Opinion
No. 1-1058 / 01-1111.
Filed March 13, 2002.
Appeal from the Iowa District Court forLinn County, JANE F. SPANDE, Associate Juvenile Judge.
Steven appeals a juvenile court order terminating his parental rights to his minor child contending termination was not in the child's best interests and his trial counsel was ineffective for failing to request guardianship as an alternative to termination of his parental rights. AFFIRMED.
John Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Mary Pippin, Assistant Attorney General, for Appellee-State.
John Hedgecoth, Cedar Rapids, for mother.
Mona Knoll, Cedar Rapids, for minor child.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Steven appeals a juvenile court order terminating his parental rights to his minor child, contending termination was not in the child's best interests and his trial counsel was ineffective for failing to request guardianship as an alternative to termination of his parental rights. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Steven and Nichole are the biological parents of Morgan, born August 11, 1997. Steven and Nichole had a relationship for four years but were never married. Steven was present at the hospital for Morgan's birth and continued to be a part of his life for approximately four months before he was incarcerated for driving while barred and served fifteen to twenty months in prison.
While Steven was incarcerated Nichole had two incidents which caused the Iowa Department of Human Services (DHS) to become involved in Morgan's life. One incident involved Morgan falling out of a second story window due to an improperly secured screen and the other was based on an allegation that Morgan had been exposed to crack cocaine smoke by Nichole. After this second incident Morgan was voluntarily placed with Nichole's sister. The State filed a petition on August 27, 1999 alleging Morgan was a child in need of assistance (CINA) as defined in Iowa Code sections 232.2(6)(c)(2), 232.2(6)(n), and 232.2(6)(o) (1999). It was later stipulated that Morgan was a child in need of assistance as alleged in the CINA petition.
Pending dispositional hearing Morgan remained in Nichole's custody conditioned on her continued participation in a residential substance abuse program. Visitation with Steven was to be supervised by the DHS with discretion to move to semi-supervised visits. The dispositional hearing was held November 4, 1999. All parties, with the exception of Steven, stipulated to the recommendation of the DHS that Morgan remain in Nichole's custody with protective supervision by the DHS and conditioned upon her continued cooperation with the substance abuse program. Steven's attorney took no position on the matter due to lack of contact from Steven.
Steven had been released from prison on August 22, 1999.
Shortly thereafter on November 12, 1999 the DHS requested Morgan's immediate removal from Nichole's care based on information from Nichole's substance abuse counselor that Nichole was allowing Steven unsupervised contact with Morgan and leaving Morgan completely unsupervised at times. The juvenile court ordered immediate removal of Morgan to avoid imminent danger to his physical and emotional well-being and placed temporary custody with DHS for foster care placement. On December 17, 1999 the court ordered custody of Morgan placed with the DHS for the purpose of a relative placement with his maternal aunt.
The case permanency plan required Steven and Nichole to complete drug testing and participate in drug education to learn the effects of drugs on Morgan. Steven refused to participate in drug and parenting classes, indicating Nichole was the one with the problem, not him. Steven never completed a substance abuse evaluation. Steven did participate in two supervised visits in November or December 1999 but then voluntarily ceased having visitation with Morgan because he did not believe supervision was necessary.
Steven was arrested in April of 2000 for attempted murder and willful injury. He pled guilty to willful injury and carrying a weapon and was sentenced to concurrent five and two year terms on these charges. On September 21, 2000 Nichole signed a release of custody and consent to termination of her parental rights to Morgan for private adoption by her sister.
A petition for termination of Steven's and Nichole's parental rights was filed on February 21, 2001 and hearing was held on the matter June 7, 2001. At that time Steven remained incarcerated but appeared by counsel and testified by telephone. He testified that the earliest he would be eligible for parole would be in six months, about December 2001. The court terminated Nichole's and Steven's parental rights to Morgan. Steven's parental rights were terminated pursuant to Iowa Code sections 232.116(1)(c), 232.116(1)(d) and 232.116(1)(g). The court further found reasonable efforts had been made to effect reunification and that termination of both parents' rights was in Morgan's best interests so a permanent, stable placement in an adoptive home could occur. Steven appeals the juvenile court's termination of his parental rights. Nichole does not appeal.
The court cited Iowa Code section 232.116(1)(b) rather than section 232.116(1)(c) as one of the grounds for termination. However, it is clear by the court's language in the relevant portion of its decision that it in fact intended section 232.116(1)(c), as section 232.116(1)(b) was not pled in the petition and section 232.116(1)(c) was pled.
II. STANDARD OF REVIEW
We review termination proceedings de novo. Iowa R. App. P. 6.4; In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven by the State by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). Our primary concern is the best interests of the child. In re A.B., 554 N.W.2d 291, 293 (Iowa Ct. App. 1996).
III. MERITS
Steven does not contest the sufficiency of the evidence supporting termination under any of the statutory grounds. Steven argues only that termination of his parental rights was not in Morgan's best interest. Our supreme court has previously held that even if the statutory requirements for termination are met, the decision to terminate must still be in the best interests of the child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Thus, termination is not mandatory upon finding the requisite elements of the Code provisions. In re C.W., 554 N.W.2d 279, 282 (Iowa Ct. App. 1996).
In determining the best interests of a child, the court looks to the child's long-range and immediate interests. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). The court must consider the physical, mental and emotional condition and needs of the child in deciding to terminate parental rights. In re C.W., 554 N.W.2d at 282.
We look to the child's long-range, as well as immediate, interests. We consider what the future holds for the child if returned to his or her parents. Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care the parent is capable of providing. Our statutory termination provisions are preventative as well as remedial. They are designed to prevent probable harm to the child.
In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) (quoting In re C.M.W., 503 N.W.2d 874, 875 (Iowa Ct. App. 1993)). A good indication 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).
Steven has an extensive criminal record dating back to 1983, including but not limited to convictions for terrorism, delivery of a controlled substance, fraudulent practices and driving while barred preceeding his present conviction and imprisonment. Steven was involved with Morgan for approximately the first four months of Morgan's life before being incarcerated for fifteen to twenty months for driving while barred. Steven was released on or about August 22, 1999 but within eight months was arrested and subsequently convicted and incarcerated for willful injury and carrying a weapon. Steven was incarcerated at the time of the termination proceeding with his earliest eligibility for parole in six months and a tentative discharge date in fourteen months.
Steven has been incarcerated for all but a few months of Morgan's life and even when not incarcerated he was not substatially involved in Morgan's day-to-day care. During his most recent incarceration he has not contacted Nichole's sister or the DHS to inquire as to Morgan's well being or acknowledged Morgan's birthday or Christmas. Steven participated only briefly in the services offered by DHS and voluntarily discontinued visitations with Morgan after only two visits because he objected to the fact they were supervised visits. He has provided Morgan with very little financial or emotional support. In addition, Steven has failed to ever acknowledge any responsibility for Morgan's current situation, placing all of the blame on Nichole's actions.
Considering Steven's past criminal record, his current incarceration, the minimal involvement and interest he has had in Morgan's life while both in and out of prison, his lack of support for Morgan, and his failure to take any responsibility for Morgan's situation, we find termination of Steven's parental rights to be in the best interests of Morgan. In addition, based on the limited amount of contact Steven has had with Morgan there could be no significant bond between Morgan and Steven. We fully agree with the juvenile court that it is in Morgan's best interests to be afforded the possibility of a permanent home with a parent or parents who are able to consistently meet his physical, emotional and behavioral needs. This cannot occur with Steven now or in the foreseeable future. Steven has not been available for Morgan and was not even willing to participate in reasonably required services to effect the safe placement of Morgan with him at some point in the future.
Furthermore, it is simply not this State's public policy to force children to wait indeterminably for their parents to become responsible enough or mature enough to start to be good parents. A child needs the stability of a permanent home. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). Morgan is in a pre-adoptive home and it is clearly not in his best interests to make him wait any longer for Steven to become a responsible parent. We find it is in Morgan's best interest to terminate Steven's parental rights in order to allow him to achieve the stability, security and permanency he so deserves.
Steven also claims his trial counsel was ineffective for failing to request that Morgan's maternal aunt be his guardian pursuant to Iowa Code section 232.104(2)(d) as an alternative to termination of Steven's parental rights. Due process requires counsel appointed under a statutory directive to provide effective assistance. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988). Although the Sixth Amendment constitutional protections are not implicated in termination proceedings, the standards adopted for counsel appointed in a criminal proceeding apply equally. Id. Therefore, in order for Steven to establish ineffective assistance of counsel he must show that his counsel's performance was deficient and that actual prejudice resulted. In re J.P.B., 419 N.W.2d at 390 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)).
Section 232.104(2)(d) provides that the juvenile court may transfer guardianship and custody of a child to a suitable person if it makes findings, based on convincing evidence, that (1) termination of the parent-child relationship would not be in the best interest of the child, (2) services were offered to the child's family to correct the situation which led to the child's removal from the home, and (3) the child cannot be returned to the child's home. The juvenile court expressly found that termination of the parents' rights was in Morgan's best interest and we have agreed. The juvenile court, and we on appeal, could therefore not logically or legally also make the first of the three findings that are necessary under section 232.104(2)(d) in order to transfer guardianship and custody of Morgan to his maternal aunt. Any argument by Steven's counsel for a guardianship would have been without merit and to no avail. Counsel is not ineffective for failing to raise meritless issues or to make meritless objections or motions. State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998); State v. Atwood, 342 N.W.2d 474, 477 (Iowa 1984). Therefore, Steven's counsel was not ineffective for failing to request guardianship as an alternative to termination of Steven's parental rights.
IV. CONCLUSION
For all of the reasons set forth above, based on our de novo review of the entire record we conclude termination of Steven's parental rights is in Morgan's best interest. We further find Steven's counsel was not ineffective for failing to request guardianship as an alternative to termination of Steven's parental rights.
AFFIRMED.