circumstances continue despite receipt of services), (f) (child is four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), (h) (child is three or younger, child adjudicated CINA, removed from home for six of last twelve months, and child cannot be returned home), and ( l) (child adjudicated CINA, parent has substance abuse problem, child cannot be returned within a reasonable time). Hearing was held in June and August 2005. The juvenile court filed an order terminating Desiree's parental rights on September 30, 2005. The court found that from the time of her arrest in November 2003 until her release in May 2005, "and, perhaps, even longer, the children have been raised by others." Moreover, "[d]uring this time period, the children have adapted and bonded to other families." The court continued:
It is also evident to the court that at least the three oldest children are being negatively affected by the "resurfacing" of their mother in their lives and that they all desperately need some stability and finality in their lives. They would all be devastated if they were returned to their mother but then had to be removed again if, for example, she relapsed into substance abuse.
. . . .
At the same time, despite her commendable efforts at reform, [Desiree] is clearly not ready for or capable of handling the parenting of these children at this time given all she still has to do. Though she has made much progress, by all accounts she has a long road ahead of her in terms of addressing her substance abuse issues and her other personal behavioral issues, developing her parenting skills and achieving stability in her life, both in terms of employment and housing. . . . [I]t can safely be concluded that having all these responsibilities and the responsibility of satisfactorily and successfully parenting these children would be very difficult for [Desiree] at this time and probably for a substantial period of time into the future. These children simply cannot be asked to wait any longer.
The court terminated Desiree's parental rights pursuant to Iowa Code sections 232.116(1)(d), (f), (h), and ( l). Desiree appeals.
II. Standard of Review
Our review in termination of parental rights cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). 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. Discussion
Desiree contends the State did not prove grounds for termination under sections 232.116(1)(d), (f), (h), or ( l). Specifically, she argues there is not clear and convincing evidence that (1) she was offered or received services to correct the circumstances which led to the adjudication and, despite the implementation of services, the circumstances which led to removal continue to exist; (2) the children could not be returned to her care; or (3) she had a severe, chronic substance abuse problem that presented a danger to herself or others and that the children would not be able to return home within a reasonable period of time.
When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). We choose to focus our discussion on sections 232.116(1)(d), (f), and (h).
A. Iowa Code section 232.116(1)(d). Iowa Code section 232.116(1)(d) provides for termination if the circumstances which led to the CINA adjudication continue to exist despite the offer or receipt of services. See Iowa Code § 232.116(1)(d)(2). Desiree contends the services she received while in prison "alleviated the concerns attendant with the adjudication." We disagree.
Desiree's drug addition was of concern at the time of the removal and adjudication. She did not begin participation in substance abuse treatment until her release from prison in May 2005. Given her ten-year history of chronic substance abuse and the short period of participation in substance abuse treatment, it was reasonable for the juvenile court to determine the circumstances which led to removal continued to exist at the time of the termination hearing.
To the extent Desiree argues she did not receive reasonable services, this argument has been waived due to her failure to demand services other than those provided. In re S.R., 600 N.W.2d at 65 (holding the State has the obligation to provide reasonable services; however, the parent has an obligation to demand other, different, or additional services prior to the termination hearing).
Clear and convincing evidence supports the juvenile court's decision to terminate Desiree's parental rights pursuant to section 232.116(1)(d).
B. Iowa Code sections 232.116(1)(f) and (h).
Iowa Code sections 232.116(f) and (h) provide for termination if there is clear and convincing evidence that at the present time the children cannot be returned to the care of their mother without the risk of suffering adjudicatory harm. See Iowa Code § 232.116(1)(f)(4), (h)(4). Desiree argues she was "ready, willing and able" to have the children returned to her custody.
The record does not support Desiree's contention. Codey has never been in his mother's custody. At the time of the termination hearing, Esteban and Ricardo had been out of her custody for more than eighteen months, and Evan had only been in his mother's custody three months of his young life. Desiree had only supervised visitations with the children during this period of time. She had been in treatment for her long-term drug addiction for less than one month. We agree with the juvenile court's conclusion that Desiree "has a long road ahead of her" in terms of addressing her substance abuse issues and other personal and behavioral issues.
In addition, Desiree argues the juvenile court erred in terminating her parental rights to Evan because termination is discretionary when the child is placed in the other parent's custody. See Iowa Code § 232.116(3). She contends the divided placement of Evan with his father during the week and Kelly and Rick on the weekends "will not provide [Evan] with stability for some time." She argues maintaining her parental rights is necessary to maintain a relationship between Evan and his older siblings. We disagree.
Evan was only in Desiree's custody for the first three months of his life. He has developed a strong relationship with his father and stepmother. The placement arrangement has provided Evan with the stability he needs and deserves. We conclude there was clear and convincing evidence for the juvenile court to terminate Desiree's parental rights pursuant to sections 232.116(1)(f) and (h).
IV. Conclusion
We affirm the juvenile court's order terminating Desiree's parental rights.