Opinion
No. 3-263 / 03-0449.
Filed April 30, 2003.
Appeal from the Iowa District Court for Scott County, MICHAEL LIEBBE, Judge.
A mother appeals an order terminating her parental rights to one child. AFFIRMED.
Patrick Kelly, Bettendorf, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, William D. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellee-State.
James Joffman, Davenport, guardian ad litem for minor child.
Considered by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Alesha is the mother, and Eliado the father, of Antonio, born in September 2001. Both parents' parental rights were terminated February 24, 2003. Alesha appeals. She contends (1) there was insufficient evidence to support the juvenile court's conclusion that Antonio could not be safely returned to her care, and (2) there was insufficient evidence to support the juvenile court's conclusion that it was in Antonio's best interest to terminate her parental rights. Finding no merit to either contention, we affirm.
Alesha was fourteen years at Antonio's birth and fifteen at the time of termination. Eliado was seventeen at Antonio's birth and nineteen at the time of termination. Antonio was removed from their custody at about three months of age when diagnosed with a skull fracture of recent origin and two older rib fractures. At the time of the termination hearing and order he had been removed from the physical custody of his parents almost fourteen months.
Antonio was adjudicated a child in need of assistance April 4, 2002, pursuant to Iowa Code sections 232.2(6)(b) and 232.2(6)(c)(2) (2001). As stated by the juvenile court, the basis for the adjudication was
the inability, failure or refusal of the parents to provide appropriate care, supervision and safety for their child and further abuse or neglect of the child is imminent because both parents are young, immature, impulsive and hot-tempered and the child has suffered two injuries of unknown causation which were very serious and the parents' knowledge of and explanation for the cause is suspect because it is inconsistent with the serious nature of the injuries and the type of force or trauma which would have been necessary to cause the injury.
In early September 2002 Eliado was sentenced to a term of no more than ten years imprisonment as a result of Antonio's injuries.
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 proceeding 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).
From the outset of the child in need of assistance proceeding case permanency plans identified some of the areas of concern which Alesha had to deal with as lack of parenting skills, psychological or psychiatric problems, a substance abuse problem, lack of transportation for visitations with Antonio, and lack of stable housing. Court orders approving such plans required Alesha to complete a parenting class, receive a psychological/psychiatric assessment and comply with recommendations, and be evaluated and if recommended be treated for substance abuse. To her credit, Alesha did complete a parenting class. However, in many other areas that are crucial to her ability to have Antonio returned to her she has seriously failed or refused to comply with the case permanency plans and court orders.
Alesha underwent a mental health evaluation. She was diagnosed as suffering from depression. Medication was prescribed, as were individual counseling sessions with a mental health professional and periodic appointments with a psychiatrist. Although Alesha initially took the prescribed medication, she then stopped and has thereafter refused to do so. She has refused to attend individual counseling sessions and has refused to see a psychiatrist despite ongoing, severe problems as shown by a hospitalization for continuing depression and suicidal ideations and continuing to express an intent to kill herself if Antonio is not returned to her care. In the late summer of 2002 Alesha did eventually undergo a substance abuse evaluation. The evaluation recommended intensive outpatient treatment. Despite testing positive for marijuana use Alesha has failed and refused to attend required group therapy sessions and individual sessions with a substance abuse counselor.
Alesha never progressed beyond supervised visitation with Antonio. In fact, in August 2002 the length of her supervised visits was decreased due to her nearly wholesale lack of follow-through with case plan requirements. Her housing remained unstable and uncertain throughout the juvenile court proceedings. She had resided with her mother, with relatives. She had resided with a friend for a month. At the termination hearing she testified she intended to shortly move to Arkansas to live with her father.
Until Alesha addresses and to some extent resolves her mental health, substance abuse, and housing problems Antonio could not and cannot be safely returned to her care. She has not substantially addressed, and has not at all resolved, those problems. Clear and convincing evidence shows Antonio could not be safely returned to her care at the time of the termination hearing.
Even if statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interest of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 19994). At the time of the termination hearing Antonio had for some time been doing well in a foster-to-adopt home. He was almost seventeen months of age and had been removed from Alesha's care for almost fourteen months. Given Alesha's continuing refusal to address her mental health and substance abuse problems there was no possibility that he could be returned to her care within the reasonably foreseeable future.
Temporary or even long-term foster care is not in a child's best interests, especially when, as in this case, the child is adoptable. In re J.L.P., 449 N.W.2d 349, 353 (Iowa 1989). Long-term foster care is not preferred to termination of parental rights. In re R.L., 541 N.W.2d 900, 903 (Iowa Ct.App. 1995). We find it is in Antonio's best interest to terminate Alesha's parental rights in order to allow him to achieve the stability, security, and permanency he needs and deserves.