Opinion
No. 5-459 / 05-0615
Filed June 15, 2005
Appeal from the Iowa District Court for Muscatine County, John G. Mullen, District Associate Judge.
A mother appeals from the order terminating her parental rights to her child. REVERSED AND REMANDED.
Esther Dean, Muscatine, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Gary Allison, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee-State.
Mark Neary, Muscatine, guardian ad litem for minor child.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Lisa E. appeals from a juvenile court order which terminated her parental rights to her son. Upon our de novo review, we reverse the termination order.
I. Background Facts Proceedings
Lisa E. is the mother and Lee G. is the father of Hunter E., born in November 1995. Hunter and his older half-sister were removed from his mother's care in December 2003 based primarily on allegations that Lisa was abusing controlled substances and was involved in an abusive relationship. Hunter and his sibling were initially placed with their maternal grandmother.
The other child is not a subject of this termination of parental rights proceeding.
The juvenile court adjudicated Hunter as a child in need of assistance (CINA) on March 26, 2004. The court transferred Hunter to his aunt and uncle's custody in May 2004. On January 7, 2005, the State filed a petition to terminate Lisa and Lee's parental rights. Following a termination hearing, the court terminated the parental rights of both parents in an order filed April 6, 2005. Only Lisa has pursued an appeal. II. Scope of Review
The father consented to termination of his parental rights and did not appear at the termination hearing.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Discussion
The juvenile court terminated Lisa's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (f) (2005). On appeal, Lisa claims: (1) the State failed to prove the statutory grounds for termination by clear and convincing evidence and (2) the juvenile court erred when it terminated her parental rights instead of granting a long-term guardianship pursuant to section 232.116(3). We will address each of her arguments in turn.
We agree with Lisa that the statutory grounds for termination under section 232.116(1)(e) (child CINA, removed for six months and parent has not maintained meaningful contact) were not met in this case. The record reveals the mother made significant progress throughout this case. By the time of the termination hearing, Lisa had completed a substance abuse evaluation, inpatient treatment, aftercare, and was attending AA. She had also participated successfully in domestic abuse counseling. Lisa participated in all visits with her son which were authorized by the Department of Human Services (DHS) and she remains closely bonded with Hunter. We conclude Lisa maintained significant and meaningful contact with Hunter and made reasonable efforts to resume care of her child. Accordingly, we conclude the juvenile court should not have terminated the mother's parental rights under section 232.116(1)(e).
We reach a different conclusion with regard to the sufficiency of the evidence supporting the statutory grounds for termination under section 232.116(1)(f) (child is four or older, CINA, removed from home for twelve of the last eighteen months and cannot be returned home). When the termination hearing was held, Hunter had been out of his mother's care for more than fourteen months. Lisa contends she is now able to keep Hunter safe if he is returned to her care. Lisa has a history of having relationships with violent men. Some of these men have been emotionally and physically abusive to Lisa and Hunter. From the inception of this case, a primary goal has been for the mother to establish an independent living situation. In its dispositional order filed March 26, 2004, the juvenile court stated: "A specific concern is the mother establishing a home with any person other than her children. Her decision to live with another adult during the pendancy of this case is unwise."
Despite this admonition, Lisa continues to reside in the home of her new paramour, David S. David is essentially a stranger to Hunter. Although there is no evidence that David has been violent toward Lisa, Hunter is very afraid of him. David participated in a substance abuse and psychiatric evaluation, but provided false information during both evaluations. Due to ongoing concerns about David's truthfulness in his disclosures to DHS and other evaluators, we agree with the juvenile court's conclusion that Hunter could not be safely returned to his mother's care at the time of the termination hearing. Accordingly, we conclude termination pursuant to section 232.116(1)(f) was appropriate.
Lisa moved in with David shortly after the case was initiated. David has a history of substance abuse and domestic violence.
Lisa also contends the juvenile court erred when it terminated her parental rights instead of granting a long-term guardianship pursuant to section 232.116(3). Hunter's guardian ad litem also argues the court should have placed Hunter under the guardianship of his aunt and uncle, while granting regular visitation to Lisa.
Even if the statutory requirements for termination of parental rights are met, the decision to terminate must be in the child's best interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Iowa Code section 232.116(3)(a) provides that a court need not terminate parental rights if a "relative has custody of the child" while section 232.116(3)(c) provides that a strong bond between a parent and a child is a special circumstance which can mitigate against termination of parental rights. However, the bond is merely a factor to consider, not an overriding consideration. In the Interest of N.F., 579 N.W.2d 338, 341-42 (Iowa Ct.App. 1998).
Lisa clearly shares a close bond with her son. The juvenile court acknowledged the bond between Lisa and Hunter and made the following observation in its termination order "[w]hatever the court does, the mother is likely to have some contact with (the child) and that is probably in his best interests." The court ultimately concluded that termination rather than a guardianship was in the best interests of the child.
Hunter wants to remain with his aunt and uncle; however, he clearly loves his mother, enjoys spending time with her, and wants to continue seeing her. In addition there is a close bond between Hunter and his older half-sister, who visits Lisa regularly and would have continued contact with Hunter though the mother. We believe it is in Hunter's best interests to have continuing contact with his mother; however, the record suggests that this contact will probably not occur in the absence of a guardianship. This is because there is animosity between Lisa and her brother and sister-in-law (the child's aunt and uncle).
Lisa placed approximately sixty-five phone calls to the aunt and uncle while this case was pending in juvenile court. Only a few of those calls resulted in contact and none were ever returned.
Upon our de novo review of the record, we agree with the child's guardian ad litem that the court should have placed the child in the guardianship of his aunt and uncle and provided regular visitation with the mother. We therefore reverse the termination order and remand for further proceedings not inconsistent with this opinion.