Opinion
No. 3-173 / 03-0217
Filed March 26, 2003
Appeal from the Iowa District Court for Woodbury County, Edward Jacobson, Judge.
M.V. appeals the termination of her parental rights to D.J.Q. and S.Q. AFFIRMED.
Rees Conrad Douglas, Sioux City, for appellant.
Joseph Flannery, LeMars, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Marleen Loftus, Assistant County Attorney, for appellee-State.
Lesley Rynell of Juvenile Law Center, Sioux City, for minor children.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Misty V. appeals the termination of her parental rights to her children, S.Q., age three, and D.Q., age one. The parental rights of the children's putative father and unknown John Doe were terminated and are not at issue here.
On November 20, 2000, S.Q. and D.Q. were adjudicated children in need of assistance pursuant to Iowa Code sections 232.2(b) (Supp. 1999) (parent has physically abused or neglected child or is imminently likely to do so), (c)(2) (child is likely to suffer harm due to parent's failure to exercise care in supervising child), and (n) (parent's mental capacity or condition or drug or alcohol abuse results in child not receiving adequate care). The permanency plan adopted at the dispositional hearing required Misty to comply with services from the Department of Human Services and the children were returned to her care. On August 23, 2001, the dispositional order was modified in an uncontested hearing. The relevant order provided:
Misty has done little towards completing her responsibilities or working towards reunification with the children. Since the children's most recent entry into foster care on April 6, 2001, Misty has undergone a couple chemical dependency evaluations, both of which recommended inpatient treatment. After the first evaluation, arrangements were made for Misty to enter the Synergy Center. Misty failed to show up for her scheduled admission. Following the second evaluation, arrangements were again made for her to enter an inpatient treatment program. Misty went into the Women Children's Program on August 8, 2001. She left this program the next day against medical advice.
. . . .
The children have made tremendous progress in their foster home.
On August 15, 2002, the State petitioned to terminate Misty's parental rights pursuant to Iowa Code sections 232.116(1)(d) (Supp. 2001) (CINA for physical or sexual abuse or neglect, circumstances continue despite receipt of services), (h) (child is three or younger, CINA, removed from home for six of last twelve months, and child cannot be returned home), (i) (child meets definition of CINA, child was in imminent danger, services would not correct conditions), and (l) (CINA, parent has substance abuse problem, child cannot be returned within a reasonable time).
The juvenile court's findings of fact and conclusions of law entered after the termination hearing include the following:
Subsequent to the child in need of assistance adjudication which occurred in this case on November 11, 2000, the parents and specifically [Misty] were offered services or received services to correct the circumstances which led to the adjudication and the circumstances which led to the adjudication continued to exist despite the offer of and receipt of a myriad of services. In this later regard the Court finds that although the biological mother has been offered virtually every service available to the Iowa Department of Human Services, the basic situation which led to the adjudication in the first place has not changed in any significant way. Although at times Misty has maintained periods of sobriety, she has done so almost exclusively at a time when she was under a rigid control system such as House of Mercy or other inpatient treatment facility and she has had significant difficulties even in those placements with making any type of progress in dealing with her issues regarding honesty, responsibility, impulsivity, high risk situations with males, relapses and decision-making skills. She demonstrated that fact all the way up to the final hearing on termination of parental rights despite knowing that the State was intending to terminate her rights and does not seem able to place the children's interests above her own or to make good decisions with regard to the children's welfare.
. . . .
There is clear and convincing evidence that the prognosis of [Misty] indicates that the child will not be able to be returned to her custody within a reasonable period of time considering the child's age and the need for a permanent home. Specifically, the Court finds that [Misty] cannot reside at the House of Mercy indefinitely, nor can she raise her children at the House of Mercy indefinitely. The Court finds based upon the evidence presented that there is virtually 100% likelihood that if [Misty] were to leave the House of Mercy at any time in the foreseeable future, she would relapse in a very short period of time, placing these children in the same situation they were in when the CINA petition was filed. The children deserve a permanent situation and an opportunity to be adopted into a loving environment free from physical abuse, drug abuse, psychological abuse, and other problems inherent with the type of life that [Misty] and [Eric] have chosen to live.
The Court finds that services which have been offered to both of the children's parents include the Mercy Hospital Adult Psychiatric Unit, the Women's and Children's Center in Des Moines, the Gordon Recovery Center, Protective Daycare, Women's and Children's Center, the Synergy Treatment Center, the Area Education Agency, foster care and Lutheran Social Services. Foster care has been required on two separate occasions, Gordon Recovery Center has been utilized to treat Mother on three separate occasions and the Women's and Children's Center has been utilized on three separate occasions. Despite the offer and/or receipt of these services, the circumstances which led to the children's adjudication continued to exist.
Based on these findings the juvenile court terminated Misty's parental rights, resulting in this appeal.
On appeal, Misty raises the following arguments:
(1) The lower court erred in determining that "reasonable efforts" had been made before terminating the mother's parental rights,
(2) The lower court erred in determining that "clear and convincing evidence" existed to warrant termination of parental rights, and
(3) The court erred in admitting the mother's mental health records as evidence at the termination hearing.
Our review in termination of parental rights cases is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. Iowa R.App.P. 6.14(6)( g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993).
I. Reasonable Efforts.
We assume without deciding that Misty has preserved error on this issue. The State's ultimate burden of proof requires the State to show that reasonable efforts were made to unify the child and parent. In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).
Misty's reasonable efforts argument is premised on the Department's refusal to offer her reasonable visitation with her children while they were in foster care. Visitation between a parent and a child placed in foster care is controlled by the best interests of the child. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996).
The Department's stated reason for limiting visitation was Misty's failure to adequately address her substance abuse issues and resulting risk to the children. The juvenile court specifically found:
While Misty complains about not being allowed visitations with the children, she could have had the children placed with her had she remained at the Women Children's Program in early August 2001. Instead, she left the program against medical advice. It was made clear to Misty at the time visitations were suspended that she would need to maintain sobriety and to follow the recommendations of the service providers that were addressing her chemical dependency addiction. She has done neither until the eve of the filing of the termination petition.
Misty's insobriety and failure to address substance abuse issues were the root cause of the adjudicatory harm necessitating the children's removal in the first instance. Like the juvenile court, we find Misty's own conduct precluded continuing visitation with the children. Contrary to Misty's claim, we find the Department made reasonable efforts to accommodate her visitation demands. We affirm on this issue.
II. Sufficiency of the Evidence.
Our review of the record discloses abundant evidence supporting the juvenile court's earlier recited findings of fact. We adopt them as our own. Like the juvenile court, we find clear and convincing evidence supports the court's decision to terminate Misty's parental rights pursuant to Iowa Code section 232.116(1)(l). The children were adjudicated children in need of assistance, and Misty continues to suffer from unresolved sobriety and substance abuse issues. Iowa Code § 232.116(1)(l). Furthermore, the children cannot be returned to Misty within a reasonable time because she needs to remain in inpatient substance abuse treatment for another year and a half to two years. Id. We have often said "[t]he crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). Our fidelity to this polestar principle compels us to affirm the juvenile court's termination decision. Because we affirm on this ground, we need not consider the other grounds upon which Misty's parental rights were terminated. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (stating we only need to find grounds to terminate parental rights under one of the sections cited by the juvenile court in order to affirm).
III. Medical Records.
Finally, Misty argues her mental health records were obtained by a subpoena that did not comply with Iowa Rule of Civil Procedure 1.1701 and she was not afforded an opportunity to object to the subpoena. Misty had the opportunity to object to the admission of the mental health records at the termination hearing. See Johnson v. State Farm Auto. Ins. Co., 504 N.W.2d 135, 139 (Iowa Ct.App. 1993) (If the issue on appeal is that certain evidence was admitted, which should not have been, a specific objection to the evidence should have been made). Relying on Iowa Code section 232.96 (the privilege attaching to confidential communications between a mental health professional and patient shall not be a ground for excluding the evidence at an adjudicatory hearing), the Supreme Court held, "The physician-patient privilege is thus clearly abrogated with regard to termination proceedings." In re O'Neal, 303 N.W.2d 414, 419 (Iowa 1981). Furthermore, "evidence properly admissible in an adjudicatory proceeding should be accorded the same standard of admissibility in a subsequent hearing on termination pertaining to the same child." In re E.J.R., 400 N.W.2d 531, 532 (Iowa 1987). Finding no error on this issue, we affirm.
The judgment of the juvenile court is affirmed.