Opinion
No. 3-177 / 03-0239.
Filed April 30, 2003.
Appeal from the Iowa District Court for Linn County, SUSAN FLAHERTY, Associate Juvenile Judge.
A mother appeals the termination of her parental rights to her minor child. AFFIRMED.
Robert Kimm and Ronald Ricklefs, Cedar Rapids, for appellant.
Charles Nadler, Cedar Rapids, for father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee-State.
John Hedgecoth, Cedar Rapids, for minor child.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
A mother appeals the termination of her parental rights to her minor child. Specifically, she argues the State did not present sufficient evidence to warrant termination of her parental rights and the juvenile court should not have terminated her parental rights because her son was in the custody of a relative. We affirm.
Background Facts and Proceedings. Susan is the mother of Lucas, who was born on March 13, 1995. Lucas's father is Kenneth, who voluntarily consented to a termination of his parental rights and does not appeal. The family first came to the attention of the Department of Human Services (DHS) in September 2000 when Lucas was found wandering around the neighborhood because his mother was either sleeping or intoxicated. DHS issued a founded child abuse report for denial of critical care for failure to provide proper supervision. DHS also received complaints from Lucas's school. His teachers reported he was often absent or tardy from school. When at school, Lucas was often aggressive. He also slept for significant periods of time and was reported to be hungry. Further, the staff noted several occasions when Susan came to the school smelling of alcohol. There were also concerns that she was driving Lucas to school while she was under the influence of alcohol. This led to DHS issuing another founded child abuse report for denial of critical care.
Lucas was not removed from the home at this time because Susan agreed to obtain substance abuse treatment and participate in voluntary services. As part of the voluntary services plan, Lucas began meeting with a therapist. During these sessions, Lucas spoke openly with the therapist about his mother's abuse of alcohol and other drugs. The therapist interviewed Susan and she admitted to using drugs in the presence of Lucas and that she had drug parties in her home. She also acknowledged that there were times when she slept for days, leaving Lucas to fend for himself in their apartment. Despite the voluntary services plan, Susan did not follow through with her commitment to obtain substance abuse treatment. She continued to use alcohol and drugs. Again, DHS met with Susan and asked to her enter a substance abuse program. She refused.
In October 2000 Lucas was placed in foster care due to Susan's substance abuse problem and failure to provide adequate supervision. A stipulated child in need of assistance (CINA) adjudication was entered on November 17, 2000, pursuant to Iowa Code sections 232.2(6)(c)(2), (6)(e), (6)(g), and (6)(n) (1999). During the next several months, Susan participated in two substance abuse treatment programs. However, she still continued to use alcohol and drugs. In addition to her substance abuse problems, Susan has been diagnosed with depression and anxiety. Further, Susan has a criminal history, which appears to be primarily related to her substance abuse. She has several convictions for operating while under the influence and public intoxication. She also has a conviction for forgery.
The dispositional order entered on January 17, 2001, continued Lucas's foster care placement and ordered Susan to receive services set forth in the case permanency plan. At this time, Susan began participating in family centered services, substance abuse support groups, and regular visitation with Lucas. In June 2001 a drug test revealed that Susan was again using drugs. Despite this setback, Lucas began a trial placement in Susan's home. Subsequently, Susan stopped attending her substance abuse support groups and refused to provide drugs tests. On November 6, 2001, DHS received information that Kenneth had escaped from his work release program and was staying with Susan and Lucas. The police were contacted and arrested Kenneth in Susan's apartment. During this arrest, illegal substances were found in the apartment. In December 2001 Lucas was again removed from the home because DHS was concerned Susan was drinking. In June 2002 Lucas was moved to the home of relatives who are also licensed foster parents. Initially, Susan was supportive of this move. However, her behavior towards her relatives changed and she began using inappropriate language with them and has missed several visits with Lucas. Further, Susan began showing up at their house at unscheduled times.
The State filed a petition to terminate parental rights in August 2002. Susan's parental rights were terminated in January 2003, pursuant to Iowa Code sections 232.116(1)(d), (f), and (l). Susan appeals.
Standard of Review. We review termination proceedings de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (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). Our primary concern is the best interests of the child. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000).
Iowa Code section 232.116(1)(f). We conclude the evidence supports termination pursuant to section 232.116(f). Susan has a lengthy history of substance abuse and criminal activity. Despite her participation in several treatment programs, Susan continues to use drugs and alcohol. Therefore, she has made no significant progress in resolving the problems that initially caused the court to remove Lucas from the home. At the termination hearing Susan testified this time would be different and she would provide Lucas with a safe home and adequate supervision. A good prediction of the future conduct of a parent is to look at their past conduct. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). Because Susan's lengthy history of substance abuse has not been successfully resolved, we are unwilling to extend Lucas's state of parental limbo while waiting to find out if she can successfully change her life. Consequently, we affirm the termination of Susan's parental rights under this section.
In her petition on appeal, the mother cites to Iowa Code section 232.116(1)(e). However, the applicable law in this termination is correctly cited as Iowa Code section 232.116(1)(f) (2003) due to an amendment to section 232.116 that renumbered the sections but did not substantively alter them.
When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). Because we have determined Susan's parental rights were properly terminated under section 232.116(1)(f), we need not address sections 232.116(1)(d) and (l).
Custody of Relative. Susan contends the juvenile court should not have terminated her rights because Lucas was in the custody of a relative.
Iowa Code section 232.116(3) provides in relevant part:
3. The court need not terminate the relationship between the parent and child if the court finds any of the following:
(a) A relative has legal custody of the child.
Iowa Code § 232.116(3)(a). A termination, otherwise warranted, may be avoided under this exception. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct.App. 1991). The factors under section 232.116(3) have been interpreted by the courts as being permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). We agree with the juvenile court that termination should not be avoided under this section. An appropriate determination to terminate a parent-child relationship is not to be countermanded by the ability and willingness of a family relative to take the child. In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). The child's best interests always remain the first consideration. In re L.M.F., 490 N.W.2d 66, 67 (Iowa Ct.App. 1992). As previously mentioned, we find it is in Lucas's best interests to terminate Susan's parental rights. Therefore, we conclude that Susan's parental rights were correctly terminated, and we affirm on all issues.