Opinion
No. 2-854 / 01-0810
Filed January 15, 2003
Appeal from the Iowa District Court for Fayette County, Alan D. Allbee, Associate Juvenile Judge.
Mother and father appeal the termination of their parental rights. AFFIRMED.
Richard Betterton, Cedar Falls, for appellant-father.
David Roth of Gallagher, Langlas Gallagher, P.C., Waterloo, for appellant-mother.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, W. Wayne Saur, County Attorney, and J.D. Villont, Assistant County Attorney, for appellee-State.
Charles Hallberg of Hallberg Law Office, Oelwein, for intervenor-appellee.
T. David Katsumes of Katsumes Law Office, Elgin, guardian ad litem for minor child.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Mother and father appeal the termination of their parental rights under Iowa Code section 232.116(1)(g) (2001). Father further contends he was denied effective assistance of counsel. We affirm.
I. Background Facts and Proceedings.
Carol and Cory were married in 1998. Their son, Sidney, was born on July 27, 1998. Prior to the marriage or Sidney's birth, in November 1997, Cory was in possession of a stolen handgun which was used by his brother to commit a murder. Cory eventually testified against his brother as part of a plea agreement. On August 23, 1999, he pled guilty to possession of a firearm by a felon and received a five-year prison term. He has been incarcerated since.
On December 31, 1999, Carol left Sidney in the care of Cory's parents, Pam and Larry. Sidney lived with his grandparents for about three months until Carol utilized the local police to have Sidney returned to her. While Sidney was still living with his grandparents, Cory signed a document purporting to give guardianship of Sidney to Pam and Larry.
One day after Carol retrieved Sidney, the Department of Human Services (DHS) received notice that Carol was using drugs while caring for Sidney. Hair stat results confirmed that Sidney was exposed to cocaine. A child in need of assistance (CINA) petition was filed by the State. On April 17, 2000, Carol was charged with six counts of forgery. DHS received another referral in May, alleging that Carol tested positive for cocaine and methamphetamine and, while under the influence of these substances, drove her car with Sidney as a passenger. In May, Sidney was temporarily removed from Carol's custody and placed in family foster care.
At the adjudicatory hearing all parties stipulated to the adjudication of Sidney as CINA and to his temporary removal from Carol's custody. The State, Guardian ad Litem, and Carol agreed to continued family foster care placement of Sidney. Cory requested Sidney be placed with his grandparents again. The court found that placement with Pam and Larry was not appropriate given Larry's physical condition and Pam's criminal history. It further found that reunification efforts between Carol and Sidney would be hindered by placement with Pam and Larry. Sidney was ordered to remain in the temporary custody of DHS for family foster care placement.
In October 2000, Carol was arrested and charged with attempted robbery and violation of a no contact order. In November, she was sentenced to four concurrent five-year prison sentences for forgery. She has seen Sidney once since September 2000.
In November 2000, Sidney began having supervised visits with his grandparents. They filed a notice of intervention in December requesting to be considered as primary custodians for Sidney. A permanency hearing was held on December 13, 2000, and the parties stipulated that reunification of Sidney with his parents was not possible given both parent's incarceration. The court ordered a home study investigation of Pam and Larry.
On January 4, 2001, the Fayette County Attorney's Office filed a petition for termination of parental rights requesting that both Cory's and Carol's parental rights be terminated. The home study for Pam and Larry was completed in March, and it advised against Sidney's placement with them.
The termination hearing was held in April 2001. At that time, both Carol and Cory were still incarcerated. The juvenile court terminated their parental rights pursuant to Iowa Code section 232.116(1)(g). Carol and Cory appealed. Both argue that their parental rights should not have been terminated, and Cory argues that he was denied effective assistance of counsel at the CINA adjudicatory hearing.
II. Scope of Review.
Appellate review of termination cases is de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
III. Termination of Parental Rights.
Both Carol and Cory assert the district court erred by terminating their parental rights. They contend the required grounds for termination under section 232.116(1)(g) were not proven by clear and convincing evidence. See In re A.R.S, 480 N.W.2d 888, 890 (Iowa 1992).
Iowa Code section 232.116(1)(g) allows for termination of parental rights if the following have occurred: (1) the child is three years of age or younger; (2) the child has been adjudicated a child in need of assistance; (3) child has been removed from the physical custody of the child's parents for at least six months 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) there is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.
Both Carol and Cory agree that the first two elements have been met, and Cory further agrees that the third element has been meet. They both contend that the fourth element has not been proven by clear and convincing evidence because Cory provided for the care of Sidney by naming Cory's parents as guardians.
After a careful review of the record, we find the termination of Cory and Carol's parental rights was properly ordered. The elements of section 232.116(1)(g) have been met by clear and convincing evidence. At the time of the termination hearing, both Carol and Cory were in prison, and Sidney could not be returned to them. Although both parents indicated their wish to have Sidney placed with his grandparents, we find the home study report on Pam and Larry, which advised against the placement, to be thorough, well-reasoned, and compelling. There is no statutory preference for placement of children with a relative, but rather the paramount concern is the best interests of the child. In re R.J., 495 N.W.2d 114, 117 (Iowa Ct.App. 1992). Placement with Pam and Larry is not in Sidney's best interests, and we affirm the decision of the district court on this issue.
IV. Ineffective Assistance of Counsel.
Cory further argues his trial counsel, in the initial CINA adjudicatory hearing, was ineffective because he stipulated to Sidney's adjudication as CINA and failed to challenge the court's reliance on evidence involving Cory's brother's murder trial. Although the Sixth Amendment is not implicated in termination proceedings, the standards adopted for counsel appointed in a criminal proceeding do apply. In re D.W., 385 N.W.2d 570, 579-80 (Iowa 1986). To establish an ineffective assistance of counsel claim, Cory must show that his counsel's performance was deficient and that he suffered actual prejudice as a result. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992).
After reviewing the record, we find that we do not need to address the adequacy of Cory's attorney's performance because Cory suffered no prejudice from the stipulation of Sidney as a child in need of assistance. The evidence supporting Sidney's adjudication was overwhelming. Even if Cory's attorney had advised against making the stipulation that Sidney was CINA, or had challenged the relevance of the evidence of Cory's brother's murder trial, a CINA order would have been entered. We affirm on this issue as well.