IN THE INTEREST OF E.V., Minor Child, R.M.M., Father, Appellant, E.V., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-529 / 07-1043
Filed September 6, 2007
IN THE INTEREST OF E.V.,
Minor Child,
R.M.M., Father,
Appellant,
E.V., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, James A.
McGlynn, Associate Juvenile Judge.
A father and mother appeal the juvenile court order terminating their
parental rights. AFFIRMED.
Marcy Lundberg of Blake Parker Law Office, Fort Dodge, for appellant
father.
Brigette Plowman Cromwell of Kersten, Brownlee, Hendrick L.L.P., Fort
Dodge, and Darren D. Driscoll of Johnson, Erb, Bice, Kramer, Good, Mulholland
& Cochrane, P.L.C., Fort Dodge, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Timothy Schott, County Attorney, and Sarah L. Smith,
Assistant County Attorney, for appellee State.
Derek Johnson, Fort Dodge, guardian ad litem for minor child.
Considered by Sackett, C.J., and Zimmer, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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SCHECHTMAN, S.J.
I.
Background Facts & Proceedings
Ryan and Etya are the biological parents of Ezekeil, born in December
2003. At his birth, Etya was a minor and had been adjudicated a child in need of
assistance (CINA). Etya and Ezekeil were placed in family foster care. Ryan, an
adult, is in prison on sexual abuse charges arising from his contact with Etya
while she was a minor.
While on a home visit in July 2005, Etya married David in South Dakota. 1
The couple were not prepared to care for Ezekeil and did not have a permanent
residence. Separate CINA proceedings were initiated for Ezekeil. On August 9,
2005, the juvenile court entered a joint adjudicatory/dispositional order finding
Ezekeil was a CINA under Iowa Code sections 232.2(6)(b) and (c)(2) (2005).
The court found, “It is clear that Etya will need to establish stability, find
employment, and secure appropriate housing for herself and the child.” Ezekeil
was placed in foster care.
Etya made progress by obtaining an apartment and working toward her
GED. Plans were initiated to expand her visits. But in February 2006, Etya
began a relationship with Cliff, her husband’s cousin. She allowed Cliff to move
in with her.
Cliff had a history of substance abuse, criminal activity, and a
founded child abuse report. Instead of increasing, her visits were decreased.
Etya was evicted from her apartment in April 2006 due to criminal charges for
aiding and abetting a third-degree burglary. Etya moved in with her mother, but
visits were curtailed at her mother’s home because of its condition. She quit
1
Etya was not yet eighteen years old at the time of the marriage.
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attending GED classes. Etya did not obtain employment, and was inconsistent in
attending visitation. She shuttled between several intimate relationships.
In August 2006, the State filed a petition seeking termination of the
parental rights of Ryan and Etya. In December 2006 Ezekeil was placed with his
paternal grandparents. The juvenile court terminated the parents’ rights pursuant
to sections 232.116(1)(d) (child CINA for neglect, circumstances continue despite
the receipt of services) and (h) (child three or younger, CINA, removed for at
least six months, and cannot be returned home). The juvenile court commented
that over twenty months had passed since Ezekeil’s CINA case was initiated, and
“the child remains out of the custody of the parents, the father is still in prison and
the mother is still unable to resume custody of the child.” Ryan and Etya each
appeal the termination order of the juvenile court.
II.
Standard of Review
The scope of review in termination cases is de novo. In re R.E.K.F., 698
N.W.2d 147, 149 (Iowa 2005). Grounds for termination must be proven by clear
and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our
primary concern is the best interests of the child. In re C.V., 611 N.W.2d 489,
492 (Iowa 2000).
III.
Ryan
Ryan contends termination of his parental rights is not in Ezekeil’s best
interests. He points out that Ezekeil is in the care of his relatives. Ryan claims
the child could be placed in a guardianship, and he could maintain contact with
the child in the future. The juvenile court did not address placing Ezekeil in a
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guardianship. This aspect of Ryan’s best interests argument was not preserved
for review. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994) (noting
an issue not presented in the juvenile court may not be raised for the first time on
appeal).
Notwithstanding, Ryan’s imprisonment does not allow him to meet the
child’s needs. As the juvenile court concluded, “He bears sole responsibility for
his inability to provide for his child.”
We affirm the juvenile court decision terminating Ryan’s parental rights.
IV.
Etya
Etya contends that termination of her parental rights was not in Ezekeil’s
best interests, immediate or in the long-term. She asserts there was not clear
and convincing evidence presented that termination was in his best interests.
The attorney and guardian ad litem for Ezekeil agreed. They each maintain that
Etya should be granted more time to reunite with her son, that her parental
shortcomings are minor, and can be corrected with appropriate services. Etya
suggests that the Iowa Department of Human Services has treated her unfairly. 2
Etya’s challenge is obviously stronger than Ryan’s. But it is clear that
Etya struggles with significant parenting defects. She continues to show little
stability in housing and employment. At a time when her visitations were to be
increased and home visits were on the foreseeable horizon, she opted to initiate
a relationship that potentially could sacrifice the safety of the child. Criminal
2
Etya challenges the foster placement with the paternal grandparents as inherently
unjust. She agreed to this move in December 2006. Nor was this issue addressed by
the trial court and it was not preserved for appeal. See In re N.W.E., 564 N.W.2d 451,
455 (Iowa Ct. App. 1997) (noting we do not address issues raised for the first time on
appeal).
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charges ensued that exacerbated her instability and led to an eviction, which
again left her without quarters. In October 2006, she served a few days in the
county jail. She has been inconsistent in all her pursuits and not motivated to
correct her parenting shortfalls. Etya has muffed months of chances to show she
is capable of responsible parenting.
Etya intimates that her rights were terminated because she did not locate
housing until the day of the termination hearing, and had not obtained
employment, although she had a job interview scheduled. The juvenile court fully
addressed these contentions, which are supported in the record:
The Court acknowledges that the mother presented evidence on
the second day of trial that she now has obtained an apartment.
However, she has not been able to establish to the Court’s
satisfaction that she will be able to maintain that apartment or any
sort of stability for herself and the child. . . . For the last 20
months, the mother has been essentially homeless, living with
relatives, friends or at the YWCA. Her visitations with the child
have not been consistent. She has made no meaningful progress
towards reunification. The fact that the mother obtained an
apartment on the eve of trial does not change the lengthy history of
the case. The child deserves permanency, which the mother has
clearly demonstrated she is unable to provide.
Under our cases, continued patience with Etya must now yield to the
needs of Ezekeil.
“Children simply cannot wait for responsible parenting.
Parenting cannot be turned off and on like a spigot.
It must be constant,
responsible, and reliable.” In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). “The
crucial days of childhood cannot be suspended while parents experiment with
ways to face up to their own problems.” Id. “It is simply not in the best interests
of children to continue to keep them in temporary foster homes while the natural
parents get their lives together.” Id.
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We look to a parent’s past performance to consider what the future may
hold for the child if returned to that parent. In re L.L., 459 N.W.2d 489, 494 (Iowa
1990). Etya was give ample opportunity to demonstrate the consistency and
stability needed for parenting. Tragically, she was never willing to place the
child’s needs above her own.
Termination of Etya’s parental rights is affirmed.
AFFIRMED.
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