Opinion
No. 4-884 / 04-1747.
Filed December 22, 2004
Appeal from the Iowa District Court for Louisa County, Mark Kruse, District Associate Judge.
A mother appeals from the termination of her parental rights to two of her children. AFFIRMED.
Steven Sents of Newell Sents Law Office, Columbus Junction, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and David L. Matthews, County Attorney, for appellee-State.
Timothy Wink of Schweitzer Wink, Columbus Junction, guardian ad litem for minor children.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Jackie G. appeals from a juvenile court order which terminated her parental rights to two of her children. She contends there is not clear and convincing evidence to support the juvenile court's conclusion that the children could not be safely returned to her care. She also claims the court should have given additional consideration to an alternate family placement. Finally, Jackie contends the district court erred in reopening the record. Upon our de novo review, we affirm the juvenile court.
I. Background Facts Proceedings
Jackie is the mother of F.S., born July 20, 1999, and F.G., born June 28, 2000. The girls were removed from the care of their father, Julio V., in November 2002, and placed in family foster care after Julio was arrested on drug related charges. At the time of the children's removal, their mother was in jail in Missouri facing drug charges. The juvenile court adjudicated F.S. and F.G. as children in need of assistance (CINA) on January 13, 2003. A disposition hearing was held during April 2003. At that time, Jackie was still incarcerated.
Jackie, age twenty-four, has four other children who are not involved in this appeal.
The State filed a petition to terminate Jackie's parental rights on March 4, 2004. The juvenile court held a hearing on the petition. On October 15, 2004, the court entered an order terminating Jackie's parental rights to F.S. pursuant to Iowa Code section 232.116(1)(f) (2003) (child is four years old or older, adjudicated CINA, removed from home for twelve of last eighteen months, and cannot be returned home), and to F.G. pursuant to section 232.116(1)(h) (child three or younger, CINA, removed from home for six of the last twelve months, and cannot be returned home). The court also terminated the parental rights to the children's father, Julio. The mother has appealed from the order terminating her parental rights. The father does not appeal. II. Scope of Review
The court heard testimony regarding the petition to terminate on May 21, June 10, July 12, July 13, July 14, August 16, and September 1, 2004.
Julio is currently incarcerated in federal prison. His expected discharge date is December 2015.
We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering the credibility of witnesses. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2001). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Discussion
Jackie does not dispute the age, adjudication, and time removal elements of the statutory grounds for termination relied on by the juvenile court. Her first contention on appeal is that the State failed to show that the children could not be returned to her care at the time the termination hearing was held without suffering further adjudicaticatory harm. We reject this assignment of error.
According to Jackie, she was the primary caretaker of F.S. and F.G. until she delivered the two girls to their father in November of 2002. The girls were three and a half and two and a half years old at the time. Jackie testified that she gave the two girls to their father because she had become aware that she had been indicted on drug charges along with thirty-eight or thirty-nine other people. F.S. and F.G. were removed from their father's care after he was arrested on drug charges. The children were present when their father was arrested. Inside the residence where the two girls and their father were staying, law enforcement found individually packaged user amounts of cocaine, roaches with a roach clip, a scale, seventy-four grams of methamphetamine, and twenty-five grams of cocaine. Officers also found a brick of methamphetamine weighing 359 grams, hidden within a bed near F.S. and F.G. The drugs were accessible to the children.
The children were removed from their father's care five to seven days after Jackie left them with him.
When F.S. and F.G. were found by officers they were dirty and had lice. It was later discovered that neither child had been potty trained, both girls still drank out of a bottle, neither girl knew how to use a cup or utensils to eat, and both girls had decayed teeth. Moreover, both girls were very aggressive, had short thin scars about their chest, head, and back, and could not speak. Jackie admits that she used cocaine when the children were in her care.
Evidence presented at the termination hearing revealed Jackie was incarcerated from November of 2002 until May of 2004. Jackie did not see the two girls from the time they were removed from their father's care until she appeared in court for the termination hearing. Since the termination hearing, she has only seen F.S. and F.G. once.
Jackie remains on federal probation. She has a felony record, and a history of involvement with individuals, including family members, who have been involved in drug trafficking. Despite her protestations to the contrary, it is clear that Jackie seriously neglected her children while they were in her care before she was sent to prison. Jackie's living arrangements have not been stable. She was apparently living in Missouri when the termination hearing commenced but now resides in Texas. Jackie's testimony makes clear that she does not fully appreciate the extremely negative impact her drug activity has had on her children. Like the juvenile court, we conclude the State has proven by clear and convincing evidence that F.S. and F.G. could not be safely returned to their mother's care.
Even if the statutory requirements for termination of parental rights are met, the decision to terminate must be in the children's best interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). F.G. and F.S. have been out of their mother's care for more than two years. The girls need a safe, stable, and permanent home. Jackie has not demonstrated the ability to provide that kind of environment. We find termination of Jackie's parental rights is clearly in her daughters' best interests.
Jackie next contends the juvenile court should have given additional consideration to alternate family placement pursuant to Iowa Code section 232.102(1)(a). Section 232.102(1)(a) provides:
1. After a dispositional hearing the court may enter an order transferring the legal custody of the child to one of the following for purposes of placement:
a. A parent who does not have physical care of the child, other relative, or other suitable person.
The record reveals that the possibility of placement with a relative was explored and rejected by the juvenile court for a variety of reasons which find ample support in the record. Accordingly, we find no merit in this contention.
Among other things, the court mentioned that the incarceration of several family members was "a significant impediment to a relative placement."
In her final assignment of error, Jackie contends the juvenile court erred in reopening the record after the termination hearing concluded. The question of whether to reopen the record for additional evidence is within the court's discretion. In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). In order to show an abuse of discretion, a party must show the juvenile court's action was unreasonable under the attendant circumstances. In re J.L.L., 414 N.W.2d 133, 135 (Iowa 1987). The record reveals the trial court reopened the record to allow additional information to be presented regarding a urinalysis test. Because we find the court's decision was reasonable under the circumstances, we reject this assignment of error.