In the Interest of K.D., 02-0960

This case is not covered by Casetext's citator
Court of Appeals of IowaJul 31, 2002
No. 2-614 / 02-0960. (Iowa Ct. App. Jul. 31, 2002)

No. 2-614 / 02-0960.

Filed July 31, 2002.

Appeal from the Iowa District Court for Polk County, KARLA J. FULTZ, Associate Juvenile Judge.

A mother and father appeal the termination of their parental rights. AFFIRMED.

Jeffrey T. Mains of Benzoni Mains, Des Moines, for appellant-Mother.

Nancy L. Pietz, Des Moines, for appellant-Father.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney General, and Jon Anderson, Assistant County Attorney, for appellee-State.

Victoria Meade, Des Moines, for minor children.

Considered by SACKETT, C.J., and MAHAN and ZIMMER, JJ.

A mother and father appeal the termination of their parental rights. We affirm the juvenile court's decision.

I. Background Facts and Proceedings .

Rosemary is the mother of Anastasia, Kirsten, and Donna born February 23, 1994, February 13, 1998, and March 26, 2000, respectively. Derek is the putative father of Anastasia and Melvin is the putative father of Kirsten and Donna.

The children came to the attention of the court after Rosemary and Melvin tested positive for methamphetamine. The children were removed from their home by agreement on May 19, 2000 and returned to Melvin and Rosemary on May 31 after both tested negative for drugs for ten days. The Department of Human Services (Department) confirmed and registered child abuse against Rosemary and Melvin based on denial of critical care and failure to provide proper supervision. The parents were ordered to cooperate with family preservation services, obtain psychosocial evaluations, and continue with drug screening. On August 8, 2000, the children were adjudicated children in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (6)(n) (2001).

In July of 2000, the Department confirmed and registered child abuse against Derek for sexual abuse in the second degree against his own daughter, Anastasia. Derek subsequently abandoned Anastasia and consented to the termination of his parental rights.

Melvin relapsed in September of 2000 and the children were placed solely with their mother. The court entered a no contact order and restricted Melvin to supervised visitation. In addition to domestic altercations with Rosemary, Melvin had been stealing items from the home to sell for drug money and threatening to kidnap the children. On February 28, 2001, Rosemary and Melvin left the children with Melvin's sister without giving indications of their plans or destination. The court then placed the children with Melvin's sister. Because Anastasia developed difficulties in the home, the court placed her in foster care in January of 2002.

Prior to Anastasia's foster home placement, the Department investigated and found a third instance of child abuse against Anastasia. The Department found child abuse against Melvin for sexual abuse in the second degree and against Rosemary for denial of critical care and failure to provide proper supervision.

From May of 2000, the parents were offered reasonable and appropriate services towards reunification with their children. Unfortunately, Melvin and Rosemary failed to benefit from the State's efforts. On May 29, 2002, the court terminated the parental rights of Melvin with respect to Kirsten and Donna and Rosemary with respect to all three children pursuant to Iowa Code sections 232.116(1)(b) (child abandoned), (1)(c) (child CINA based on physical or sexual abuse and circumstances continue despite services), (1)(d) (child CINA, child removed for six consecutive months, and parents have not maintained meaningful contact), (1)(e) (child four or older, child CINA, child removed for twelve of last eighteen months, and child cannot be returned), (1)(g) (child three or younger, child CINA, child removed for six of twelve months, and child cannot be returned), and (1)(k) (child CINA, parent has severe substance abuse problem, and child cannot be returned within a reasonable time). Melvin and Rosemary appeal.

Subsections (c), (d), (e), (g), and (k) have been redesignated as (d), (e), (f), (h), and (l), respectively, due to amendment to Chapter 232.

II. Scope of Review .

The standard of review in termination cases is de novo. Iowa R. App. P. 6.4; In re J.J.S., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001).

III. Discussion .

Melvin and Rosemary appeal each statutory ground for termination found by the juvenile court. Melvin also contends the juvenile court erred by refusing to grant a continuance the day of the termination hearing. Both parents contend the court's order terminating their parental rights was in error because a relative had temporary custody of the children.

A. Statutory Grounds for Termination.

Although appellants claim error as to each statutory ground found by the juvenile court, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999) (citation omitted).

The juvenile court terminated both Melvin and Rosemary's parental rights pursuant to Iowa Code section 232.116(1)(d). That section requires that: (1) the child has been adjudicated CINA, (2) the child has been removed from the custody of the parents for at least six consecutive months, and (3) the parents have failed to maintain significant and meaningful contact with the child during the previous six months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so.

"[S]ignificant and meaningful contact"includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that parents establish and maintain a place of importance in the child's life.

Iowa Code § 232.116(1)(d)(3).

The statutory elements are met with clear and convincing evidence. The children were adjudicated CINA on August 8, 2000 and the parents have not had physical custody for over a year. The parents last had physical custody when they deserted the children by leaving them with Melvin's sister in February of 2001. Clearly the parents have failed to maintain significant and meaningful contact or make reasonable efforts to resume the care of the children.

The family was offered family preservation, counseling for growth and change, family centered services, mental health and assessment services, individual therapy, family education, urinalyses, and assistance with housing. Despite these services, the parents did not establish and maintain an important role in their children's lives. Melvin continued to abuse illegal substances and minimally cooperated with services. He failed to provide urine samples, complete aftercare, provide emotional or financial support, or even appear at proceedings. Instead, Melvin finds himself the perpetrator of sexual abuse against Anastasia and on probation for theft. Likewise, Rosemary failed to provide urine samples and failed to provide emotional or financial support. Rosemary failed to provide proper supervision and denied Anastasia critical care in the sexual abuse incident. Both parents inconsistently made their scheduled visits. When they did show, the parents discussed adult situations and had a lack of communication with the children. Although the parents were offered housing assistance, they did not follow through with it and continued to lack stability in housing. Their homes have been described as dirty, cluttered, and sparsely furnished. At one point, the parents were living in a tent.

Needless to say, the parents have not adequately complied with the case plan or maintained significant and meaningful contact with their children. We affirm the juvenile court's termination of parental rights of both parents.

B. Motion for Continuance.

Melvin argues the juvenile court abused its discretion in not granting a continuance when he was absent from the termination hearing. We disagree. Despite being personally served with the petition for termination and appearing at the pretrial conference, Melvin failed to appear for the termination hearing and had not been in contact with his attorney for over a month prior to the termination hearing. Melvin's attorney requested a continuance at the hearing. The court denied the request advising that if Melvin was absent because of legal excuse, the attorney could request the court to reopen the matter. No legal excuse was ever provided. Melvin contacted Rosemary for a ride to the hearing but when she arrived to pick him up, he was not present. Under the circumstances, it was not unreasonable for the court to deny the continuance. The other parties were present and prepared for the hearing. Melvin simply failed to show. We affirm on this issue.

C. Section 232.116(3)(a) .

Melvin's final argument charges the court erred when terminating his parental rights because his sister had custody of the children. Rosemary makes a similar contention citing a section of the Iowa Code that does not exist. For purposes of this appeal, we assume a clerical error and consider her argument along with Melvin's.

Section 232.116(3)(a) provides the juvenile court with a discretionary alternative to termination when a relative has custody of the children. A termination, otherwise warranted, may be avoided under this exception. In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct.App. 1991). The decision not to terminate under this code section is within the discretion of the court based on the unique circumstances before it and the best interests of the child. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993) (citation omitted). Although this argument is inapplicable to Anastasia because the court transferred her to foster care, it is true that Melvin's sister had temporary custody of Donna and Kirsten when the termination hearing was held, and hopes to adopt them. Neither party asserts how the juvenile court's termination order was unreasonable in light of section 232.116(3). Moreover, the record before us makes clear that termination is in the best interests of the parties' children. We conclude the juvenile court did not abuse its discretion in refusing to apply the permissive exception to termination found in section 232.116(3).

IV. Conclusion .

We find the long-term best interests of the children are served through terminating the parental rights of Rosemary and Melvin. Termination provides the best chance for the safe, healthy, and stable environment these children deserve.