IN THE INTEREST OF E.R.M., Minor Child, T.M., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-508 / 09-0729
Filed July 22, 2009
IN THE INTEREST OF E.R.M.,
Minor Child,
T.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Constance Cohen,
Associate Juvenile Judge.
A mother appeals from the district court’s order terminating her parental
rights to her daughter. AFFIRMED.
Amanda Demichelis of Demichelis Law Firm, Chariton, for appellant
mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Stephanie Brown,
Assistant County Attorney, for appellee State.
Kimberly Ayotte of Youth Law Center, Des Moines, for minor child.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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VOGEL, J.
Tijana appeals the termination of her parental rights to her daughter,
E.R.M., born in June 2007.1 She asserts there was not clear and convincing
evidence to support the district court findings, and termination was not in
E.R.M.’s best interests. We affirm.
The district court terminated Tijana’s rights under Iowa Code sections
232.116(1)(d) (child CINA for physical or sexual abuse (or neglect),
circumstances continued despite receipt of services), (e) (child CINA removed
from home for six consecutive months, and no significant or meaningful contact
during that time), (h) (child is three or younger, child CINA, removed from home
for six of last twelve months, and child cannot be returned home), and (l) (child
CINA, parent has substance abuse problem, child cannot be returned within a
reasonable time) (2007).
novo.
We review termination of parental rights cases de
In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
E.R.M. came to the
attention of the Iowa Department of Human Services (DHS) in April 2008 with
several bruises on her buttock, determined to have been inflicted by Tijana’s
boyfriend. In May 2008, the boyfriend was arrested for domestic abuse assault
and child endangerment. On May 28, 2008, the State’s application for temporary
removal of E.R.M. was granted. With the district court finding E.R.M. was “in
imminent risk of harm from domestic violence, physical abuse, and lack of
supervision,” E.R.M.’s removal from Tijana’s care was confirmed on June 16,
2008, and she was adjudicated a child in need of assistance (CINA) pursuant to
1
The parental rights of E.R.M.’s biological father were also terminated. He does not
appeal.
3
Iowa Code section 232.2(6)(b) and (c)(2) on July 10, 2008. The State filed a
petition to terminate parental rights in December 2008, and after a hearing,
Tijana’s rights were terminated on April 29, 2009.2
Although Tijana argues that E.R.M. could have been returned to her care,
we agree with the district court that “[Tijana] has made no reasonable effort to
resume care of [E.R.M.] despite being given the opportunity to do so.” Following
E.R.M.’s removal, Tijana was afforded frequent visitation, but her attendance was
so sporadic that after four months visits were suspended. DHS subsequently
tried to work out a system for Tijana’s participation in visits, but Tijana failed to
make herself available for these visits. She had inconsistent contact with E.R.M.
from July through September 2008, and had no contact from late September
2008 to April 2009, except for a brief, unauthorized visit on Christmas Day, 2008.
Tijana has also struggled with alcohol abuse.
DHS offered numerous
services to Tijana, including Family, Safety, Risk, and Permanency services, with
healthy relationship classes, substance abuse evaluation and treatment, and
Visiting Nurse Services.
While Tijiana did participate in some counseling services shortly before
the termination proceedings, she has not proved that she can provide a safe
home for E.R.M.
Tijana’s domestic abuse counselor, Sharon Rutz, testified
during her deposition that she was uncertain regarding the safety of Tijana’s
living situation, and “[Tijana] could use all the support she could get.” In January,
2009, Tijana was again involved in a domestic abuse incident with the boyfriend
2
Tijana voluntarily agreed to the termination of her parental rights in February 2009, but
later withdrew her consent. See Iowa Code section 232.116(1)(a).
4
who previously injured E.R.M.
Even after consistent recommendations from
DHS, Tijana failed to extricate herself from this violent relationship. Further, the
district court found that “[B]ecause Tijana has not taken the opportunity to benefit
from treatment to resolve her addiction, a severe, chronic substance abuse
problem persists.” The record supports these findings. “When the statutory time
standards found in section 232.116 are approaching, and a parent has made
only minimal progress, the child deserves to have the time standards followed by
having termination of parental rights promptly pursued.”
In re J.L.W., 570
N.W.2d 778, 781 (Iowa Ct. App. 1997). At some point, the rights and needs of
the child rise above the rights and needs of the parents. Id. We affirm the
findings and termination of Tijana’s parental rights to E.R.M.
Even where there is a statutory basis to terminate parental rights, the
termination must still be in the best interests of the child. In re M.S., 519 N.W.2d
398, 400 (Iowa 1994). To determine what is in the best interests of the child,
evidence of the parent’s past performance is the best indicator of the quality of
future care for the child. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). There is
clear and convincing evidence that substantial progress has not been made due
to Tijana’s lack of compliance with the services offered. E.R.M. is in need of a
safe and permanent home, and has done well in her pre-adoptive home. J.E.,
723 N.W.2d at 801 (Cady, J., concurring specially) (stating children’s safety and
their need for a permanent home are the defining elements in determining a
child’s best interests). Upon our de novo review of the record,
5
we agree with the district court that it is in E.R.M.’s best interests that the
parental rights of Tijana are terminated.
AFFIRMED.
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