IN THE INTEREST OF W.C., III, D.L., D.L., and E.W.L., Minor Children, D.C., Mother, Appellant, W.C., Jr., Father of W.C., III, Appellant, Z.W., Grandmother of W.C., III, Appellant.

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IN THE COURT OF APPEALS OF IOWA No. 1-596 / 00-1193 Filed February 20, 2002 IN THE INTEREST OF W.C., III, D.L., D.L., and E.W.L., Minor Children, D.C., Mother, Appellant, W.C., Jr., Father of W.C., III, Appellant, Z.W., Grandmother of W.C., III, Appellant. Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge. The father of W.C., III and the mother of W.C., III and D.L. appeal from the juvenile court's ruling terminating their parental rights. The paternal grandmother of W.C., III also appeals from the court's termination ruling. AFFIRMED. Thomas J. McCann, Des Moines, for appellants mother and father. Robert A. Wright, Jr., Des Moines, for appellant grandmother. Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and Cory McClure, Assistant County Attorney, for appellee- State. J. Michael Mayer, Des Moines, guardian ad litem for minor child E.W.L., and Michelle Miller, Des Moines, guardian ad litem for all other minor children. Heard by Mahan, P.J., and Miller and Hecht, JJ. MILLER, J. The father of William III and the mother of Devon and William III appeal from the juvenile court's ruling terminating their parental rights. The paternal grandmother of William III also appeals. The parents contend (1) the ex parte temporary removal of the children from the custody of William III's paternal grandmother was illegal and not warranted, and (2) the trial court erred in terminating their rights to the children. William III's paternal grandmother claims (1) the children's best interests dictate placement with her, and (2) the trial court erred in denying her application for the appointment of appellate counsel. We affirm. I. BACKGROUND FACTS. Daeleene is the biological mother of Danielle, born January 12, 1987, Devon, born May 30, 1991, and William III, born April 11, 1996.[1] The father of William III is William II. The putative father of Devon is David, whose rights were also terminated in this proceeding. The natural father of Danielle is Edgar, whose parental rights have previously been terminated. A child abuse report for denial of critical care was founded against Daeleene in 1995. No services were provided to the family at that time. Danielle and Devon were removed from Daeleene's custody with her consent on July 8, 1997 after Danielle alleged William II physically and sexually abused her. It was also noted that William II physically abused Daeleene. William II was subsequently charged criminally with child endangerment. Danielle and Devon were placed with Daeleene's mother and stepfather, Vanessa and Edgar.[2] The parents agreed to services to keep William III in the home. The State filed child in need of assistance (CINA) petitions in July 1997 based on Iowa Code section 232.2(6)(b) and (c)(2) (1997) for all three children. Services for William III were not initiated, and he was removed and placed in the care of his paternal grandmother, Zella, in August 1997. The court ordered that there was to be no contact between William II and William III other than supervised visits. Devon and Danielle were removed from Vanessa and her husband's care and placed in foster care. On October 21, 1997, the court adjudicated the children CINA pursuant to the allegations of the petition. The children continued in their placements, but Danielle and Devon could be moved to Zella's custody with consent of DHS and the guardian ad litem. In March 1998, Zella's husband was charged with possession of cocaine. He stipulated to a finding of guilt. William II was charged with possession of crack cocaine, possession of a controlled substance with the intent to deliver, and felony possession of a firearm. Daeleene was charged with possession of a controlled substance. In May 1998, the children were confirmed CINA, and they were all placed in Zella's custody. The State filed a termination petition on August 21, 1998, requesting termination of Daeleene's rights to Devon and Danielle and Daeleene's and William II's rights to William III. The juvenile court found termination was not in the children's best interests, and the petition was dismissed. The children were confirmed to be CINAs, and they continued in Zella's care. In March 1999, William II and Daeleene were charged with possession of a controlled substance, and William II was also charged with felon in possession of a firearm. As a result of a raid on William II's and Daeleene's home, in-home services were discontinued due to the service provider's safety concerns. While placed with Zella, the children blamed her for them not being with their parents. They lacked understanding of their permanency. Zella had health problems and was overwhelmed caring for these children. The children had unauthorized contact with their parents in violation of a court order. They broke windows in her house. Edgar was using and selling drugs. There were concerns regarding Edgar's and Danielle's absences from and tardiness to school. Danielle was fighting, she was seen walking the streets during the day, and she was self-mutilating. Although it was believed Devon would benefit from medication, doctors felt they could not ethically prescribe a controlled substance to a member of a family with such a history of substance abuse. There were concerns about Devon's health and appearance. Danielle's and Devon's therapist reported that the children continued to spiral downward from April to October 1999. On October 29, 1999, the State filed a motion requesting the children be removed from Zella's custody. The motion noted Danielle's self-mutilation, tardiness, and absences from school. It stated that William II tested positive for cocaine, and that Zella allowed unsupervised contact between the children and their parents in violation of the court's order. The court verbally entered an ex parte order removing all the children from Zella's custody. After removal, Danielle and Edgar tested positive for drugs. They both ran away. Edgar has returned to Zella's care, but Danielle was still on the run at the time of the termination hearing. The State filed a termination petition on behalf of Danielle, Devon, and William III. The State alleged termination of Daeleene's parental right to Danielle and Devon was warranted under Iowa Code section 232.116(1)(c) and (e) (1999), and termination of William II's and Daeleene's rights to William III was warranted under section 232.116(1)(c) and (g). The State later dismissed its allegation as to William III under section 232.116(1)(g), and instead alleged termination was warranted under section 232.116(1)(e). After removal from Zella's custody, Devon and William III made great progress in their foster homes. Devon was prescribed Ritalin, and he was doing much better in school. He exhibited improved concentration, behavior, and social skills, and he seemed happier and more relaxed. He is a special needs child, and requires a very high amount of structure and very active parents. Foster care has been a source of stability for the children. The Iowa Department of Human Services (DHS) case manager recommended termination because if the children were returned to the parents, the children would be at risk of exposure to illegal drugs and child abuse. Devon's therapist was concerned that his progress since removal would be lost if he were returned to his parents or Zella. The DHS case manager testified that termination would give the children permanency. She testified that placement with Zella had been a concern. She would not recommend Devon and William III be returned to Zella's care. Zella was not able to provide Devon with structure and consistency, take him to therapy consistently and regularly, and provide him with the quality of life he was receiving in foster care. William III was being provided with structure, stability, and discipline in foster care that he was not receiving from Zella. Zella's home was not pre-adoptive. William II and Daeleene have been inconsistent throughout this case with providing urine samples until the October 1999 removal of the children from Zella's custody. The parents sometimes tested positive for drugs. They did not consistently comply with or participate in services. Both denied drug use to substance abuse treatment providers. Daeleene attended, but did not participate well in, parenting classes. In-home services were discontinued after the raid on the parental home in March 1999. William II's participation in domestic abuse intervention services was lacking. The juvenile court terminated Daeleene's parental rights to Devon and William III pursuant to section 232.116(1)(e) and William II's rights to William III pursuant to section 232.116(1)(e). It dismissed the termination petition as to Danielle and placed custody and guardianship of her with Zella. The hearing on the October 29, 1999 removal was concluded at the termination hearing. The juvenile court confirmed the temporary removal. II. SCOPE OF REVIEW. We review termination proceedings de novo. Iowa R. App. P. 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 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. Id. III. THE EX PARTE TEMPORARY REMOVAL. The juvenile court entered a written order on the State's application to modify the children's placement on October 29, 1999. The written order set the matter for hearing, but was silent on the issue of temporary removal pending a hearing. The court verbally entered an ex parte order removing the children from Zella's care. The parents argue this removal violated their due process rights and was not warranted. We find that due process has been afforded the parents. When a child is already under juvenile court jurisdiction, the court has inherent power to "temporarily, even summarily, remove a child pending a hearing on the modification." In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994). Therefore, a modification hearing under section 232.104(6) need not be held prior to the entry of an ex parte temporary removal order. Furthermore, the record shows the removal was warranted. The State alleged that Zella was letting the children see the parents in violation of a court order, William II tested positive for cocaine, and Danielle was self-mutilating and was tardy and absent from school often. We affirm. IV. COURT-APPOINTED APPELLATE COUNSEL. The juvenile court refused to appoint appellate counsel for Zella. Zella contends this was erroneous, as she has a statutory right to appointed counsel. When construing statutes, our ultimate goal is to ascertain and give effect to the intention of the legislature. Peterson v. Ford Motor Credit Co., 448 N.W.2d 316, 318 (Iowa 1989). We consider the language of the statute and the objects sought to be accomplished. Id. Our legislature has divided our juvenile justice chapter into separate divisions governing juvenile delinquency proceedings, CINA proceedings, termination proceedings, and family in need of assistance proceedings. Parents, guardians, or custodians are provided a right to appointed counsel under the division governing CINA proceedings. Iowa Code § 232.89(1). Parents are provided a right to appointed counsel under the division governing termination proceedings. Iowa Code § 232.113(1). We conclude that the right to appointed counsel under section 232.89(1) applies only to CINA proceedings. See In re L.A.J., 495 N.W.2d 128, 130-31 (Iowa Ct. App. 1992) (holding that the parents of a child involved in a juvenile delinquency proceeding did not have a right to counsel under section 232.89(1)); see also In re R.L.D., 456 N.W.2d 919, 921 (Iowa 1990) (stating that parent, guardian, or custodian is statutorily entitled to appointed counsel in CINA proceedings and family in need of assistance proceedings, and parents have statutory right to appointed counsel in termination proceedings). We conclude that only section 232.113(1) provides a right to counsel in termination proceedings. Only a parent has a right to appointed counsel under that section. We conclude that the legislature deliberately made no provision for the appointment of counsel to represent the guardian or custodian of a minor in termination proceedings. Therefore, Zella, as grandparent of William III, does not have a right to court-appointed counsel in this termination proceeding, and the court properly denied her request for court-appointed appellate counsel. We affirm. V. BEST INTERESTS OF THE CHILDREN. The controlling standard in cases involving the termination of parental rights is the best interests 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 a child. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) (citing 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. Neither the parents nor Zella contend that the statutory basis for termination has not been met. Accordingly, they have waived this argument. See Iowa R. App. P. 14(a)(3) (failure in the brief to state, to argue, or to cite authority in support of an issue may be deemed waiver of that issue). They argue termination was not in the children's best interests. Zella additionally argues that if termination was proper, then the children should have been placed with her. This case is replete with evidence of substance abuse and violence in the parental home. The parents have not addressed these issues. Neither parent cooperated fully with the case permanency plan. The parents have not requested that the children be returned to their care. If returned to their care, the children would be exposed to substance abuse and violence. We conclude it is in the children's best interests to terminate parental rights. We find no inconsistency in the fact that Daeleene's rights to Edgar and Danielle were not terminated, whereas both parents' rights to Devon and William III were terminated. The children's needs are different. The two older children were in a different situation than the younger children. Furthermore, while siblings should be kept together whenever possible, our primary concern remains the best interests of the children. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994). We find that termination is in the children's best interests. Although we question whether error was preserved, we address Zella's argument that the children should have been placed with her. We find that it was proper not to place the children with Zella. The record shows she was having trouble caring for all the children, and Devon and William III have improved significantly since being removed from her custody. The service providers in this case are concerned that the children will regress if returned to her custody. Termination will provide the children with the permanency they require. We find that it is in the children's best interests that they not be placed in Zella's custody. VI. CONCLUSION. We affirm the juvenile court's ruling terminating parental rights. AFFIRMED. ----------------------- [1] Daeleene is also the mother of Edgar, born August 13, 1984, who is not a child in interest in the present termination action. [2] Daeleene's stepfather, Edgar, is also the biological father of Danielle. To avoid confusing him with Daeleene's son, Edgar, he will hereafter be referred to as Vanessa's husband and further references to "Edgar" will be to Daeleene's son.