Opinion
No. 3-680 / 03-1312
Filed October 15, 2003
Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve, Judge.
A mother and father appeal the juvenile court's order terminating their parental rights to their three children. AFFIRMED.
Esther J. Dean, Muscatine, for appellant-mother.
Christine Dalton, Muscatine, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Gary Allison, County Attorney, and Kori Shippee, Assistant County Attorney, for appellee-State.
Paul Bouska, Muscatine, guardian ad litem for minor children.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Guadalupe and Tabatha have filed a petition on appeal asking that we reverse the juvenile court's order terminating their parental rights to their three children or that we remand the matter for full briefing. The record is sufficient for us to address the issues raised. We affirm the termination.
We review de novo. In re A.Y.H., 508 N.W.2d 92, 94 (Iowa Ct.App. 1993). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D.Iowa 1975). A parent has the right to have custody of his or her child terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972).
The children are Guadalupe, III, born July 9, 1994; Marcos, born October 24, 1997; and Lorenzo, born March 30, 1999. On January 3, 2002 the parents agreed the children were children in need of assistance as defined in Iowa Code sections 232.2(6)(b) and 232.2(6)(c)(2) and the children were found to be children in need of assistance. The children were left with Tabatha, but Guadalupe, Jr. was ordered to have no contact with the family. In late February Tabatha, unable to handle the children alone, asked that Guadalupe, Jr. return home. He did. On March 13, 2002 there was a report that Tabatha and Guadalupe, Jr. had a confrontation. The report said there was domestic violence between the parents, Tabatha hit one of the younger boys, screamed at them, and the children were wandering around the neighborhood. It was alleged drugs were in the home.
On April 2, 2002 the three children were placed in family foster care and they were still in foster care at the time of the termination hearing on June 23 and 26, 2003. Guadalupe, III apparently has remained in the same foster home. Marcos has been in four foster homes and Lorenzo in three. The foster care placements have separated the children. The removal of Marcos from one foster home was necessary because he had been abused there.
During the time the children were in foster care, Guadalupe, Jr. and Tabatha exercised visitation. Guadalupe, Jr. and Tabatha completed a number of programs. They were more prompt in completing the programs for which they were not required to pay fees than they were for the programs where they were required to pay fees. Prior to mid March of 2003, the providers were generally working toward reunification. Then a foster father found a bruise on Guadalupe, III. The child had recently returned from a weekend visit at his parents' home. The child, who bruises easily, initially said he got the bruise playing football, but under lengthy questioning from his foster father and a worker said he got the bruise when he hit something as his father was putting him in a chair for a timeout. There apparently was a founded abuse report, although the testimony of the interviewing worker and others did not contend the bruise was intentionally inflicted, but rather was inflicted because Guadalupe, Jr. was angry and did not use the proper care in exercising the timeout. At this point the effort toward reunification changed and seemed to focus on termination. Visits, which up to this point had not been totally supervised and had been held in the parents' home, were now shortened, held in an office, and totally supervised.
There was considerable testimony at the termination hearing about this incident, both as to how it was alleged to have happened and how the parents were instructed to use timeouts. The court appointed special advocate, who got into the case in February of 2003, testified at the hearing that she could not resolve the conflicting stories of the child as recorded in written reports and his parents as to what happened that day.
On May 28, 2003, a petition to terminate parental rights was filed. An evidentiary hearing was held on June 23 and 26, 2003. On July 24, 2003, the juvenile court terminated the parental rights of both parents under Iowa Code section 232.116(1)(f) (2003).
Tabitha contends there is not clear and convincing evidence the children cannot be returned to her care. She contends she complied with the Department of Human Services case permanency plan, though her compliance was not as timely as the Department asked. She points out she completed domestic violence counseling and a substance abuse evaluation and no treatment was recommended. She said she also has participated in parenting skills sessions. She advances that she is bonded to her children and that the children would be safe if returned to her. Tabatha is correct in her assertions she completed the above case permanency plan requirements. She was still participating in parenting skill sessions at the time of the termination hearing.
Guadalupe, Jr. contends there is not clear and convincing evidence the children cannot be returned to him. He contends he completed a substance abuse evaluation, which found his alcohol usage to be in voluntary abstention. He said he has consistently met with service providers, has shown substantial progress in his parenting skills and communications with his children, has learned appropriate disciplinary techniques, and has demonstrated them on a consistent basis. He said he has satisfactory housing for the children and has maintained jobs to meet the family's financial needs. We agree Guadalupe has completed required programs. There was testimony from the person who supervised visitation that he was learning and utilizing appropriate parenting techniques.
Guadalupe, Jr. expresses his frustration with his wife by beating her up. She has engaged authorities. She also on one occasion claimed abuse that did not occur. In about 1999 Guadalupe, Jr. was charged with domestic abuse and completed a batterer's education program.
In 1998 there was a confrontation between Guadalupe, Jr. and Tabatha and he attended a batterer's education program. In 2001 there was a founded abuse report after Guadalupe, Jr. was found to have struck Guadalupe, III with a belt.
On January 17, 2001 a case permanency plan was completed. Prepared by Susan Morford, SWII, it stated as follows:
Domestic violence has been a major issue in this family in the past. There were multiple instances and incarceration for Guadalupe Jr. because of the violence. However the family appears to have learned better coping skills and no domestic violence has been noted recently.
Since writing this voluntary case initial assessment, this worker has identified that domestic violence within the home remains a major issue. Guadalupe, Jr. and Tabatha have continued to have physical and verbal altercations that the children have reported as witnesses.
No specific information as to the number of events, place of the events, or what type of confrontations took place is included.
On June 23, 2001 a guardian ad litem reported "the parents have come a long way in both participation and attitude since the beginning of this case. However, it is unlikely it would have been accomplished without subtle court pressure." He believed continued court involvement for a short period would be beneficial, but was hopeful the case could be dismissed in the near future.
These parents obviously love their children and they have been attentive to them. They attended visitations and were unhappy when they were cut back. They were criticized for failing to take the opportunity of writing their children letters between visits. They have taken the required classes and attempted to follow suggestions.
Unfortunately, Guadalupe, Jr. has a long history of expressing his anger with his fists. There has been an attempt to reeducate him. The court appointed special advocate expressed concern about the fact Guadalupe, Jr. had been in the batterer's education program three times, yet has a tendency after a period to revert to his old ways. His physical abuse has been primarily aimed at his wife, yet the couple remain together and live at the same address. There have been financial problems in the home. The parents have not been entirely forthright about their employment, and they were criticized for not correcting a worker who said they were employed by IBP at a time they were not employed. A number of workers who have dealt with the family recommended termination of parental rights after the March 2003 incident.
We recognize the issue of whether or not to legally sever the biological ties between parent and child is an issue of grave importance with serious repercussions to the child as well as the biological parents. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.App. 1997). This is particularly true where it is clear the parents have made substantial effort to seek to reclaim their children and there is a bond between the parents and the children. The goal of a child-in-need-of-assistance proceeding is to improve parenting skills and maintain the parent-child relationship. Id. An underlying issue in a termination action is whether the parent is beyond help. Id. Yet parents do not have an unlimited amount of time in which to correct their deficiencies. See id.; see also In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990). The opinions of many concerned with the case is that the problems, particularly of Guadalupe, Jr. are not corrected, and he has had a number of chances to do so. Tabatha remains with him and was unable, when he was removed from the home, to handle the children herself. We find there is clear and convincing evidence supporting the juvenile court's decision.
Having said that, we can only trust that those who strongly recommended termination of parental rights, including the court appointed special advocate, see that a concerted effort is made to find stable and loving homes for these children. For the most part they have not fared particularly well in State care, being moved from foster home to foster home, and being separated not only from their parents but also from their siblings.