IN THE INTEREST OF G.A., Minor child, J.J.M., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-003 / 06-1896
Filed January 31, 2007
IN THE INTEREST OF G.A.,
Minor child,
J.J.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
Associate Juvenile Judge.
The biological father appeals the district court’s order terminating his
parental rights. AFFIRMED.
Jami J. Hagemeier of Williams, Blackburn, Hudson & Maharry, P.L.C.,
Des Moines, and Joseph G. Bertogli of the Benhart Law Office, Des Moines, for
appellant.
Michael Bandstra, Des Moines, for appellee intervenor.
Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jennifer Galloway,
Assistant County Attorney, for appellee State.
Victoria Mead, West Des Moines, for appellee legal father.
Randall Wilson of Wilson Law Office, Des Moines, guardian ad litem, for
minor child.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VOGEL, P.J.
Joshua appeals from the district court’s order that terminated his parental
rights to his twenty-month-old son, Gage. Upon our de novo review, we affirm.
Gage was adjudicated a child in need of assistance (CINA) in August
2005 following removal from his mother and legal father, Ashley and Frank. 1 He
was placed in the care of relatives of Frank and has remained there throughout
the course of this case.
Ashley was a chronic substance abuser of
methamphetamine, and Frank was in prison at the time of Gage’s removal. Prior
to her marriage to Frank, and during the time when Gage was conceived, Ashley
lived with Joshua. Although he suspected that he may be Gage’s biological
father, Joshua failed to confirm his suspicions. In April 2006, paternity testing
indicated that Joshua was the likely biological father of Gage, and the district
court ordered supervised visitation to begin in late May 2006.
Joshua has a long history of substance abuse and mental health issues.
Due to concerns over Gage’s well-being and displays of separation anxiety, the
service providers and the Iowa Department of Human Services (DHS) decided
visitation with Joshua should not begin while Ashley was still exercising visitation
prior to the termination of her parental rights. When visitation did begin in late
June or early July 2006, the sessions were supervised and limited to two hours
per week.
Gage continued to experience a high level of anxiety, although
Joshua interacted appropriately with him during visitation, and the anxiety
seemed to decrease the more familiar Gage became with Joshua.
1
Termination of Ashley’s and Frank’s parental rights is not at issue in this appeal.
3
The case proceeded to termination upon the recommendation of service
providers and DHS with trial held in late September and early October 2006. The
district court found termination of Joshua’s parental rights was in Gage’s best
interests and that clear and convincing evidence supported termination pursuant
to Iowa Code sections 232.116(1)(d) (2005) (child CINA for physical/sexual
abuse or neglect, circumstances continue despite receipt of services) and (l)
(child CINA, parent has substance abuse problem, child cannot be returned
within a reasonable time). Joshua appeals.
We review termination of parental rights de novo. In re C.H., 652 N.W.2d
144, 147 (Iowa 2002). The grounds for termination must be proven by clear and
convincing evidence. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Our primary
concern is the best interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa
2001).
Joshua contends that the district court erred by finding clear and
convincing evidence supported either ground for termination. In order to affirm a
termination of parental rights, we need only find grounds sufficient to terminate
under one of the statutory grounds the district court cited. In re S.R., 600 N.W.2d
63, 64 (Iowa 1999). One of the grounds found proven by the district court was
section 232.116(1)(l), that the child cannot be returned within a reasonable time
to a parent with a substance abuse problem. After reviewing the evidence, the
district court determined that Joshua’s most recent sobriety was not a true
indicator of his long-term ability to maintain sobriety and hence his ability to
appropriately care for Gage. Iowa courts have often noted that,
4
In seeking out those best interests, we look to the child’s longrange as well as immediate interests. This requires considering
what the future holds for the child if returned to the parents. When
making this decision, we look to the parents’ past performance
because it may indicate the quality of care the parent is capable of
providing in the future.
J.E., 723 N.W.2d at 798 (citations omitted).
While he had maintained sobriety in the months leading to termination,
Joshua has a long history of substance abuse, most notably methamphetamine
use. He has also been incarcerated on drug related charges and struggled with
mental health issues. His family has sought to have him involuntarily committed
to address those issues no less than four times since 1999. It appears from his
past records that Joshua may be sober for a time, only to relapse into using
methamphetamine and even selling drugs to relieve his financial difficulties.
Joshua’s longest period of sobriety has been twelve to thirteen months. When
Joshua is using, his substance abuse issues, coupled with his mental health
problems have led to threats and violence toward family members and criminal
activity.
He has lost custody of his older son, with his parents assuming
guardianship. Although his parents have stated that Joshua is turning his life
around this time, they have witnessed Joshua’s cycle of being able to care for his
older son only to lose custody following yet another relapse. The evidence also
reflects that Joshua has only been able to maintain sobriety when under the
supervision of either a treatment program or the Iowa Department of Corrections,
and may otherwise be resistant to submit to treatment or even acknowledge that
he may have long-term substance abuse and mental health issues. His latest
relapse prior to termination of his parental rights in this case occurred in late
5
January 2006. Joshua indicated to a service provider that he was also selling
drugs during this relapse to alleviate his financial woes. These are not positive
indicators as to what may lie ahead for Gage, should he be in Joshua’s care.
See In re K.F., 437 N.W.2d 559, 560 (Iowa 1989).
By all accounts, Gage has thrived in the care of Frank’s relatives. The
emotional distress he has suffered in his young life is quelled with his current
care providers. “At some point, the rights and needs of the child rise above the
rights and needs of the parents.” In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.
App. 1997). In making a permanency determination, the child’s need for security,
stability, and permanence in his young life must come first. In re C.D., 509
N.W.2d 509, 513 (Iowa Ct. App. 1993). We conclude that the district court was
correct in finding clear and convincing evidence supported termination under
section 232.116(1)(l) and that termination is in Gage’s best interests. We affirm.
AFFIRMED.
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