Opinion
No. 4-357 / 04-0646.
June 23, 2004.
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 one child. AFFIRMED.
Bryan Tingle of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant Polk County Attorney, for appellee-State.
Marla Suddreth, Bondurant, for appellee-father.
Christopher Kragnes, Sr., Des Moines, for appellee-intervenor.
Scott L. Bandstra of Bandstra Law Firm, P.C., Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Nicole is the mother, and John the father, of Christian, who was born in September 2000. Nicole appeals from an April 9, 2004 juvenile court order terminating her parental rights to Christian. John is not a party to this appeal. Nicole claims (1) the petitioner failed to prove one or more of the necessary elements under each of the three statutory provisions pursuant to which the juvenile court ordered termination, and (2) the juvenile court erred in terminating her parental rights as it was not in Christian's best interest.
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).
Conditions in Nicole's and John's home resulted in a "founded" report of child abuse for an early January 2002 denial of critical care/failure to provide adequate supervision, with Christian as the victim and Nicole and John as the perpetrators. On or about January 29, 2002, Nicole and John were arrested on outstanding warrants and Christian was removed from their custody and placed with a relative, Nicole's aunt, under supervision of the Iowa Department of Human Services (DHS). This resulted in a "confirmed" report of child abuse, again for denial of critical care/failure to provide adequate supervision.
Christian was adjudicated a child in need of assistance (CINA) on April 8, 2002. In early May 2002 he was returned to Nicole's custody, as confirmed in a May 23, 2002 disposition order. However, in September 2002 Christian was again removed from Nicole's custody when she was again arrested, on additional warrants. Christian was again placed in the custody of Nicole's aunt, under DHS supervision. That custody and placement continued for the following seventeen months, through the termination of parental rights hearing.
In November 2003 Christian's guardian ad litem filed a petition seeking termination of Nicole's and John's parental rights. Following a February 2004 hearing the juvenile court terminated both parents' parental rights pursuant to Iowa Code sections 232.116(1)(e), (h), and (l) (2003).
One of Nicole's claims on appeal is that the petitioner did not prove the fourth necessary element of section 232.116(1)(h), that Christian could not be returned to her custody at the time of the termination hearing. For the reasons that follow, we find that element was proved by clear and convincing evidence.
Nicole suffers from low intellectual functioning, attention deficit/hyperactivity disorder, and depression, all of which apparently relate to and contribute to her history of instability and unresolved issues which affect Christian and place him at risk when in her care. Nicole had a child, Alexis, who would now be six years of age and who was earlier removed from Nicole's care in Colorado because of Nicole's illegal use of cocaine. Nicole was required to participate in drug and alcohol treatment, but failed or refused to do so. Her parental rights to Alexis were terminated.
Various service providers have made Nicole aware that because of her mental health issues she should not use mood altering drugs, including alcohol. The juvenile court also made it clear to her that she should not consume alcohol. Nicole has suffered from and participated in domestic abuse, and acknowledges that alcohol use has been involved in some of the domestic abuse incidents. By her own admission she has nevertheless continued to drink "socially." In September 2003 Christian's guardian ad litem and a DHS staff member found alcohol and evidence of drinking in Nicole's apartment. Nicole had falsely testified under oath in the CINA proceeding that there was not alcohol in her apartment. She later acknowledged the falsity of that testimony and acknowledged her own drinking.
Nicole had a substance abuse evaluation in mid-December 2003. The evaluator opined that Nicole did not need chemical dependency services, but did so based on information provided by Nicole. Nicole had not, however, informed the evaluator of her prior drug usage and the resulting termination of her parental rights to Alexis, and had not told the evaluator of the problems she and her husband had experienced as a result of drinking. Alcohol was again discovered in Nicole's apartment in January 2004. She admits continuing to drink into late January or early February 2004, but testified that she had quit by the time of the February 2004 termination hearing
During the CINA proceeding concerning Christian, Nicole pled guilty in August 2002 to felony possession of a controlled substance with intent to deliver, and was placed on probation. In June 2003 she also pled guilty to a fifth degree theft and was fined. A December 3, 2003 termination of parental/child relationship report to the court by the DHS indicates Nicole also pled guilty to fifth degree theft in February 2002 and received probation, and pled guilty to felony (second degree) theft in December 2002 and received probation.
As a result of her criminal convictions Nicole has been on probation throughout substantial parts of the CINA and termination proceedings concerning Christian. As a condition of probation she is prohibited from consuming alcohol, but acknowledges that she has continued to regularly drink once or twice per week. She testified that she informed her probation officer of her drinking after the September 2003 incident in which alcohol was found in her apartment. It appears, however, that she did so only because her use of alcohol at that time had been discovered, as she has not informed her probation officer either that she regularly consumed before then or that she has continued to do so thereafter. Alcohol was discovered in her home as recently as late January 2004.
Although Nicole remains married to John, an adult male, apparently a boyfriend was present in Nicole's apartment during a supervised visit with Christian in December 2003. Nicole was reminded that this was not advisable and should not occur. During a January 2004 supervised visitation the boyfriend was discovered in the bedroom of her apartment, perhaps hiding. It appears this boyfriend may be participating with Nicole in continuing consumption of alcohol.
Nicole changed residences four times during the CINA proceeding, and left or lost four jobs during that time. At the time of the termination hearing she was unemployed, but testified she was scheduled to start another job shortly, on a one-day trial basis. Because of her lack of income she was in danger of losing her housing unless her new job worked out and provided sufficient hours and income. She was without transportation. It had been five months since she had checked on potential daycare for Christian.
None of the numerous service providers believed Christian could be returned to Nicole's custody at the time of the termination hearing or in the immediately or reasonably foreseeable future. Several opined that if and when such a return could occur, it could occur only if substantial services were in place. Nicole herself acknowledged she was in no position to have Christian's custody, and testified at one point that she believed it would be at least three months before he could be placed with her.
We find, as the juvenile court did, the guardian ad litem has proved by clear and convincing evidence that as of the time of the termination hearing Christian could not be placed in Nicole's custody without being subject to harm which would justify his adjudication as a CINA. Having thus found the guardian ad litem proved the grounds for termination of Nicole's parental rights under section 232.116(1)(h), we need not determine whether the guardian ad litem also proved the grounds for termination under either or both of the other two statutory provisions it relied on. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (holding we only need to find grounds to terminate under one of the statutory provisions relied on by the district court in order to affirm).
Nicole also claims the juvenile court erred in terminating her parental rights as termination was not in Christian's best interest. More specifically, she asserts termination was not in his best interest due to the bond between her and Christian and the fact she was working on parenting skills and Christian could perhaps be placed with her within about three months. Christian's guardian ad litem, and the intervenor (Christian's custodial maternal aunt), both assert that error was not preserved on this issue. We pass the question of error preservation and address the merits.
Nicole's claim of error implicates a statutory provision which provides, in relevant part:
The court need not terminate the relationship between the parent and child if the court finds . . .:
. . .
c. There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent/child relationship.
Iowa Code § 232.116(3)(c). A strong bond between parent and child is a special circumstance which mitigates against termination when the statutory grounds have been satisfied. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). Yet it is not an overriding consideration, but merely a factor to consider. Id. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). It is within the juvenile court's sound discretion, based upon the unique circumstances of the case before it and the best interests of the child, whether to apply a factor in section 232.116(3). Id. We must consider both a child's long-range best interests and immediate best interests. In re A.B., 492 N.W.2d 446, 450 (Iowa Ct.App. 1992).
All persons involved in these proceedings concerning Christian acknowledge that there is a good and loving bond between Nicole and Christian. However, we cannot ignore the fact this is not the first time Nicole has been involved in juvenile court proceedings concerning neglect or abuse of one of her children. She was involved in a similar proceeding, concerning Alexis, several years ago in Colorado. That proceeding resulted in termination of her parental rights to Alexis.
Neither can we ignore the time that has elapsed during the CINA and termination proceedings concerning Christian. He was first removed from Nicole's custody more than twenty-four months before the termination hearing. As of the termination hearing he had been removed from her custody for about the last seventeen consecutive months.
We also cannot ignore Nicole's lack of sufficient progress toward reunification. As of September 2003 a plan had been designed to transition Christian back to her custody within a period of several months. However, it then came to the attention of the DHS and juvenile court that she was drinking, the plan was not implemented, and her visitations with Christian reverted to supervised visitations. Thereafter, and continuing to the time of the termination hearing, Nicole continued to have alcohol in her home, continued to use alcohol, and inappropriately had boyfriends in her home during visitations. She also had the previously noted problems with unemployment and the threat of loss of her housing. In summary, she had not dealt with or resolved the issues and problems that prevented Christian's return to her custody.
In addition to the foregoing, we note that Christian is bonded to his custodial aunt and uncle, and is thriving in their care. They are willing to adopt him, and apparently will do so following termination of Nicole's and John's parental rights.
A child should not be forced to endlessly suffer in parentless limbo. In re E.K., 568 N.W.2d 829, 931 (Iowa Ct.App. 1997). We must reasonably limit the time for parents to be in a position to assume care of their children because patience with parents can soon translate into intolerable hardship for children. Id. While the law requires a full measure of patience with troubled parents who attempt to remedy a lack of parenting skills, Iowa has built this patience into the statutory scheme of Iowa Code chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000). For children the age of Christian the law envisions a six-month opportunity for the parents to be able to have the child's custody returned. See Iowa Code § 232.116(1)(h).
Christian needs and deserves to have the security and stability of a permanent family and home, and needs to have them now. We find there is not clear and convincing evidence that any detriment to him from termination outweighs the good to be achieved by termination. We conclude the juvenile court correctly declined to apply section 232.116(3)(c) or to otherwise further extend these proceedings.