Opinion
No. 2-316 / 01-1171.
Filed May 31, 2002.
Appeal from the Iowa District Court for Fayette County, Alan D. Allbee, Associate Juvenile Judge.
Mother and father appeal the termination of their parental rights to their minor child. AFFIRMED.
John W. Hofmeyer III, Oelwein, for appellant-father.
David A. Roth of Gallagher, Langlas Gallagher, P.C., Waterloo, for appellant-mother.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, W. Wayne Saur, County Attorney, and Jay D. Villont, Assistant County Attorney, for appellee-State.
Richard Buffington, Oelwein, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Hecht, JJ.
April J. and Mark J. appeal the termination of their parental rights to their twenty-one-month-old son, J.J., pursuant to Iowa Code sections 232.116(1)(c), (g), and (h) (1999). J.J. was adjudicated a child in need of assistance on March 31, 2000 based on a founded report of physical abuse perpetrated by Mark, and Mark and April's failure to provide adequate care and supervision for J.J. J.J. was removed from his parents' home and placed in the care of Maria J., his maternal grandmother. The juvenile court also entered a no-contact order prohibiting contact between J.J. and Mark.
J.J. was returned to April's custody on September 15, 2000, only to be returned to his grandmother's care four months later when it was discovered that April allowed Mark visitation with J.J. in violation of the no-contact order. Over the next four months, April was uncooperative with services and failed to exercise regular visitation. On May 25, 2001, six days before the termination hearing, April moved in with Maria, and resumed care of J.J. The termination hearing extended over twenty-six days, during which April continued as J.J.'s primary caregiver under Maria's supervision.
April argues that the district court erred in terminating her parental rights because the statutory grounds for termination were not proven by clear and convincing evidence and, pursuant to Iowa Code sections 232.116(3)(a) and (c), the court should not have terminated her rights because J.J. was in the custody of a relative and termination would be detrimental to him due to the closeness of the parent-child relationship. Mark joins April in these arguments claiming termination of his parental rights is not in J.J.'s best interests should April's rights remain intact. Mark also argues that the State failed to make reasonable efforts to reunite him with his son.
Our review of termination proceedings is de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).
We find April's parental rights were properly terminated under Iowa Code section 232.116(1)(g). Section 232.116(1)(g) provides that the court may terminate a parent's rights if the State proves each of the following:
(1) The child is three years of age or younger;
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96;
(3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days; and
(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.
April and Mark challenge the court's findings regarding the third and fourth elements. They contend that because April acted as J.J.'s primary caregiver for the thirty-one days prior to the termination order being entered, the State failed to prove that J.J. had been removed from her physical custody for the last six consecutive months and that any trial period at home had been less than thirty days. They also contend that there was insufficient evidence that J.J. could not be safely returned to her care.
We reject both of these claims. Even if we were to decide that J.J. was in April's "physical custody" while she cared for him under Maria's supervision, she did not care for him for the requisite statutory period. The statutory period specified in section 232.116(1)(g)(3) begins to run on the date custody is transferred and continues to run until the date of the termination hearing, not the date of the termination order. See In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988); In re J.L.H., 326 N.W.2d 284, 286 (Iowa 1982). April had only been caring for J.J. six days prior to the inception of trial, far short of the thirty days required under the statute. A parent cannot wait until the eve of termination to begin to express an interest in parenting. In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).
We also conclude that the child could not be returned to April's care. In the year prior to trial, April demonstrated that she was unable to make her child's well-being her first priority. Not only did April continue her relationship with Mark, whom she knew to be a danger to her son, she requested that the no-contact order protecting J.J. from Mark be dismissed and allowed J.J. to be in Mark's care, in violation of that order. Further, when J.J. was removed from her care for violating the order, she failed to visit him for almost four months. See In re C.C., 538 N.W.2d 664, 666 (Iowa Ct.App. 1995) (past conduct may be considered in determining current parental fitness). At the time of trial April was unemployed, was not maintaining an independent residence, had no insurance, and had lost her driver's license for failing to pay fines. Like the district court, we conclude that April "is not ready to take on the full responsibility of an adult who could raise a child on her own without her mother's assistance."
Based on these factors, we also find termination is in J.J.'s best interests. J.J. should not be forced to wait any longer while April attempts to resolve her own problems. See In re A.Y.H., 508 N.W.2d 92, 96 (Iowa Ct.App. 1993) (court must reasonably limit time for parents to be in a position to assume care of children; patience with parents can soon translate into intolerable hardship for children); In re D.A., 506 N.W.2d 478, 479 (Iowa Ct.App. 1993) (crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems). Because we have affirmed on this ground, we need not address the remaining grounds relied on below. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996) (where district court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections to affirm).
We also reject April's and Mark's argument that termination was improper based on Iowa Code sections 232.116(3)(a) and (c) (court need not terminate parental rights if relative has custody or would be detrimental to child). Our court has found that a decision not to terminate under this code provision is within the discretion of the court, based upon the unique circumstances before it and the best interests of the child. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). We have already found that termination was in J.J.'s best interests. Thus, the court's decision to terminate was not an abuse of discretion.
The next issue to address is whether reasonable efforts were made to reunify Mark with his son. Reasonable efforts to reunite parent and child are required prior to the termination of parental rights. In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994). Mark complains that, despite repeated requests, he did not receive individual psychological counseling or funding for medication or the batterers' education program. The State did provide a psychological evaluation, a parenting assessment, in-home counseling, and parent skills development. The record reflects that Mark failed to maintain stable employment, was not taking his medication consistently, and failed to take the initiative to enter the batterers' education program. Mark's social worker looked into obtaining funding for Mark, but found that because J.J. had at that time been placed with April, funding was not available. We find that under the circumstances, the State offered reasonable services.
Because we found that April's rights were properly terminated, we need not address Mark's contention that termination of his rights was not in J.J.'s best interests if April's rights have not been terminated.
The district court decision is affirmed in its entirety.
AFFIRMED.