Opinion
No. 3-359 / 03-0686.
Filed June 25, 2003.
Appeal from the Iowa District Court for Des Moines County, Mark Kruse, District Associate Judge.
Appellants challenge the juvenile court's refusal to appoint D.R. as guardian of the minor children upon termination of their parents' rights. TERMINATION AFFIRMED AND REMANDED WITH DIRECTIONS.
J. Bryan Schulte of Schulte, Hahn Swanson, Burlington, for appellant-mother.
Andrew Hoth of Hoth Law Offices, Burlington, guardian ad litem for minor children.
Patricia C. Kamath, Iowa City, for appellant-grandmother.
Alan N. Waples, Waples Law Office, Burlington, for appellee-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Patrick C. Jackson, County Attorney and Pamela Dettman, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
The juvenile court in a February 20, 2003, order terminated the parents' parental rights to Bradford, born in April of 1995, and Brooke, born in September of 1998. Rebecca, the birth mother of the children; Dena, their maternal grandmother and an intervener in the proceedings; and their guardian ad litem have filed petitions on appeal. Rebecca, Dena, and the children's guardian ad litem all challenge the juvenile court's refusal to appoint Dena as the children's guardian and to place them in her home. The State has only filed a Statement of Nonresponse, contending it defers to the record and termination order and stating the record supports the termination and any response would only serve to reiterate the facts of the case. The children's father agreed to termination in October of 2002. He did not appear at the termination hearing. His rights were terminated and he did not appeal. The record without further briefing is sufficient for us to address the issues raised. We affirm the termination order. We remand for an order reestablishing the guardianship in the grandmother.
The guardian ad litem characterizes this case as one where Rebecca used drugs, her husband and the children's father abused her, and Dena made attempts to intervene and correct the situation for her grandchildren. The record clearly supports this characterization. During the children's life they have been in and out of their parental home, but during the time away from their parents they have lived with Dena and her current husband. They were in Dena's care from June 19, 2000 to May 11, 2001. They were again placed in her care on June 13, 2001 and remained there until January of 2002. Both of the times above the children went back to their parents. They again were placed in Dena's care on March 8, 2002, and on May 30, 2002 their guardianship and custody was transferred to her. On September 12, 2002, the children were removed from Dena's custody following an incident when Rebecca and a boyfriend took the children and were involved in a car chase with the children in the car. As a part of that order the parents and grandparents were denied any visitation with the children. A termination petition was filed on January 9, 2003.
The juvenile court terminated both parents' rights finding as to Rebecca that her parental rights should be terminated under Iowa Code section 232.116(1)(f) (2003). There is no challenge to this finding, the only issue being whether Dena should be the children's guardian and custodian.
The children have not been well served by either parent. Bradley agreed to the termination and the record shows he was irresponsible and abusive to Rebecca and the children. He had custody of the children in 1999 when Rebecca sought treatment and made no effort to assist their mother with drug treatment. He did at a later date, when the children were placed in Rebecca's care, pay her child support. Rebecca loves her children and they love her. There is evidence that when she has her substance abuse problem under control, she is a good mother. Unfortunately, as the record clearly shows, Rebecca has become addicted to methamphetamine and has failed to show an ability to control her addiction. Though the children have never been shown to suffer physical harm while in her care because of her addiction, she is unable to meet their everyday needs. The grounds for termination of her parental rights are supported by clear and convincing evidence. There is clear and convincing evidence that supports the termination of both parents' parental rights and we affirm on that issue.
Whether the father agreed to termination so he would no longer be responsible for child support or for other reasons is not clear. There is evidence, however, that while the children were in his care and their mother was in treatment, he let the grandparents visit with the children only after they paid him fifty dollars.
We next address the issue of whether the guardianship of Dena should have been terminated. The guardian ad litem, who was appointed on September 13, 1999, and has had a more continuous relationship with the children than the numerous social workers involved with the case, while advocating for termination of the parents rights, strongly recommended that Dena remain the children's guardian. He told the juvenile court he felt it better for the children to be placed with the grandmother and her husband than in a foster home. He contended that Dena has provided a nurturing home and environment for the children, provided for their schooling, their counseling, their medical needs, and their financial needs. It was his opinion that what was most compelling about the testimony at the termination hearing was that a placement with Dena can be successful and it was, in his opinion, what was in the children's best interests. He continues to argue for that placement on appeal. Dena makes a plea for the children, and Rebecca contends they should be with her mother.
It is significant that these children have fared well despite their parents' numerous problems. A Social Worker II with the Department of Human Services was to testify at the termination hearing as follows:
These children are not problematic kids. I think these kids could be parented by any family. They are very adoptable. They are not behavior problems. We don't have any services set up for them at this time. There is no service needs been identified. They do very well where they are at, and I think they would do very well with anybody they are with.
A March 25, 2002 report by a family based counselor who made inquiry, related that Bradley was given a glowing report by his current teacher. He had a picture he drew selected by a television station to be shown on a news report. He was one of the top readers in his class and has lots of friends.
The family based counselor was to further report "his [Bradley's] grandparents, [Dena and her husband] are a stable force in his life and he spends a lot of time with them. Grandma takes him to school every day and Grandpa picks him up."
In removing the children from Dena's care and sending them to a foster home, the juvenile court refused Dena any contact at all with the children including visitation and any cards or letters. She has respected this order and has not made contact with the children. She did write a letter to the editor of the local paper which was published in February of 2003, criticizing the Department of Human Services, contending the children had come to live with her and her husband full time three years earlier, and the children were removed from their care in August of 2002. She questioned the Department's decision to take the children away from their extended family, not allowing her to send presents, and forcing her to miss celebrating holidays with the children. She further criticized the Department's decision to change her granddaughter's preschool and the children's doctors. She indicated she felt stability was important in a child's life, that the State could save money if the children were left with family members, and that they were not the only grandparents experiencing the same problem. Dena argues that the fact she wrote this letter was detrimental to her case. There is no evidence to support such a finding and we do not consider the letter in our determination.
The reasons for the removal focused on (1) Dena leaving the children with Rebecca; (2) Dena bailing Rebecca's boyfriends out of jail and ultimately admitting it after she initially had denied it.
Dena has walked a tightrope between concern for her addicted daughter's needs and addiction and the needs of her grandchildren. She took her daughter to treatment and actively participated in her treatment plans. She has been available to her daughter and grandchildren and has sheltered the children from the severe problems of their biological parents. Dena was told Rebecca was only to have supervised visitation with the children and she was to supervise the visits. The State contends that she did not responsibly assume this task. There is evidence Bradley reported that he stayed with his mother during the time that Dena was to be supervising visits. Dena and Rebecca and Dena's husband denied under oath in testimony that this happened. They contend Bradley was confused about dates, having moved back and forth between the two homes, and note that his statements that apparently contradicted their testimony were not sworn to but came in through reports.
Not disputed is the fact Dena left the children with their mother after the grandparents and the children and their mother returned to the grandparents' home following a family picnic. Dena arrived home to learn her sister was in critical condition at an Iowa City hospital and not expected to live. She needed to go to Iowa City and her husband needed to take her. Rebecca was alone with the children in the home, but another responsible daughter was to arrive home shortly. The daughter was delayed and Rebecca and an irresponsible boyfriend took the two children and ultimately were involved in a high speed chase, putting the children in serious danger. We recognize that Dena would have been under great emotional stress at that time, but it does not minimize the seriousness of this event. However, we cannot look at this event in isolation, but must consider it together with other evidence of Dena's care of the children, as well as evidence of what she offers the children in the future.
At the time of their removal the children had lived with Dena a substantial portion of their lives, and she had provided housing, discipline, and financial support. The children love her. Dena and the children have substantial bonds. A review of the record would convince us to agree with the guardian ad litem that she can give these children a good future. The strongest argument supporting a finding Dena has been an adequate care giver is the children themselves. Despite the problems their parents have experienced, the children do not suffer the problem typical of children who have parental rights terminated. The family counselor attributed this to the grandparents' involvement. We would have to agree with this assessment. The guardianship should be reinstated and the children should be placed in Dena's custody. We affirm the termination and remand to the juvenile court for an order reinstating Dena's guardianship.