Opinion
No. 5-427 / 05-0613
Filed June 15, 2005
Appeal from the Iowa District Court for Clinton County, Arlan J. Van Zee, District Associate Judge.
A mother and a father each appeal from a juvenile court order terminating their parental rights. AFFIRMED.
Mervin D. Woodin, Camanche, for appellant-father.
Jeffrey L. Farwell of Farwell Bruhn, Clinton, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Mike L. Wolf, County Attorney, and Ross Barlow, Assistant County Attorney, for appellee-State.
J. David Zimmerman, Clinton, guardian ad litem for minor children.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Shalene is the mother of Sierra, born in December 1996, and Michael, born in January 2003 ("the children"). Damon is Michael's father. Shalene and Damon appeal from a March 29, 2005 juvenile court order terminating Shalene's parental rights to the children and Damon's parental rights to Michael. (The order also terminated Sierra's father's parental rights to Sierra, but his parental rights are not at issue in this appeal.) We affirm.
On February 17, 2004, the juvenile court entered an ex parte order removing the children from the physical custody of Shalene and Damon and placing them in the legal custody of the Iowa Department of Human Services (DHS) for placement in family foster care. They have thereafter remained in that status. Services designed to achieve reunification of the family began on or about February 23, 2004.
On March 10, 2004, the juvenile court adjudicated the children to be children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(b) (Supp. 2003) (child whose parent has neglected the child). On February 10, 2005, the State filed a petition to terminate parental rights. Following a March 7, 2005 hearing the juvenile court entered its ruling on March 29, 2005. It terminated Shalene's parental rights to Sierra pursuant to Iowa Code sections 232.116(1)(d) (2005) (child adjudicated CINA for neglect by one or both parents, circumstances continue despite offer or receipt of services), (f) (child four or older, adjudicated CINA, removed from home twelve of last eighteen months, and cannot be returned to parents at present), and (m) (child adjudicated CINA based on neglect by a parent, parent convicted of felony and imprisoned for neglecting the child or child's sibling or child in the household). It terminated Shalene's and Damon's parental rights to Michael pursuant to Iowa Code sections 232.116(1)(d), (h) (child three or younger, adjudicated CINA, removed from home six of last twelve months, cannot be returned to parents at present), and (m). Both Shalene and Damon appeal.
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).
At the time of the tragic event which led to the CINA and termination proceedings in this case, Shalene and Damon had living with them not only Sierra and Michael but also their daughter Eve, then four years of age. The juvenile court's termination ruling includes the following findings of fact, all of which are fully supported by the record and which we adopt:
The [CINA] adjudication pursuant to section 232.2(6)(b) was based upon the events of February 15, 2004, when four-year-old Eve . . . died due to smoke inhalation. Eve . . . lived with her mother Shalene . . . and her father Damon . . ., along with her siblings Michael . . . and Sierra. . . . Subsequent investigation revealed that Eve and her brother Michael were home alone when the fire broke out in the bedroom where Eve was found. Shalene . . . admitted to investigators that she left Eve in the bedroom watching a video with a lighted candle. She admitted that she left Eve and Michael home alone when she went next door to be with [Damon] and friends. Subsequent examination of the residence found it to be unfit for the presence of children. The home was difficult to walk through due to the large amount of junk filling the home. Many of the rooms contained so much debris that walking on the debris was the only way to proceed through the home. The debris included, but was not limited to, open containers of garbage, feces, dirty diapers, spoiled food, and broken glass. There was no access to running water due to the sinks and tub being filled with debris. Areas for the children to eat and sleep were unsanitary and overly cluttered. The condition of the residence was found to be consistent with a confirmed Child Abuse Report completed by the Department of Human Services back in October of 2000. The bedroom where Eve lost her life was so filled with debris that emergency personnel had a difficult time opening the door to the room. The child died in the bedroom after not being able to exit the room due to either or both the level of debris or the lock mechanism on the door. The bedroom with the fire and another bedroom both had door locks installed so that the children could be locked in the rooms. Interviews with the parents revealed that they had locked the children in the rooms on multiple occasions. This was consistent with the prior report received by the Department of Human Services that the children were being locked in their rooms. The children's mother, Shalene . . ., admitted that February 15, 2004, was difficult to remember. She admits she was using methamphetamine that day. Damon . . . admits he was using marijuana.
As a result of the fire, Eve's death, and endangerment of Michael, Shalene and Damon each pled guilty to neglect of a dependent person, a class "C" felony, and child endangerment, an aggravated misdemeanor. Each was sentenced to concurrent terms of ten years and two years which they began serving on or about August 19, 2004.
In its findings the juvenile court also noted an earlier founded child abuse report, finding:
Also important is the Child Abuse Assessment showing intake date of September 12, 2000. A denial of critical care for failure to provide adequate shelter and supervision was founded with Sierra . . . and Eve . . . as the victims and Shalene . . . and Damon . . . as perpetrators. The home was found to be extremely cluttered with a great deal of debris on the floor.
This finding is fully supported by the record and we also adopt it.
In addressing the question of whether Shalene and Damon had accepted responsibility for their acts and omissions which caused or contributed to Eve's death and Michael's endangerment, the juvenile court concluded:
The conditions which resulted in the adjudicatory harm are fairly and accurately described in the court documents. The conditions that existed are not exaggerations. They are documented facts. The conditions were deplorable. This was not a recent condition. Records indicate that this was an ongoing issue since 2000. Shalene and Damon were focused on themselves and their needs. Their needs revolved around drugs. The children's needs were secondary. The children got in the way of their need for drugs. When the children were a bother, locks were put on the doors. The children's need to play, interact, and socialize with their parents were secondary. The children lived in a sad and deplorable environment devoid of any substantial stimulation and love. All of these conditions culminated in the tragedy of February 15, 2004, when Eve . . . died. She was unable to escape her room and her home because of conditions her parents allowed to exist. In the face of overwhelming evidence, the parents still minimize and make excuses.
Notwithstanding Shalene's occasional representations that she accepts some responsibility for the circumstances that led to the tragedy, the court's conclusion that Shalene and Damon continue to minimize and make excuses is fully supported by the opinions of DHS personnel, service providers, and the reports of a psychologist who conducted psychological examinations of Shalene and Damon, and we adopt that conclusion.
Shalene claims the grounds for termination were not proved, more specifically arguing the State failed to prove the parents are a danger to the children, and asserting she could resume care of the children upon her release from prison. She also claims: "The perceived parenting ability of foster parent as compared for that of natural parents is not entitled to great weight." She additionally claims the juvenile court erred in finding the children could not be returned to her custody, arguing there was no evidence she could not resume their care after her release. Damon claims the State did not prove the second element of section 232.116(1)(d), did not prove the fourth element of section 232.116(1)(h), and did not prove the first element of section 232.116(1)(m).
When the juvenile court terminates parental rights on more than one statutory ground, in order to affirm we need only find grounds to terminate under one of the provisions relied on by that court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). We choose to focus on section 232.116(1)(f), under which the juvenile court terminated Shalene's parental rights to Sierra, and section 232.116(1)(h), under which it terminated Shalene's and Damon's parental rights to Michael.
The first three elements of those two provisions do not appear to have been at issue, were clearly proved, and are not subject to reasonable dispute on appeal. Thus, only the fourth element, whether the State proved the children could not be returned to their respective parents at the time of the termination hearing is at issue in these appeals. This element is proved when the evidence shows the children cannot be returned to the parents because they remain in need of assistance as defined by section 232.2(6). In re R.R.K., 554 N.W.2d 274, 277 (Iowa Ct.App. 1995). 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).
Only a few months before the termination hearing Shalene and Damon had begun serving lengthy prison terms. They had been unable or unwilling to accept substantial responsibility for the circumstances that caused or contributed to Eve's death and Michael's endangerment. Despite the fact that similar deplorable conditions had existed in their home for years they continued to minimize any fault on their parts. DHS personnel and service providers opined that even if Shalene and Damon were immediately released from prison the children could not be safely returned to them until many more months of services had been provided and accepted. We find, as the juvenile court did, that clear and convincing evidence proves the children could not be returned to Shalene's and Damon's custody at the time of the termination hearing.
Shalene appears to claim the juvenile court placed undue weight on, or based its decision to terminate parental rights on, perceived superior parenting ability of a foster parent. The juvenile court did find that a service provider reported the children were thriving in foster care, they were attached and bonded to the foster parents, and the foster parents were a potential adoptive placement. The fact the children were thriving and bonding is hardly surprising, given the deplorable conditions and treatment they had experienced before removal. All of this information is relevant to the juvenile court's necessary determination of whether termination was in the best interest of the children. We find no merit to this claim.
Damon argues, with respect to section 232.116(1)(h), that Michael cannot be returned to him at the present time only because the State has made it impossible by imprisoning him. He concludes that under such circumstances termination of his parental rights under that section is improper. However, Damon's own actions resulted in his incarceration. He must take full responsibility for his conduct which has resulted in his confinement. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994).
We conclude the State proved the grounds for termination under sections 232.116(1)(f) and (h). We need not and do not consider whether termination was also proper under sections 232.116(1)(d) and (m). We have carefully considered all claims and issues raised on appeal by Shalene and Damon and conclude they are either controlled by the foregoing or are otherwise without merit.