Opinion
No. 2-1060 / 02-1635
Filed January 29, 2003
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Mother appeals the order terminating her parental rights to two of her children. REVERSED AND REMANDED.
Tamara Knight of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for appellant mother.
Christopher Kragnes Sr. and Tiffany Koenig, Des Moines, for father C.M.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Bret Lucas, Assistant County Attorney, for appellee State.
Victoria Meade of the Juvenile Public Defender's Office, Des Moines, guardian ad litem for children.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Carrie M. is the mother of Matthew M., born June 18, 1989, Cheylen M., born September 22, 1995, and Brandon M., born December 22, 1998. Danny D. is the biological father of Matthew, Chris M. is the biological father of Cheylen, and Ryan C. is the biological father of Brandon. The children were removed from Carrie's care on March 21, 2001, after Carrie, who was then incapacitated due to alcohol use, called her parents and asked them to pick up the children at daycare. They in turn contacted the Department of Human Services (DHS). Cheylen was placed with her father, Chris, while Brandon was placed with his father, Ryan. Matthew was placed in foster care. On May 7, 2001, based in part on Carrie's long history of drug and alcohol abuse, the children were adjudicated to be in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2), (6)(j), and (6)(n) (2001).
On June 26, 2002, the State filed a petition seeking to terminate Carrie's parental rights to all three children. Prior to trial, Carrie stipulated and agreed that her rights as to Matthew should be terminated. She also stipulated that, as to Cheylen and Brandon, the State could prove all the required elements of the grounds for termination of parental rights under sections 232.116(1)(e) and (g) (Supp. 2001). However, she disputed whether termination was in the best interests of Cheylen and Brandon, and consequently that was the only issue for resolution at trial. The court concluded that the State had indeed proven the grounds for termination of Carrie's parental rights. In addition, it concluded that termination of Carrie's rights to Cheylen and Brandon was in their best interests. Carrie appeals the order only as it regards her rights to Cheylen and Brandon.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children . In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.App. 1995). However, even if those elements are met, the court must still determine whether the termination is in the children's best interests. See In re C.W., 554 N.W.2d 279, 282 (Iowa Ct.App. 1996).
On appeal Carrie asserts the court erred in terminating her parental rights, first because Cheylen and Brandon were in the custody of their respective fathers, and second because of the bond existing between her and the children. Iowa Code section 232.116(3)(a) provides that the court need not terminate parental rights if a "relative has custody of the child" while section 232.116(3)(c) provides termination is not necessary if the court finds "the termination would be detrimental to the child . . . due to the closeness of the parent-child relationship."
Section 232.116(3) has been interpreted to be permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, whether to apply this section. See In re J.V., 464 N.W.2d 887, 890 (Iowa Ct.App. 1990). We must consider a child's long-range and immediate best interests. In re A.B., 492 N.W.2d 446, 450 (Iowa Ct.App. 1992).
In ordering the termination of Carrie's parental rights, the district court recounted the multiple shortcomings of Carrie, including her drug and alcohol abuse, failings at treatment and therapy, possible mental illnesses such as bi-polar disorder and ADHD, emotional instability, and other behavior problems. The court further rejected Carrie's contentions termination was not in the children's best interests. In particular, it found no indication Carrie would remain stable or sober enough to exercise any visitation and that any unsupervised visitation would be dangerous both physically and emotionally to the children. The court also noted that after permanency, DHS will not provide supervised visitation services, and thus there was no mechanism in place to ensure the children's safe visitation. Finally, it found that, given Carrie's "pattern of behaviors and drug use, to allow her to continue in the lives of these small children is to expose them to years of loss, instability and inconsistency."
On our de novo review, we are in general agreement with the fact findings of the juvenile court. Carrie has not led a life beneficial to the growth and development of her children. Carrie's lifestyle and behaviors are such that she clearly cannot resume custody of her children now or in the foreseeable future. Under other circumstances we would agree termination was warranted. However, we also find nearly all of the evidence suggests that termination would be damaging to the children, and thus not in their best interests. DHS worker Glori Hewitt, therapist Cindy Schloss-Calhoun, and family centered service provider Renee Keith, who were in fact the only three witnesses to testify at trial, all testified that termination of Carrie's parental rights would not be in the children's best interests due, in large part, to the closeness of the bond existing between Carrie and the children. DHS's "Termination Report" states its position as follows:
Although Cheylen and Brandon are in the custody of their fathers, they both maintain a very close relationship with their mother. While it is impossible for the children to return to her care, that relationship provides a compelling reason not to terminate Carrie's parental rights with regard to Cheylen and Brandon. Cheylen's therapist, the in home provider, and DHS are in agreement that the children need to maintain a relationship with Carrie as long as she is behaving in a stable manner, and believe that termination would be emotionally damaging to the children and not in the best interest.
While the record includes some problems with visitation, it indicates that Carrie was appropriate during most of the visits and attended the majority of the scheduled visits. In focusing on the best interests of the children, we have reviewed the record to determine the impact the visitation had on the two children. Glori Hewitt testified Cheylen is "very attached" to her mother and that she would be "very hurt" and emotionally damaged if she does not see Carrie again. Cindy Schloss-Calhoun testified to the bond she witnessed between Carrie and Cheylen, and testified that termination would impact Cheylen's future ability to have relationships with both adults and her peers. Renee Keith also noted the children were "very bonded" with and love their mother and opined that termination would be harmful to them.
While we abhor Carrie's choices leading to her debilitating drug addiction and other self-destructive or dangerous behaviors, we believe that under the unique circumstances of this case, termination is not in the best interests of either Cheylen or Brandon. Most important to our analysis, the children's fathers maintain their custody. Both children are reported to be well cared for by their fathers in stable, secure homes. Thus, this is not a situation where termination is a necessary expedient in order to facilitate the children's permanency through adoption or other placement. In this regard, Glori Hewitt discounted notions that concerns about "permanency" should be a factor favoring termination in that the children reside in their father's homes. We believe this differentiates the present case from one in which the children would languish awaiting adoption if termination were not granted. See In re R.L., 541 N.W.2d 900, 903 (Iowa Ct.App. 1995) (noting that long term foster care is not preferred to termination of parental rights). Our decision rejecting the State's desire to terminate Carrie's rights is not for her benefit, but for the benefit of the two children.
Moreover, in seeking termination, the State took a position directly opposed with the recommendation of DHS and the many individuals intimately associated with the family. Glori Hewitt had worked with the family for approximately seventeen months by the time of trial, while Cindy Schloss-Calhoun had provided therapy to Cheylen since December of 2001, and Renee Keith had provided services to the family since May 29, 2001. No witness testified at trial that termination would be in the best interests of the two children in question. In fact, the consensus was that termination would be quite damaging to them. The focus was clearly on the best interest of the children.
On our de novo review, we see no compelling need to terminate the parental rights of Carrie. Again, we agree with the trial court's findings of fact, but part ways on its ultimate conclusion. This is an appropriate case in which to utilize the discretion afforded the court both by Iowa Code section 232.116(3)(a), which allows it to refuse termination when the child is in the custody of a relative, and by section 232.116(3)(c), which allows a court to deny termination if it would be detrimental to the children due to the closeness of the parent-child relationship. We therefore reverse the termination and remand for the court to address whether Carrie will have visitation, and if so, the terms and conditions of such and any other matters relevant to this decision.
REVERSED AND REMANDED.
Miller, J., concurs; Eisenhauer, J., dissents.
I respectfully dissent.
The report relied on by the majority contains the caveat relied on by the trial court. It states: ". . . the in home provider, and DHS are in agreement that the children need to maintain a relationship with Carrie as long as she is behaving in a stable manner. . . ." (Emphasis added.) Carrie has not behaved, and is not likely to behave, in any manner other than one detrimental to her children. The trial court noted, and I agree, that none of the persons offering the opinion that termination would not be in Cheylen and Brandon's best interest had a legitimate basis for the opinion. The DHS worker had not seen them on a regular basis, the visitation supervisor was found to be unqualified to offer such an opinion, and the therapist admitted that contact between Cheylen and Carrie would not be beneficial if the interactions are unstable and unpredictable. The past is the best indicator of the future behavior of a parent. In re T.B., 604 N.W.2d 660, 662 (Iowa 2000). Several days before the termination hearing Carrie used methamphetamine. This mother, based on prior behavior, will be an unstable and disruptive factor in these children's lives if her rights are not terminated. The best interests of these children are served by terminating the parental rights of their mother.