Opinion
No. 3-915 / 03-1717.
Filed December 10, 2003.
Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.
A mother and a father each appeal a juvenile court order terminating their parental rights to one child. AFFIRMED.
Judith A. Amsler, Cedar Rapids, for appellant-mother.
Richard Pazdernik, Jr., Cedar Rapids, for appellant-father.
Thomas J. Miller, Attorney General, Katherine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Rebecca Belcher, Assistant County Attorney, for appellee-State.
H. Nick Gloe, Cedar Rapids, guardian ad iltem for minor child.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
April is the mother, and Royce the father, of Cherokee, born August 29, 2002. Both parents' parental rights were terminated October 8, 2003. Both appeal. We affirm.
Royce was in jail pending theft and assault charges when Cherokee was born, but was apparently released from jail shortly after her birth. On September 25, 2002, Cherokee was removed from her parents' care. They had not properly or timely attended to certain of her medical problems, including oral thrush and a resulting severe case of bleeding diaper rash. Cherokee had other significant hygiene problems as well. April was not cooperating with service providers. The juvenile court adjudicated Cherokee a child in need of assistance (CINA) on October 16, 2002, and confirmed her continued removal from her parental home. The order provided that pending a dispositional hearing Cherokee could be returned to her parents if certain conditions were met.
Cherokee was returned to her parents on October 31, 2002. A physician had expressed concerns about her health, including concerns that smoking in the home would be harmful to her and that due to her low weight she could not tolerate any weight loss. Royce and April were made aware of those concerns. They agreed not to smoke in the home.
The juvenile court again removed Cherokee on November 15, 2002, after she lost eight ounces of weight between November 5 and November 14. Numerous uncorrected problems with safety and cleanliness continued to exist in Royce and April's residence. Royce and April apparently continued to allow Cherokee to be exposed to smoke. The order placed Cherokee in the custody of the Department of Human Services (DHS) for foster care or relative placement. A January 2, 2003 dispositional order continued her in DHS custody for placement in foster family care. She has been in foster family care since on or about November 15, 2002.
On October 8, 2003, the juvenile court terminated April's parental rights pursuant to Iowa Code section 232.116(1)(g) (2003), and terminated both April's and Royce's parental rights pursuant to section 232.116(1)(h).
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).
Each parent claims the State did not prove that Cherokee could not be returned to that parent's care. These claims implicate the fourth and final element of section 232.116(1)(h), pursuant to which the State must prove that "the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time." A child cannot be returned to a parent's custody within the meaning of section 232.102 if the child would be placed in danger of physical abuse or some other harm which would justify the adjudication of the child as a CINA. Iowa Code § 232.102(5)(a). The threat of a CINA harm will warrant continuance of the child in foster care and justify termination of parental rights under section 232.116(1)(h) (formerly section 232.116(1)(g)). In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). The threat of harm need not be that which led to the child's initial out-of-the-home placement. Id.
April's parental rights to two other children had earlier been terminated after extensive and extended services to her and lengthy juvenile court involvement. That case had involved three founded abuse reports based on denial of critical care. Concerns included April's inability or unwillingness to properly feed and bathe the children. Royce's parental rights to one child had earlier been voluntarily terminated after services had been provided to him. The case plan in this case involving Cherokee required April and Royce to cooperate with services, obtain and maintain suitable housing, secure psychological and psychiatric evaluations and any appropriate treatment, and secure substance abuse evaluations and any appropriate treatment. In addition they were expected to avoid criminal activity and Royce was expected to obtain and maintain employment.
April has been diagnosed as suffering from major depressive disorder and an adjustment disorder, as well has having borderline intelligence with an IQ of 75. She has a learning disability. All affect her ability to parent. Royce has a learning disability. It may well affect his ability to parent.
Despite almost a year of services April and Royce have not obtained, much less maintained, suitable housing. They have lived in four different residences, always with family members. Some of those family members have criminal histories. April and Royce continue to allow visitors in their home to smoke, and residents of the homes have smoked as well. At the time of the termination hearing they lived with Royce's aunt and others. The aunt had an intermittent relationship with a sexual abuse perpetrator. The home was not an appropriate residence for Cherokee.
April has secured required evaluations. She has, however, attended only some of the mental health counseling sessions that are recommended. Royce has not secured required psychological and psychiatric evaluations, and has not secured a required substance abuse evaluation.
Royce has an extensive criminal history, including convictions for numerous driver's license and traffic offenses, possession of a controlled substance, burglaries, an assault, a domestic abuse assault, and a theft. Shortly before the termination hearing he was convicted of possession of drug paraphernalia.
A family therapist who worked with April and Royce made efforts to help Royce get a job, but Royce did not follow through. His employment in recent years has been sporadic and part-time. He testified he had secured a full-time job in Oelwein and he and April hoped to move there and live with a cousin. However, he did not know the name of his employer. He also was unaware of a starting date, testifying he would start, "hopefully, Monday." Any employment that he had in fact secured was secured only as a result of a threat that his current probation would be revoked if he did not get a job. The cousin with whom April and Royce intended to live was a person they had lived with the second time Cherokee was removed. The cousin smoked. The cousin had been investigated by the DHS. April and Royce acknowledged that the cousin's residence would not be an appropriate place for Cherokee.
April has been offered or received extensive services, both in connection with the cases involving her other two children and the cases involving Cherokee. As testified to by the family's DHS case manager, those services include: Linn County Home Health Services, Abbe Center (mental health counseling), Cedar Centre (mental health counseling), Madge Phillips Center, family-centered services through three different agencies, family preservation services, financial assistance through the DHS, Partnership for Growth, Visiting Nurse Association, and YPN services (Young Parents Network). Royce has been offered or received most of the same services, and in addition has received adult probation supervision and job seeking assistance. Despite such services and the fact neither has had employment, in the four months immediately preceding the termination hearing April missed about one-third of scheduled parenting classes and one-third of scheduled visits with Cherokee, and Royce missed about three-fourths of scheduled parenting classes and one-half of scheduled visits with Cherokee. Both believe they are capable parents and do not need parenting instruction.
Service providers testified that April and Royce do not understand Cherokee's development, they had made very little progress in acquiring necessary parenting skills, their follow through to suggested parenting changes was minimal, and they had great difficulty in retaining basic information. As an example of inability to retain basic information, service providers went over a "basic needs chapter" with April and Royce nine times but they retained less than twenty-five percent of the information presented. Concerns remained not only that April and Royce were unable to appropriately feed Cherokee, provide appropriate hygiene for her, and provide a physically safe home for her, but also that they were unable to provide stable housing, would continue to expose her to smoke and to inappropriate persons, and that Royce did not yet have stable employment. In the opinions of the service providers April and Royce's visits with Cherokee had not improved to the point where they could be unsupervised, and there was no prospect Cherokee could be returned home in the near future. They opined that April and Royce, by reason of their inability to retain even basic information, would have great difficulty caring for a child for more than a few hours on a regular basis. The juvenile court found that,
given the parents' continued inability to find suitable, safe housing, their failure to keep Cherokee properly fed when returned to their care and each parent's choices to miss visitation and other parenting and counseling sessions, the State has established that Cherokee would not only be at risk to suffer harmful effects from both parents' inability or unwillingness to provide proper supervision, but also be at risk from her parents' failure to follow through with providing her food, clothing, or shelter.
We fully agree with this finding and adopt it as our own. We note further that Cherokee would also be at risk by reason of, among other things, April and Royce's inability or unwillingness to prevent her from being exposed to harmful smoke and relatives and acquaintances with substantial, serious criminal records.
We conclude, as the juvenile court did, that the State proved Cherokee could not be returned to the custody of her parents without being subject to harm which would justify her adjudication as a CINA, the challenged element of section 232.116(1)(h). Having found the State proved the grounds for termination under this statutory provision, we need not determine whether the State also proved the grounds for termination of April's parental rights under section 232.116(1)(g). See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (holding that we only need to find grounds to terminate under one of the statutory provisions relied on by the district court in order to affirm).
April claims the DHS thwarted reunification efforts and Royce claims the State did not prove reasonable efforts had been made to reunify the family. April asserts the services were not tailored toward reunification, the parties are entitled to more than cursory services, and despite awareness of the parents' disabilities the DHS "took no additional steps" to assist the parents in reunification efforts.
We have above listed some of the numerous and extensive services that were provided to April and Royce, and have noted that they each received services not only in this case but in earlier similar cases. Because of April's and Royce's special needs the family therapist changed the treatment plan by utilizing the Nurturing Program for Parents with Special Needs. That program uses more pictures and more concise explanations of concepts. The therapist also modeled using dolls, had April and Royce model using dolls, rewrote other materials in April and Royce's own words, and used repetition. We find the complaints concerning inadequacy of services and lack of reasonable efforts to be entirely without merit.
Royce asserts that the parents requested involvement of an aunt as a possible relative caretaker, and the parents did not have their home adequately considered as a safe placement for Cherokee. Royce's aunt and her husband sought to intervene in the CINA and termination proceedings. However, their motion to intervene was denied, neither they nor April or Royce appealed from the denial, and they are not parties to the present appeal. At the termination hearing April testified that if parental rights were terminated she would like Cherokee to go with the aunt. After ordering termination the juvenile court ordered custody and guardianship of Cherokee placed with the DHS for pre-adoptive foster family placement. If, as we decide in this opinion, termination is otherwise proper, we seriously doubt that April or Royce has standing to assert error concerning the guardianship and custody of Cherokee. The termination of their parental rights divests them of all privileges, duties, and powers with respect to Cherokee. Iowa Code § 232.2(56). Under such circumstances they cannot have been prejudiced or aggrieved by that part of the juvenile court order concerning post-termination placement. See, e.g., In re K.A., 516 N.W.2d 35, 36, 38 (Iowa Ct.App. 1994) (affirming juvenile court decision that parent whose parental rights had been terminated had no standing to challenge placement); In re C.L.C., 479 N.W.2d 340, 345 (Iowa Ct.App. 1991) (finding that complete difference between issue of termination and issue of guardianship and custody requires us to consider the determination of each as two separate proceedings). We nevertheless address the issue, as April also separately claims that the juvenile court erred in not placing Cherokee with the aunt and the aunt's husband.
The motion to intervene was not filed until Cherokee had been in foster care some seven and one-half months and the termination proceeding had been pending three months. Following termination there is no statutory preference for placement with a relative. In re R.J., 495 N.W.2d 114, 117 (Iowa Ct.App. 1992). The aunt and her husband had no relationship with Cherokee. We find no error in the juvenile court placing guardianship and custody with the DHS rather than the aunt.
As noted above, Royce asserts that the parents did not have their home adequately considered as a safe placement for Cherokee. The evidence shows, however, that April and Royce never secured or maintained stable housing; that some of the individuals they lived with, as well as visitors and perhaps themselves, smoked in the places in which they lived; that persons they lived with and their associates had substantial criminal records making the homes inappropriate for Cherokee; and that some if not all of the homes presented uncorrected dangers, such as smoke detectors without batteries, exposed electrical wiring, and other similar problems. In summary, none of their residences was a safe place for Cherokee. This claim of error is without merit.
April and Royce each claim termination is not in Cherokee's best interest. Even if statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interest the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In assessing best interests we look to the child's long-range as well as immediate interest. In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We consider what the future likely holds for the child if returned to the child's parents. Id. We gain insight for this determination from evidence of the parent's past performance, for it may be indicative of the quality of the future care the parent is capable of providing. Id. Temporary or even long-term foster care is not in a child's best interests. 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). April and Royce have been unable to properly and adequately parent Cherokee. Despite services in prior cases as well as this case they remain unable or unwilling to make the progress necessary to allow them to do so. We find it in Cherokee's best interest to terminate April's and Royce's parental rights in order to allow Cherokee the opportunity to achieve the stability, security, and permanency she needs and deserves.