Opinion
No. 3-354 / 03-0671.
Filed June 25, 2003.
Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.
J.A. appeals from the termination of his parental rights to K.H. AFFIRMED.
Mary McGee-Light, Cedar Rapids, for appellant.
Thomas O'Flaherty of O'Flaherty Law Firm, Swisher, for mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee-State.
Mona Knoll of Nazette, Marner, Wendt, Knoll Usher, Cedar Rapids, for minor child.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
Joe appeals the termination of his parental rights to K.H., age five. The parental rights of K.H.'s mother were also terminated and are not at issue here. I. Background Facts and Proceedings.
The juvenile court also terminated the parental rights of K.H.'s half-siblings' parents. Those parents do not appeal.
K.H. was born on February 27, 1998, testing positive for marijuana. She was removed from her mother, adjudicated to be a child in need of assistance, and then later returned to her mother. The dispositional order granted Joe, who was homeless at the time, supervised visitation. Following incidents of K.H.'s mother leaving her unsupervised, K.H. was adjudicated a child in need of assistance again. K.H. was placed in foster care. Joe had a history of substance abuse and mental health issues, did not have suitable housing for K.H. at the time, and he had not maintained consistent contact with K.H. prior to this second removal. Joe's visitation continued to be supervised.
On February 27, 2002, the State petitioned to terminate the parental rights of Joe pursuant to Iowa Code sections 232.116(1)(e) (CINA, child removed for six months, parent has not maintained significant and meaningful contact with the child), (f) (child four or older, CINA, removed from home for twelve of last eighteen months, and child cannot be returned home), and (l) (CINA, parent has substance abuse problem, child cannot be returned home within a reasonable time) (Supp. 2001). The juvenile court terminated Joe's parental rights pursuant to Iowa Code section 232.116(1)(f), resulting in this appeal.
In its petition, the State cited the provisions that were in effect prior to the amendment of § 232.116(1) on April 24, 2001. We will cite the amended form.
On appeal, Joe raises the following issues:
1. Whether the State proved by clear and convincing evidence that the child K.H. could not be returned to her father.
2. Whether reasonable efforts were made to reunite K.H. with her father.
3. Whether termination of parental rights is in the best interest of the child.
4. Whether counsel was ineffective in failing to investigate and call witnesses at trial.II. Standard of Review.
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).
III. The Merits.
We first note that counsel seeks to withdraw from the case. On April 11, 2003, Joe's trial counsel filed a motion to withdraw. On the same day, the juvenile court denied the motion because of the expedited timelines for termination of parental rights appeals. The juvenile court did give the attorney permission to renew the motion with the appellate court upon submission of documents necessary to preserve the client's appeal right. On April 16, 2003, the attorney filed a motion to withdraw with the Supreme Court citing Joe's belief that counsel was ineffective in failing to call several witnesses and not conducting an investigation on his behalf. On May 1, 2003, the supreme court ordered the motion to withdraw to be submitted for consideration with the appeal. We deny the motion and proceed to the merits of the appeal.
Joe first argues that insufficient evidence supports the termination of his parental rights. Because K.H. is five years old, has previously been adjudicated a child in need of assistance, and has never resided with Joe, the dispositive issue is whether K.H. can safely be placed in Joe's care. See Iowa Code § 232.116(1)(f). Section 232.116(1)(f)(4) provides for termination if: "There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102." The relevant provisions of 232.102 provide:
5. a. Whenever possible the court should permit the child to remain at home with the child's parent, guardian, or custodian. Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that:
(1) The child cannot be protected from physical abuse without transfer of custody; or
(2) The child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance and an adequate placement is available.
In terminating Joe's parental rights, the juvenile court found:
[Joe] has made effort to maintain a relationship with [K.H.] and maintain some sort of a parental role. However, he has only been able to provide for his own basic needs on a very marginal basis. It is unlikely that he could provide full time care for a child without the ongoing risk of harm or denial of critical care to the child.
We, like the juvenile court, find placing K.H. with Joe would result in an ongoing risk of harm to K.H. because of Joe's lack of stable employment, housing, and mental health and substance abuse treatment. Despite the fact that Joe has shown adequate parenting skills during visitation, Joe has not progressed beyond supervised visitation with K.H. throughout these proceedings. K.H. remains in family foster care and upon termination of Joe's parental rights, the department was ordered to consider preadoptive placements for K.H. Accordingly, K.H. cannot be returned to Joe due to the risk of harm to K.H. and the existence of an adequate placement for her.
Next Joe claims reasonable efforts were not made to reunify him with K.H. He wanted increased and unsupervised visitation with K.H. The State has the burden to show reasonable efforts at family reunification were made as part of its ultimate proof that a child cannot be safely returned to parental custody. In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). The Department of Human Services offered the following services: urine analysis, mental health and substance abuse treatment, protective daycare, and supervised visitation and parenting instruction. A substance abuse evaluation Joe obtained recommended extended outpatient treatment, which he had not completed. Joe cannot fault the State for his failure to follow through with recommended services. The State's reasons for continuing to supervise visitation include Joe's lack of housing and inconsistent mental health and substance abuse treatment. We agree these concerns necessitated the continued supervision of visitation. The record indicates the State met its reasonable efforts burden in this case.
Next, Joe argues that termination of his parental rights is not in the child's best interests. The juvenile court made the following findings on this issue:
Since 1997, each of these parents was offered or provided numerous services to assist them in preparing to take care of these children. [None of the parents] have shown the ability to consistently provide a safe, stable, drug free home for these children, even with ongoing support and services. These children have literally waited years for a parent to be able to parent them and provide them with a home. They should not be required to wait any longer.
The Court concludes, therefore, that termination of parental rights and permanent placement by way of adoption is in the best interest of these children. Their parents have failed to consistently provide for the children's day-to-day physical and emotional needs. These children deserve permanency and a sense of security, which will be necessary for them to have a chance at developing into happy, healthy, emotionally sound adults. While the Court is well aware that, given the family history and the children's special needs, there are risks in proceeding to termination, the Court believes that, of the options realistically available, proceeding to termination of parental rights and moving to adoption is preferable to continuing the instability and insecurity that these children have experienced for much of their lives. Termination of parental rights is in the children's best interest.
Therefore, it is the finding of the Court that the children's need for permanency, security, safety, physical and intellectual health dictate that it is in their best interests to have parental rights terminated and that they be placed for adoption rather than wait any longer for a parent to be ready to resume full time responsibility for their care.
These conclusions find abundant support in the record, and we adopt them as our own. The best interest of the child is paramount. Iowa R.App.P. 6.14(6)( o). A parent's past performance is indicative of the quality of care he is capable of providing. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). This child should not be forced to wait any longer while her parent attempts to create a stable home. See 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). Furthermore, children should not be forced to suffer the parentless limbo of foster care endlessly. In re D.J.R., 454 N.W .2d 838, 845 (Iowa 1990). Pursuant to these principles, we find terminating Joe's parental rights to K.H. is in K.H.'s best interest.
Finally, Joe argues he received ineffective assistance of trial counsel. He maintains additional investigation and subpoenaing certain people to testify on his behalf would have resulted in a different trial outcome. Specifically, he alleges employees at treatment centers he attended, a Department of Human Services worker, and a police officer would have testified that he should have been granted custody of K.H. when she was removed from her mother and that he had positive parenting abilities.
The test for ineffective assistance of counsel in termination cases is generally the same as in criminal proceedings. In order to establish an ineffective assistance claim, it must be shown that (1) counsel's performance is deficient, and (2) actual prejudice resulted. We presume that counsel's conduct falls within the range of reasonable professional competency. The burden of proving ineffectiveness is on the claimant.
In re A.R.S., 480 N.W.2d 888, 890 (Iowa 1992) (citations omitted).
This claim fails because Joe cannot establish the requisite prejudice. The termination of Joe's parental rights was based on his inability to maintain his mental health, employment, and a residence. He also failed to fully address his chemical dependency issues. As noted above, Joe disregarded the recommendation for extensive outpatient substance abuse treatment. That a few people may have had positive things to say about Joe's parenting abilities would not mitigate his proven parenting shortfalls. Finding the ineffective assistance of counsel claim fails, we affirm the termination of Joe's parental rights to K.H.