Opinion
No. 3-154 / 03-0116.
Filed February 28, 2003.
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
A mother and father appeal the termination of their parental rights to a child. AFFIRMED.
Mark Reed of Reed Epping, P.C., Des Moines, attorney for appellant Mother.
Jeffrey Lipman, of Lipman Law Firm, Des Moines, attorney for appellant Father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Martha Johnson, Assistant County Attorney, for appellee State.
Jason Hauser, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C. J., and Zimmer and Vaitheswaran, JJ.
A mother and father appeal the termination of their parental rights to one of their children. We affirm.
I. Background Facts and Proceedings
Marilyn and Estaban are the parents of Maelani, born in 1991. Both parents have struggled with substance abuse, Estaban with alcoholism, and Marilyn with methamphetamine and marijuana abuse. Marilyn's substance abuse problem had earlier resulted in the termination of her parental rights to another child.
Days before Maelani's first birthday, authorities arrested Marilyn for assaulting her father. Maelani was removed from the home and adjudicated a child in need of assistance.
The Department of Human Services reinitiated services to address Marilyn's substance abuse and mental health problems. The Department did not furnish Estaban reunification services, citing his incarceration for operating while intoxicated (third offense).
The State petitioned to terminate the parents' rights. A juvenile court granted the petition and terminated Estaban's parental rights pursuant to Iowa Code sections 232.116(1)(b) (abandonment) and (h) (child cannot be returned to home) and Marilyn's rights pursuant to Iowa Code sections 232.116(1)(g) (rights to another child terminated and parent continues to be unresponsive to services) and (h) (child cannot be returned to home) (Supp. 2001). Both parents have appealed.
II. Mother
Marilyn argues 1) there is insufficient evidence to support termination on either ground cited by the court and 2) termination is not in the child's best interests. On our de novo review, we disagree.
Marilyn's substance abuse problem, by her own admission, dates back at least four and a half years prior to this termination proceeding and resulted in the termination of her parental rights to her first child.
After Maelani's removal, the Department gave Marilyn drug screens and two substance abuse evaluations, referred her to a residential treatment program, provided transportation expenses, scheduled her for a psychosocial evaluation, and offered individual therapy. Additionally, the Department provided supervised visitation and skill development services.
Marilyn's first drug screen revealed the presence of methamphetamine, cocaine and marijuana in her system. Marilyn declined to provide additional samples for three months. She admitted using methamphetamine within two months of the termination hearing. She declined to enter a residential treatment program and her participation in outpatient programs was sporadic. She was, therefore, non-responsive to key services offered by the Department and was not in a position to have Maelani returned to her.
In reaching this conclusion, we have considered the testimony of Marilyn's case manager at the YWCA. She stated Marilyn had been working hard to find a job, showed no signs of drug use, and would be able to stay at the facility with her young daughter. The manager conceded, however, that Marilyn came to the facility less than six weeks before the termination hearing despite every indication a room would have been available much sooner. We believe Marilyn's admittedly improved compliance with Department expectations came too late. See In re C.B., 600 N.W.2d 489, 494 (Iowa 2000). On this record, the statutory grounds for termination were satisfied.
The evidence cited above also establishes that termination was in Maelani's best interests. Although Marilyn stated she loved her daughter and wished to take care of her, there was only limited evidence that she could ensure her well-being.
III. Father
Estaban contends: 1) the juvenile court impermissibly considered the possibility he might be deported and 2) there is insufficient evidence to support termination on the grounds cited by the court. We disagree.
With respect to the first question, we are not convinced Estaban preserved error, as he did not object to the State's question concerning the pending deportation proceeding and, as part of his case, raised the issue again. Even if error was preserved, however, the juvenile court stated only, "it is unknown if he will be allowed to remain in the United States following his release." This finding is consistent with Estaban's testimony.
As for his challenge to the sufficiency of the evidence, we may affirm on any ground cited by the juvenile court for which we find evidentiary support. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). Estaban was in prison at the time of the termination hearing. He testified he did not know when he would be released. Under these circumstances, Maelani could not be returned to him.