IN THE INTEREST OF H.C. and J.K., JR., Minor Children, J.K., SR., Father, Appellant, A.C., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-249 / 07-0338
Filed May 23, 2007
IN THE INTEREST OF H.C. and J.K., JR.,
Minor Children,
J.K., SR., Father,
Appellant,
A.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William S. Owens,
Associate Juvenile Judge.
A mother and a father each appeal from a juvenile court order terminating
their parental rights to two children. AFFIRMED ON BOTH APPEALS.
Ryan J. Mitchell of Orsborn, Bauerle, Milani, Grothe & Mitchell, L.L.P.,
Ottumwa, for appellant-father.
Michael O. Carpenter of Webber, Gaumer & Emanuel, P.C., Ottumwa, for
appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Timothy Schott, County Attorney, and Seth Harrington,
Assistant County Attorney, for appellee.
Joni Keith of Keith Law Firm, Ottumwa, guardian ad litem for minor
children.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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MILLER, J.
Amy is the mother, and James Sr. (James) is the father, of seven-year-old
James Jr. (Jimmy) and six-year-old Hunter (collectively “the children”). Amy and
James each appeal from a juvenile court order terminating their parental rights to
the children. We affirm on both appeals.
The children came to the attention of the Iowa Department of Human
Services (DHS) in mid-2004 based on a report that Amy had been using illegal
drugs in the presence of the children. Drug testing showed that Jimmy had been
exposed to methamphetamine.
A child abuse investigation resulted in a
“founded” report for denial of critical care with Amy as the perpetrator and the
children as the victims. The children began living with James.
The State filed a child in need of assistance (CINA) petition and in
September 2004 the children were adjudicated CINA pursuant to Iowa Code
sections 232.2(6)(c)(2) (2003) (failure of parent to supervise) and (o) (child’s
body contains illegal drug as a result of acts or omissions of parent).
The
juvenile court placed the legal custody of the children with James and they
continued to reside with him, a status that continued after a November 2004
dispositional hearing.
In mid-November 2004 James filed a document asserting he was “no
longer using drugs.” In mid-December 2004, however, the juvenile court ordered
the children, as well as two younger children of James and his wife, removed
from James and his wife and placed in the temporary custody of the DHS for
suitable placement in the home of a relative, family foster care, shelter care, or
other appropriate care taker. The removal occurred as a result of James melting
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amphetamine medication prescribed for one of his children or himself, injecting it
into himself, falling downstairs, and driving to the hospital accompanied by two of
his younger children while he was under the influence of drugs.
When law
enforcement personnel contacted James’s wife at her and James’s home, she
was under the influence of Xanex. Drug paraphernalia was in open drawers
within reach of the small children. During the period of almost two years between
their December 2004 removal and the conclusion of the termination of parental
rights hearing the children have remained in foster care.
After over a year of offering and providing a variety of services, the State
filed a petition for termination of parental rights in January 2006 and an amended
petition in March 2006. The juvenile court held a hearing on several dates, and
later received an agreed-to evidentiary deposition.
The court thereafter filed
lengthy and detailed findings of fact, conclusions of law, and an order terminating
parental rights. The court terminated Amy’s parental rights pursuant to Iowa
Code section 232.116(1)(f) (2005) (children four or older, adjudicated CINA,
removed from parents at least twelve of last eighteen months, cannot be returned
at present time). It terminated James’s parental rights pursuant to Iowa Code
sections 232.116(1)(f) and (g) (children adjudicated CINA, parent’s parental
rights to another child previously terminated, parent unable or unwilling to
respond to services, additional period of rehabilitation would not correct the
situation). Amy and James each 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
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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).
Amy first claims: “The trial court improperly placed the burden of proof on
mother to show that the children could be returned to her custody.” We disagree.
Amy bases this claim on the following emphasized part of one sentence
from the juvenile court’s “Conclusions of Law” that reads as follows:
The children have been removed for more than 18-months,
and there is no credible evidence to suggest that the children could
be returned home in the reasonably foreseeable future.
(Emphasis added.)
The juvenile court made lengthy and detailed findings of fact, some of
which we summarize hereafter in dealing with the other issue Amy raises on
appeal, and which we find fully support its finding and ultimate conclusion that
the children could not be returned to Amy at the time of the termination hearing.
In its ruling the juvenile court’s above-quoted conclusion of law is shortly
preceded by this conclusion of law:
“That the burden of proof is upon the
Petitioner by clear and convincing evidence.” Later in its conclusions of law the
juvenile court reiterates or re-emphasizes the point, concluding:
“That facts
sufficient to establish the grounds for termination of the parental rights of Amy [ ],
as mother of the children . . . , have been established by clear and convincing
evidence.”
The emphasized portion of the sentence in question must be viewed, not
in isolation but in the context of the juvenile court’s entire ruling. When we do so
we find nothing to support this claim of error.
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Amy also claims: “The State has failed to prove by clear and convincing
evidence that the child (sic) could not be returned to the custody of Amy [ ].”
Amy, twenty-three years of age at the time of the termination hearing,
began using drugs at age twelve.
She gave birth to Jimmy at age sixteen,
moved in with Dustin at age seventeen, gave birth to Hunter, and later married
Dustin who is not the father of either of the children. She continued to reside with
Dustin, exposing the children to him, after he was accused of indecent contact
with a child. Dustin was convicted of that crime in mid-2004. Amy remains
married to Dustin. There is concern the children may have been subjected to
sexual abuse in the same time frame that Dustin had indecent contact with
another child.
Hunter tested positive for THC (tetrahydrocannabinol) at birth. In mid2004 Jimmy tested positive for exposure to methamphetamine. Services were
offered to Amy, James, and the children from the time CINA proceedings began
in mid-2004. Juvenile court CINA hearings, including adjudication, disposition,
temporary removal, review, and permanency, were held between September
2004 and December 2005 inclusive. Amy did not attend.
Amy gave birth to a daughter in late November 2005. The person Amy
thought to be the father is not the father. Amy belatedly began to avail herself of
some services at about the time her daughter was born. In mid-January 2006
Amy’s two-month-old daughter was found to have multiple, bi-lateral, nonaccidental rib fractures, resulting from application of force and consistent with
someone squeezing her.
The infant was placed in foster care, where she
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remained at the time of the termination hearing. A “founded” report for denial of
critical care and physical abuse resulted.
Amy’s claim of error implicates the fourth element of section 232.116(1)(f),
whether the children could be returned to her custody at the time of the
termination hearing. The fourth element is met when the evidence shows the
children cannot be returned because they remain 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 supported the children’s initial
removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Amy has not had contact with the children since July 2004.
Despite
legitimate and continuing concerns about her lengthy history of substance abuse,
her exposure of the children to illegal drugs, and her relationship with sexual
perpetrators, she failed or refused to avail herself of necessary and available
services until the end of 2005. Then, in January and February 2006 new and
additional concerns arose with the physical abuse of her infant daughter. We
agree with the juvenile court that at the time of the termination hearing the
children could not be returned to Amy without being subject to the threat of harm
in the form of abuse or neglect that would cause them to remain children in need
of assistance. We therefore conclude the State has proved the fourth element of
section 232.116(1)(f) and affirm the termination of Amy’s parental rights.
James first claims: “Clear and convincing evidence does not exist in the
record to support termination of parental rights where father has cooperated with
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court ordered services.” 1 The State has in its response to James’s petition on
appeal succinctly yet comprehensively summarized the evidence relevant to this
issue.
We therefore quote from that document, with citations to the record
omitted.
The boys were placed with their father in June 2004. The
boys were adjudicated to be children in need of assistance in
September 2004 and were continued in the care of the father in
November 2004. In December 2004, the children were removed
from the care of the father. At that time, it was discovered that
when authorities went to the home, they found drug paraphernalia
in opened drawers within reach of the children. The father’s wife
admitted to abusing prescription medications. The father himself
admitted to taking his children’s medications and injecting into
himself. The father’s wife admitted to drug use since May 2004.
The father was incarcerated for child endangerment and sentenced
to two years in prison. In December 2005, he had been placed in
residential facilities and granted supervised visitation. At the time
of the termination hearing, he was in transitional housing. His
probation will continue to 2007.
Although the father has cooperated with the services
available to him, he has not been in an unsupervised setting.
There is not enough evidence to show that the father could remain
stable and safe after the termination of Juvenile Court involvement.
The DHS believed that relapse was likely. The father has at least a
thirty-year history of substance abuse and he has a criminal history
that includes burglary and drug related charges. He also has a
history of domestic violence against two women. The Juvenile
Court properly concluded that the father had a long history of
substance abuse and criminal activities. Although he was showing
progress, this had happened before and was revealed to be
deceptive. The father’s [recent] use of his son’s name to obtain
cable services demonstrated that the father’s deception continued.
The children could not be safely returned to the father’s care at the
time of the termination hearing. Further, with the father’s history,
the children could not be returned to his care in the reasonably
foreseeable future.
When the trial court terminates parental rights on more than one statutory
ground, we need only find grounds to terminate under one of the statutory
1
We recognize that James has made progress in employment, education, and drug
treatment over the period of more than one year immediately preceding the termination
hearing.
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provisions in order to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App.
1996). As to James’s appeal, we choose to focus on section 232.116(1)(f). We
agree with the position of the State, as quoted above, and find the State has
proved grounds to terminate James’s parental rights under section 232.116(1)(f).
James also claims: “Termination of parental rights is not in the children’s
best interest.” We disagree.
Many of the facts that demonstrate the children could not be returned to
James at the time of the termination hearing also suggest that termination of his
parental rights is in their best interest.
conclusion.
Other facts support and lead to that
The children have had behavioral problems, and have been
prescribed medications for those problems. 2
The problems include attention
deficit/hyperactivity disorder, post-traumatic stress disorder, and sexually acting
out. The children require vigilant supervision and need stability after years of
chaotic, unstable life. The children have been removed from James for over one
and one-half years. 3
James’s parental rights to two other children were
terminated in January 2006.
There is not an observable substantial bond
between James and the children. We conclude termination of James’s parental
rights is in the children’s best interest in order that they may acquire the security,
stability, and permanency they need and deserve.
AFFIRMED ON BOTH APPEALS.
2
One of the children is no longer being medicated, and the other was off medication for
the summer.
3
In fact, James has lived with Jimmy only about one year of Jimmy’s life and has lived
with Hunter only about one-half year of his life.
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