IN THE INTEREST OF E.D. B., D.D.P., A.M.P., JR., E.D.P., M.M.P., AND M.L.P., Minor children, A.M.P., SR., Father, Appellant, E.B., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-980 / 06-1756
Filed December 28, 2006
IN THE INTEREST OF E.D.B., D.D.P., A.M.P., JR.,
E.D.P., M.M.P., AND M.L.P.,
Minor children,
A.M.P., SR., Father,
Appellant,
E.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Nancy A.
Baumgartner, District Associate Judge.
A mother and father separately appeal the district court’s order terminating
their parental rights to six children. AFFIRMED.
Carrie K. Bryner, Cedar Rapids, for appellant mother.
Joseph G. Bertroche, Jr., Cedar Rapids, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, Harold L. Denton, County Attorney, and Rebecca Belcher,
Assistant County Attorney, for appellee.
Robert Davison, Cedar Rapids, for minor children.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
2
VOGEL, J.
Erica and Alexander Sr. each appeal from the district court order that
terminated parental rights to Erica’s oldest daughter, Elizabeth, 1 and the couple’s
five children DeAundre, Alexander Jr., Eric, Marquicia, and Marquiece. Upon our
de novo review of the record and arguments on appeal, see In re C.B., 611
N.W.2d 489, 492 (Iowa 2000), we affirm the termination of Erica and Alexander
Sr.’s parental rights.
The children first came to the attention of the Iowa Department of Human
Services in July 2003 when Eric was born with cocaine in his system. Erica and
Alexander Sr. have a long history of illegal substance use, Alexander Sr. is a
diagnosed schizophrenic, and Erica also has mental health issues. Hair stat
tests of the three older children tested positive for extensive exposure to cocaine,
as well. Eric and his three older siblings were removed from the home that
month and later adjudicated children in need of assistance (CINA) in August
2003, pursuant to Iowa Code sections 232.2(6)(c)(2) (2003) (children are likely to
suffer harm due to parent’s failure to exercise care in supervising children); (n)
(parent’s mental capacity or drug or alcohol abuse results in children not
receiving adequate care); and (o) (illegal drug present in children).
They
remained in the custody of DHS and placed in family foster care while services
were provided to Erica and Alexander Sr.
Erica successfully completed
substance abuse treatment by the end of February 2004, rarely missed visits with
the children, and demonstrated capable parenting skills at visits. Although Erica
had progressed by this time, Alexander Sr. had yet to complete treatment and
1
Elizabeth’s father is deceased.
3
Erica was pregnant with twins, expecting a birth date in June 2004. Marquiece
and Marquicia were born in June 2004 with no illegal substances detected in
their systems. As Erica and Alexander Sr. continued to cooperate with services
and submit clean urine analysis tests, the children were returned to Erica’s
custody in September 2004.
Around February or March 2005, it appears Erica and Alexander Sr.
began using illegal substances again, as they failed to provide any UAs for
testing in that time period.
The cleanliness of the family home began to
deteriorate at this time, as well. The district court told Erica and Alexander Sr. at
a review hearing in early July 2005 that they were not in compliance with
services and the court’s expectations of their progress and warned the children
would be removed unless they began to comply. The court ordered the children
placed in protective day care, ordered the parents to cooperate with drug testing,
maintain a clean and safe home, and ordered a family support worker be
provided to Erica for dealing with the difficulties of raising six children. After this
hearing Erica and Alexander Sr. did not submit to drug testing for another six
weeks.
When finally tested, Erica’s hair sample was insufficient to test,
Alexander Sr.’s was positive for cocaine, and a subsequent test of the four older
children’s hair was also positive for cocaine. DHS again removed all six children
and placed them in family foster care. 2 The children have remained out of the
care and custody of their parents since August 2005.
2
The twins were adjudicated CINA in early September 2005 following this removal,
pursuant to sections 232.2(6)(c)(2) (children are likely to suffer harm due to parent’s
failure to exercise care in supervising children); (n) (parent’s mental capacity or drug or
alcohol abuse results in children not receiving adequate care); and (o) (illegal drug
present in children).
4
Following the second and last removal, it appears from the record that
both parents continued to use cocaine. Erica did not enter inpatient treatment at
MECCA in Des Moines until July 2006 after the petition to terminate parental
rights was filed. This was her seventh treatment program. After discharge from
the inpatient program, Erica was referred to outpatient treatment at ASAC’s Heart
of Iowa program but has struggled with attendance. Her outpatient counselor
reported that Erica justifies her behavior, is defensive when confronted by her
peers in meetings, and refuses assistance with proposed ideas to address her
mental health and other issues by making excuses of other commitments. Her
counselor has no doubt Erica is still using drugs and sees little chance of
progress in her recovery process. Although Erica is a likeable person and good
mother when not on cocaine, the counselor has heard the same stories and
excuses from Erica throughout this case and doesn’t believe she will ever have
the motivation to permanently change, especially due to her depression issues.
Visits continued to be supervised during the pendency of the case
following the second removal, due to the parents’ lack of consistent clean drug
screenings.
The record reflects that Erica consistently attended supervised
visitation and appropriately interacted with the children.
Alexander Sr.’s
interaction with the children at the visits was limited. A family team meeting was
also held in August 2006, where substance abuse, couple’s counseling, and
employment were discussed with Erica and Alexander Sr. They attended one
couple’s counseling meeting, but another UA in early September 2006 tested
positive for cocaine by Alexander Sr.
Erica’s UA sample was too diluted to
assure a valid result, purportedly from Erica’s dieting and increased herbal tea
5
and other fluid intake. Although Erica asserted at the last review hearing in
September 2006 that she had asked Alexander Sr. to move out of their
apartment so that she could focus solely on the children, neither the court nor
DHS believed her resolutions credible or would be long term due to her historic
unwillingness or inability to be emotionally and physically separated from him.
The petition for termination was filed in mid-June 2006, seeking
termination under code sections 232.116(1)(f) (child four or older, child CINA,
removed from home for twelve of last eighteen months, child cannot be returned
home)(for Elizabeth, DeAundre and Alexander, Jr.); (h) (child three or younger,
child CINA, removed from home for six of last twelve months, child cannot be
returned home); (for Eric, Marquicia and Marquiece) and (l) (child CINA, parent
has substance abuse problem, child cannot be returned within a reasonable
time).
At the time of hearing in mid-October, the older children had been
removed for twenty-five of the preceding thirty-eight months.
The final DHS
report prepared in anticipation of the termination hearing recommended
termination of parental rights for both Erica and Alexander Sr., due to their
continued drug use and pattern of short-term improvements followed by relapse.
Additionally, the service providers testifying at the hearing stated that they
believed termination was in the best interests of the children:
although the
children were bonded with their parents, the parents were unable to consistently
provide a stable home, and additional time would not ameliorate the parents’
continued pattern of substance abuse.
The district court entered its order later that month, finding it in the
children’s best interests and supported by clear and convincing evidence to
6
terminate under all three code sections.
Erica had requested six additional
months at the termination hearing to work towards reunification and complete her
substance abuse treatment. The district court did not address the additional time
request by Erica, but found by the statutory terms that the children either could
not be returned to their parents or could not be returned in a reasonable time.
Erica and Alexander Sr. each separately appeal the termination order.
Clear and Convincing Evidence for Termination.
Erica argues on
appeal that the State failed to prove the grounds for termination. Those grounds
must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660,
661 (Iowa 2000). Erica’s rights to all six children were terminated pursuant to
section 232.116(1)(l). The record is clear that Erica has a chronic and severe
substance abuse problem.
According to Erica’s own recollection, she has
attended drug treatment seven different times. Eric was born with cocaine in his
system, meaning Erica used while she was pregnant with him. Following her last
relapse, Erica did not actively seek treatment until after the petition for
termination was filed. Her outpatient counselor has serious doubts about her
ability to remain drug-free. The district court also believed that Erica was using
illegal substances again after her discharge from inpatient treatment in August
2006.
Following the passage of thirty-eight months, Erica’s continued illegal
substance issues, with little progress or confidence in her long term abstinence,
we agree with the district court that the children could not be returned to her care
within a reasonable time. Having found rights were properly terminated under
one of the statutory grounds relied upon by the juvenile court, we may affirm the
terminations without addressing whether proper findings were made under the
7
other statutory provisions. See In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App.
1996). We affirm on this issue.
Additional Time for Reunification. Erica also argues that she should
have been given additional time to work towards reunification, with her recent
efforts to stabilize her life without Alexander Sr. A parent does not have an
unlimited amount of time to achieve reunification with her children.
In re
H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). As previously noted by this
court:
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) (citations omitted).
Throughout the pendency of this case, Erica has demonstrated a pattern of
limited progress followed by relapse into using illegal substances. The children
have already waited years for Erica to put their needs ahead of her need for
illegal drugs. “At some point, the rights and needs of the child rise above the
rights and needs of the parents. The legislature, through section 232.116 directs
us to that point.” In re J.L.W, 570 N.W.2d 778,781 (Iowa Ct. App. 1997).
Erica was given ample time and opportunity to put her children ahead of her
destructive lifestyle.
The district court did not err in finding the grounds for
termination were met and implicitly denying Erica’s request for additional time.
We affirm.
8
Best Interests.
Finally, Erica and Alexander Sr. each argue that
termination is not in the children’s best interests. In all termination of parental
rights cases, our primary concern is the best interests of the child. In re J.L.W.,
570 N.W.2d 778, 780 (Iowa Ct. App. 1997).
We use the parents’ past
performance to assess their ability to provide future care, giving substantial
weight to case history records. In Interest of S.N., 500 N.W.2d 32, 34 (Iowa
1993). At the time of trial, Alexander Sr. had made little or no effort to seek
treatment for his substance abuse issues and continued to use drugs. Though
she had been in treatment recently, the district court still believed Erica was
using drugs at the time of hearing, as well. We conclude that, even though Erica
and Alexander Sr. may love their children, they also have a defenseless pattern
of making their substance abuse a priority over the care and well-being of their
children. All service providers recommended termination in the children’s best
interests to finally have stability in their young lives. The children have a bond
with their parents, but this bond is not an overriding consideration especially
when substance abuse endangers the children’s health. In re N.F., 579 N.W.2d
338, 341 (Iowa Ct. App. 1998). The children have waited long enough for their
parents to secure their lives and make the children’s care a constant, prime
concern. We agree with the district court that termination is in the children’s best
interests and affirm the termination of Erica and Alexander Sr.’s parental rights.
AFFIRMED.
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