IN THE INTEREST OF A.S., O.S., Q.S., S.S., and D.S., Minor Children , J.M.S., Mother, Appellant, O.O., Father of A.S., Appellant, D.S. Minor Child, Appellant, D.S., Father , Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1068 / 08-1823
Filed March 11, 2009
IN THE INTEREST OF
A.S., O.S., Q.S., S.S., and D.S.,
Minor Children,
J.M.S., Mother,
Appellant,
O.O., Father of A.S.,
Appellant,
D.S. Minor Child,
Appellant,
D.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carol S. Egly, District
Associate Judge.
A mother, two fathers, and a child appeal separately from a juvenile court
order terminating parental rights to four children and continuing placement of one
child. AFFIRMED ON ALL APPEALS.
Jessica J. Bromley of Jeff Carter Law Offices, P.C., Des Moines, for
appellant-mother.
D. William Thomas of Thomas & Diehl, Indianola, for appellant-father of
A.S.
Jon Garner of Hartung & Schroeder, Des Moines, for appellant-father.
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Michelle R. Saveraid, Des Moines, guardian ad litem for minor child D.S.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Cory McClure,
Assistant County Attorney, for appellee.
M. Kathryne Miller, Des Moines, guardian ad litem for minor children.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MILLER, J.
June is the mother of eleven-year-old Damian, nine-year-old Savannah,
six-year-old Quinten, four-year-old Oliver, and two-year-old Adem. David is the
father of the four older children and Omer is the father of the youngest child.
June, David, Omer, and Damian (by way of his guardian ad litem) separately
appeal from an October 28, 2008 juvenile court order terminating parental rights
to the four younger children and continuing placement of Damian for three
months before determining whether the need for his removal would no longer
exist and he could then be placed in David’s custody. We affirm on all appeals.
The children were removed from the legal and physical custody of their
parents on July 19, 2007, and have thereafter remained in the legal and physical
custody of others. The removal was preceded by a November 2005 confirmed
report of physical abuse of Savannah by June and denial of critical care of the
four older children (Adem had not yet been born) by June and David; a
November 2006 founded report of denial of critical care of all five children by
June and David; a March 7, 2007 founded report of denial of critical care of
Quinten and Adem by June; and a July 9, 2007 founded report of denial of critical
care of all five children by June and David.
Concerns leading to the July 19, 2007 ex parte removal included ongoing
neglect, domestic violence, medical neglect, and inadequate food, shelter, and
clothing. The removal was confirmed and continued following a July 27, 2007
hearing. The juvenile court found that continued placement outside the home
was necessary because of the volatility of the parents’ relationship, the parents’
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instability, housing instability, and the parents’ inability to provide for the
children’s basic needs. Following removal, all of the children except Adem were
initially placed with certain relatives, placements that lasted for only short periods
of time. The children were adjudicated children in need of assistance (CINA) on
August 16, 2007, pursuant to Iowa Code sections 232.2(6)(c)(2), (g), and (n)
(2007). Following a dispositional hearing and order on September 19, 2007,
Damian has been in the legal and physical custody of a maternal aunt, Quinten
and Oliver have been in the legal and physical custody of maternal grandparents,
and Savannah and Adem have been in the legal custody of the Iowa Department
of Human Services (DHS) and the physical custody of a foster parent couple with
whom they have been placed.
On July 17, 2008, the State filed a petition seeking termination of all
parents’ parental rights to the five children.
Following a combined
permanency/termination of parental rights hearing held on two days in midAugust and one day in mid-September, the juvenile court filed detailed findings of
fact, conclusions of law, and a resulting order on October 28, 2008. The court
terminated parental rights to Savannah, Quinten, and Oliver pursuant to Iowa
Code section 232.116(1)(f). It terminated parental rights to Adem pursuant to
Iowa Code section 232.116(1)(h). The court continued Damian’s placement until
a January 21, 2009 hearing to allow David additional time “to change his
circumstances and demonstrate that he can assume custody of Damian.” The
court denied June’s request for additional time to demonstrate that the need for
Damian’s removal from her home would no longer exist, finding she had been
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unable to support a finding it was reasonably likely her circumstances would
change so as to allow that to occur before the January 2009 hearing. June,
David, Omer, and Damian’s guardian ad litem 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).
Appellate review of a permanency hearing is de novo. Weight
should be given to the juvenile court’s findings of fact, but we are
not bound by them. The best interests of the child control the
court’s decision. There is a rebuttable presumption that the child’s
best interests are served by parental custody.
In re N.M., 528 N.W.2d 94, 96 (Iowa 1995) (citations omitted).
June and David claim that reasonable efforts were not made to reunify the
family or eliminate the need for the children’s removal. They assert that neither
they, their attorneys, nor the juvenile court were provided with information
suggesting that Damian was somewhat depressed and unhappy in his placement
with his aunt and that she might not be a permanent placement for him, or
information about an allegation Savannah had been physically abused in her
foster home. They complain that neither they nor their attorneys were notified of
or invited to attend a professional staffing held on July 19 or 22, 2008, during
which these matters were among various matters that were discussed by DHS
personnel and service providers.
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Damian has been placed with his maternal aunt since mid-August 2007.
He is somewhat unhappy and depressed because of his separation from his
parents and siblings.
However he could not be placed in foster care with
Savannah and Adem because of conflict between himself and Savannah and
because the foster parents were unable to take an additional child. He could not
be placed with his grandparents, who have Quinten and Oliver, because of their
inability or unwillingness to take an additional child. June and David were both
aware long before the permanency/termination hearing that Damian has been
somewhat depressed and unhappy and that his aunt may not be an appropriate
permanent placement for him. Despite this knowledge they have not sought any
different or additional services for either Damian or themselves. They did not in
the juvenile court, and do not on appeal, suggest what different or additional
services might have been or should have been provided. Any failure of the DHS
or service providers to inform them of what they were well aware does not
constitute a failure to make reasonable efforts.
Savannah was originally placed with relatives, but the placement did not
work out. She was later placed in a foster home with Adem, but when the foster
home felt it could not care for Savannah because of behaviors of hers that they
felt endangered their own child, Savannah and Adem were moved to another
foster home in very early November 2007. Shortly thereafter, and apparently at
or immediately following a visit by June, Savannah claimed she had been abused
in the foster home by being required to sleep on the floor, being pushed, and
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having her teeth brushed too hard. She has made no further or additional claims
of abuse.
Savannah’s claim of abuse was investigated. The investigation revealed
that not long after being placed in the foster home Savannah had a tantrum,
grabbed a bed and was shaking it, and as discipline was required to sleep on
blankets on the floor one time. Her claims of having been pushed and having her
teeth brushed too hard were apparently felt to be insignificant.
June became aware of Savannah’s claim at least several months before
the permanency/termination hearing.
David’s attorney became aware of the
claim sometime between July 14, 2008, and the mid-August beginning of the
hearing. Neither June nor David requested any different or additional services
for Savannah or themselves, either before the hearing or in the one month
between the first two days of the hearing and the day on which the hearing was
concluded. They did not in the juvenile court, and do not on appeal, suggest
what different or additional services might have been or should have been
provided.
For almost two years before the permanency/termination hearing, June,
David, and the children were offered a plethora of services as noted in various
exhibits including the DHS termination report, and as listed in the juvenile court’s
ruling. The juvenile court has been and is fully aware of Damian’s situation and
the concerns about his placements. Savannah’s claims, to the extent they are or
may be true, hardly rise to the level of physical abuse as apparently asserted by
June and David. We conclude that any failure by the DHS or service providers to
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more fully discuss these matters with June and David, and any failure to include
June and David and their attorneys in the July 2008 professional staff meeting,
do not constitute a failure to provide reasonable efforts.
June claims the juvenile court erred in not granting her additional time for
reunification with the children, and separately claims the court erred in not
granting her additional time for reunification with Damian.
David claims the
juvenile court erred in not granting him additional time for reunification with
Savannah, Quinten, and Oliver.
June and David’s marriage and time together with the children had been
plagued by domestic violence by each parent, at times in the presence of the
children, and abuse and neglect of the children. June suffers from mental health
issues and anger management problems and engages in impulsive, at times
harsh, and inappropriate physical discipline of the children. Until late in the CINA
and termination proceedings she has been largely non-compliant with offered
and available services, believing that her parenting has been appropriate and
that she does not need to make any changes. David suffers from depression,
which he acknowledges, and from anger management problems, which he does
not readily acknowledge.
Until shortly before the permanency/termination
hearing he has lacked stability in employment and housing. He quite frankly and
honestly acknowledges that until shortly before the hearing he hoped the children
would be returned to June and he had done nothing toward having them placed
with him.
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We agree with the juvenile court’s findings that it is unlikely June will be
able to meet the children’s needs within the foreseeable future, and that there is
no reasonable likelihood that David could meet the needs of the younger
children, or the needs of multiple children, within the foreseeable future. Upon
our de novo review we agree with the court’s denial of additional time with
respect to the parental rights and children in question.
Damian’s guardian ad litem claims the juvenile court’s order with respect
to Damian violates Iowa Code sections 232.104(1)(a)(1) and 232.104(2). She
argues that section 232.104(2) does not authorize an order “delaying the
permanency finding,” but acknowledges that it does authorize an order “grant[ing]
a six-month extension for a parent.”
Section 232.104(1)(a)(1), applicable to the facts in this case, requires a
permanency hearing within twelve months of the children’s removal. No one
suggests that the hearing in this case was untimely.
Section 232.104(2) allows the juvenile court, as one option following a
permanency hearing, to:
Enter an order pursuant to section 232.102 to continue placement
of the child for an additional six months at which time the court shall
hold a hearing to consider modification of its permanency order. An
order entered under this paragraph shall enumerate the specific
factors, conditions, or expected behavioral changes which comprise
the basis for the determination that the need for removal of the child
from the child’s home will no longer exist at the end of the
additional six-month period.
Iowa Code § 232.104(2)(b).
The guardian ad litem argues that while the juvenile court’s language
appears to attempt to meet the requirements of section 232.104(2)(b), it does not
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grant additional time to June and defers the decision as to whether to terminate
her parental rights, and its findings regarding permanency for Damian are
inconsistent. She further claims that if the court’s order is a permanency order its
provisions for an additional period of services to David is not supported by the
evidence or the law.
Until shortly before the commencement of the permanency/termination
hearing David had done little to address his problems and cure his parental
deficiencies. He readily acknowledged his failures were a result of his hope and
belief that June would become able to have the children returned to her. When it
appeared that a return to June might not happen, David took meaningful steps to
place himself in a position to be reunified with at least some of the children. He
recognized and articulated his part in and responsibility for the failures that had
resulted in harm to and removal of the children. David began therapy to address
his depression. He not only secured or maintained one job, but also secured a
second job. He acquired a stable residence with a cousin, and began saving
money to be able to acquire housing that would be adequate for himself and a
child or children.
We readily acknowledge that the language used by the juvenile court is
somewhat ambiguous and does not expressly establish permanency for Damian
by “continuing placement of [Damian] for an additional six months.” However, we
believe the effect of the order is to continue his placement as authorized by
section 232.104(2)(b).
We also believe that the language allowing such a
continued placement “for an additional six months” has as its purpose the setting
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of an outer time limit on the period within which the contemplated additional
hearing must be held, and does not prohibit the hearing from being held at a
somewhat earlier time if the court finds such to be appropriate. We conclude the
juvenile court substantially complied with the time limitation of the statute by
scheduling the further hearing for a time five months after commencement of the
permanency/termination hearing, four months after conclusion of the hearing,
and three months after the court’s resulting order.
The juvenile court found that if David had started to address issues
surrounding his depression he could expand his abilities sufficiently to care for
Damian within the foreseeable future.
David had recently acknowledged he
suffered from depression and had started therapy to deal with his depression.
The court found that David could provide a safe and secure home that would
meet Damian’s daily needs if motivated to do so and if he also worked
consistently, provided a suitable home, and nurtured Damian’s emotional needs.
The record indicates David is motivated, is working consistently, is taking the
steps necessary to provide a suitable home, and recognizes Damian’s emotional
needs and is making progress toward being able to meet them. We conclude the
court’s order substantially complies with the statute’s requirement that it
“enumerate the specific factors, conditions, or expected behavioral changes” that
support the court’s implicit determination that the need for Damian’s removal
from David will no longer exist at the time of the additional hearing.
Damian is almost twelve years of age. Despite the sad history in this case
he longs for a placement with his mother or father and a renewed relationship
12
with them. If at the time of the scheduled further hearing it is possible to place
Damian with David, termination of June’s parental rights to Damian may be
unnecessary. We find no error in the juvenile court’s decision to delay until that
hearing its decision concerning June’s parental rights to Damian.
June claims the juvenile court erred in terminating her parental rights
under Iowa Code sections 232.116(1)(d), as the State failed to prove that the
circumstances that led to the CINA adjudication continued to exist. See Iowa
Code § 232.116(1)(d)(2). The State did not allege, and the court did not find, that
grounds for termination under section 232.116(1)(d) were met. We will assume
that June intended to challenge the court’s determination that the State proved
grounds for termination under sections 232.116(1)(f) and (h). As the children met
the relevant age requirements, had been adjudicated CINA, and had been
removed the requisite time periods, June’s challenge must be to the court’s
determination that the children could not be returned to her at the time of the
termination hearing without being subject to the threat of adjudicatory harm. See
Iowa Code §§ 232.116(1)(f)(4), (h)(4). David claims the State failed to prove that
his children could not be returned to him at the time of the termination hearing
without being subject to adjudicatory harm. See Iowa Code § 232.116(1)(f)(4).
Until shortly before the permanency/termination hearing June had done
little to address her mental health issues, anger management problems, or
concerns that she had a substance abuse problem.
Her home had been
“foreclosed on” and she was renting by “working off the rent pretty much.” In
March 2008 June was hospitalized for two days.
She had an alcohol
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concentration of 0.154 and tested positive for cocaine. In June 2008 she was
hospitalized after taking an overdose of up to twenty-five Aleve pills, an incident
she does not remember. In July 2008 June spent time in jail for interference with
official acts, related to the March events.
In May 2008, and perhaps at an earlier time as well, June was directed to
undergo a substance abuse evaluation. She did not do so until the day before
the permanency/termination hearing. We conclude, as the juvenile court did, that
the State proved the section 232.116(1)(f) and (h) grounds for termination of
June’s parental rights to the children.
David also had done little or nothing to address his problems and
parenting deficiencies until shortly before the hearing.
He suffered from
depression and had lacked stable employment and housing. David had made
little or no effort to reunify with the children. He had recently begun to address
his issues, but frankly and honestly acknowledged he was not yet in a position to
have his children returned to his custody. We conclude the State proved the
section 232.116(1)(f) grounds for termination of David’s parental rights to
Savannah, Quinten, and Oliver.
Omer claims there was insufficient evidence to support termination of his
parental rights to Adem. Omer has a substantial and concerning criminal history.
He was convicted of harassment in 2000, theft in 2002, and domestic abuse
assault in 2004. In 2005 Omer was convicted of public intoxication, and was also
convicted with assault with intent to commit sexual abuse. He is a registered sex
offender.
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Omer apparently has two children by another woman with whom he once
lived, but appears to have no relationship with those children and provides no
support for them. June informed him as early as May 2006 that he was Adem’s
father. Omer thereafter saw Adem on a couple of occasions but accepted no
responsibility for him and established no relationship with him. State officials
contacted Omer about Adem in August 2007.
Omer did nothing to accept
responsibility or develop a relationship. Paternity testing was ordered at about
that time. Omer learned that paternity testing had been requested or ordered,
but did nothing to participate in testing until served with an order in February
2008. Test results in early April showed that Omer was Adem’s father.
Omer did not inform the DHS until about June 2008, when a decision had
been made to file a petition for termination of parental rights, that he might want
Adem placed with him. He thereafter had some visits with Adem, but missed
others. At the permanency/termination hearing he for the first time suggested
family members as possible placements for Adem.
We conclude that the State proved Adem could not be placed with Omer
at the time of the termination hearing without being subject to the threat of
neglect or abuse, and consequently proved the section 232.116(1)(h) grounds for
termination of Omer’s parental rights.
June claims that termination of her parental rights to Savannah, Quinten,
and Oliver is not in their best interest because (1) they share a strong bond with
her, and (2) there is not clear and convincing evidence they could not be
immediately returned to her. She claims termination of her parental rights to
15
Adem is not in his best interest because (1) he has a strong bond with her, and
(2) there is not clear and convincing evidence he could not be immediately
returned to her. David claims termination of his parental rights is not in the best
interest of his children (Savannah, Quinten, and Oliver, as his rights to Damian
were not terminated).
We have above agreed with the juvenile court that the children could not
be returned to June and will not discuss that issue further. However, even if the
statutory requirements for termination are met, a decision to terminate must still
be in the best interest of a child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994).
June’s claim based on a strong parent-child bond implicates Iowa Code
section 232.116(3)(c).
It provides that a strong parent-child relationship is a
special circumstance that militates against termination. In re N.F., 579 N.W.2d
338, 341 (Iowa Ct. App. 1998). The juvenile court did not, however, address this
statute or issue, and June does not show or claim that she filed a post-ruling
motion requesting the court to do so. As the issue was neither presented to nor
passed upon by the juvenile court, the asserted error is not preserved for our
review.1
To the extent June’s and David’s claims regarding best interests are
based on the general best interests of the children in question, we agree with the
juvenile court and reject those claims. While the children were with June and
1
We do note that the juvenile court found that “[t]he bond between the children and the
parents is best described as broken for the three youngest children and [June and
David],” and that although there was a bond between Damian and Savannah on the one
hand and their parents on the other, those bonds “are largely negative bonds.” We
agree with the court’s characterization of any bond between Damian and June and any
bond between Savannah and her parents.
16
David they suffered neglect, abuse, and exposure to ongoing domestic violence.
Neither parent is ready to have the children in question returned, now or within
the reasonably foreseeable future. The four younger children have achieved
some security and stability.
Quinten and Oliver are doing well, and their
grandparents wish to and intend to adopt them. Savannah and Adem are doing
well. As noted by the juvenile court, Savannah has been given the structure,
consistency, and nurture she needs, the bond between Savannah and Adem and
their foster parents is growing and positive, and permanency for Savannah and
Adem is adoption. We agree with the juvenile court that termination of parental
rights is in the best interests of the four younger children.
June claims the juvenile court erred by terminating the children’s sibling
relationship. David questions whether the court properly considered the need for
sibling interaction and the impact termination would have on such interaction.
The juvenile court did in fact consider sibling contact and interaction. It
noted the early and unsuccessful placements with various relatives, placements
which, if they became permanent, might well have fostered more sibling
interaction than might occur when some of the children are placed with nonrelatives. It expressly noted that “[p]lacement of all the children together was not
possible.” The record shows and the court noted, that Damian is placed with the
maternal aunt, Quinten and Oliver are placed with maternal grandparents, and
the DHS, service providers, and the foster parents have encouraged and
facilitated sibling contact and interaction. Simply put, the four younger children
cannot be returned to their parents, the current placements of all five children are
17
the best available, and none of the persons with whom the children are placed
are able or willing to take on other children.
In cases involving more than one child termination of parental rights often
will result in decreased sibling contact when siblings cannot all be placed
together. This hard fact does not, however, mean that either the juvenile court or
a reviewing appellate court has not considered the impact of termination on
sibling relationships.
Nor does it mean that termination therefore constitutes
error. We reject these claims of juvenile court error.
Damian’s guardian ad litem points out that, as found by the juvenile court,
clear and convincing evidence supports termination of June’s and David’s
parental rights to Damian. She claims a delay in permanency for Damian is not
in his best interest, and that termination of parental rights is in his best interest.
She argues the record demonstrates that the maternal aunt with whom he is
placed is willing to provide him a permanent, stable home.
Although the elements of Iowa Code section 232.116(1)(f) were proved by
clear and convincing evidence as to Damian, termination should not occur unless
it is in his best interest. In re M.S., 519 N.W.2d at 400. As found by the juvenile
court and acknowledged by Damian’s guardian ad litem, Damian’s situation
concerning permanency is much different than that of his siblings. Although the
maternal aunt with whom he is placed has provided for him and is willing to adopt
him, Damian is unhappy and depressed in her care and wishes to be reunited
with his mother or father. He is older than his siblings and his attachment to his
parents is stronger than that of his younger siblings, all of whom are doing well
18
and are happy in their current placements. Not only Damian’s parents, but also
the DHS and service providers, question whether the aunt is an appropriate
permanent placement for Damian.
We agree with the juvenile court that
termination of the parental rights of Damian’s parents was not in Damian’s best
interest at the time of the permanency/termination hearing.
For reasons stated above we believe the juvenile court’s order concerning
Damian substantially complied with Iowa Code section 232.104(2)(b) and did
establish permanency by continuing his placement with his maternal aunt,
subject to review and possible modification at a subsequent hearing
contemplated by the statute and scheduled by the court.
We conclude the juvenile court’s order concerning Damian is appropriate
and in his best interest.
We affirm the juvenile court on all issues presented on appeal.
AFFIRMED ON ALL APPEALS.
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