IN THE INTEREST OF D.O., Minor Child, T.H.O., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-135 / 08-0038
Filed March 14, 2008
IN THE INTEREST OF D.O., Minor Child,
T.H.O., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Arlen J. VanZee,
District Associate Judge.
A father appeals from a juvenile court order terminating his parental rights.
AFFIRMED.
Jeffrey L. Farwell of Farwell & Bruhn, Clinton, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Michael Walton, County Attorney, and Cheryl J. Newport,
Assistant County Attorney, for appellee.
Neil Kroeger, LeClaire, for mother.
Christine Frederick, Davenport, guardian ad litem for minor child.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
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MILLER, J.
Thomas is the father of Deyonna, who was twenty-three months of age at
the time of an early December 2007 termination of parental rights hearing. In a
December 2007 order the juvenile court terminated Thomas’s parental rights to
Deyonna pursuant to Iowa Code section 232.116(1)(h) (2007) (child three or
younger; adjudicated a child in need of assistance (CINA); removed from
physical custody of parents six of last twelve months, or last six months and any
trial period at home less than thirty days; cannot be returned to parents at
present time without being a CINA).
The order also terminated the parental
rights of Deyonna’s mother, Lisa, and she has not appealed. Thomas appeals.
We affirm.
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).
Deyonna was born in January 2006. She tested positive for marijuana at
birth.
Deyonna has numerous problems and is accurately described as a
“special needs” child.
She was born with a diaphragmatic hernia, requiring
surgery shortly after her birth. She was born with heart problems and has had
heart surgery to repair a valve. Deyonna has had a shunt placed in her head to
relieve pressure from fluid building up on her brain. She has been diagnosed as
mildly mentally retarded. Deyonna suffers from a chromosome abnormality, and
is not only handicapped but is also severely developmentally delayed. Although
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Deyonna’s parents contend otherwise, the record demonstrates that they do not
fully understand or appreciate the full nature and extent of her many medical
problems and related needs.
Services to the family began in March 2006. Deyonna was removed from
her parents in February 2007, after again testing positive for marijuana. She has
thereafter remained in the legal custody of the Iowa Department of Human
Services (DHS), placed in family foster care. Deyonna was adjudicated a CINA
in April 2007.
Thomas claims the grounds for termination of his parental rights were not
proved by clear and convincing evidence, and more specifically claims that the
juvenile court erred in finding Deyonna could not be returned to his custody. The
first three of the four elements of section 232.116(1)(h) were clearly proved;
based on the following facts we conclude the fourth element was also proved by
clear and convincing evidence.
At the time of the termination hearing Thomas and Lisa had received or
been offered numerous services for almost two years. Initial concerns centered
on their substance abuse, as each tested positive for marijuana at the time of
Deyonna’s birth. Additional concerns thereafter included Thomas’s and Lisa’s
lack of stable housing, their lack of stable employment, and Lisa’s mental health
problems.
Between June 6, 2006, and the termination hearing Thomas was tested
for marijuana use on numerous occasions. On all but one occasion he tested
positive, including a positive test less than two weeks before the termination
hearing. Thomas acknowledges using marijuana regularly throughout the June
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2006 to December 2007 period, including as recently as one and one-half weeks
before the termination hearing. He had twice been unsuccessfully discharged
from outpatient substance abuse treatment.
Thomas was apparently employed at the time of the termination hearing
and he and Lisa had rented a house. However, his and Lisa’s lack of steady,
ongoing employment had previously prevented them from having and
maintaining stable housing and they had at times been homeless or living with
friends. Thomas has not visited Deyonna since early July 2007, six months
before the termination hearing.
Thomas and Lisa have never been married, but continue to maintain a
relationship. Their relationship appears chaotic and unstable. Any prospect,
however doubtful, of returning Deyonna to Thomas is dimmed by his relationship
and residence with Lisa. She apparently continues her longstanding substance
abuse, having twice been unsuccessfully discharged from outpatient substance
abuse treatment during these proceedings, and having tested at a high level for
marijuana use less than two weeks before the termination hearing.
Lisa also
fails or refuses to participate in recommended therapy sessions for her multiple
diagnoses of mental problems.
In his testimony at the termination hearing
Thomas quite frankly acknowledged that before Deyonna could come home
unresolved transportation issues, drug abuse issues, Lisa’s mental health issues,
and the parties’ relationship issues would have to be dealt with.
We conclude that at the time of the termination hearing Deyonna could not
be returned to Thomas without being subject to neglect or abuse that would
cause her to remain a CINA.
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Thomas also states as an issue: “The perceived superior parenting ability
of foster parent as compared to that of natural parents is not entitled to great
weight.” He points to the juvenile court’s reference to reports and mentions by
service providers of progress Deyonna had made while in foster care and
evidence of changes in her behavior since entering foster care. Although the
exact nature of the juvenile court error he attempts to assert is unclear, we
believe Thomas is claiming that the juvenile court placed undue emphasis on the
parenting ability of Deyonna’s foster parents.
The juvenile court did make the following findings:
Despite Deyonna’s profound medical needs and her fragile
condition, she is doing well with her foster parents where all of her
basic needs are being met and she is getting all of the medical
attention that she needs on a regular basis because of the attention
and diligence on the part of the foster parents. The foster parents
are interested in providing Deyonna with continuing care into the
future and are willing to provide permanency for her.
....
[Deyonna’s] best opportunity for growth and development will be
realized in the stable environment she now enjoys.
We believe that in making these findings the juvenile court was simply
contrasting Deyonna’s current situation in which her foster parents were fully
cognizant of and focused on her problems and needs, they were actively
attending to them, and Deyonna was making progress, with Deyonna’s situation
when earlier with Thomas and Lisa, leading to its conclusion that termination was
in Deyonna’s best interest. We conclude the juvenile court did not place undue
or improper weight on the parenting abilities of the foster parents.
We conclude, as the juvenile court did, that termination of Thomas’s
parental rights is in Deyonna’s best interest.
AFFIRMED.
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