Opinion
No. 2-716 / 02-1150
Filed September 11, 2002
Appeal from the Iowa District Court for Polk County, Karla Fultz, Judge.
Mother appeals an order terminating her parental rights to three children. AFFIRMED.
Bryan J. Tingle, Des Moines, for appellant.
David Pargulski, Des Moines, for father R.L.
Karen Taylor, Des Moines, for father J.K.
Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Steve Bayens, Assistant County Attorney, for appellee-State.
Kim Ayotte, Des Moines, for minor children.
Considered by Huitink, P.J., and Miller and Hecht, JJ.
Kim appeals the termination of her parental rights to her children, A.L., K.L., and C.K., who are seven, five, and three years of age respectively. We affirm.
Kim has given birth to seven children. Eighteen-year-old S.W. and twelve-year-old J.W. were born to Kim and her then husband. Their marriage was dissolved ten years ago. S.W. resides with her father. J.W. had lived with Kim, was adjudicated a child in need of assistance (CINA) in late 2000, and has been placed in the custody of his father.
A.L. and K.L. were fathered by R.L., who has a substantial criminal history, has a substance abuse problem, and has been incarcerated. C.K. was fathered by J.K., who also has a substantial criminal history, a substance abuse problem, and a record of incarceration.
Kim's youngest two children are K.W., two years of age, and H.W., two and one-half months of age. K.W.'s father is the same person as C.K.'s father. H.W.'s father is R.J., who has a substantial criminal history and has been incarcerated. Kim's parental rights to K.W. have been terminated. H.W. has been placed in foster care, with her maternal grandmother.
The Iowa Department of Human Services (DHS) became involved with Kim in June 2000 due to concerns about her children. Services were provided from June to July, but then discontinued because it was felt maximum benefits had been achieved. Services were re-instituted in August 2000. Kim was overwhelmed by her responsibilities and was depressed. Numerous services by various providers have thereafter been offered and available to Kim.
The three children in interest, the middle three of Kim's seven children, came to the attention of the juvenile court in October 2000 when their younger sibling, K.W., then about five months of age, was removed from Kim's care after being diagnosed with a severe case of failure to thrive. It was felt that K.W.'s failure to thrive was a result of Kim's substance abuse and chaotic lifestyle. The three children, together with their older sibling, J.W., were adjudicated CINA in December 2000 under Iowa Code sections 232.2(6)(b) (parent has physically abused or neglected child or is imminently likely to do so) and (c)(2) (parent's failure to exercise care in supervising child) (1999). The three children in interest were removed from Kim's care in January 2001 based on allegations of physical abuse, chronic head lice, and Kim not having stable housing. They have thereafter remained in placement with their maternal grandmother, with whom their younger sibling, H.W., also resides.
As noted by the juvenile court, Kim has struggled with many issues that have presented significant obstacles to her ability to provide a safe and stable home to her children. The issues include a lack of insight regarding the dramatic impact of her personal choices on the children, substance abuse, a lack of stable housing, an unwillingness or inability to secure and maintain employment, and deficiencies in parenting skills. She has associated with and maintained relationships with men prone to violence, substance abuse, and criminal activity, not only after the juvenile court and DHS have been involved, but even after the three children in interest were removed from her custody. She suffers from long-term depression. She has a history of substance abuse. As a result of using methamphetamine in July 2001 she was required to periodically provide urine samples for drug testing. On several occasions she has failed to do so. On numerous other occasions she has appeared as required but only provided a sample that was of inadequate volume for testing.
Kim lost her home in December 2000 and has thereafter been without a home for herself and her children. She has been provided substantial information about housing available to low-income persons and has been referred to various agencies to secure housing. She was given a voucher for low-rent housing, but chose not to use it. At the time of the termination hearing she lived with an aunt and was apparently taking no steps toward acquiring housing of her own.
Employment has been and remains an issue. Kim was without any employment from August 2001 until shortly before the April 2002 termination hearing. She and her aunt then secured some work cleaning newly constructed homes. They had cleaned only one, about three weeks before the termination hearing. As a result of that work Kim was tired and felt overwhelmed, just as had occurred when she was last employed many months earlier. Kim testified she had secured employment as a laborer with a plastering company. She had not begun that work, however.
Throughout DHS and juvenile court involvement Kim has been offered numerous services through various providers. They have included services designed to provide her with adequate parenting skills. She was resistive to many of the services from the time the children were removed in January 2001 until about the time the termination proceeding was filed in February 2002. She has had regular visitation with the children in her mother and stepfather's home. Until early 2002 she was, however, content to allow her mother and stepfather to provide most all of the necessary care and discipline rather than doing so herself. During the time between the filing of the termination petition in February 2002 and the April 15, 2002 hearing Kim did take a somewhat more active role in the children's care during her extended, almost daily, visits.
The juvenile court terminated Kim's parental rights under Iowa Code sections 232.116(1)(c), (e), and (g) (2001). Our scope and standards of review are well established.
These provisions have been redesignated as sections 232.116(1)(d), (f), and (h) (Supp. 2001) respectively.
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).
Where the district court terminates parental rights on more than one statutory ground, we only need to find grounds to terminate under one of the statutory provisions to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996). On our de novo review we find clear and convincing evidence supports termination of Kim's parental rights under section 232.116(1)(e) (as to A.L. and K.L.) and section 232.116(1)(g) (as to C.K.).
Kim challenges only the fourth element of sections 232.116(1)(e) and (g), the existence of clear and convincing evidence that the children cannot be returned to her custody at the present time because if returned they would be subject to such harm or risk that they would continue to be children in need of assistance. Until shortly before the termination proceeding Kim continued association and relationship with men who were prone to violence, substance abuse, and criminal activity. She had a long-standing substance abuse problem and had not demonstrated that she had adequately dealt with it after more than one and one-half years of DHS and juvenile court involvement. She lacked housing, and was taking no significant steps toward acquiring it. Her employment status was very questionable, and she became extremely tired and overwhelmed when she did work, even though she had no direct responsibility for her children at the time. She had in the past been unable to independently provide necessary, ongoing care for the children. She had not demonstrated an ability to do so without again becoming overwhelmed by responsibility. In her testimony she frankly and honestly acknowledged that she was unable to assume the care and custody of the children. We conclude, as the juvenile court did, that the children cannot be returned to her custody at the present time without being subjected to further adjudicatory harm.
Even if statutory requirements for termination are met, the decision to terminate must still be in the children's best interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Kim claims termination was not in the children's best interest.
Although the children are bonded to their mother, they are also bonded to their maternal grandparents with whom they had been living for about fifteen months at the time of the termination hearing. The evidence indicates they are doing very well in the grandparents' custody, and were doing well even before Kim's recent, more active involvement in their lives. The grandparents are interested in adopting the children, and such adoption appears to be a likely possibility. It appears highly unlikely that Kim will be able to, or will in fact, within the reasonably foreseeable future secure housing, maintain employment, and be able to take custody of the children without again becoming physically and emotionally overwhelmed. We conclude, as the juvenile court did, that termination of Kim's parental rights is in the children's best interest. Termination is in their best interest so they can acquire the security, stability, and permanence they deserve and otherwise will not have.
Kim claims the juvenile court erred in terminating her parental rights because the children were in the custody of a relative (section 232.116(3)(a)), and because of the closeness of the parent-child relationship (section 232.116(3)(c)).
The juvenile court did not address the issue of whether termination should not occur because a relative had legal custody or because of the closeness of the parent-child bond, and Kim did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). "Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal." Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). "It is well settled that a rule 179(b) [now rule 1.904(2)] motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication." State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206-07 (Iowa 1984) (citations omitted). The rule has been held to apply to termination proceedings. See In re A.R., 316 N.W.2d 887, 889 (Iowa 1982); In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). We find that by not filing a rule 1.904(2) motion in the juvenile court Kim has not preserved error on these issues. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding, in child in need of assistance proceeding, that constitutional and statutory challenges were waived by failing to file a rule 179(b) motion).
Upon our de novo review we find clear and convincing evidence shows that the children cannot be returned to Kim's care at the present time without suffering further adjudicatory harm and that termination is in the children's best interest.
AFFIRMED.