Opinion
No. 4-885 / 04-1803
Filed January 13, 2005
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. AFFIRMED.
Matthew Leddin of Gallagher, Millage Gallagher, P.L.C., Davenport, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, William Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
Stephen W. Newport of Newport Newport, P.L.C., Davenport, guardian ad litem for minor children.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
A mother appeals from a juvenile court order terminating her parental rights to two children. She states as her issue on appeal that the court "did not have clear and convincing evidence that [her] parental rights . . . should be terminated." We affirm.
Rebecca is the mother of Joshua, born in November 2000, and Zachary, born in October 2001. Joshua's father is Joshua Sr., and Zachary's father is Michael. Joshua and Zachary were removed from Rebecca and Michael's physical custody in October 2002 and placed in the custody of the Iowa Department of Human Services (DHS) for foster care placement. The removal occurred due to ongoing domestic violence, a history of neglect of the children, and an injury to Joshua's lip purportedly caused by Michael. Other problems that were found to exist included the home being in disarray, lack of adequate food, Rebecca's and Michael's inability to provide a safe and stable home for the children, and the parents' refusal to voluntarily participate in services.
In November 2002 the parties stipulated, and the juvenile court ordered, that the children be placed in the temporary custody of Joshua's paternal grandmother, subject to DHS supervision. In January 2003 the court adjudicated the children to be children in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) (2003) and 232.2(6)(c)(2). An early March 2003 dispositional order continued the children in the custody of Joshua's paternal grandmother, subject to protective supervision by the DHS.
By late March 2003 Joshua's paternal grandmother had requested that Zachary be removed from her custody, but expressed a willingness to continue to care for Joshua. Rebecca then sought the return of the children to her home, objecting to them being separated from each other. The juvenile court ordered Joshua's custody returned to Rebecca and Zachary's custody returned to Rebecca and Michael, subject to protective supervision by the DHS.
Following further domestic violence and a July 16, 2003 hearing, on July 17, 2003, the juvenile court again ordered the children removed from the physical custody of Rebecca and Michael and placed in the custody of the DHS for placement in foster care, where the children have thereafter remained. Rebecca appealed the July 17 order. This court affirmed. See In re Z.F. and J.P., No. 3-701/03-1317 (Iowa Ct.App. Oct. 15, 2003).
Following a combined review/permanency hearing, in a February 11, 2004 permanency order the juvenile court made detailed findings of fact concerning continuing parental failures and deficiencies despite almost one and one-half years of providing and attempting to provide services. It concluded that efforts at reunification had failed, accepted adoption as the permanency plan, and ordered that a petition for termination of parental rights be filed. A petition was filed in March 2004. Following an October 19 hearing the juvenile court filed its ruling on November 1, 2004. It terminated Rebecca's parental rights to each child pursuant to Iowa Code sections 232.116(1)(d), (e), and (h). Rebecca appeals.
The juvenile court also terminated Joshua Sr.'s parental rights to Joshua, and Michael's parental rights to Zachary. Neither father appeals.
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).
We have in the first paragraph of this opinion quoted the issue on appeal as stated by Rebecca in her petition on appeal. The State asserts that Rebecca has not argued any of the statutory grounds relied on by the juvenile court in terminating her parental rights, and that her failure to state or argue any such issues constitutes waiver. Although the State's position arguably has merit, we note that in her statement of "Supporting Legal Authority" Rebecca states:
In determining whether to return a child to his/her parents, there must be clear and convincing evidence that the child cannot be protected from the same harm which would justify the adjudication of the child as a child in need of assistance. Before the Court can terminate a person's parental rights, there must be evidence establishing that the child could not be safely returned to the parent. The State has the burden of proving the grounds for termination by clear and convincing evidence.
(Citations omitted). We read this statement as going to the fourth element of section 232.116(1)(h). Section 232.116(1)(h) requires that the State prove the children (1) are three years of age or younger, (2) have been adjudicated CINA, (3) have been removed for six of the last twelve months, or for the last six consecutive months with any trial period at home being less than thirty days, and (4) cannot be returned at the present time. We proceed to address the fourth element, as the first three were clearly proved and are not at issue on appeal.
The juvenile court made findings concerning the history of the underlying CINA proceedings and then further found, in part:
Rebecca has received and participated in individual therapy from September 2002 through November 2003. In her September 2003 mental health evaluation, she was diagnosed as suffering from Narcissistic Personality Disorder with antisocial traits. The psychologist documented that the problems appeared to be characterological in nature and not a mental health issue. Both Michael and Rebecca have participated in and completed parenting skills instruction. Despite the receipt of those services, neither parent has demonstrated better parenting. On occasion the parenting is appropriate however there are many more times of lack of consistency than there is appropriate skills. . . .
The domestic violence issues have not been resolved. Rebecca attended a Women's Education Group and completed it in April 2003. In July 2003 she and Michael engaged in a physical altercation. Michael has not yet completed Batterer's Education Programming. There is currently Dissolution of Marriage proceedings pending between Rebecca and Michael.
Neither Rebecca nor Michael has demonstrated the ability to maintain stable housing or employment throughout this case. They have not resided at any one place from longer than 4 months at a time. Further, neither has held a job for more than four months at a time.
. . . .
The children cannot be returned to the custody of any of their parents at the current time.
The parents received mental health, domestic violence, parenting and visitation services. Despite the receipt of these services the children are unable to be returned home without exposing them to adjudicatory harm. The original permanency goal was for the children to be reunified. Since that time the goal has now changed due to the parents' inability to provide safe and secure housing, nurturance, guidance and emotional and physical security for these children.
The petitioner, by clear and convincing evidence, has proved that grounds exist to terminate the parental rights of Rebecca, Michael and Joshua Sr. with respect to the children. The children cannot be returned to parental care at this time. The parents are still unable to handle the responsibility and needs of these children. Rebecca ask[s] for more time to resolve the harm and prove that [she] can parent these children.
To the extent these findings of the juvenile court relate to Rebecca they are fully supported by the record evidence, we agree with them, and we adopt them as our own.
A child cannot be returned to a parent at the present time when it is shown by clear and convincing evidence that the child would remain a child in need of assistance on any of the grounds listed in section 232.2(6). In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988); In re R.R.K., 554 N.W.2d 274, 277 (Iowa Ct.App. 1995). We agree with the juvenile court that the State has made the requisite showing. If returned to Rebecca at the time of the termination hearing the children would be imminently likely to be neglected. See Iowa Code § 232.2(6)(b). They would also be imminently likely to suffer harmful effects as a result of Rebecca's failure to exercise a reasonable degree of care in supervising them. See Iowa Code § 232.2(6)(c)(2).
We conclude the State proved the grounds for termination of Rebecca's parental rights pursuant to Iowa Code section 232.116(1)(h). We therefore need not determine whether it also proved the grounds for termination under the other two statutory grounds upon which it also relied. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996).