IN THE INTEREST OF A.P. and T.M., Minor Children, M.M., Father, Appellant, E.M., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-995 / 06-1700
Filed January 18, 2007
IN THE INTEREST OF A.P. and T.M., Minor Children,
M.M., Father,
Appellant,
E.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Arlen J. VanZee,
District Associate Judge.
A mother and a father each appeal from a juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
John J. Wolfe of Wolfe Law Office, Clinton, for appellant-father.
David M. Pillers of Pillers & Richmond, DeWitt, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Joel Walker, County Attorney, and Ross Barlow, Assistant
County Attorney, for appellee.
Edward Kross of Van Scoy & Kross, Clinton, guardian ad litem for minor
children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MILLER, J.
Evelyn is the mother of Alexis, born in November 2002, and Tiffanie, born
in October 2004. Michael is Tiffanie’s father. Evelyn and Michael appeal from an
August 2006 juvenile court order terminating Evelyn’s parental rights to the two
children and Michael’s parental rights to Tiffanie. The order also terminated the
parental rights of Alexis’s father, and he has not appealed. We affirm on both
appeals.
The children were removed from Evelyn and Michael in early December
2004 when Alexis was brought to a local hospital suffering from first and second
degree burns of her lower body.
She was airlifted to the burn unit at the
University of Iowa Hospitals and Clinics. Her burns covered forty-seven percent
of her body surface. Alexis was also diagnosed as failing to thrive and being
infested with lice.
The juvenile court ordered the children placed in the temporary custody
and guardianship of the Iowa Department of Human Services (DHS) for
placement in family foster care.
Pursuant to subsequent orders Tiffanie has
remained in the custody and guardianship of the DHS and been placed in family
foster care, as has Alexis after she spent over two weeks in the burn unit. The
children have been together in the same foster family home since Alexis’s
release from the burn unit. Alexis suffers from some permanent scarring.
In January 2005 each of the children was adjudicated to be a child in need
of assistance (CINA) pursuant to Iowa Code section 232.2(6)(b) (2005) (child
whose parent or other member of the household has physically abused or
neglected the child or is imminently likely to abuse or neglect the child). At a
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subsequent dispositional hearing a question arose as to whether the adjudication
was based on abuse or on neglect. Following discovery and continuances a
hearing to address the question was held.
In a December 2005 order the
juvenile court found the evidence clear and convincing that Alexis had been
physically abused by Evelyn placing or dipping her in very hot water.
In May 2006 the State filed petitions for termination of parental rights.
Following July hearings the juvenile court terminated Evelyn’s parental rights
pursuant to Iowa Code sections 232.116(1)(d) (Alexis and Tiffanie), (h) (Alexis
and Tiffanie), and (m) (Alexis), and terminated Michael’s parental rights to
Tiffanie pursuant to sections 232.116(1)(d), (e), and (h). Evelyn and Michael
both appeal.
We review termination proceedings de novo. Although we
are not bound by them, we give weight to the trial court’s findings of
fact, especially when considering credibility of witnesses. The
primary interest in termination proceedings is the best interests of
the child. To support the termination of parental rights, the State
must establish the grounds for termination under Iowa Code section
232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
On appeal Evelyn raises three issues, as follow:
THE STATE MAY NOT PENALIZE THE MOTHER FOR
NONCOMPLIANCE WITH A COURT ORDER IMPINGING ON
HER RIGHT AGAINST SELF INCRIMINATION.
THE GROUNDS FOR TERMINATION OF PARENTAL
RIGHTS WERE NOT PROVEN BY CLEAR AND CONVINCING
EVIDENCE.
THE TRIAL COURT ERRED IN FINDING THAT THE
DEPARTMENT HAD PROVIDED REASONABLE EFFORTS.
The State argues Evelyn has failed to preserve error on, and/or has waived, each
of these issues. We assume, without so deciding, that error has been preserved
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and the issues have not been waived, and proceed to address the merits of
Evelyn’s claims. We deal with the three issues largely together.
On December 7, 2005, the juvenile court found that Evelyn had
intentionally caused Alexis’s burn injuries. A DHS case permanency plan dated
December 13, 2005, was presented to the court for possible approval at a
December 28, 2005 hearing held to review services being provided and
determine whether additional services were necessary. Evelyn objected to one
of the numerous requirements of the plan, that she “take responsibility for
physically abusing Alexis [ ] by processing with the provider the events that lead
(sic) up to, during and after the abuse occurred.” Evelyn was facing a thenpending class “C” felony child endangerment charge, and upon advice of her
attorney chose not to testify at the December 28 hearing. Although the record is
not clear as to what objection Evelyn made to the case plan in the juvenile court,
on appeal she asserts she objected on the ground the quoted language required
her to admit guilt.
Following the December 28 hearing the juvenile court apparently held its
ruling in abeyance, as its resulting order was not dated and filed until January 25,
2006.
In the meantime, on January 19, 2006, Evelyn entered a guilty plea,
accepted by the district court, to the lesser-included crime of child endangerment
resulting in bodily injury, a class “D” felony. On or about January 24, 2006,
Evelyn withdrew her objection to the December 13 case permanency plan, and
on January 25 the juvenile court approved and adopted the plan. In February
2006 the district court sentenced Evelyn to a term of no more than five years
imprisonment on her class “D” felony conviction.
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The essence of Evelyn’s first issue is that the termination of her parental
rights was in some manner related to and based upon her exercise of her refusal
to admit, as arguably required by the case permanency plan presented on
December 28, 2005, that she had physically abused Alexis.
Her third issue
claims the services provided to her were based upon her having physically
abused Alexis and were improper and inadequate because she had not admitted
the abuse, no attempt was therefore made to determine what other services
would benefit her, and no services were provided after she was incarcerated.
It is important to note that although Evelyn claims the services, based in
part upon her having physically abused Alexis, were therefore improper and
inadequate, Evelyn eventually acknowledged the intentional abuse and pled
guilty to and was convicted of felony child endangerment. Services to Evelyn
had begun at about the time the children were adjudicated CINA and continued
until Evelyn’s imprisonment. The services were extensive, are in large part noted
and summarized at pages eight through ten of the juvenile court’s detailed,
thorough, and carefully considered twenty-page termination ruling, and thus need
not be listed in detail in this opinion. We find no merit in Evelyn’s claim that her
parental rights were terminated, or that she was in any other manner penalized,
for not testifying at the December 28, 2005 hearing or for objecting, from
December 28, 2005 to about January 24, 2006, to one requirement of a case
permanency plan. Neither do we find any merit to her claim the DHS did not
provide reasonable efforts or services designed to effect reunification of the
children with her. We note that she does not claim or show that she requested
further or additional services after being imprisoned in February 2006.
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As noted above, Evelyn also claims the grounds for termination were not
proved.
When the trial court terminates parental rights on more than one
statutory ground, we need only find grounds to terminate under one of the
provisions relied on by the trial court in order to affirm. In re A.J., 553 N.W.2d
909, 911 (Iowa Ct. App. 1996). We choose to focus on section 232.116(1)(h)
(child three or younger, adjudicated CINA, removed from parents at least six of
last twelve months, cannot be returned to custody of parents as provided in
section 232.102). The fourth element is proved when the evidence shows the
child cannot be returned to the parent because the child remains in need of
assistance as defined by section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277
(Iowa Ct. App. 1995). The threat of probable harm will justify termination of
parental rights and the perceived harm need not be the one that that supported
the child’s initial removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa
1992).
The first three elements of section 232.116(1)(h) were clearly proved. For
two reasons we find the fourth proved as well. First, the juvenile court’s findings
include, in part, the following:
Before Evelyn was incarcerated, she was unable to
demonstrate that she was internalizing any of the educational
material, verbal and handouts, that [a service provider], AEA, and
[another service provider] taught her. The providers would have to
remind Evelyn and direct her each week and she would only spend
a few minutes doing what she was instructed. AEA workers and
other providers repeated how important the skills were to the
children, but Evelyn did not seem interested. Evelyn could not
even demonstrate taking a shirt off Tiffanie without hurting Tiffanie
and making her cry.
Evelyn has never taken responsibility for her actions which
led to the children being adjudicated. . . .
Evelyn does not want to interact verbally with the children by
talking out loud. She says that she does not like to talk out loud to
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the children; and as she sits with the children, she does not interact
verbally as she should with the children. Because her apartment
was seldom clean at visits and because it was not safe for little
children due to numerous objects on the floor, workers questioned
whether she was taking her medication. Dirty dishes would be in
the sink and on the counter. The highchair had dried up food on it
and several times had hardened scrambled eggs that had not been
cleaned from the previous week. Evelyn did later tell the providers
that she did not have money for her medication.
During visits by service providers, Evelyn has exhibited
some alarming anger outbursts. On one visit, she grabbed a phone
from [a service provider] and struck her. She has yelled at
providers because she did not want to stay home and clean house
and cook and also yelled at providers when she wanted to go out
with her friends.
....
Evelyn has not shown any sign that she understands her
children’s needs nor has she shown signs that she was interested
in learning and internalizing her children’s needs. Evelyn has not
shown an ability to put her children’s needs ahead of her own
agenda.
Upon our de novo review we fully agree with these findings, which are
amply supported by the record, and adopt them as our own.
Second, at the time of the termination hearing Evelyn had served only five
months of a prison sentence of no more than five years.
We conclude the children could not be returned to Evelyn without being in
imminent danger of abuse or neglect that would render them CINA and that the
State thus proved the fourth element of section 232.116(1)(h).
Michael claims the State did not prove that Tiffanie could not be returned
to his custody at the time of the termination hearing. This claim implicates the
second element of section 232.116(1)(d) (parent was offered or received
services but circumstance that led to CINA adjudication continues to exist) and
the fourth element of section 232.116(1)(h) (child cannot be returned to custody
of parent as provided in section 232.102).
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Michael married Evelyn in January 2005. The juvenile court found that he
had been subject to ongoing physical abuse, screaming, and verbal abuse by
Evelyn. It also found that when a service provider had been assaulted by Evelyn
during a supervised, in-home visit Michael “did not come to help but purposefully
stayed out of the way in the bedroom knowing the conflict was occurring.” The
juvenile court further found, in part:
Mike has not sought any kind of counseling for this domestic
abuse even though it has been offered. He has not sought out any
type of marriage counseling or how to live with a bipolar partner
even though this was suggested to him.
....
Mike’s ability to internalize the importance of following AEA
and provider suggestions about working and playing with the
children has not improved. Mike does not put any expectations on
the children unless providers direct him to do so. . . .
Michael does not exhibit good verbal skills in encouraging
Tiffanie with her delayed speech. He will lay on the floor and for
the most part watch Alexis play with little verbal interaction. Tiffanie
relies on the providers to interact with her.
Despite all of the services being offered, visits have not
progressed beyond supervised visits.
Both [of two service
providers] conclude that [Michael has] not been able to
demonstrate an ability to meet the children’s needs.
We agree with and adopt these findings. We also agree with the State’s
argument that Michael has not advanced past fully supervised visits; he intends
to maintain a relationship with Evelyn who intentionally, severely burned her
other child; he has been unable or unwilling to protect that child from Evelyn’s
actions; and he has not demonstrated the ability or willingness to protect either
himself or Tiffanie from Evelyn’s violence. We conclude, as the juvenile court
did, that the State has proved the grounds for termination of Michael’s parental
rights to Tiffanie pursuant to sections 232.116(1)(d) and (h).
We need not
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address his remaining claim, that the State did not prove the section
232.116(1)(e) grounds for termination.
AFFIRMED ON BOTH APPEALS.
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