Opinion
No. 2-295 / 02-0221.
Filed April 24, 2002.
Appeal from the Iowa District Court for Scott County, JOHN G. MULLEN, District Associate Judge.
The father appeals a juvenile court order terminating his parental rights, and the guardian ad litem appeals the placement of one sibling with a different custodian than the other two. AFFIRMED.
Penelope Souhrada, Davenport, attorney for appellant father.
Thomas J. Miller, Attorney General, Charles K. Phillips, Assistant Attorney General, and Gerda Lane, Assistant County Attorney for appellee-State.
Justin Teitle, Davenport, guardian ad litem for minor children.
Cheryl Newport, Davenport, attorney for intervenors.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
A father appeals the termination of his parental rights to three children. The guardian ad litem appeals the juvenile court's decision placing one of the three children separately. We affirm both rulings.
I. Background Facts and Proceedings
Eric and Andrea married and had three children: Stephen, born in 1998; Jennifer, born in 1999; and Hope, born in 2001. Andrea also had a child, Michael, from a previous marriage. Although his interests are not at issue in this proceeding, Eric's conduct toward him is.
The parents became involved with the Department of Human Services (department) based on allegations of physical abuse and denial of critical care. Following an investigation, the department determined that five-year-old Michael had suffered severe physical abuse at the hands of Eric. On one occasion, Eric tied him to a crib with rope and duct tape and deprived him of food for up to forty-eight hours. There was also evidence Eric choked Michael, restrained him twice a week, spanked him once a week, and threatened him with a knife. Additionally, there was evidence, albeit disputed by Eric, that he pushed Stephen into a corner with a walking stick and deprived both Stephen and Jennifer of food as a means of discipline. Andrea was found to have participated in the abuse.
At the time of removal, the department determined that none of the care providers being considered for placement of the children were willing or able to take all three children. Therefore, Michael was placed with his grandmother, Jennifer was placed with one foster family, and Stephen with another. When Hope was born, the department placed her with the foster parents who were caring for Stephen. Jennifer, one year old when she was removed from her parents, thrived in her new environment, as did Stephen in his. Both children exercised daytime visitation with each other and with their older half-brother Michael.
The department initiated services for the parents. Meanwhile, both were charged with child endangerment. The court found Andrea guilty and sentenced her to a two-year prison term with all but sixty days suspended. Eric pled guilty and received a two-year prison sentence, which he was serving at the Iowa State Penitentiary. The State initiated termination proceedings, to which Andrea consented.
After the termination petition was filed and almost one year after the children had been placed in their respective foster homes, the department determined that Jennifer should be transferred to Stephen's foster home so that the three younger siblings could preserve their familial bond. The department initiated pre-adoptive overnight visits for Jennifer at Stephen's foster home. Jennifer's foster parents objected to these visits, citing trauma to Jennifer. They also appealed the local department's decision to transfer Jennifer. A regional administrator of the department agreed with Jennifer's foster parents that Jennifer should remain where she was, subject to certain conditions.
In February of this year, the juvenile court terminated Eric's rights pursuant to Iowa Code sections 232.116(1)(c), (g), (i) (1999). The court further ordered guardianship and custody of Jennifer to remain with her foster parents. Eric appealed, and the guardian ad litem appointed to protect the childrens' interests cross-appealed. Our review is de novo. Iowa R. App. P. 6.4.
These sections have been renumbered, effective April 24, 2001 as 232.116(1), subsections (d), (h) and (j).
II. Father's Appeal
Eric contends (1) the State failed to prove that circumstances leading to the adjudication continued to exist; (2) the State failed to prove the children could not be returned to him; (3) termination was not in the childrens' best interests; and (4) Eric's trial attorney rendered ineffective assistance by failing to inform him he might lose his children if he pled guilty to child endangerment. On our de novo review of the record, we are not persuaded by Eric's grounds for reversal.
After the children were removed from his care, Eric exercised nothing more than supervised visitation until he was incarcerated. Although he attended all the sessions, monitors expressed concern at his agitation. One worker noted, "[t]here have been very few visits where Eric has remained calm the entire duration of the visit."
While Eric provided reasonable explanations for his agitation, we are persuaded by other record evidence that he had not learned to effectively manage his anger by the time of his imprisonment. One evaluator stated Eric's "angry temperament" was "5000%." Another characterized him as rigid and inflexible with high expectations of others. A social worker expressed concern that, after completing four of seven parenting classes, Eric was unable to think of nonviolent disciplinary options. She further found troubling Eric's perception of what was abusive and what was not. In light of this evidence, we conclude the State proved that the conditions leading to the adjudication of these children as in need of assistance continued to exist.
The State also proved the children could not be returned to Eric's care. At the time of trial, Eric was still incarcerated. See In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991). Although he expressed a willingness to "get back into the system" upon his release to prove he was a fit parent, he admitted this process, combined with his need to search for a job, would prevent him from taking immediate custody of the children. As the children had been out of his care for well over a year by this time and well beyond the statutory time frame for termination, the juvenile court was not obligated to afford Eric additional time to work toward reunification. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997).
Additionally, there is no question on this record that termination was in the childrens' best interests. When removed from the care of his parents, Stephen expressed himself only by grunting and pointing. Jennifer was pale, withdrawn, and fearful of all men. Her weight had dropped from the ninetieth to the tenth percentile within the previous thirteen months, and her finger and toenails were curled over because they had not been clipped. Hope had no contact with her father, as she was born after Eric began serving his prison term. All service providers concurred that, at the time of the termination hearing, the two older children had improved significantly. Therefore, we conclude it was not in their best interests to have them returned to their father.
Finally, Eric claims his trial attorney, who was also his criminal attorney, should have advised him he could lose his children if he pled guilty to child endangerment. The standard for establishing ineffective assistance in this context is generally the same as in criminal cases. See In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992). A parent generally must prove (1) counsel's performance was deficient and (2) actual prejudice resulted. Id.
Even assuming Eric's criminal attorney had a duty to advise him that a guilty plea to child endangerment could affect his chances of recovering his children, Eric could not establish actual prejudice. The termination record alone, without consideration of the guilty plea, contained overwhelming evidence to support the statutory grounds for termination. Therefore, there was not a reasonable probability that, but for counsel's omission, the juvenile court would have reached a different result. Accordingly, we affirm the court's termination of Eric's parental rights to Stephen, Jennifer, and Hope.
III. Guardian ad Litem's Appeal
The guardian ad litem contends the juvenile court should not have split Jennifer from Stephen and Hope. We disagree. The record reflects that Jennifer was only one year old when she was removed from her parents' home. Although she recognized and was attached to both Stephen and her half-brother Michael, there was persuasive evidence that the most significant bond was with her foster family. In an early report to the court, the guardian ad litem pointed out that Jennifer had "made a complete turnaround" in her development after being placed with that family. He stated she was thriving "in a nurturing environment with other children" and had become "trusting of others, willing to take risks and full of smiles." In the same report, he noted that the team of service providers had contemplated moving Jennifer to Stephen's foster home but "felt the comfort level for Jennifer was not what it needed to be in order to justify the trauma of the move, particularly in light of how well she was doing in her present foster home."
This report, filed approximately three months after the childrens' removal, belies the guardian ad litem's present contention that it would have been in Jennifer's best interests to move her eight months later. Neither the level of care nor the foster parents' commitment to Jennifer changed in the interim. Indeed, it is noteworthy that the department asked Jennifer's foster parents as early as two months after the childrens' removal whether they would be interested in adopting her if she became available. According to staffing notes, "[t]hey stated they would be." In contrast, Stephen's foster parents were initially unwilling to take Jennifer because of their work schedules and later expressed concerns with the immediacy of the department's request for a transfer. They did not make a firm commitment to Jennifer until several months after the children had been removed from their parents. While they assert the absence of an early commitment was a result of "miscommunication" with the department rather than an unwillingness to take Jennifer, the fact remains that they were not deemed adoption candidates until eleven months after the date of removal. By that time, Jennifer had spent half her young life with another foster family.
In its termination report, the department stated Jennifer was in need of "stable and consistent parenting" and deserved "security, safety, nurturing and structure in her home." There is no question on this record that she was receiving all of this in her existing placement. Additionally, the report recommended Jennifer "would benefit from continued visits with her half-siblings." Her foster parents unequivocally stated it was their intent to maintain those visits. Under these circumstances, we agree with the juvenile court's decision to place guardianship and custody of Jennifer with her original foster parents. See In re E.B.L., 501 N.W.2d 547, 552 (Iowa 1993).
AFFIRMED.