Opinion
No. 6-145 / 06-0008
Filed March 15, 2006
Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.
A mother and father appeal the termination of their parental rights. MOTHER'S APPEAL DISMISSED, FATHER'S APPEAL AFFIRMED.
Ryan J. Mitchell of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant-father.
Mary Baird Krafka of Krafka Law Office, Ottumwa, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant County Attorney, for appellee-State.
Cynthia Hucks, Ottumwa, for appellee.
Joni Keith of Keith Law Firm, Ottumwa, for minor child.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
James and Nichole are the parents of Kaleb, born in 2003, and Jaden, born in 2004. Both have appealed the termination of their parental rights. We dismiss the mother's appeal and affirm on the father's appeal.
I. Mother
Nichole's primary challenge is to the termination of James's parental rights rather than her own. We conclude she does not have standing to contest the termination of his rights. In re A.B., A.B., A.A., 662 N.W.2d 375 (Iowa Ct.App. 2003).
On her own behalf, Nichole appears to contend that termination is not in the children's best interests. She makes no independent argument on this issue, electing, instead, to join in James's brief. Our court has stated that a party cannot join in another parent's "best interests" argument. In re D.G. L.G., 704 N.W.2d 454, 459 (Iowa Ct.App. 2005). We dismissed an appeal by a parent who attempted to do so. Id. The same result is warranted here. II. Father
Even if Nichole had made an independent "best interest" argument, we would have no basis for affording her relief. At the time of the termination hearing, she had "absconded" from an inpatient drug treatment program and was "unlocatable."
James raises several arguments in support of reversal. He contends: (A) termination was not warranted given his cooperation with services, (B) termination was not in the children's best interests, (C) the district court should have granted his motion to reopen the record, and (D) the guardian ad litem had a conflict of interest.
A. Cooperation with Services.
The district court terminated James's parental rights pursuant to Iowa Code section 232.116(1)(h) (2005) (requiring, in part, proof that the children cannot be returned to parent's custody). On our de novo review, we agree with this resolution.
James suffered from a severe substance abuse problem that began at the age of eleven and spanned thirty-six years. He admitted that Kaleb and Jaden were removed from his care because he "relapsed on methamphetamine." At the time of the termination hearing, he was in a halfway house that did not allow children. He conceded he was not in "a position to take over custody of them at this point." He testified, "I still need to get out of the [halfway house] and get financially set, and I feel I still need to show people continued progress." It is clear, therefore, that Kaleb and Jaden could not have been returned to James.
Although our inquiry could end here, we will address the question of James's progress in conquering his addictions and his request for a deferral of termination in light of this progress. The district court summarized the evidence on this question as follows:
James is currently participating in a substance abuse program, and appears to be in the process of addressing his history of more than thirty years of drug use. Unfortunately, James has previously appeared to be doing quite well in substance abuse treatment, only to have it later revealed that he was lying about his use. James admitted that during 2004 he continued to participate in substance-abuse treatment while abusing Xanax, Dexedrine, Methamphetamine and other drugs.
The record supports this assessment. At the time of the termination hearing, James had lived at the halfway house for only three months and one week. A Department of Human Services social worker stated that, while James had "shown progress" in moving toward sobriety, it was "very recent progress." He recommended against an extension of time to facilitate reunification given James's "probation violations, his legal standing, his frequent relapse, the extent that the family went to use drugs."
Based on this record, we conclude James's recent showing of sobriety in the face of his lengthy substance abuse history did not warrant a delay of the termination decision.
B. Best Interests.
The ultimate consideration in terminating a parent's rights is the best interests of the child. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). We agree with the district court that termination was in the children's best interests.
Both children were young when they were removed. In the fourteen months following their removal, they visited their father only twice. By the time of the termination hearing, the statutorily prescribed time frames for pre-termination removal had elapsed and, as James conceded, he was not in a position to re-assume his parenting role. Under these circumstances, termination was in the children's best interests. Id. at 495 (stating "[t]ime is a critical element").
C. Motion to Reopen Record.
Before the district court entered its final order, James moved to reopen the record to introduce evidence of his move from the halfway house, and the existence of an opening at transitional housing. The district court denied the motion. We discern no abuse of discretion in this ruling. See In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). As the State points out, the record already contained evidence of the fact that James was in an advanced stage of recovery at the halfway house and was looking into transitional housing. The district court considered these facts in its final ruling. Therefore, James's motion was unnecessary.
D. Conflict of Interest.
James finally contends the guardian ad litem had a conflict of interest because she knew the foster parents who were caring for Kaleb and Jaden. We disagree.
Our rules of professional conduct prohibit lawyers from using "information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these rules." Iowa Rules of Prof'l Conduct 32:1.8(b). There is no evidence that the guardian ad litem did so. While James testified that she was the foster mother's "best friend," the guardian ad litem countered this allegation as follows:
Number one, I'm not best friends with [the foster mother]. I've known her over the last few years. She used to attend my church a couple years ago. She used to be the director of — or president of the Board of Directors of the Ottumwa Outreach Community Center, and I did — I'm currently the attorney for that nonprofit corporation and I did help set that up. I know her through that.
I'm not best friends with her. It is not affecting my ability to make a recommendation to the Court regarding placement of these children. Frankly, I had no input on where these children were placed in December on an emergency removal. I feel that I have no conflict at this time. She's not a client of mine. As far as my recollection goes, there's no legal association with her, and I feel I do not have a conflict of interest.
Even assuming that the guardian ad litem was a "best friend" of the foster mother, there is no evidence to support James's assertion that she had "a vested interest" in facilitating termination so that the foster mother could adopt his children. For these reasons, we agree with the district court that this relationship did not rise to the level of a conflict that required withdrawal or recusal.
III. Disposition
We dismiss Nichole's appeal. We affirm the termination of James's parental rights to Kaleb and Jaden.
MOTHER'S APPEAL DISMISSED, FATHER'S APPEAL AFFIRMED.