Opinion
No. 4-430 / 04-0513.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Victoria Meade, West Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and William Sales, Assistant County Attorney, for appellee-State.
Charles Fuson, Des Moines, guardian ad litem for minor child.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Desiree appeals from a juvenile court order terminating her parental rights to her son, Mykel. We affirm.
Desiree was born in May 1987, and was fifteen years of age when she gave birth to Mykel in January 2003. She did not know how to handle Mykel's crying, refused to feed him at times, and was easily frustrated by her inability to care for him. She and Mykel were residing at the House of Mercy, in its Teen Program, on January 31, 2003, when staff members observed Desiree shaking Mykel. The juvenile court ordered Mykel removed from her custody and placed his custody with the Iowa Department of Human Services (DHS). Mykel was hospitalized for observation as a result of the shaking. A "founded" child protective assessment was placed on the State Child Abuse Registry, finding Desiree to be the perpetrator, and Mykel the victim, of denial of critical care and failure to provide proper supervision.
Desiree has a history of mental health issues as a result of neglect and abuse by her own mother. Her mother's parental rights had been terminated, and Desiree was herself under the jurisdiction of the juvenile court during the child in need of assistance (CINA) and the termination of parental rights proceedings concerning Mykel.
Following his removal from Desiree and his ensuing hospitalization, Mykel was placed in foster care and subsequently placed in the care of a relative of Desiree. He was removed from the relative's home and again placed in foster care because the relative was allowing Desiree to have unauthorized contact with him. Mykel was adjuciated a CINA on April 3, 2003. Shortly thereafter he was placed in the custody of Desiree's maternal great aunt and her husband under DHS supervision. He has thereafter remained in that placement.
After Mykel's removal from her custody, Desiree remained placed at the House of Mercy, in an attempt to allow her to acquire the knowledge and skills she needs in order to be able to parent Mykel. She was uncooperative, ran away three times, and was discharged for lack of compliance with the program.
On March 11, 2003, Desiree was placed in Bremwood, a residential facility. She was ordered to comply with Bremwood programming to aid her toward reunification with Mykel. While at Bremwood Desiree ignored rules, was threatening and assaultive toward others, was defiant toward staff, and did not cooperate with available services and programs.
The State filed a petition for termination of parental rights on August 6, 2003, and an order was entered scheduling a pretrial conference for September 11 and a final hearing for September 25. At the time of the pretrial conference the juvenile court continued the matter to allow Desiree further time to show progress in her placement at Bremwood. It rescheduled a permanency/termination hearing for January 16, 2004. That hearing was held as scheduled. The juvenile court subsequently terminated Desiree's parental rights to Mykel pursuant to each of Iowa Code sections 232.116(1)(d), (e), (h), and (i) (2003). Desiree appeals.
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).
Desiree does not claim the State failed to prove the grounds for termination under the relevant Code sections. She claims the State failed to use reasonable efforts to reunify her and Mykel. For two reasons she is entitled to no relief on this claim.
First, there is no substantial evidence that before the termination hearing she requested services other than those provided, and she has thus failed to preserve error on this issue. See In re C.B., 611 N.W.2d 489, 493-94 (Iowa 2000) (stating parents need to object to services early in the process so appropriate changes can be made); In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999) (holding that where parent did not demand services other than those provided the issue of whether services were adequate was not preserved for appellate review); In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997) (stating that in order to preserve error concerning reasonable efforts parents should demand services prior to the termination hearing, and challenges to services should be made when the case plan is entered).
Second, we find the services offered and provided were reasonable under the facts and circumstances of this case. The juvenile court noted and listed in its termination order some twelve services that had been offered and made available to Desiree in several different institutions and settings, and we will not repeat that list here. Desiree simply failed and refused to accept and profit from the services offered, whether in the House of Mercy Teen Program, at Bremwood, or in other settings. Even after a ninety-day continuance of the termination hearing, Desiree had made essentially no progress in dealing with her personal issues and problems, had made little or no progress in acquiring the knowledge and skills necessary to be reunited with Mykel and parent him, and was being discharged as having received any benefits she was willing and able to receive from that program.
Desiree also claims termination of her parental rights was not in Mykel's best interest in light of his placement in a relative's home.
Under Iowa Code section 232.116(3)(a), the juvenile court need not terminate the relationship between the parent and the child if a relative has custody of the child. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). 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. In re J.L.W., 570 N.W.2d at 781. We must consider a child's long-range and immediate best interests. In re A.B., 492 N.W.2d 446, 450 (Iowa Ct.App. 1992).
Mykel as been in the custody of his maternal great aunt and her husband since April 2003. He has bonded to them, and is thriving in their care. Although they and Desiree requested that the juvenile court place long-term guardianship of Mykel with them rather than terminating Desiree's parental rights, they are willing to adopt Mykel and hope and intend to do so if Desiree's parental rights are terminated.
In addressing this issue the juvenile court found:
The Court has been asked to consider placing guardianship with [the great aunt and uncle] to allow [Desiree to] attempt to learn to be a parent and eventually gain custody of Mykel. [Desiree] has been unsuccessful in cooperating with services since before Mykel's birth. She has not cooperated with residential programs that would have allowed her to parent her child. Even [Desiree] is not sure if she will ever be ready to parent independently. Mykel needs a permanent home with parents who are ready now to care for him. It is in the best interest of Mykel that parental rights with his parents be terminated and he continues in the custody of [his great aunt and uncle] for the purpose of adoption.
We fully agree with these findings by the juvenile court and adopt them as our own. Desiree has numerous personal problems which she is unable or unwilling to address and attempt to resolve. She is unable or unwilling to make the effort required to acquire the knowledge and skills necessary to parent Mykel. The evidence shows that in all likelihood it will be years before she becomes able to parent Mykel, if she in fact ever becomes able to do so. Mykel needs and deserves to have the security and stability of a permanent home, and to have them now. We affirm the juvenile court's exercise of discretion in declining to order a long-term guardianship rather than termination of parental rights.