Opinion
No. 3-004 / 02-1925
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Juvenile Judge.
A mother and a father each appeal an order terminating their parental rights to one daughter. AFFIRMED.
Pamela Vandel, Des Moines, for appellant mother.
Ronald Wheeler, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee-State.
Charles Fuson of Youth Law Center, Des Moines, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Kim and Kevin are the unmarried parents of Kapri, who was born February 13, 2002. Kapri was removed from Kim's custody shortly after her birth and was placed in the custody of the Department of Human Services (DHS) based on Kim's problems with substance abuse.
On May 13, 2002, the juvenile court adjudicated Kapri a child in need of assistance (CINA). The adjudication was pursuant to Iowa Code sections 232.2(6)(c)(2) (failure of parent to exercise reasonable degree of care in supervising the child) and (n) (child whose parents' drug or alcohol abuse results in child not receiving adequate care) (2001). On the same date it sustained the State's motion to waive reasonable efforts to reconcile Kim with Kapri.
The State subsequently petitioned for the termination of Kim's and Kevin's parental rights to Kapri. Following an October 30 and 31, 2002 hearing, on November 7, 2002 the juvenile court terminated Kevin's parental rights pursuant to Iowa Code section 232.116(1)(b) (abandonment), and terminated both parents' parental rights pursuant to Iowa Code sections 232.116(1)(c) (child adjudicated CINA for abuse or neglect, circumstances continue despite offer or receipt of services), (f) (child adjudicated CINA, parent's rights to another child were terminated, parent does not respond to services, additional period of rehabilitation would not correct the situation), (g) (child is three or younger, adjudicated CINA, removed from home six of last twelve months or last six consecutive months, cannot be returned home), and (k) (child adjudicated CINA, parent has substance abuse problem and presents a danger, child cannot be returned to parent within a reasonable time).
Sections 232.116(1)(b), (c), (f), (g), and (k) of the 2001 Code have been renumbered as sections 232.116(1)(b), (d), (g), (h), and (l) respectively in the 2001 Code Supplement.
Kevin appeals. He claims the State filed to prove the circumstances which led to the CINA adjudication continued to exist despite the offer or receipt of services. He argues he "has sufficiently cured the circumstances that led to the adjudication," pointing out that at the time of the termination hearing he was actually involved in treatment to address his marijuana usage.
Kevin's trial counsel has filed a petition on appeal. Kevin has also filed a petition on appeal. Kevin's petition, however, is not timely and raises no issue or issues and we do not further address it.
Our scope and standards of review are set forth in In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) and need not be repeated here.
Kevin is forty years of age. He has never provided any financial support for Kapri. He was aware of her removal from Kim's custody, but did not come forward to be involved in juvenile court proceedings or services until almost five months later. He then requested visitation.
Kevin has a twenty-seven year history of substance abuse. He started abusing marijuana at age thirteen. He began crack cocaine use in 1998, and testified he last used crack in about September 2000. In order to have visitation with Kapri he was required to undergo substance abuse evaluation and any recommended treatment. His July 2002 evaluation indicated a significant substance abuse history that included alcohol, marijuana, and crack cocaine usage and recommended treatment. Kevin did not agree with the recommendation and did not attempt to start treatment until late August. He left the first treatment provider during intake. He started another treatment program but was discharged five days later in early September. He later sought and secured reinstatement and continued in treatment at the time of the termination hearing. However, by his own admission he continued to use both marijuana and alcohol while in treatment.
It appears the circumstances which Kevin claims to have cured consist of his severe, chronic substance abuse problem. However, the record shows that problem has not been cured. To the contrary, near the termination hearing and while in treatment he continued to use alcohol and abuse marijuana. Upon our de novo review we find the State has proved by clear and convincing evidence the grounds for termination of Kevin's parental rights under section 232.116(1)(k). Having found grounds to terminate under this provision, we need not address the several other statutory grounds which the juvenile court also found supported termination of Kevin's parental rights. See In re A.J., 535 N.W.2d 909, 911 (Iowa Ct.App. 1996).
Kimberly also appeals. She first claims termination was improper because she was not provided an opportunity to assume care of Kapri and reunification was never attempted. She identifies the issue as having been presented and preserved through the Waiver of Reasonable Efforts Hearing, the termination hearing, requesting increased visitation and custody through the DHS, and a timely appeal. The essence of her argument is that the State did not make reasonable efforts for reunification and did not provide reasonable services to accomplish reunification.
Kim appealed the juvenile court order waiving reasonable efforts and as a part of that appeal challenged the juvenile court's denial of visitation. This court affirmed those juvenile court orders. See In re K.A., No. 2-874/02-0914 (Iowa Ct.App. Nov. 15, 2002). That decision resolved Kim's first claim as having no merit and constitutes the law of this case. We therefore find no merit to this issue.
Kim claims the State's proof failed as to each of the four statutory grounds for termination of her parental rights that the juvenile court found the State had proved by clear and convincing evidence. We find it necessary to address only one of those grounds.
Kim claims the State failed to prove grounds for termination of her parental rights under section 232.116(1)(k). She argues the State's proof failed for lack of evidence that she continues to have a substance abuse problem, as she has been free from drugs for over a year and her prognosis is good.
Kim is thirty-five years of age. She has a twenty-two year history of substance abuse, having used drugs since age thirteen. She has used methamphetamine, abused prescription medications, and used crack cocaine. Kayla, a child of hers born before Kapri, was born drug affected as a result of Kim's drug usage. Kayla was adjudicated a CINA. Kim was offered many services during Kayla's case. Kayla was removed from Kim's custody four times during juvenile court proceedings, each time as a result of Kim's relapses over a period of about two years. Kim's parental rights to Kayla were terminated in December 2001, in whole or in large part as a result of Kim's chronic, severe substance abuse problems.
Kim began an on-again, off-again relationship with Kevin in about July 1999. She acknowledges they regularly used drugs together. Kim used crack cocaine when pregnant with Kapri in mid-2001. Following Kapri's birth Kim participated in and completed a portion of a substance abuse treatment program. However, she attended only one or two meetings of the recommended after care, relapse prevention portion of the program. She was then unsuccessfully discharged for not attending. Kim had gone through substance abuse treatment on at least three previous occasions, but always relapsed.
For reasons detailed in the juvenile court termination order that need not be repeated here, the juvenile court found Kim to lack credibility, to be in denial concerning her drug use, and to be in denial concerning the test results that were positive for drug use throughout the case involving Kayla.
As a part of the services offered during juvenile court proceedings in this case Kim was to provide urine samples for drug testing on a frequent basis. However, she provided samples only three times between Kapri's February 2002 birth and the late October termination hearing. She failed or refused to provide other samples despite being reminded to do so.
Kim was aware Kevin was using drugs in the months before the termination hearing. She was aware her chances for recovery were decreased by associating with current users. She nevertheless resided with Kevin despite his continuing alcohol and drug use, and sees nothing wrong with doing so.
The juvenile court found Kim as a history of short-term sobriety and then relapse; she has not followed through with after care; she did not cooperate with or utilize services offered in this case or in the previous case that involved Kayla; there is no independent evidence to show she is clean and sober as she claims; and her lack of honesty on several occasions during juvenile court hearings mitigated against believing her statements about her substance use, especially in light of her long history of substance abuse. We fully concur in these findings. Based on these findings as well as our additional findings as set forth above, upon our de novo review we agree with the juvenile court and find that the State has proved by clear and convincing evidence the grounds for termination of Kim's parental rights under section 232.116(1)(k).