Opinion
No. 1-988 / 01-1172
Filed April 10, 2002
Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, District Associate Judge.
Parents appeal the juvenile court's order terminating their parental rights. AFFIRMED.
Richard Phelps II, Mingo, for appellant-mother.
Kathryn Walker of Walker, Knopf Billingsley, Newton, for appellant-father.
Thomas J. Miller, Attorney General, and Kathrine Miller-Todd, Assistant Attorney General, for appellee-State.
Steven J. Holwerda of Selby, Updegraff, Smith Holwerda, Newton, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Gene and Reta appeal the juvenile court's order terminating their parental rights. We affirm.
I. Factual Background and Proceedings.
Gene and Reta are the parents of T.S., a son born May 20, 1993, A.S., a son born May 22, 1995, and C.S., a daughter born October 20, 1997. The juvenile court adjudicated the children in need of assistance on December 9, 1998 because of a history of physical abuse by the parents. The court placed custody of the children with Reta and allowed Gene supervised visitation.
The State requested the children be removed from Reta's custody in October of 1999. Despite reasonable efforts of the State to avoid removal and the help of her boyfriend, Frank, the court concluded Reta was incapable of raising the children. The court found the children had set fire to their living room, defecated and urinated in their bedroom, and were generally out of control. The children were removed from Reta's custody and placed in family foster care.
In January of 2000 representatives of the Department of Human Services recommended Reta's visitation be supervised because she allegedly incited the children to misbehave during Gene's visitation. T.S. and his sister C.S. were placed in a special needs family foster home. After A.S. was placed in the same home in April of 2000, the children began sexually acting out. When found naked in bed together, the boys reported they were "placing their penises in each other's bottoms" and that they learned how to do this from Reta's boyfriend. When he was hospitalized in May of 2000, T.S. was diagnosed with posttraumatic stress disorder, oppositional defiant disorder, and ADHD.
On November 3, 2000, the court held a visitation review hearing. By this time, all of the children had been diagnosed with oppositional defiant disorder. Although both parents claimed they had made parenting progress and requested unsupervised visitation, social workers for the family opined the parents and children were not ready for unsupervised visitation. The court agreed and ordered supervised visitation should continue.
A permanency hearing was held on January 5, 2001. The court found Gene and Reta had failed to make substantial progress in their ability to raise and parent the children. By this time, the family had received individual counseling, psychiatric care for the children, assistance of case aides for transportation, and extensive parenting advice and training. The court concluded the parents were unable to control the children even during short visits despite extensive services provided by the State. The court ordered cessation of visitations and directed the State to file a petition to terminate the parental rights of Gene and Reta.
The termination hearing was held on May 17 and 18, 2001. On July 11, 2001, the court ordered termination of the parental rights of Gene and Reta. Both parents appeal, contending (1) the State failed to employ reasonable efforts to reunify the family and (2) the evidence is insufficient to support termination of their rights. In addition, Reta contends (1) her right to due process was violated in the termination proceeding by the juvenile court's consideration of evidence presented in a prior permanency hearing and (2) public policy considerations oppose the termination of her rights.
II. Scope and Standards of Review.
The standard of review in termination cases is de novo. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct.App. 1998). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). Our primary concern is the best interest of the child; we look to both the child's long-range and immediate interests. In re M.T., 613 N.W.2d 690, 691 (Iowa Ct.App. 2000).
III. Reasonable Efforts.
The children were removed from the custody of Reta and placed in foster care in November of 1999. Visitations ceased after the permanency hearing held on January 5, 2001. Gene and Reta contend their visitations with the children after removal should have been longer and unsupervised.
DHS must make reasonable efforts to provide services to eliminate the need for removal. In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994). The reasonable efforts concept broadly includes a visitation arrangement designed to facilitate reunification while protecting the children from the harm responsible for the removal. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). The nature and extent of visitation is controlled by the best interests of the child. Id. This standard may justify limited parental visitation. In re C.G., 444 N.W.2d 518, 520 (Iowa Ct.App. 1989).
Upon our de novo review of the record, we conclude the supervised visitation provided to Gene and Reta was reasonable. Notwithstanding extensive services provided to them prior to the permanency hearing, neither Gene nor Reta developed minimally sufficient parenting skills required to justify unsupervised visitation of their three special needs children. Accordingly, we affirm on this issue.
IV. Best Interests of the Children.
Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interests of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). We consider what the future likely holds for the child if he or she is returned to his or her parents. In re T.T., 541 N.W.2d 552, 555 (Iowa Ct.App. 1995). Insight for that determination is to be gained from evidence of the parents' past performance, for that performance may be indicative of the quality of future care that the parent is capable of providing. Id.
We conclude termination is in the best interest of the three children. They present special parenting challenges because of their severe emotional and behavioral problems. We find no credible evidence in the record tending to prove that Gene or Reta will be able to parent and safely supervise the children in the foreseeable future. Accordingly, we affirm on this issue.
V. Reta's Due Process Rights.
Issues not raised in the trial court are not preserved for our review. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). This rule includes constitutional issues. In re C.D., 508 N.W.2d 97, 100 (Iowa Ct.App. 1993). Reta did not claim in the juvenile court that her due process rights were violated when evidence presented at the permanency hearing was considered in support of the State's termination claim. She could have, but did not, raise the issue in a motion filed pursuant to Iowa Rule of Civil Procedure 1.904(2). Accordingly, the issue was not preserved for our review and we do not decide it.
Formerly rule 179(b).
VI. Public Policy Considerations.
Reta contends public policy precludes termination of her parental rights because of (1) the societal interest in maintaining the integrity of the family unit and (2) her complete cooperation with the directives of the juvenile court and the Department of Human Services. We acknowledge the importance of the policy interests asserted by Reta; however, there are competing public policy interests that justify the termination of her parental rights in this case.
"While we recognize the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,' Iowa has built this patience into the statutory scheme of Iowa Code chapter 232." In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). The time period allowed for parents to remedy their shortcomings is "limited because patience on behalf of the parent can quickly translate into intolerable hardship for the children." In re R.J., 436 N.W.2d 630, 636 (Iowa 1989). We conclude, under the circumstances of this case, the point has been reached at which the rights and needs of the children rise above the rights and needs of the parents. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). Accordingly, we affirm on this issue.
AFFIRMED.