Opinion
No. 2-226 / 01-1949.
Filed May 15, 2002.
Appeal from the Iowa District Court for Benton County, NANCY BAUMGARTNER, District Associate Judge
Lacey M. appeals from the termination of her parental rights. AFFIRMED.
Barbara H. Liesveld, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, David C. Thompson, County Attorney, and Anthony Janney, Assistant County Attorney, for appellee-State.
Karla M. Wolff, Cedar Rapids, for appellee-custodian grandparents.
Judith Jennings Hoover, Marion, for minor child.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
L.B. was born to Lacey M. and Roger B. on January 20, 1992. An emergency removal order was entered on September 23, 1998 placing L.B. with his paternal grandparents after Lacey left the family home and Roger was unable to meet the child's essential needs. L.B. was subsequently adjudicated a child in need of assistance, and a dispositional order was entered maintaining L.B. with his grandparents. On June 1, 2000, pursuant to the parties' stipulation, an order was entered changing the permanency goal from family reunification to long-term relative placement with the paternal grandparents. The court found that continued visitation with Lacey was in L.B.'s best interests, and supervised visitation was ordered to continue. Upon subsequent petition, however, Lacey's parental rights were terminated pursuant to Iowa Code section 232.116(1)(e) (2001) (child four or older, adjudicated CINA, removed from home twelve of last eighteen months, and cannot be returned home).
On appeal Lacey argues that the district court erred in terminating her parental rights, citing the State's failure to show a material and substantial change in circumstances since the entry of the permanency order sufficient to necessitate termination. She also contends that, pursuant to Iowa Code sections 232.116(3)(a) and (c), the court should not have terminated her rights because L.B. was in the custody of a relative and termination would be detrimental to him.
In this equity action, our review is de novo. Iowa R. App. P. 6.4. We give weight to the district court's fact findings, especially when considering the credibility of the witnesses, but we are not bound by them. In re A.S.T., 508 N.W.2d 735, 737 (Iowa Ct. App. 1993).
When the State seeks to modify a prior dispositional order, it must show that circumstances have so materially and substantially changed that the best interests of the child requires modification. In re C.D., 509 N.W.2d 509, 511 (Iowa Ct. App. 1993). Accordingly, our responsibility is to look solely at the best interests of the child. A.S.T., 508 N.W.2d at 737. Part of that focus may be on parental change, but the overwhelming bulk of the focus is on the child and his needs. Id.
Contrary to Lacey's assertions, circumstances have changed since the permanency order making termination in L.B.'s best interests. In reaching this same conclusion, the district court stated as follows:
From a review of [L.B.'s] therapist's reports spanning the three years of treatment, the Court concludes that the bond the child has with his mother is not one typical of a parent and child. The child's main motivation for wanting to see his mother on occasion seems to be more out of a fear of hurting her feelings than a genuine desire to be with her. The child clearly states to all who speak with him that what he wants is to live with his grandma and grandpa forever and to see his mom when he feels like it. Everyone involved in the case thought that that was what would be accomplished with the Permanency Order of June 1, 2000. However, [L.B.'s] behavior in the last sixteen months has shown than [L.B.] does not believe that this is a permanent arrangement. It is also clear from Lacey's behavior and comments that she does not view the Permanency Order as a permanent arrangement. . . . She admitted that she tells [L.B.] that while he has to live with his grandparents right now, hopefully some day he will be able to come and live with her. Lacey refused to acknowledge that her attitude and messages that he might return to her care make him feel insecure.
. . . .
The Court found the most compelling evidence about whether the Permanency Order should continue to come from Dan Louzek, [L.B.'s] therapist. Louzek testified that, despite assurances from himself, the grandparents, and his social worker, [L.B.] is not convinced that his living arrangement is permanent. This is due in large part to Lacey continuing to tell [L.B.] that she wants him back and will do whatever it takes to get him back. In the sixteen months since permanency was ordered in this case, [L.B.] would soil his pants before and after visits with his mother until the visits were changed from weekly to every other week. Even after the visits were decreased, [L.B.] still told Louzek and others that he wanted to have fewer visits and to be able to decide when and if he had them. . . . After visits with his mother decreased in frequency and duration, his behavior improved at school.
We find these findings of fact to be amply supported by the record and adopt them as our own. Lacey has consistently undermined L.B.'s sense of security, causing tremendous emotional turmoil for the child. We find this failure to respect L.B.'s need for permanence and the resulting adverse effects on L.B. to be a substantial change in circumstances sufficient to support termination. The district court is affirmed on this issue.
We also reject Lacey's contention 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 L.B.'s best interests. Thus, the court's decision to terminate was not an abuse of discretion.
AFFIRMED.