Opinion
No. 2-644 / 02-0883.
Filed July 31, 2002.
Appeal from the Iowa District Court for Polk County, KARLA J. FULTZ, Associate Juvenile Judge.
The parents appeal from an order terminating their parental rights to their children. AFFIRMED.
Yvonne Naanep, Des Moines, for appellant-mother.
Bryan Tingle, Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, and Jon Anderson and Jennifer Galloway, Assistant County Attorneys, for appellee-State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem for minor children.
Considered by SACKETT, C.J., and MAHAN and ZIMMER, JJ.
Robert and Tammy appeal from an order terminating their parental rights to their children, Bobby, Amber and Jazmine. The children were born in 1991, 1995 and 1999. A petition to terminate parental rights was filed on December 4, 2001. The juvenile court held a hearing on the petition on March 8, 2002. On May 13, 2002 the juvenile court filed its order terminating the parents' rights. Both parents have filed petitions on appeal asking that the termination be reversed or the matter be returned for full briefing. Robert contends that (1) the State failed to prove by clear and convincing evidence the children are still at risk due to his alcohol abuse, which was the reason they were initially removed from his care; (2) the State failed to prove by clear and convincing evidence the children could not be returned to his care; (3) the court should have entered a permanency order rather than terminating his parental rights; and (4) termination is not in the children's best interests. Tammy contends that (1) the State failed to prove by clear and convincing evidence the children could not be returned to her care, and (2) it is not in the best interests of the children that her parental rights be terminated. The record is sufficient for us to address the issues raised. We affirm.
We review the termination de novo . In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied sub nom. J.G. v. Tauke, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). However, we give weight to the juvenile court's findings of fact, especially the credibility of the witnesses. W.G., 349 N.W.2d at 491-92; In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights . See In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D.Iowa 1975). A parent's right to have custody of his or her child should be terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). The parent-child relationship is constitutionally protected . Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972).
This family has been the subject of concern and has received services since about September of 1998. It would appear the family lives at the poverty level. Both parents have problems gaining and maintaining employment. As a result of their poverty they lived and do live in substandard housing, and at times both have been homeless. Additionally, Robert is an alcoholic and Tammy suffers from serious depression. There is evidence she has been suicidal, and she was hospitalized for a drug overdose.
Robert was arrested for driving under the influence in late 2000. At the time all three children were in his car. In addition to a charge of OWI, he was also charged with child endangerment. It appears he pled guilty and was placed on probation. Tammy was unable to care for the children and placed them in a Crisis Nursery in mid-December of that year. The children were then placed in foster care. A dispositional hearing was held in January of 2001. The children were ordered to remain in foster care, and a number of services were offered the children and their parents.
The children are in two different foster homes. It has been determined the older two children have an attention deficient disorder. They are difficult to manage. The younger child also has problems.
The primary issue is whether the State has proved by clear and convincing evidence the children cannot be returned to the parents' care.
The parents had a dissolution action pending at the time of the termination hearing. Consequently, we cannot assume the children, if they were to remain with their parents, would have the benefit of living in a two-parent home. Rather, we must look at each parent's challenge to the termination as that of a single parent.
Robert, who was forty-three at the time of the hearing, has a twenty-year history of using alcohol and illegal substances. He testified he has quit his substance abuse and attends AA regularly. He further testified at the March 2002 hearing that his last relapse was in February of that year when he drank "just a quart" of beer. His own testimony shows he does not have his substance abuse problems conquered to the extent that the children would be safe in his care. He is in therapy. He does not have employment. He admitted his housing was not adequate for the children. He has failed to maintain consistent visits with the children. He was arrested for probation violations in January of 2002, apparently because he was not able to pay his fines.
Tammy has housing, but it is substandard. She has followed through with some services but has failed with others and resisted still others. She continues to suffer from depression and is unable to handle the problems of three children with special needs.
Based on this record, we are unable to find that the children, who had been out of their parents' care for some fourteen months at the time of the termination hearing, could be returned to their parents' care. We affirm on this issue.
We next address the parents' challenge that termination of the parents' rights is in the children's best interests and Robert's contention that the children would be better served by a permanency order than by termination of their parental rights.
The older children know and have a bond with their parents. We recognize that the severance of this bond does not come stress-free to the children. There is no clear evidence of what will happen to the children once their parental rights are terminated. While they will be available for adoption, the State does not suggest an adoptive home is available for them. The children all have special needs and will be a challenge for any parent or parents. The limited abilities, instability, substance abuse and depression problems of one or both parents preclude them from giving these children the care they need. We disagree with the parents that the children's best interests are served by not terminating their parental rights. We affirm on this issue.
AFFIRMED.