Opinion
No. 5-817 / 05-1435
Filed November 23, 2005
Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental rights to three children. AFFIRMED.
Irene Schrunk, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and David Dawson and Cindy Weber-Blair, Assistant County Attorneys, for appellee.
James Rocklin, Sioux City, for father of H.G.
H. Allan Sturgeon, Sioux City, for father of V.M. and A.M.
Mercedes Ivener, Sioux City, guardian ad litem for minor children.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Heather appeals from a late August 2005 juvenile court order terminating her parental rights to nine-year-old Ariel, eight-year-old Victoria, and three-year-old Hailey ("the children"). The order also terminated the parental rights both of Lewis, the father of Ariel and Victoria, and Christian, the father of Hailey, but they have not appealed. We affirm.
The Child Protective Services unit of the Iowa Department Human Services (DHS) has a lengthy history of involvement with Heather, Heather's series of male paramours, and Heather's children. Beginning in mid-1999 it conducted nine assessments of reported abuse and neglect of the children. One assessment resulted in a confirmed report of physical abuse by Lewis's girlfriend. A later assessment resulted in a confirmed and founded report of sexual abuse of a fifteen-year-old by Heather. The most recent assessment resulted in a late 2003 confirmed and founded report of denial of critical care-failure to provide proper supervision, with Heather as the perpetrator, based on Heather's lengthy and ongoing exposure of the children to serious incidents of domestic abuse by her fifteen-year-old, most-recent paramour.
The State filed a child in need of assistance (CINA) petition in December 2003. The children were adjudicated CINA, pursuant to Iowa Code sections 232.2(6)(b) and (c)(2) (2003) in January 2004. In March 2004 the juvenile court ordered the children removed from Heather's physical custody and placed in the legal custody of the DHS for appropriate placement in the care of relatives or in foster care, a status in which they have thereafter at all times remained.
Heather has been diagnosed as suffering from severe depression; post-traumatic stress disorder; and personality disorder, NOS with prominent self-defeating, avoidant, and dependent traits. She has been alcohol dependent. Heather has exposed the children to male paramours who have engaged in acts of juvenile delinquency, and who have committed crimes resulting in incarceration. Heather has been chronically unstable in employment, and has at times been homeless and at other times entirely dependent on others for housing. She has been subjected to repeated and ongoing physical abuse, to which the children have been exposed. The children have been subjected to neglect, physical abuse, and sexual abuse.
Heather has engaged in criminal activities, including felony theft and confirmed and founded sexual abuse of a fifteen-year-old. She is a registered sex offender. Heather has spent time in jail during the CINA and termination proceedings. She has failed on probation when granted suspended sentences. By early May 2005 her suspended sentence and probation on a Nebraska felony theft conviction were revoked and she was ordered imprisoned in Nebraska for nine months. She hoped and expected to be released about October 30, 2005.
In February 2005 the State filed a petition seeking termination of Heather's (and the fathers') parental rights to the children. Following a May and July 2005 hearing, in late August 2005 the juvenile court terminated Heather's parental rights pursuant to Iowa Code sections 232.116(1)(d), (e), (f) (Ariel and Victoria), (h) (Hailey), (i), and (l) (2005). Heather appeals.
Heather claims the juvenile court erred in denying her motion, made at the May 2005 hearing and renewed at the July 2005 continuation of the hearing, for continuance of the termination hearing. She was incarcerated in Nebraska and sought continuance until released in order to be able to participate in the hearing.
We review denial of a motion for continuance for abuse of discretion, and will reverse only if injustice will result to the party seeking the continuance. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996). Denial of the motion must be unreasonable under the circumstances before we will reverse. Id.
As of the May 2005 commencement of the termination hearing the CINA case had been pending for over seventeen months, and the children had been removed from Heather for fourteen months. In denying the request for continuance the juvenile court noted that Heather was represented by counsel who was present. The court also assured that Heather would be allowed to testify by telephone before the hearing was completed. At the July 2005 continuation of the hearing Heather's attorney was again present, and Heather in fact testified at length by telephone.
Due process of law does not require that an incarcerated parent be present at a termination of parental rights hearing. See, e.g., In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.App. 1991) (holding due process satisfied where incarcerated parent receives notice of the termination petition and hearing, is represented by counsel who is present at hearing, and parent has opportunity to present parent's testimony by deposition). Heather was not to be released until about five months after the May 2005 portion of the termination hearing, and some three months after the July portion of the hearing. We find no abuse of discretion in the juvenile court's denial of a continuance pending her release.
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).
Heather also claims the juvenile court erred in denying her request for an additional six months, pursuant to Iowa Code section 232.104(2)(b). "Children simply cannot wait for responsible parenting." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). "A parent does not have an unlimited amount of time in which to correct his or her deficiencies." In re H.L.R.B., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). We have repeatedly followed the principle that the statutory time limits should be followed and children should not be forced to wait for their parent to be able to care for them. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998). We concur in the juvenile court's denial of an additional six months and affirm on this issue.
Heather also questions whether the State proved by clear and convincing evidence each of the requisite elements of each of the statutory provisions pursuant to which the juvenile court terminated her parental rights. While the juvenile court relied on six separate provisions, we need only find grounds under one of the provisions in order to affirm. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995). We choose to focus on sections 232.116(1)(f) (child four or older, adjudicated CINA, removed from physical custody of parents for twelve of last eighteen months, cannot be returned at present time), under which the juvenile court terminated Heather's parental rights to Ariel and Victoria, and section 232.116(1)(h) (child three or younger, adjudicated CINA, removed from physical custody of parents six of last twelve months, cannot be returned at present time), under which the juvenile court terminated Heather's parental rights to Hailey.
The first three elements of these two provisions were clearly proved and are not subject to reasonable dispute on appeal. The fourth element is proved when the evidence shows the children cannot be returned to the parents because the children remain in need of assistance as defined by section 232.2(6). R.R.K., 544 N.W.2d at 277. The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the children's removal from the home. In re M.M., 482 N.W.2d 812, 814 (Iowa 1992).
At the time of the termination hearing Heather was imprisoned out of state and her anticipated date of release was still several months away. The children clearly could not be returned to her physical custody either at the time of the hearing or within the reasonably foreseeable future. We conclude clear and convincing evidence supports termination under sections 232.116(1)(f) and (h) and affirm on this issue.
Heather finally questions whether termination of her parental rights was in the best interest of the children. Even if other 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).
From the December 2003 commencement of the CINA case through October 2004 Heather made very little progress in dealing with her many issues and problems and meeting goals of the case plan. Although she thereafter made some progress and met some goals, it appears she did so in whole or large part in an effort to receive the most favorable disposition possible in certain criminal proceedings.
For years the children have suffered chaos and violence in their lives. Because they had experienced a lack of structure while with Heather, for some time after removal from her physical custody the children had difficulty adjusting. However, after several months they had adjusted well and by the time of the termination hearing were thriving in family foster care. The juvenile court found that although the children knew Heather and had a bond to her and loved her, their best interest required termination of her parental rights. We agree, finding that after years of chaos and violence the children's need for stability, safety, security, and permanence outweighs any remaining bond they might have with Heather.