IN THE INTEREST OF T.C. and J.C., Minor Children, D.M.C., Mother, Appellant, J.E.C., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-519 / 07-0965
Filed July 25, 2007
IN THE INTEREST OF T.C. and J.C.,
Minor Children,
D.M.C., Mother,
Appellant,
J.E.C., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
Parents appeal from the order terminating their parental rights.
AFFIRMED.
Aaron Ginkens of Ginkens Law Firm, P.L.C., West Des Moines, for
appellant mother.
J. Michael Mayer, Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin Brownell,
Assistant County Attorney, for appellee State.
Jessica Miskimins of the Youth Law Center, Des Moines, for minor
children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Joseph and Dawn appeal the trial court’s order terminating their parental
rights to their two children, J.C. and T.C. We affirm.
I. Background Facts and Prior Proceedings
Joseph and Dawn had an intimate relationship for a number of years
before they were married in 2003. Two children were born to the couple: a son,
J.C., in April 1998, and a daughter, T.C., in July 2003. The family also included
S.D., a daughter born to Dawn in 1988 from a previous relationship. The entire
family moved from Ohio to Iowa in July 2004 when Dawn accepted a position as
a loan underwriter. 1
The Iowa Department of Human Services (DHS) became involved in 2005
when Joseph physically assaulted Dawn in front of the children. Allegations soon
arose that Joseph was also having sex with S.D. on a regular basis. Dawn
agreed to keep Joseph out of the home and away from the children, but reneged
on this agreement and lied to DHS to hide the fact that Joseph was once again
living in the family home. S.D. eventually left Iowa to live with her maternal aunt
and uncle in Ohio. On April 5, 2006, Joseph and Dawn were extradited to Ohio
to face sex-abuse and child endangerment charges.
On April 27, 2006, both J.C. and T.C. were adjudicated children in need of
assistance (CINA) and placed in foster care. They were eventually released to
the care of Dawn’s sister and brother-in-law in Ohio.
1
Dawn was the primary breadwinner for the family.
primarily responsible for the children’s care.
Joseph worked, but he was
3
Upon entering foster care, J.C. and T.C. exhibited numerous behavioral
problems. J.C. was medicated for ADHD, he was reading below grade level, and
he was suspended from school for acting aggressively with other children. His
foster mother reported that he was wetting the bed, urinating on the floor and
furniture, and indiscriminately masturbating.
He was also placed in an
intervention classroom at school.
T.C. had an exaggerated pre-occupation with her own genitalia and other
people’s genital regions. She was prone to frequent emotional outbursts and
would cry with little provocation.
J.C. began therapy when he entered foster care. In therapy, he described
Joseph beating him with a belt and one specific occasion where he watched
Joseph rape S.D.
Many of the children’s behavioral issues have subsided since they were
removed from their parents’ care. J.C. is now in a regular classroom, and his
teachers describe him as a well-behaved student and a pleasure to have in
class.
He is off all medications, and his doctor has removed his ADHD
diagnosis. T.C. is in preschool and is described as creative and kind. She has
also begun to understand appropriate sexual boundaries.
In September 2006 Joseph was brought to trial for numerous counts of
rape, gross sexual imposition, and kidnapping. The State of Ohio presented
evidence that Joseph began raping S.D. 2 in 1998 when she was ten years old.
The sexual assaults continued for more than five years.
As a result, S.D.
allegedly had two abortions before she was sixteen years old. The jury ultimately
2
S.D. was nineteen years old at the time of the termination hearing and living in Ohio.
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found Joseph guilty of forty-two counts of rape and gross sexual imposition. He
was designated as a sexual predator and sentenced to forty-two five-year terms
of imprisonment.
The court ordered that these sentences be served
consecutively, for a total sentence of 210 years of imprisonment.
Dawn pled guilty to the felonious charges of obstruction of justice and
endangering children. The Ohio court imposed two concurrent, three-year prison
sentences. Her sentences will expire on October 19, 2009, but she contends she
will be released in either the spring or summer of 2007.
The State of Iowa filed a petition to terminate both parents’ parental rights
in February 2006. Dawn testified at the termination hearing while Joseph did not.
When describing what happened to her children, Dawn said the situation was
“very unfortunate”; however, she also told the court her “babies” were “never in
danger.”
On May 18, 2007, the court entered an order terminating both parents’
parental rights under Iowa Code sections 232.116(1) (d), (e), (f), (h), (i), (j), and
(m) (2007). In doing so, the court found the parents’ positions at the termination
hearing were “chilling.” The court stated the “children have been through things
that we will never be able to document” and then went on to list additional
instances of abuse in the household.
Joseph and Dawn separately appeal the court’s decision.
II. Standard of Review
We review the termination of parental rights de novo. In re J.E., 723
N.W.2d 793, 798 (Iowa 2006). The grounds for termination must be proven by
clear and convincing evidence. Id. We give weight to the district court’s factual
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findings, but are not bound by them. Id. Our first and primary concern is the best
interests of the child. Id.
III. Merits
A. Joseph
Joseph claims there was no statutory basis for terminating his parental
rights, the court should have granted him additional time “to place himself in a
position to parent these children,” and that termination was not in the best
interests of the children.
Statutory Basis and Additional Time. Joseph contends there is not
clear and convincing evidence to support termination of his parental rights under
any of the seven statutory grounds listed by the court.
In order to affirm a
termination of parental rights, we need only find grounds sufficient to terminate
under one of the statutory grounds listed by the district court. In re S.R., 600
N.W.2d 63, 64 (Iowa 1999). Therefore, in this case we will only analyze whether
clear and convincing evidence supports the district court’s decision to terminate
Joseph’s parental rights under Iowa Code sections 232.116(1)(f) and (h). 3
Section (f) provides that parental rights can be terminated if the State
proves by clear and convincing evidence that the child is four years of age or
older; the child has been adjudicated CINA; the child has been removed from the
physical custody of the child’s parents for at least twelve of the last eighteen
months or for the last twelve consecutive months and any trial period at home
has been less than thirty days; and there is clear and convincing evidence that at
the present time the child cannot be returned to the custody of the parents as
3
Because of their differences in age, the court applied section (f) to J.C. and (h) to T.C.
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provided in section 232.102. Similarly, section (h) applies the same elements to
children three years of age or younger and only demands proof of removal for six
of the last twelve months.
The first three elements of these statutory grounds were clearly proven
and are not in dispute. Joseph only claims there is not clear and convincing
evidence that the children cannot be returned to his care “within a reasonable
period of time after he resolves his current legal issues.”
We disagree. Joseph is sentenced to spend more than two hundred years
in prison. While he has appealed his conviction, there is no evidence as to how
long this appeal process will take and there is certainly no guarantee his appeal
will be successful. Even if we ignore his present term of incarceration, we find
Joseph’s past behavior makes it abundantly clear that he is in no position to
resume care of J.C. and T.C. in the foreseeable future. Accordingly, we find the
court properly terminated his parental rights under Iowa Code sections
232.116(1)(f) and (h) and properly refused to grant him additional time to put
himself in a position to parent his children.
Best Interests. Joseph claims termination is not in the children’s best
interests. In assessing the children’s best interests, we evaluate their long range
as well as immediate interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994).
We must consider what the future likely holds for the children if they are returned
to their parents. Id. We gain insight into their prospects by reviewing evidence of
the parents’ past performance because it may be indicative of their future
capabilities. Id.
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Based on our de novo review of the record, we find these children would
face a grim future if they were returned to Joseph’s care. His past history as a
parent gives us no reason to give him another chance to care for these children.
B. Dawn
Dawn contends termination was not in her children’s best interests and
argues the court should have utilized one of the statutorily based exceptions to
preclude termination. She does not contend the State failed to prove by clear
and convincing evidence any of the statutory grounds upon which termination
was based. Therefore, she waives any claims of error concerning the statutory
grounds for termination by failing to raise them on appeal. See Iowa R. App. P.
6.14(1)(c). Consequently, we affirm the termination of her parental rights on
statutory grounds.
Best Interests. Dawn contends termination of her parental rights was not
in the children’s best interests.
She points to her participation in parenting
classes offered in prison as proof that she is taking steps towards reunification.
The district court was firmly convinced that termination was in the best interests
of the children because Dawn still does not comprehend how her actions placed
her children in danger. In so ruling, the court stated
[Dawn’s] inability after a year’s time to even recognize the scope of
the harm [to her children] and her part in it, demonstrates that the
conditions that caused harm to her children still exist. To place her
children back in her care when they have started to recover and
she has not, would be to again place her interests above theirs.
They have moved on and should not have to begin again with a
caretaker who does not know how to care for them emotionally.
They now have been given childhoods and it is way too late for
them to have to start over. There is nothing in this record to
demonstrate that she has even considered what she needs to
change so that she could some day help them. She just wants to
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pick up where the family left off, albeit without [Joseph], and
seemingly ignore what has happened . . . . Whatever her reasons
were, the operative fact is that her children spent their entire lives in
a violent threatening environment where she was unable or
unwilling to protect them.
We adopt this reasoning as our own and find it is not in the children’s best
interests to be returned to their mother’s care. These children should not be
forced to wait for their mother to be released from prison and for her to own up to
her own problems. They deserve permanency now.
Exceptions. Dawn also contends the district court abused its discretion in
terminating her parental rights because it failed to apply three exceptions to
termination found in Iowa Code sections 232.116(3)(a), (c), and (e). Sections
(a), (c), and (e) provide, in relevant part:
3. The court need not terminate the relationship between the parent
and child if the court finds any of the following:
a. A relative has legal custody of the child.
....
c. There is clear and convincing evidence that the termination
would be detrimental to the child at the time due to the closeness of
the parent-child relationship.
....
e. The absence of a parent is due to the parent’s admission or
commitment to any institution, hospital, or health facility or due to
active service in the state or federal armed forces.
Specifically, she contends the juvenile court should not have terminated her
parental rights because she was imprisoned, her children were placed with
maternal relatives, and she has a close bond with the children.
Before we address her claims under each specific section, we note that
section 232.116(3) does not contain mandatory language. See In re J.V., 464
N.W.2d 887, 890 (Iowa Ct. App. 1990). The words “need not terminate” are
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clearly permissive and it is within the sound discretion of the court, based upon
the unique circumstances before it and the best interests of the child, whether to
apply sections (a), (c), and (e) to save the parent-child relationship. Id.
Based on our review of the unique facts and circumstances in this case,
we find the court properly exercised its discretion when it did not apply these
exceptions. The children have made great strides in the care of their maternal
aunt and uncle. However, they cannot wait indefinitely for their mother to prove
she can be an effective parent. The statutory time period has elapsed, and
Dawn still cannot comprehend why her past actions endangered her children.
The aunt and uncle have expressed a willingness to adopt these children, and
we find it would be improper to delay permanency in the hopes that Dawn would
someday understand why her children were in danger.
See In re A.C., 415
N.W.2d 609, 613 (Iowa 1987) (“The crucial days of childhood cannot be
suspended while parents experiment with ways to face up to their own
problems.”).
We also find her “close bond” to her children is not enough to preclude
termination of her parental rights. While there is a bond between Dawn and her
children, past history indicates this bond could pose a continuing threat to the
children’s safety. Also, there is not enough evidence to conclude the termination
would be detrimental to the children at this time.
Finally, we find section 232.116(e) is clearly inapplicable to this case. It is
well-established that the word “institution” in the aforementioned section does not
include a penal institution. J.V., 464 N.W.2d at 890. Dawn’s absence from her
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children’s lives was a result of her imprisonment.
Therefore, section
232.116(3)(e) has no bearing on this case.
IV. Conclusion
These two young children have lived most of their lives in a home filled
with physical, sexual, and emotional abuse.
We affirm the district court’s
decision to terminate their parent’s parental rights so that they can spend their
remaining formative years in a safe and secure environment.
AFFIRMED.
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