Opinion
No. 2-030 / 01-0923
Filed April 24, 2002.
Appeal from the Iowa District Court for Davis County, WILLIAM S. OWENS, Associate Juvenile Judge.
Mother appeals the juvenile court's termination of her parental rights to two of her minor children. AFFIRMED.
Lori Holm, Des Moines, for appellant-mother.
William Appel, Ottumwa, for father of S.P.
R. Swaim of Swaim Law Office, Bloomfield, for father of D.H.
Thomas J. Miller, Attorney General, Mary Pippin, Assistant Attorney General, and Rick Lynch, County Attorney, for appellee-State.
Julie Fisher of Pothoven, Blomgren Stravers, Oskaloosa, for grandparents, F.R. T.R.
John Silko, Bloomfield, for minor children.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Mother appeals the juvenile court's termination of her parental rights to two of her minor children contending the State failed to prove a statutory basis for termination and that termination was not in the children's best interests. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Tina is the biological mother of Dawn, born July 18, 1991, Nichole, born September 17, 1993, and Stephen, born March 16, 1996. Nichole is not at issue in this appeal. Roger is Dawn's biological father as well as Tina's maternal uncle. Shawn is Nichole's biological father and Stephen Sr. is Stephen's biological father. Tina was married to Stephen Sr. in 1995 and suffered domestic violence during their marriage. Although there have been many separations, Tina has never divorced Stephen Sr. Tina has had a history of chronic substance abuse of both methamphetamines and marijuana since she was seventeen. She was almost twenty-six years old at the time of the termination hearing.
Tina was only fifteen years old when Dawn was conceived and Roger was ultimately charged with sexual abuse and is currently serving a fourteen-year sentence in Colorado.
The children first came to the attention of the Iowa Department of Human Services (DHS) on June 2, 1999 when an investigation confirmed sexual abuse of Dawn. It was recommended at that time that Tina and the children participate in family centered services and individual therapy and that Tina obtain a chemical dependency evaluation. Tina did not follow through on any of these services. She did eventually complete a substance abuse evaluation in September of 1999 which recommended she receive inpatient treatment, but she did not act on this recommendation either.
A psycho-social evaluation of the children was completed in November of 1999 which reported that all three children were engaging in inappropriate sexual activity. The children's therapist found the children to be at risk due to lack of age appropriate structure and supervision, drug usage by Tina, and the fact they were witnessing violence in the home. Numerous other recommendations were made to Tina by DHS in an attempt to help her, including that she participate in a drug abuse evaluation, she and the children receive family centered services for parent skill development, she abide by the restraining order against Stephen Sr., and that Dawn and Nichole receive therapy. Tina did not follow through with any of these recommended services. Tina was arrested on October 18, 1999 for aiding and abetting Stephen's violation of a no contact order.
On November 29, 1999 DHS received another abuse report alleging the children had been left alone while in Tina's care and that she had physically abused the children. The children confirmed there were numerous occasions when Tina left them alone to go to a bar or go shopping and that she had hit them with a brush, fly swatter, scissors, and a belt before. The allegation of abuse was confirmed and placed on the child abuse registry. A second report of abuse was confirmed on December 16, 1999 because Tina had used marijuana in the presence of the children and the children had access to needles used by Stephen Sr. during intravenous drug use.
After the second founded abuse report DHS filed a petition alleging Dawn, Nichole, and Stephen to be children in need of assistance pursuant to Iowa Code sections 232.2(6)(b)(2), 232.2(6)(f), and 232.2(6)(n) (1999). The petition was later amended to include section 232.2(6)(c). Tina did not see the children between November 26, 1999 and February 3, 2000. The adjudicatory hearing was held February 7, 2000 and it was stipulated that the children were in need of assistance under Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(n). Pending dispositional hearing the children were placed in the custody of the DHS for foster care placement. Attempts were made by the caseworker to set up visits with Tina on February 14 and 28 but Tina could not be reached. Tina's boyfriend at the time informed the worker Tina was in jail on a failure to appear charge and had been released on February 28, 2000.
Tina was arrested again on April 20, 2000 and charged with possession of a precursor and possession with intent to manufacture methamphetamine. Tina was placed on probation and completed a twenty-eight day inpatient drug rehabilitation program on June 7, 2000. She was later terminated from SIEDA drug and alcohol services on July 28, 2000 for failure to attend scheduled appointments. During this time Tina missed six of her weekly visits with the children. On July 15 Tina was arrested and charged with theft. On August 3, 2000 Tina called to try to reschedule the visit she was to have with the children that day. Her boyfriend told the caseworker at that time that Tina was messed up on drugs again and needed to go back into treatment. Tina was arrested again on August 13, 2000 for failure to appear and spent eight days in jail.
On August 29, 2000 Tina signed and agreed to a list of required expectations, including what she must do in terms of visitations, participating in random drug testing, intensive outpatient drug rehabilitation, and individual therapy. Included in the specific services to be provided to Tina in the case permanency plan dated September 12, 2000 were skill development classes, a substance abuse evaluation, and individual counseling. Between September 18 and October 30, 2000 Tina missed five weekly visits with the children. Tina's last visit with her children and last skill development class was November 2, 2000. Tina stated at that time she would not be able to attend appointments due to lack of transportation. When the DHS attempted to provide her with transportation they were unable to locate her. DHS sent a letter to Tina on December 21, 2000 requesting she contact her social worker. She did not do so. Tina was arrested on January 10, 2001 for violating her probation because she had five UA's come back positive for marijuana, had not completed her community service, had failed to attend mental health and substance abuse counseling, and was driving with her license suspended.
A petition to terminate Tina's parental rights to Dawn and Stephen, as well as Roger's parental rights to Dawn and Stephen Sr.'s parental rights to Stephen, was filed on December 1, 2000. The statutory grounds for termination asserted in the petition included Iowa Code sections 232.116(1)(a), (b), (c), (e), and (k) (1999). The termination hearing was held on April 9, 2001. At that time Tina was incarcerated in the women's violator's program at Mitchellville. Her earliest release date was around May 20, 2000 and it was possible she would be released to a halfway house at that time. Tina acknowledged at the hearing the children could not be returned to her custody at that time or in the immediate future but asked the court to give her additional time to comply with the numerous required services in order to have her children returned to her.
The juvenile court terminated Tina's parental rights to Dawn and Stephen pursuant to Iowa Code sections 232.116(1)(e) and 232.116(1)(k). Robert and Stephen Sr. both consented to the termination of their parental rights with their respective children and accordingly, the court terminated their parental rights under section 232.116(1)(a). The court further found that termination of all three parents' parental rights was in the best interest of the children. Tina appeals from the juvenile court's order terminating her parental rights to Dawn and Stephen. Neither Roger nor Stephen Sr. have appealed.
II. SCOPE AND STANDARDS 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
Tina argues the State failed to prove a statutory basis for termination and that termination of her parental rights was not in Dawn and Stephen's best interest. The juvenile court terminated Tina's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (k). When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds for termination under one of the sections relied upon by the court to affirm the termination. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999).
We note Tina initially argues in her brief that the first three statutory grounds alleged by the State in the termination petition, sections 232.116(1)(a), (b), and (c), were not proven. However, as the juvenile court did not terminate Tina's parental rights based on any of these provisions we need not address them here.
The controlling standard applied in cases involving the termination of parental rights is the best interest of the children involved. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
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)). It is well established there exists a parental interest in maintaining the integrity of the family unit. Dameron, 306 N.W.2d at 745. This interest, however, is not absolute and may be forfeited by certain parental conduct. Id. The State has a duty to assure that every child within its borders receives proper care and treatment and it must intercede when parents abdicate that responsibility. Id. A good prediction 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). The parent's past performance may indicate the quality of care the parent is capable of providing in the future. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997).
Iowa Code section 232.116(1)(k) provides that a court may terminate parental rights if all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child's parents for placement pursuant to section 232.102.
(2) The parent has a severe, chronic substance abuse problem and presents a danger to self or others as evidenced by prior acts.
(3) There is clear and convincing evidence that the parent's prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child's age and need for a permanent home.
Tina concedes that Dawn and Stephen have both been adjudicated children in need of assistance and that she has had a severe and chronic substance abuse problem. However, Tina alleges the State failed to prove she presents a danger to herself or others and failed to prove that her prognosis indicates the children could not be returned to her custody within a reasonable period of time. She alleges she now has her substance abuse problem under control and would be able to have custody of her children within a reasonable period of time.
The record is replete with evidence of Tina's approximately ten-year history of severe and chronic substance abuse and the dangers this behavior has caused to her children. The children had been left alone while Tina went to bars and shopping, they suffered physical abuse from Tina, they had access to drug needles, they witnessed both drug usage and physical abuse, they were diagnosed with attachment disorder, and Dawn had become "parentified." All of these dangers or harms suffered by the children were either a direct or indirect result of Tina's drug abuse. Tina's prior acts have clearly shown her chronic drug abuse makes her a danger to her children.
Finally, we find Tina's "prognosis" indicates Dawn and Stephen could not be returned to her care within a reasonable period of time. Tina testified at the termination hearing that she had made progress dealing with her substance abuse issues while at Mitchellville and now understands the consequences of her drug usage. However, Tina also testified that during the past nine to ten years her periods of sobriety were only a couple months here and there, if even that. In addition, Tina did attend a twenty-eight day inpatient drug rehabilitation program in the spring of 2000 after which she testified she "kind of just fell back into the old crowd" and began using drugs again. Furthermore, throughout both the child in need of assistance proceeding and the termination proceeding Tina continued to use drugs, as evidenced by the positive results of urine tests for drug usage. She continued to use drugs despite the fact she knew the custody of her children was at stake.
As noted above, a good prediction of the future conduct of a parent is to look at their past conduct, In re N.F., 579 N.W.2d at 341, and a parent's past performance may indicate the quality of care the parent is capable of providing in the future, In re C.K., 558 N.W.2d at 172. Tina's past and present performance does not bode well for her future ability to change her lifestyle, control her drug problem in the long term, and begin to put her children's needs before her own. Any progress she has made while at Mitchellville in dealing with her drug problems should be commended and encouraged. However, it must be recognized that any such improvement has occurred in a controlled and supervised environment and her past performance indicates that once out of such an environment it is fairly likely she will fall back into her old habits.
Furthermore, Tina was incarcerated at the time of the termination hearing in April of 2001. Tina testified that she might be released around May 20th and it was possible she would then be required to reside in a correctional halfway house for an unknown period of time. She also recognized that even after her release she would need more time to comply with several additional services before the children could possibly be returned to her custody.
Based on our de novo review of the entire record we find the State has proven by clear and convincing evidence that Tina's chronic and severe drug problem has presented a danger to her children as evidenced by her prior acts and that Tina's prognosis indicates her children will not be able to be returned to her custody within a reasonable period of time. Accordingly, we agree with the juvenile court that Tina's parental rights should be terminated under Iowa Code section 232.116(1)(k).
Tina further claims the termination of her parental rights is not in the children's best interests. Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interest of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In determining the best interest of the children, the court looks to their long range and immediate interests. C.K., 558 N.W.2d at 172. The court must consider the physical, mental, and emotional needs of the children in deciding to terminate parental rights. In re C.W., 554 N.W.2d 279, 283 (Iowa Ct.App. 1996).
For all of the same reasons as set forth above we find termination of Tina's parental rights to be in the best interests of Dawn and Stephen. We cannot force these children to wait interminably for Tina to become responsible or mature enough to parent them. Children need permanency and based on the evidence in the record the only way they can achieve this is to terminate Tina's parental rights. "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). Both children have adjusted well to their foster home and have made great strides in overcoming their attachment disorders. Their foster parents are willing to consider adoption and Dawn has in fact asked her foster parents to adopt her. We find it is in the children's best interest to terminate Tina's parental rights in order to allow them to achieve the stability, security, and permanency they so deserve.
We affirm the juvenile court's termination of Tina's parental rights to Dawn and Stephen. We conclude the State proved by clear and convincing evidence the statutory grounds for termination under Iowa Code section 232.116(1)(k) and that termination is in the children's best interests.
AFFIRMED.