Opinion
No. 3-267 / 03-0340.
Filed April 30, 2003.
Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.
The parents appeal the termination of their parental rights. AFFIRMED.
John S. Moeller of O'Brien, Galvin Moeller, Sioux City, for appellant Mother.
Robert L. Sikma, Sioux City, for appellant Father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas Mullin, County Attorney, and Marleen Loftus, Assistant County Attorney, for appellee-State.
Michelle M. Dreibelbis of the Juvenile Law Center, Sioux City, guardian ad litem for minor children.
Considered by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
A mother and father appeal the termination of their parental rights to their four children. We affirm.
I. Background Facts and Proceedings
Tamara and Robert are the divorced parents of Austin, born in 1995, Tomie, born in 1996, Justise, born in 1997, and Samie, born in 1998. Both parents abused drugs. In 1999, the children were removed following allegations that the parents were failing to properly supervise them.
There was also an allegation that Robert sexually abused Tomie, but the Department of Human Services conceded it had uncovered no medical or testimonial evidence to support this allegation.
The children were adjudicated in need of assistance and were ultimately placed with their maternal aunt and uncle in Nebraska, where they remained for approximately two and a half years. The district court terminated Tamara's parental rights pursuant to Iowa Code section 232.116(1)(f) (2001 Supp.) (child four years or older cannot be returned to the home) and Robert's parental rights pursuant to sections 232.116(1)(f) and (d) (physical abuse or neglect and circumstances continue despite the receipt of services). This appeal followed.
II. Sufficiency of the Evidence
Both parents challenge the sufficiency of the evidence supporting termination. We will focus on section 232.116(1)(f). See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999) ("When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm.").
The key question under section 232.116(1)(f) is whether the children could be returned to the home of either parent. On our de novo review, we find clear and convincing evidence that they could not.
The children's primary individual therapist noted that the parents had not progressed beyond supervised visitation at the time of the termination hearing. Although she stated she did not have adequate information to determine whether the children could be returned to the parents in the near term, she noted the children had "a lot of anxiety about being taken away from" their aunt and uncle. She further opined that she would expect to see "increased aggressiveness" and "lots of behavior problems" if they were removed from their current location. When asked what the effect would be of giving the parents additional time to work toward reunification, she stated,
"[t]he longer time we keep these children's anxiety up and they have the feelings that they have no idea where they're going to be living, it's just going to cause more psychological damage, a lack of trust in their future, self-esteem issues, aggressive behavior and all of that through time.
A therapist who performed a bonding assessment opined that she had "many concerns about Tamara's ability to parent four active children each with problems." She recommended the children stay with their maternal aunt and uncle, noting that they were the only ones to demonstrate stability and consistency.
Another psychotherapist recommended against reunification with Robert, opining that his own physical and emotional needs would prevent him from caring for the children by himself.
We recognize that the parents made significant strides in meeting Department goals. The Department's case manager acknowledged, for example, that 1) Robert was unemployed not because he wanted to be but because his doctor had advised him not to work; 2) his housekeeping skills were "appropriate," 3) he had been sober for so long that she had discontinued his obligation to submit urine samples; and 4) he had taken parenting classes and was familiar with special needs children. Similarly, the case manager conceded that Tamara had obtained a home and job and had not relapsed into drug use. Nevertheless, the record reflects that neither parent demonstrated the ability to parent all four children on a regular basis. Notably, one psychotherapist who recommended against termination of Tamara's parental rights conceded Tamara's progress toward Department goals was initially slow and did not show significant improvement until more than two years after the children were removed.
As our highest court has stated, "once the limitations period lapses, termination proceedings must be viewed with a sense of urgency." In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). The district court afforded the parents substantial additional time beyond the statutorily prescribed removal period. While the parents made positive use of this additional time, their progress was "simply too late." Id. We conclude the termination requirements of Iowa Code section 232.116(1)(f) were satisfied.
In reaching this conclusion, we do not minimize the concerns expressed by one psychotherapist with what she characterized as the foster parents' manipulative behavior. We also are troubled by evidence that the foster mother may have slapped Tomie or held her by the cheeks on one occasion. The record indicates, however, that the Department and its sister agency in Nebraska followed up on these concerns and determined the children would be safe in the care of Tamara's aunt and uncle.
III. Best Interests
Iowa Code section 232.116(3)(a) vests a court with discretion to deny a termination petition if a relative has legal custody of the child. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1981). Relying on this provision, both parents argue the district court should not have terminated their parental rights.
We are not persuaded that the court abused its discretion in declining to apply this provision. The children were removed from the parents in 1999. More than three years elapsed from removal to termination. During that time, the court noted that the children had "developed a bond with their aunt and uncle." The court further stated:
It would not serve these children's best interests to remove them and upset this bond. It would, in fact, be contrary to their welfare to return them to the care and supervision of one of their parents as they would likely suffer the harmful effects of Children in Need of Assistance, including serious emotional or physical harm.
We decline to disturb this aspect of the court's ruling.
IV. Admission of Evidence
A. Bonding Assessment. The parents argue that a bonding assessment should not have been admitted because it lacked sufficient indicia of reliability. Our court has stated that
evidence, which under ordinary rules of evidence applicable to a civil trial would be excluded as hearsay, lacking a proper foundation, improper opinion evidence, or not the best evidence, is admissible in [termination] proceedings and the nature of the evidence is to be considered as it affects its probative value rather than its admissibility."In re H.R.K., 433 N.W.2d 46, 48 (Iowa Ct.App. 1998). In light of this precept, we decline to overturn the district court's admission of the bonding assessment.
B. Psychological Evaluations. Tamara also contends the court should not have admitted two psychological reports to which she objected on hearsay grounds. We find the reports were admissible. Id.
V. Disposition
We affirm the district court's termination of Tamara's and Robert's parental rights to Austin, Tomie, Justise, and Samie.