Opinion
No. 3-179 / 03-0262
Filed April 4, 2003
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
E.F. appeals the termination of her parental rights. AFFIRMED.
Aaron Siebrecht of Genest Siebrecht, Altoona, for appellant.
Jesse Macro, Des Moines, for the father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Heather Dickinson, West Des Moines, for minor child.
I. Background Facts and Proceedings.
Esther F. appeals the termination of her parental rights to her children, A.F., age four, A.C., age seven, and L.L., nine months. The parental rights of the children's putative father and unknown John Doe were also terminated but are not at issue here.
On September 24, 2001, A.F. and A.C. were removed from Esther's care based on allegations that she physically abused A.F. A.F. and A.C. were placed with relatives. L.L. was born on September 6, 2001 and was immediately removed from Esther's care. He was initially placed with relatives, but was subsequently placed in foster care on February 25, 2002. On October 4, 2001, A.F. and A.C. were adjudicated children in need of assistance pursuant to Iowa Code sections 232.2(6)(b) (Supp. 2001) (parent has physically abused or neglected the child or is imminently likely to do so) and 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child). On February 26, 2002, L.L. was adjudicated a child in need of assistance pursuant to Iowa Code sections 232.2(6)(b) (parent has physically abused or neglected the child or is imminently likely to do so) and 232.2(6)(c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child).
A January 7, 2002 dispositional order continued A.F. and A.C.'s placement with relatives. An April 8, 2002 dispositional order continued L.L.'s placement in foster care. Esther was offered the following services intended to address the adjudicatory harms necessitating the children's out-of-home placement: DHS/CPT, parenting/psychosocials, visitation, family preservation services, foster care, urine analysis, in-home services by two agencies, protective day care, EFR evaluation, and relative placement.
On October 15, 2002, the State petitioned to terminate Esther's parental rights with respect to A.F., A.C., and L.L. pursuant to Iowa Code sections 232.116(1)(b) (abandonment), 232.116(1)(d) (CINA for physical or sexual abuse or neglect, circumstances continue despite receipt of services), 232.116(1)(e) (CINA, child removed for six months, parent has not maintained significant and meaningful contact with child), and with respect to A.F. and A.C. pursuant to Iowa Code section 232.116(1)(f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), and with respect to L.L. pursuant to Iowa Code section 232.116(1)(h) (child is three or younger, CINA, removed from home for six of the last twelve months, and child cannot be returned home).
The juvenile court's findings of fact entered following the termination hearing include the following:
Services continued to be provided after the removals in September 2001 and January 2002. [Esther was] not cooperative with the services and [has] had only supervised visits with the children. [She has] had no visits with [L.L.] since July 2002 and with [A.F.] and [A.C.] since August 2002. In October 2002 a visit was scheduled at Park Fair Mall. [Esther] did not appear. There was a two-month time period from the February hearing when the parents did not exercise any visitation. Even when the visitation was taking place they are often late or do not attend at all.
. . . .
[Esther] failed to comply with the services ordered and offered. [She has] not provided current addresses, attended visits and [has] not cooperated with scheduled meetings with the In-Home service provider. They have not utilized services to obtain housing or employment. [She has] a criminal history, substance abuse history, a history of homelessness and history of domestic violence. . . .
. . . .
As this is a permanency hearing as well as a termination of parental rights hearing the Court must consider whether a relative placement or a guardianship is appropriate. There is no relative to take custody of [L.L.]. Although [A.F.] and [A.C.] are in relative placement, they are too young and in need of permanency for the Court to consider guardianship with the Department of Human Services for any other purpose than adoption. All the children are in pre-adoptive homes where they can become permanent members of a family.
It is in the best interest of [A.F.], [A.C.] and [L.L.] that parental rights with their mother . . . be terminated and they be provided with permanent homes.
Based on these findings the juvenile court terminated Esther's parental rights, resulting in this appeal.
On appeal, Esther raises the following arguments:
(1) The State failed to prove Esther abandoned or deserted her children,
(2) The State failed to prove Esther was offered or received services to correct the circumstance which led to the adjudication and that the circumstance continued to exist despite the offer or receipt of services,
(3) The State failed to prove Esther did not maintain significant and meaningful contact with the children,
(4) The State failed to prove that the children could not be returned to Esther's custody as provided in Iowa Code section 232.102,
(5) Terminating Esther's parental rights was not in the children's best interests and the children maintained a bond with her,
(6) The juvenile court improperly terminated Esther's parental rights to two of the children that were in relative placement at the time of the permanency/termination hearing, and
(7) The juvenile court's improper denial of Esther's motion to continue the termination hearing denied her due process rights and the opportunity to personally defend her interests.
II. Standard of Review.
Our review in termination of parental rights cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 6.14(6)( g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
III. Termination.
Because A.F., A.C., and L.L. have been adjudicated children in need of assistance and have been out of the home for more than six months, the dispositive issue is whether Esther has maintained significant and meaningful contact with the children. See Iowa Code § 232.116(1)(e). Esther's failure to exercise visitation with L.L. since July 2002 and with A.F. and A.C. since August 2002 supports the conclusion that Esther has not maintained significant and meaningful contact with the children. See In re A.J., 553 N.W.2d 909, 912 (Iowa Ct.App. 1996). Parental unavailability due to incarceration is no excuse for a lack of relationship with children. In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994). Incarcerated parents must take responsibility for the conduct that led to their confinement. Id. We find the record supports the termination of Esther's parental rights on this ground. Because we affirm on this ground, we need not consider the other grounds upon which Esther's parental rights were terminated. A.J., 553 N.W.2d at 911 (stating we only need to find grounds to terminate parental rights under one of the sections cited by the juvenile court in order to affirm).
IV. Best Interests.
The court has discretion to deny the State's requested termination of parental rights if circumstances indicate that termination is not in the children's best interests. In re A.L., 492 N.W.2d 198, 202 (Iowa Ct.App. 1992). A close relationship between parent and child is an example of a circumstance warranting such restraint. Iowa Code § 232.116(3)(c). However, this circumstance is only one of many factors considered and is not controlling. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). The primary interest in termination proceedings is the best interests of the children. Iowa R.App.P. 6.14(6)( o); In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). In determining the best interests of the children, we look to the children's long-range and immediate interests. In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001). "Insight for the determination of the child's long-range best interests can be gleaned from `evidence of the parent's past performance for that performance may be indicative of the quality of the future care that parent is capable of providing.'" In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (citing In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981)).
The long-range and immediate interests of all three children are best served by their permanent placement in an adoptive home. Esther's past parenting and failure to cooperate with services intended to accomplish reunification present a continuing risk of the adjudicatory harm necessitating the children's removal in the first instance. Furthermore, the record does not support Esther's claim that she has a close relationship with the children. We conclude that the best interests of the children are served by terminating rather than preserving Esther's parental rights.
V. Relative Placement.
Esther argues that termination of her parental rights to A.F. and A.C. is unnecessary because they are currently placed with relatives. We disagree.
The best interests of children are advanced by termination if the grounds for terminating parental rights have been established. In re L.M.F., 490 N.W.2d 66, 68 (Iowa Ct.App. 1992). The determination to terminate a parent-child relationship is not to be countermanded by the ability and willingness of a family member to take the child. In re C.L.C., 558 N.W.2d 170, 174 (Iowa 1997).
The department, citing the children's needs for permanent placement, has recommended A.F. and A.C. be placed for adoption. The record indicates the relatives with whom A.F. and A.C. are placed are the intended adoptive home for both. Because this circumstance effectively eliminates the availability of a relative placement or need for a guardianship, we decline to consider this option and affirm on this issue.
VI. Continuance.
Esther's final argument is that the juvenile court improperly denied her motion to continue the termination hearing. Esther's complete failure to cite any authority precludes our consideration of this issue. Iowa R.App.P. 6.14(1)( c).
We have carefully considered all of Esther's arguments and find they are controlled by the foregoing. The judgment of the juvenile court is affirmed.