Opinion
No. 4-822 / 04-1657
Filed December 22, 2004
Appeal from the Iowa District Court for Tama County, Susan Flaherty, Associate Juvenile Judge.
A mother and father appeal from a juvenile court order terminating their parental rights to one child. AFFIRMED.
Nancy L. Burk of Burk Law Office, Toledo, for appellant-mother.
Michael W. Lindeman of Lindeman Law Office, Cedar Rapids, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Brent Heeren, County Attorney, for appellee-State.
Deborah M. Skelton, Cedar Rapids, guardian ad litem for minor child.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
A mother and a father appeal from a juvenile court order terminating their parental rights to one child. Upon our de novo review, we affirm.
Jamie is the mother, and Steve the father, of Steven, born in January 1993, and Mercedes, born October 26, 2000. Jamie and Steve have never been married, but lived together at various times beginning in about mid-1992. They lived together until sometime in late 1994, separated for about two years, lived together from sometime in 1996 until almost mid-2000, separated again for about two years, and then began living together again sometime after mid-2002.
The family came to the attention of the Iowa Department of Human Services (DHS) in late October 2002 after Jamie brought Mercedes to a medical clinic. Mercedes was suffering from a broken arm, numerous bruises and abrasions of varying ages but recent origin, and spots where hair had been torn out. Jamie and Steve agreed to Mercedes being placed in foster family care while the DHS investigated the injuries. Steven remained in the family home, as he has throughout these proceedings.
In November 2002 the juvenile court ordered Mercedes removed from her parent's physical custody and placed her in the custody of the DHS. Mercedes has thereafter remained in DHS custody and family foster care. A DHS child abuse assessment determined Mercedes had been denied critical care by her parents, and had been physically abused. The assessment did not determine who had inflicted the abuse. Medical professionals concluded that her injuries were non-accidental. In January 2003 the juvenile court adjudicated Steven and Mercedes children in need of assistance (CINA).
Jamie and Steve were offered numerous services beginning in November 2002. They participated in some, participated somewhat inconsistently in others, and failed to take much advantage of yet others. They at times made progress in dealing with issues of mental health and substance abuse, communication problems, anger management problems, parenting skills deficiencies, and disciplinary problems. However, they would then regress. As of October 2003 the DHS felt their overall progress had been minimal and recommended termination of their parental rights to Mercedes, who was then almost three years of age and had been in foster family care for almost a year.
On October 10, 2003 the State filed a petition for termination of Jamie's and Steve's parental rights to Mercedes. The juvenile court held a lengthy hearing in March 2004 and filed an order on October 4, 2004, terminating both parents' parental rights to Mercedes pursuant to Iowa Code sections 232.116(1)(d), (h), and (i) (2003). Both Jamie and Steve appeal, each raising the same two issues.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Jamie and Steve each claim the State did not prove the statutory grounds for termination of their parental rights. The juvenile court made careful, detailed, and thorough findings of fact and conclusions of law leading to its decision to terminate parental rights. Its findings are fully supported by the evidence and its conclusions apply relevant law to those findings. The evidence and the juvenile court's findings and conclusions arguably support termination under each of the three statutory alternatives relied on by the juvenile court. However, when the juvenile court terminates parental rights on more than one statutory ground, in order to affirm we need only find grounds to terminate under one of the provisions relied on by that court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996).
Section 232.116(1)(h) requires the State to prove by clear and convincing evidence that (1) the child is three years of age or younger, (2) the child has been adjudicated CINA, (3) the child has been removed from the physical custody of the child's parents for six of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days, and (4) the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time. Only the fourth element is at issue in the parents' appeals. This element is proved when the evidence shows the child cannot be returned to the parents because the child remains in need of assistance as defined by section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.App. 1995). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's initial removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Both Jamie and Steve are low functioning adults with I.Q.s of between seventy-five and eighty. Over a period of about twelve years their relationship has been unstable and characterized by stress and tension, by arguments and pushing and shoving which had often occurred in their children's presence, by an inability to communicate reasonably and effectively, and by intermittent, extended separations. Since November 2002 they have been offered and, to the extent they have been willing to accept them, provided with services to deal with these problems as well as issues and problems concerning mental health, substance abuse, and marginal or inadequate parenting and disciplinary skills. They have at times made progress, but then regressed.
During the underlying CINA proceedings and near the time a petition for termination of parental rights was filed Jamie was charged with and convicted of operating while intoxicated. After polygraph examinations indicated both Jamie and Steve were being untruthful concerning the injuries to Mercedes, Jamie admitted to causing some of the bruising by "smacking" Mercedes in the face and on her leg, and Steve admitted to breaking Mercedes's arm. Jamie pled guilty to and was convicted of aggravated misdemeanor child endangerment for bruising Mercedes. Steve pled guilty to and was convicted of felony child endangerment for injuring Mercedes by breaking her arm. However, despite his guilty plea and conviction Steve does not accept responsibility, asserting the spiral fracture of a bone in Mercedes's arm was accidentally caused and he did nothing wrong. Jamie has not been upset or bothered about Steve breaking Mercedes's arm and denying for a long time that he had done so. Jamie does not believe she and Steve have any problems in raising children.
At the time of the termination hearing, after almost one and one-half years of services Jamie and Steve had not progressed beyond supervised visits with Mercedes. The DHS and service providers all believed that Jamie and Steve had made such little progress in dealing with their many issues and problems that Mercedes could not be returned to them at that time. They believed a minimum of an additional six months, and perhaps a full year, of continuing services and real, demonstrated progress would be required before Mercedes could be returned. The DHS and service providers all recommended termination of parental rights, as did Mercedes's attorney and guardian ad litem. We find, as the juvenile court did, that Mercedes cannot be returned to her parents without being subject to the imminent likelihood of further physical harm. We conclude the State has proved by clear and convincing evidence the fourth element of section 232.116(1)(h) and the grounds for termination pursuant to section 232.116(1)(h). We need not and do not address the other statutory grounds relied on by the juvenile court.
Jamie and Steve each claim termination was not in Mercedes's best interest. As authority they each cite Iowa Code sections 232.116(2)(b) and 232.116(3)(c). The State asserts error was not preserved on this claim. Although we believe the State may well be correct, we choose to address the issue.
Both Jamie and Steve argue that their and Steven's bond with Mercedes should prevent termination of their parental rights. This argument implicates only section 232.116(3)(c) and not section 232.116(2)(b).
A strong parent-child bond is a special circumstance which mitigates against termination when statutory grounds have been satisfied. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). Yet it is not an overriding consideration, but merely a factor to consider. Id. Section 232.116(3) is permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). 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. Id.
The juvenile court noted that Mercedes was bonded to her biological parents and to her brother, Steven, and noted its concern regarding termination of the relationship between Steven and Mercedes. However, the evidence shows that Mercedes is developing anxiety and behavior problems as a result of uncertainty regarding what is going to happen to her, and that further time in the limbo of recognizing her biological family while living with another family will likely be increasingly harmful to her. As the evidence shows and the juvenile court found, Mercedes is also bonded to her foster family, a family with whom she had lived one and one-half years at the time of the termination hearing. Upon our de novo review we conclude that after one and one-half years of services with minimal progress the juvenile court did not abuse its discretion by giving greater weight to Mercedes's needs than to her ties to her biological family and thus did not abuse its discretion by not applying section 232.116(3)(c).