Opinion
No. 5-339 / 04-1508
Filed April 28, 2005
Appeal from the Iowa District Court for Tama County, Michael J. Newmeister, District Associate Judge.
A mother appeals from the order terminating her parental rights to her daughter. AFFIRMED.
Melissa A. Nine of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellant.
Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Brent D. Heeren, County Attorney, for appellee-State.
Jennifer Steffens, Marshalltown, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Nichole is the mother of Daislyn, who was born on January 10, 2002. Daislyn came to the attention of the Iowa Department of Human Services (DHS) on October 30, 2003 when it was notified of concerns that Daislyn had been sexually abused. It was reported that Daislyn had a "tear from her posterior fourchette to her hymen, appearing as if someone attempted digital or penile penetration." Nichole's paramour, Josh W. was later charged with sexually abusing Daislyn. By agreement of Nichole, Daislyn was adjudicated to be in need of assistance under Iowa Code section 232.2(6)(d) (2003). On May 6, 2004, the State filed a petition seeking to terminate Nichole's parental rights to Daislyn. Following a hearing, the juvenile court granted the petition and terminated Nichole's parental rights under sections 232.116(1)(d), (e), (h), and (i). Nichole appeals.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern in termination proceedings is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995).
On appeal, Nichole claims (1) the State failed to demonstrate Daislyn could not be returned to her custody, as contemplated by section 232.116(1)(h), (2) the State failed to make reasonable efforts toward reunification, (3) termination is not in Daislyn's best interests, and (4) Daislyn should be placed with a relative. We will address each in turn.
Upon our de novo review, we conclude the juvenile court properly concluded Daislyn cannot be returned to Nichole's custody, for to do so would subject her to a high risk of adjudicatory harm. As noted, Nichole's paramour Josh was charged with, and eventually convicted of, sexually abusing Daislyn. DHS immediately had concerns that Nichole minimized any culpability she had for her daughter's abuse, and she generally denied that Josh perpetrated the abuse. In fact, Nichole testified on his behalf during his criminal trial. This failure to realize the significance of the abuse and her denial continued throughout this case. Daislyn touted Josh's "wonderful" relationship with Daislyn and she later married him, unbeknownst to Department of Human Services workers. To return Daislyn to Nichole's care would place her at a high risk of future harm or abuse.
We note that Nichole, on appeal, does not challenge the sufficiency of the evidence under any of the other sections for which termination was granted. We could consider this a waiver of her right to contest them; however, in our discretion we proceed to address whether clear and convincing evidence exists under section 232.116(1)(h).
We next conclude Nichole has failed to preserve error on her claim that the State failed to make reasonable efforts to reunite her with Daislyn. We find no evidence in the record that Nichole ever alleged services were inadequate, or that she requested other or additional services while the case was proceeding below. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999).
We agree with the juvenile court's determination that termination is in Daislyn's best interests. As mentioned above, Nichole's failure to protect her daughter from Josh has already produced serious consequences, and threatens to endanger her in the future. Our determination that Nichole's custody would place Daislyn in serious danger is strongly influenced by the fact that Nichole married Josh after he was charged with sexually abusing Daislyn. Moreover, the threat to Daislyn if she were in her mother's custody is increased by Nichole's immature and chaotic lifestyle, frequent changes of residence, and failure to find and maintain employment.
Finally, we reject Nichole's claim that custody and guardianship of Daislyn should be placed with a family member. It appears that Daislyn is thriving in foster care, and there is reason to believe she will be adopted by her foster parent. We agree with the juvenile court's determination that Daislyn's best interests would not be served by a relative placement.