IN THE INTEREST OF D.J., H.R., A.J., and A.J., Minor Children, A.N.J., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-398 / 09-0412
Filed June 17, 2009
IN THE INTEREST OF
D.J., H.R., A.J., and A.J., Minor Children,
A.N.J., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
District Associate Judge.
A mother appeals from a juvenile court order terminating her parental
rights to her children. AFFIRMED.
Sara Linn Smith, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Harold Denton, County Attorney, and Robert Hruska, Assistant
County Attorney, for appellee.
Robert Davison, Cedar Rapids, for father.
Angela Railsback, Cedar Rapids, guardian ad litem and attorney for minor
children.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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MILLER, J.
Airee is the mother of eight-year-old, seven-year-old, three-year-old, and
two-year-old children. She appeals from a March 2009 ruling terminating her
parental rights to these children.1 We affirm.
In June 2006, police officers executed a search warrant at the home
where Airee and her three oldest children were residing.
Cocaine residue,
marijuana residue, and drug paraphernalia were found in the home. Airee, who
was on probation for a forgery offense, admitted to the police that she had been
using cocaine. She was charged with keeping a disorderly house and evicted
from her residence. Hair stat testing later revealed that the youngest of the three
children had been exposed to and possibly ingested cocaine.
The three children were removed from their mother’s care and placed in
the legal custody of the Iowa Department of Human Services (DHS) for
placement in family foster care.
They were adjudicated children in need of
assistance (CINA) in September 2006 pursuant to Iowa Code sections
232.2(6)(c)(2), (n), and (o) (2005).
Airee began participating in substance abuse treatment and providing
negative drug screens after her children were removed from her care.
She
successfully completed extended outpatient treatment in February 2007 and
gave birth to a fourth child shortly thereafter. He was allowed to remain in her
care, and a trial home placement was planned for her three oldest children.
Before the trial home placement began, cocaine was discovered in the apartment
The order also terminated the parental rights of the children’s fathers. They have not
appealed the termination of their parental rights.
1
3
Airee shared with Antonio, the father of her two youngest children. Antonio was
arrested, and Airee moved into her grandmother’s house.
In June 2007, after Airee found another apartment to live in, the three
oldest children were returned to her care for the trial home placement. Antonio
also lived with the family intermittently. Airee was evicted from that apartment in
December 2007 because she did not pay her rent. She and the children moved
back in with her grandmother.
In January 2008, police officers executed a search warrant at Airee’s
grandmother’s home. Airee, her four children, and eight other individuals were
present in the home. The police discovered marijuana and drug paraphernalia
throughout the residence within reach of the children. Airee’s sister and her
mother were arrested.
Airee agreed to take her children and leave her
grandmother’s house. She spent one night in a motel, the next night with her
sister, and then she returned to her grandmother’s house with the children.
When DHS learned Airee went back to her grandmother’s house, the trial
home placement ended and the children were removed from Airee’s physical
custody. The youngest of the four was placed in the legal custody of DHS for
placement in family foster care, where he and his siblings have since remained.
Hair stat testing later revealed the next-to-youngest child had been exposed to
cocaine and the youngest child had been exposed to cocaine and marijuana
while in their mother’s care. The youngest child was adjudicated a CINA in
February 2008 pursuant to Iowa Code section 232.2(6)(b) (2007).
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Airee gave birth to her fifth child in April 2008. Antonio is also the father of
that child. After the baby was born, Airee lived in an apartment that was paid for
by a friend for few months. Airee and Antonio eventually located an apartment
together where they lived with the baby until November 2008 when the heat in
the building was shut off. The family stayed in the apartment for several days
with no heat. A temporary removal order was obtained, but before it could be
executed Airee asked Antonio’s mother to take the baby to Illinois to live with a
relative. Airee refused to tell DHS where the baby was staying until a contempt
action was filed against her. The baby was eventually returned to Iowa after
being gone for more than thirty days.
The State filed a petition to terminate parental rights to Airee’s four oldest
children in June 2008. Following a hearing, the juvenile court entered an order
terminating Airee’s parental rights to the older two children pursuant to Iowa
Code section 232.116(1)(f) and to the younger two pursuant to section
232.116(1)(h). Airee appeals.2
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).
Airee claims the juvenile court erred in finding there was clear and
convincing evidence that the children could not be returned to her care at the
2
The State asserts the mother waived her claims on appeal because she did not argue
or cite authority in support of those claims. See Iowa R. App. P. 6.903(2)(g)(3). We
elect, however, to proceed to the merits of her claims.
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time of the termination hearing.
As the first three elements of sections
232.116(1)(f) and (h) are clearly met, her claim implicates only the fourth element
of those sections. This element is proved when the evidence shows the children
cannot be returned to the parent without remaining 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 children’s removal from the home. In re M.M., 483 N.W.2d 812,
814 (Iowa 1992).
Airee acknowledged at the termination hearing that none of her children
could be returned to her care at that time.
There is clear and convincing
evidence present in the record to support her honest admission. Despite Airee’s
apparent success in overcoming her substance abuse problems, she struggled to
maintain stable housing and employment. She was unemployed for most of the
juvenile court proceedings.
She eventually obtained a job with a temporary
agency in the summer of 2008, but did not receive reliable hours. Airee lived in
at least six different locations during these proceedings and experienced several
periods of homelessness during which she would live with family or friends—
many of whom used drugs. At the time of the termination hearing, she was
residing with Antonio’s mother.
Due to Airee’s unstable housing situation, visits with her children often
took place at a facility. When visits did occur in her home, they were chaotic.
Service providers reported that Airee was not able to adequately supervise all
four children at once. The oldest child ran away during several of the visits, and
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on one visit, the two youngest children were found alone on the second-story
deck of Airee’s apartment. During the trial home placement, the oldest child got
into Airee’s car, put it into reverse, and hit a storage garage. He and the secondoldest child missed twenty days of school when they were in their mother’s care
for the trial home placement, and the youngest two children were exposed to
illegal substances. After the children’s unsuccessful trial period at home, Airee’s
visits with them did not progress beyond supervised.
Although the service providers reported that there was a strong bond
between Airee and her children, she did not consistently visit with them. In the
months leading up to the termination hearing, Airee missed several visits and
was late to several others.
She relied on Antonio for transportation and
continued to maintain a relationship with him despite reporting that he was
physically abusive to her. A service provider suspected that Antonio, who has
been convicted of several drug-related offenses including delivery of crack
cocaine, was possibly selling drugs out of an apartment he shared with Airee due
to the number of people that were in and out of the home during visits.
In light of the foregoing, we conclude the children could not be returned to
Airee’s care at the time of the termination hearing without being subject to the
threat of neglect or other harm that would cause them to remain CINA. See Iowa
Code §§ 232.116(1)(f), (h).
Our supreme court has recognized that children
“should not be forced to endlessly await the maturity of a natural parent.” In re
C.K., 558 N.W.2d 170, 175 (Iowa 1997).
“Children simply cannot wait for
responsible parenting. Parenting cannot be turned off and on like a spigot. It
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must be constant, responsible, and reliable.” Id. With these principles in mind,
we deny Airee’s next claim that an additional period of time would have allowed
her to correct the shortcomings and deficiencies that led to the children’s
adjudication as CINA.
A parent does not have unlimited time in which to correct her deficiencies.
In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997). “At some point, the
rights and needs of the child rise above the rights and needs of the parent[ ].” In
re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997).
We agree with the
juvenile court that while the children in this case “are very bonded to each other
and to their mother, . . . their need for permanency outweighs this bond.”
“A child’s safety and the need for a permanent home are now the primary
concerns when determining a child’s best interests.” In re J.E., 723 N.W.2d 793,
801 (Iowa 2006) (Cady, J., concurring specially). These children have been out
of Airee’s legal custody and care for a significant amount of time. The three
oldest children have been in foster care for over two and a half years, with the
exception of their short-lived trial period at home, while the youngest child has
been in foster care for more than a year. Although the children are doing well in
their foster home placements, they need and deserve permanency. “Long-term
foster care is not preferred to termination of parental rights.” In re R.L., 541
N.W.2d 900, 903 (Iowa Ct. App. 1995).
Children “should not be forced to
endlessly suffer the parentless limbo of foster care.” Id.
As Airee candidly admitted at the termination hearing, she was not ready
to resume caring for her children at that time. Nor did it appear that she would be
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ready in the reasonably foreseeable future.
Termination will provide these
children with the safety, security, and permanency they are entitled to.
We
conclude, as the juvenile court did, that termination of Airee’s parental rights is in
the children’s best interests. We accordingly affirm the judgment of the juvenile
court.
AFFIRMED.
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