Opinion
No. 3-769 / 03-1413
Filed October 15, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
A mother and two fathers appeal from the order terminating their parental rights to three children. AFFIRMED.
Heather Dickinson, West Des Moines, for appellant-mother.
Wendell J. Harms, Des Moines, for appellant-father of B.M. and S.M.
Jesse Macro, Des Moines, for appellant-father of J.K.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee-State.
Tiffany Koenig, Des Moines, guardian ad litem for minor children.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Three parents who were all imprisoned at the time of the termination hearing appeal from the order terminating their parental rights to their respective children. We affirm.
I. Background Facts and Proceedings.
Macie J. is the mother of Skylar, born July 19, 1994, Brooklyn, born March 8, 1997, and Jordan, born July 13, 2001. David M. is the father of Brooklyn and Sklyar, while Ken K. is the father of Jordan. Skylar and Brooklyn first came to the attention of the Department of Human Services (DHS) in 1997 due to Macie's substance abuse. They were adjudicated in need of assistance pursuant to Iowa Code section 232.2(6)(c), (n), and (o) (1997). The children again were adjudicated in 2000 following a drug-related homicide that took place in Macie's home while the children were present. In March of 2002 all three children were removed from Macie's custody after she was jailed on drug and forgery charges. By that time, the children's fathers, David and Ken, were both imprisoned on drug charges — David in November 2000 on a class "B" felony conviction and Kenneth in August 2001 on a class "C" felony drug conviction.
On April 30, 2003, the State filed a petition seeking to terminate the parental rights of Macie, Ken, and David. Following a trial in which all three parents were present and testified, the court entered an order terminating all of their parental rights. It terminated Macie's and David's rights to Skylar and Brooklyn under Iowa Code section 232.116(1)(d), (e), (f), (i), and (j) (2003), and Macie's and Ken's rights to Jordan pursuant to section 232.116(1)(d), (e), (h), (i) and (j). All three parents appeal from this order.
II. Scope and Standards of Review.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least oneground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
III. Discussion.
As noted, all three parents were incarcerated at the time of the termination hearing and their times of release were not clear. We have stated in a similar case:
We must reasonably limit the time for parents to be in a position to assume care of their children because patience with parents can soon translate into intolerable hardship for the children. A child should not be forced to endlessly suffer the parentless limbo of foster care. The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems. Children simply cannot wait for responsible parenting.
In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997) (affirming the termination of an imprisoned father's parental rights) (citations omitted).
A. Macie. We conclude the State properly terminated Macie's parental rights under section 232.116(1)(f) and (h), which require clear and convincing proof that the children (1) are either four or older or three or younger, (2) have been adjudicated in need of assistance, (3) have been removed either the previous twelve or the previous six months, and (4) cannot be returned to the custody of their parents. Iowa Code§ 232.116(1)(f), (h). The age of the children is not in question, nor is the fact they have all been adjudicated in need of assistance or the length of removal from their parents' custody. On our de novo review of the record, we conclude the final element is met as well. As noted in the district court's order, DHS provided Macie with numerous substance abuse treatments, in-home services, day care, protective daycare, and art therapy. Despite these efforts, Macie continued to provide the children with an unstable and unwholesome home, and continued in her criminal activities. We concur that Macie has not made sufficient progress such that the children safely can be returned to her custody. We therefore affirm the termination of her parental rights.
B. Ken and David. Both Ken and David assert reasonable efforts were not made and services not provided that would have enabled them to reunify with the children. We note both of them are in prison, and that their incarcerations are due to their own actions. Accordingly, they cannot fault the State for being unable to provide such services. See In re E.K., 568 N.W.2d at 831. Significantly, the record does not indicate that, following the children's most recent adjudications, either Ken or David requested any reunification services before the termination hearing. See In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997) ("The State had the obligation to make reasonable efforts, but it is the parent's responsibility to demand services if they are not offered prior to the termination hearing."). The termination of their parental rights, therefore, is not precluded by the State's failure to offer them reunification services while in prison. Regardless, we also note both Ken and David were offered and received extensive services through the Iowa Department of Corrections, including such programs as anger management, money management, moral thinking, and batterer's education classes.
Both Ken and David have extensive criminal histories. Neither Ken nor David have provided substantially for their children, played any sort of parental role in their lives, or put the interests of the children before their own. At the time of the termination hearing it was not clear when either would be released, however, it is clear that significantly more progress by both fathers would be necessary before the DHS would consider placing the children with them. Because we conclude the efforts made be DHS were reasonable under the circumstances, we affirm the terminations of David's and Ken's parental rights under section 232.116(1)(f) and (h) respectively (child four or older/three or younger, has been adjudicated, has been removed from the parent's custody, and cannot be returned to the parents' custody).
David additionally maintains his trial counsel was ineffective in failing to request a severance of his termination trial from that of Macie and Ken. He believes he was prejudiced by the "antagonistic evidence and defenses asserted" by them. The test for ineffective assistance of counsel in termination cases is generally the same as in criminal proceedings. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992). The elements of an ineffective-assistance claim are (1) counsel's performance was deficient, and (2) actual prejudice resulted. Id. If either element is not proved, the claim of ineffective assistance of counsel fails. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999).
We conclude David suffered no prejudice by counsel's failure to seek severance of his trial from Macie and Ken's. First, it is significant this trial was to the court. See State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992) (noting the prejudicial effect of evidence is decreased in the context of a bench trial). Additionally, although the facts relevant to David's situation of course are intertwined with those of the other parents, they strongly support the termination of his parental rights. Trying his case along with Ken's and Macie's made this conclusion no more inescapable. There is no probability the outcome of the trial would have been different had counsel successfully moved for a severance.
Finally, David claims DHS engaged in gender discrimination regarding their treatment of him compared to its treatment of Macie. He believes his gender caused the DHS to provide less extensive services to him than to Macie. Because this issue was neither raised nor addressed below, it has not been preserved for our review, and therefore we decline to address it.
IV. Conclusion.
We conclude the termination of parental rights is in the best interests of all three children. The parents' substantial criminal histories, their drug involvement, their inattention to the children, and their instability all weigh strongly in favor of termination. We therefore affirm the order terminating their parental rights.