IN THE INTEREST OF D.M., Minor Child, D.L.G., Father, Appellant, D.A.M., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-353 / 07-0593
Filed June 13, 2007
IN THE INTEREST OF D.M.,
Minor Child,
D.L.G., Father,
Appellant,
D.A.M., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Joe E. Smith, District
Associate Judge.
A mother and a father each appeal from a juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
Andrea Flanagan of Sporer & Ilic, P.C., Des Moines, for appellant-father.
Jared Harmon, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Christine Gonzales,
Assistant County Attorney, for appellee.
Cory Gourley of Gourley & Rehkamper, P.L.C., Des Moines, guardian ad
litem for minor child.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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MILLER, J.
Denise is the mother, and Daniel the father, of ten-year-old Danielle.
Denise and Daniel each appeal from a March 2007 juvenile court order
terminating their parental rights to Danielle. We affirm on both appeals.
Danielle and her fourteen-year-old and sixteen-year-old brothers 1 were
removed from the custody of their parents and placed in the temporary legal
custody of the Iowa Department of Human Services (DHS) in November 2005.
Daniel was in jail. Denise had for some time left the children in the care of
Denise’s mother, who abused alcohol and did not supervise the children, leading
to frequent and continuing calls to local police.
The State filed a child in need of assistance (CINA) petition.
In late
November 2005 the juvenile court confirmed the temporary removal of the
children and placed their custody with their paternal grandmother, subject to
supervision by the DHS. In January 2006 the court adjudicated the children
CINAs pursuant to Iowa Code sections 232.2(6)(b), (c)(2), and (n) (2005), noting
Denise’s unresolved substance abuse issues. It placed custody of the children
with their paternal grandmother. This status was continued in a March 2006
dispositional order, which again noted Denise’s unresolved substance abuse
issues.
In a May 2006 review order the juvenile court ordered Danielle and her
brothers removed from their paternal grandmother and placed in the custody of
the DHS for foster care placement. This change in status was precipitated by the
grandmother being unable or unwilling to supervise and control the children, and
1
Parental rights to the two brothers are not at issue in these appeals.
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allowing Denise and Daniel to have unapproved, unsupervised visitations with
them.
Danielle has thereafter remained in DHS custody and foster home
placement.
In its May 2006 order, the juvenile court noted Denise’s unresolved
substance abuse and housing issues and the “non-involvement with court
ordered services” of Danielle’s parents. In a July 2006 review order, it noted the
“parents’ unresolved substance abuse & housing issues & non-involvement of
services.”
The juvenile court scheduled a permanency hearing for early November
2006.
Following that hearing, the court ordered proceedings instituted to
terminate parental rights, noting “mother’s unresolved substance abuse issues &
parents’ unavailability.” The State filed a termination petition in December 2006.
Following a March 2007 hearing, the court terminated each parent’s parental
rights to Danielle pursuant to Iowa Code sections 232.116(1)(e), (f), and (l)
(2007). Daniel and Denise 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).
Daniel claims the juvenile court erred in terminating his parental rights,
arguing the State failed to prove each of the three statutory grounds for
termination relied on by the court. “When the juvenile court terminates parental
rights on more than one statutory ground, we need only find grounds to terminate
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under one of the sections cited by the juvenile court to affirm.” In re S.R., 600
N.W.2d 63, 64 (Iowa Ct. App. 1999).
We choose to focus on section
232.116(1)(f).
Section 232.116(1)(f) requires proof that the child (1) is four years of age
or older; (2) has been adjudicated a CINA; (3) has been removed from the
physical custody of the child’s parents twelve of the last eighteen months, or for
the last twelve months and any trial period at home has been less than thirty
days; and (4) at the present time cannot be returned to the custody of its parents
as provided in section 232.102. The State clearly proved the first three of the
four essential elements, and only the fourth is at issue in Daniel’s appeal, as his
claim of error is that: “The State failed to prove by clear and convincing evidence
that [Danielle] could not be returned to her father.” This element is proved when
the evidence shows the child cannot be returned to the parents without remaining
a CINA. 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 child’s initial removal from the home. In
re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Daniel is fifty years of age. He began drug use at age seventeen. He has
used and abused marijuana, crack cocaine, and alcohol. Daniel had substance
abuse treatment in 1998, but thereafter used drugs, by his own admission using
crack cocaine as recently as six months before the termination hearing. He was
ordered to submit to a substance abuse evaluation as part of the CINA
proceeding, but waited a year to do so, until about the time the juvenile court
ordered that a termination proceeding be instituted.
Daniel was ordered to
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submit to drug testing, starting in about May 2006. From then until mid-January
2007 he did so on only three of about seventy occasions on which appointments
were made, despite knowing that his failure or refusal to do so prevented
visitation with Danielle.
Daniel has a lengthy and serious history of criminal convictions and
incarcerations. In the last twenty years he has almost three dozen convictions
for theft; seven convictions for driving while barred or while his license was under
suspension; two convictions for failure to appear; and convictions for domestic
abuse assault, resisting arrest, operating while intoxicated, and possession of
controlled substances.
About sixteen of his convictions have resulted in jail
sentences, and eight in prison sentences. Daniel was in jail when the CINA
proceedings started. At the time of the termination hearing he was facing a
contempt of court charge and a warrant for his arrest was outstanding in another
county. Daniel does not believe his criminal activities and history are relevant to
his ability to have Danielle placed with him. Daniel asserts he is self-employed,
selling cars, and also has employment working for a truck salvaging company.
He has no driver’s license, as a result of his failure or refusal to pay fines and
child support. Daniel has no housing of his own, relying on his mother for his
place to live. He did not start substance abuse treatment until December 2006
as he does not feel he needs it. At the time of the termination hearing, some ten
weeks of treatment remained. His prognosis is at best guarded, given his thirtyyear history of substance abuse and relatively recent use of crack cocaine.
Daniel was released from jail in late January 2006, showed no interest in
visitation with Danielle until the time a permanency hearing was scheduled, and
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began seeing her with any regularity only after the juvenile court ordered
termination proceedings instituted. Finally, and perhaps most importantly, Daniel
acknowledged at the termination hearing that he was unable to have Danielle’s
care and custody at the present time and it would probably be “a few months or
so” before he was able to do so.
We conclude the State proved by clear and convincing evidence that at
the time of the termination hearing Danielle could not be placed in Daniel’s
custody without being subject to the threat of neglect or other harm that would
cause her to remain a CINA. We therefore further conclude the State proved by
clear and convincing evidence the grounds for termination of Daniel’s parental
rights to Danielle pursuant to section 232.116(1)(f).
Denise and Daniel both claim that termination of their respective parental
rights to Danielle is not in her best interest.
Danielle has been removed from her parents’ custody and care for sixteen
months. Even before that, Denise had not for some time provided Danielle’s
care. Denise has a serious substance abuse problem, and has been unwilling to
take steps to deal with it. She has failed to participate in necessary and required
services, and has not meaningfully participated in supervised visitation. Denise
was incarcerated at the time of the termination hearing.
Daniel has, with perhaps the exception of a couple of months, never had
care and custody of Danielle. He spent substantial periods of time in jail in 1997,
in prison in 2001, and in jail in 2004. He was in jail in 2005 when the CINA case
began, and after being released in January 2006 was again jailed for theft in July
2006. At the time of the termination hearing he had a contempt of court charge
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pending and an arrest warrant outstanding.
He has generally not been a
presence in Danielle’s life in the past, and is highly unlikely to be in the future.
Danielle seldom talks about Denise.
Until Daniel began visiting with
Danielle after the juvenile court ordered termination proceeding instituted,
Danielle did not speak of him. Danielle does not want to be with Daniel. Neither
parent has at any time contacted the counselor who is providing individual
therapy to Danielle. Danielle is thriving in her present foster home.
Both Danielle’s individual therapist and the DHS caseworker assigned to
Danielle opined that she needs stability and permanency, and that her parents
will not be able to provide it. Both they and Danielle’s attorney and guardian ad
litem believe termination of parental rights is in Danielle’s best interest and
recommend it.
The juvenile court concluded, in part:
Danielle’s parents let time pass while they pursued their own
interests at the expense of their daughter. Danielle is entitled to
know with certainty where she will spend the rest of her childhood.
Her parents are unable to provide that certainty. Danielle has a
bright future if the rest of her childhood can be spent in a stable and
nurturing environment, an environment her parents are not in a
position to provide. Certainly termination is in Danielle’s best
interest.
We agree, and conclude that termination, rather than long-term foster care or
another planned permanent living arrangement, is in Danielle’s best interest in
order to provide her with the opportunity to acquire the stability, security, and
permanency she needs and deserves.
AFFIRMED ON BOTH APPEALS.
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