IN THE INTEREST OF A.M.V., Minor Child, A.A.V., Mother, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-668 / 09-1014
Filed September 2, 2009
IN THE INTEREST OF A.M.V.,
Minor Child,
A.A.V., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Constance Cohen,
Associate Juvenile Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Jolie B. Juckette of Nelissen & Juckette, P.C., Des Moines, 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.
Michelle Saveraid of the Youth Law Center, Des Moines, for minor child.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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DOYLE, J.
A mother appeals from the order terminating her parental rights. Upon our
de novo review, we affirm.
I. Background Facts and Proceedings.
A.V. is the mother of A.M.V., born July 2004.1 A.M.V. first came to the
attention of the Iowa Department of Human Services (Department) in November
2006 after the mother admitted she used marijuana in her home while A.M.V.
was present.
A child protective case was initiated, and the family began
participating in Department services. However, the mother’s cooperation with the
services was sporadic.
On December 20, 2007, the mother was arrested for willful injury after
allegedly stabbing a man at her apartment complex. A.M.V. was present in the
apartment complex when the stabbing occurred. Police searched the mother’s
apartment after the stabbing and discovered a large quantity of crack cocaine in
a shoebox under her bed.
The mother was then additionally charged with
possession of crack cocaine with intent to deliver and failure to affix a tax stamp.
Following her arrest, the mother was placed in the Polk County jail, and
A.M.V. was temporarily removed from the mother’s care.
On December 28,
2007, the State filed a petition asserting A.M.V. to be a child in need of
assistance (CINA). On January 4, 2008, the juvenile court placed A.M.V. in the
legal custody of D.F. and J.F., family friends.
1
This appeal concerns only the mother’s parental rights.
appealed from the termination of his parental rights.
A.M.V.’s father has not
3
On February 20, 2008, an uncontested adjudicatory hearing was held, and
the court adjudicated A.M.V. to be a CINA. The mother was in jail and stipulated
to the adjudication. The court ordered that services continue.
On April 2, 2008, an uncontested disposition hearing was held.
The
mother remained in jail but was to be sentenced on April 3, 2008. The court
adopted the case permanency plan and further ordered that the mother
demonstrate a commitment to a clean and sober life. Thereafter, the mother was
sentenced and placed on probation. The mother was placed in the women’s
correctional facility and was available to participate in services.
She was
successfully discharged on August 27, 2008, and began having semi-supervised
visitation with A.M.V. in September 2008.
A review hearing was held on September 30, 2008. The mother advised
the court that she was pregnant.
Additionally, it was brought to the court’s
attention that A.M.V.’s legal custodians, D.F. and J.F., needed to leave the
country for a few months to care for a sick relative. D.F. and J.F. also expressed
that they were no longer sure they could adopt A.M.V. The court ordered that the
mother comply with prenatal care and not use any drugs or alcohol unless
medically prescribed. Additionally, on October 14, 2008, the court entered a
modification order placing A.M.V. in the legal custody of C.F.M. and W.M., D.F.
and J.F.’s daughter and son-in-law, while D.F. and J.F. were out of the country.
On November 3, 2008, the mother successfully completed an extended
outpatient drug treatment program and was scheduled to begin therapy in
December.
The mother continued to have semi-supervised visitation with
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A.M.V., but A.M.V. was sometimes irritable after a visit with her mother. A.M.V.
continued to thrive in her custodians’ home.
A permanency review hearing was held December 16, 2008.
The
Department reported that the mother was generally participating and cooperating
with services and the Department’s recommendations.
The Department
recommended an extension of time for the mother to address a few of the
Department’s concerns so that the mother could be reunited with A.M.V. The
juvenile court found A.M.V. would be able to return home in three months if the
mother maintained her sobriety, complied with therapy, managed her anger,
obtained appropriate housing, continued to demonstrate insight as to her
accountability, and maintained her employment.
On January 27, 2009, after an overnight visit with the mother, A.M.V.
reported that she saw the mother’s boyfriend hit her mother in the face. After
another visit in early February, A.M.V. reported to an in-home provider that the
mother was sad because the mother and her boyfriend were fighting and
because the police came to the house. The child stated that the police were
going to take the boyfriend to jail but did not. A.M.V. also stated that her mother
told her not to tell the providers about the police. A.M.V. told the provider not to
tell her mother what she reported. The in-home provider then confronted the
mother about A.M.V.’s statements and the mother began shouting at the provider
and denied that the police came to the residence. After the in-home provider
picked up A.M.V. from the visitation with the mother, A.M.V. said to the provider
“I told you not to tell!” and reported that the mother screamed at her, made her
cry, and then spanked her bottom. When asked what her mother screamed at
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her, A.M.V. shouted to mimic the mother “The police did not come to our house!
You tell her the police did not come!” A.M.V. also reported to her therapist that
her mother punishes her for “telling,” and anything she reports needs to be “our
secret.” After a discussion with A.M.V.’s therapist, it was decided that contact
between A.M.V. and the mother remain supervised.
Thereafter, A.M.V.’s
therapist opined that A.M.V. “has felt responsible for her mother’s inability to care
for her and this misconception will be an ongoing treatment issue for [A.M.V.]”
and recommended that the mother’s parental rights be terminated.
On March 9, 2009, the court appointed special advocate (CASA) reported
that the mother advised her she had not been working since Christmas because
her employer was not giving her any hours, but that she still had a job and called
her employer every day.
The mother then stated that she had not been in
contact with the Department, the visiting nurse, and the CASA because she did
not have a phone because she had been in a car accident and lost her phone
with all of their numbers. The mother told the CASA that her doctor advised her
she needed bed rest because of the accident, but the doctor did not provide
anything in writing.
The mother stated the accident and bed rest made her
unable to phone anyone or have visits with A.M.V. The mother also stated that
her doctor put her on depression medication and she had not been to her
therapist because she was feeling too depressed. The mother stated that she
thought her mother would send her money to pay her bills and get her phone
back on, but her place of residence is unable to receive mail because of other
dogs on the street and not because of the two pit bull terriers in her home. The
mother stated she is also unable to receive her food stamps for this reason. The
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mother acknowledged that she was driving illegally, but had no other options and
wanted to return A.M.V. back on time to the legal custodians following her
visitation. The legal custodian reported to the CASA that A.M.V. does not want
to be alone with her mother.
The CASA recommended that a petition to
terminate the mother’s parental rights be filed and that no additional extension be
given.
The in-home provider advised the court that although she observed a
strong bond between the mother and A.M.V., A.M.V. was in great need of
permanency that could not be provided by the mother at this time. The in-home
provider noted that A.M.V. had significant issues with anxiety that are likely to be
furthered the longer she remains in temporary care.
The in-home provider
recommended that A.M.V. be placed long-term with D.F. and J.F. The in-home
provider stated this would give A.M.V. stability while allowing her to maintain her
bond with C.F.M. and W.M., as well as her mother and newborn half-sister.2
On March 10, 2009, the State filed its petition to terminate the mother’s
parental rights. On April 23, 2009, the mother filed a motion to continue and
motion to modify placement.
The mother’s motion asserted that the foster
parents were no longer to be a long-term placement for A.M.V. and requested
A.M.V.’s maternal grandmother be considered for placement.
The mother
requested that the termination hearing be continued until a viable concurrent plan
was set in place.
2
The mother gave birth to R.M. in April 2009. The mother’s parental rights to R.M. are
not at issue in this appeal.
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A contested permanency review hearing was held March 17 and 25, 2009.
The court ultimately agreed that the State should file a termination of parental
rights petition. The court found the mother had not demonstrated the anticipated
behavior changes that would support modification as set forth in the court’s
December 16, 2008 order, specifically, that the mother failed to comply with
therapy, demonstrate anger management, obtain appropriate housing, maintain
employment, or gain insight as to her accountability. The court found that the
mother exposed A.M.V. to domestic violence and expected the child to keep
secrets.
A hearing on the State’s petition to terminate the rights of the mother was
held on May 1, 2009. At the hearing, the mother asserted that D.F. and J.F.
were not long-term placement options for A.M.V. and asked that the petition be
continued until there was a placement plan in place for A.M.V. The State and the
child’s guardian ad litem resisted the continuance, asserting that D.F. and J.F.
were long-term placement options for A.M.V. and that A.M.V. was in need of
permanency.
The court denied the mother’s motion to continue.
After the
State’s exhibits were admitted, the mother was asked to present her record. The
mother’s attorney responded, as follows:
My client, after much soul-searching and much discussion
with myself and with [the parent partners], has come to, I think, the
very mature and obvious change in her position. She recognized
that, even though she believes she’s made significant progress,
that due to [A.M.V.’s] needs and everything that has happened that
she understands that at this time placement with her is not a
possibility.
She does, however, believe that a guardianship would be
the best alternative and in the best interest of her child. I think, and
I would ask the court to take into consideration, that this woman
who, in the past, has sometimes looked out—and most of the time
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looked at what’s in her best interest. And the fact that she
recognizes today that she cannot parent this child, due to the
child’s needs at this point in time, but given the progress that has
been made and the extremely strong bond that this mother and
child have, as well as the fact that, by all accounts, the planned
custodian intends on maintaining a relationship between this
mother and child, permanency can, in fact, be effectuated though a
guardianship.
I know that a guardianship is not something that courts
normally do, but I believe in this situation it’s something that would
be in this child’s best interest. There is a sibling that is involved
and needs to be considered . . . .
This court is also aware, due to proceedings yesterday and
ongoing proceedings scheduled . . . , that there is a plan imminent
to return [R.M.] to this mother. Given all circumstances and given
the recent rulings and case law regarding sibling relationships, my
client is asking that this court enter a guardianship rather than do
termination of parental rights.
And, truly, I can inform the parties and the court that this is
because she believes it’s in her daughter’s best interest. She has
no intention of disrupting the guardianship. She has, in the past,
requested placement with relatives. And although she would prefer
that, she recognizes that [D.F.] is, at this point in time, the best
placement for her daughter. But would ask that this court enter a
guardianship, given the fact of the bond and the close relationship
that she will continue to have with this child as well as a sibling
relationship.
And with that, I would have nothing further at this time other
than to ask that the court ask my client if she has had enough time
to make the determination that a professional statement is the way
she wishes to proceed in this matter rather than presenting
evidence.
The court then conducted the following colloquy with the mother:
Q: [Mother], have you had enough time to talk to your
lawyer about this matter? A. Yes, ma’am.
Q: And are you satisfied with [your lawyer’s] help? A. Yes,
ma’am.
Q: Do you believe that [your lawyer has] accurately
portrayed your position in this matter? A. Yes, ma’am.
Q: And you know that you have the right to present
witnesses who will testify under oath and be questioned by other
lawyers, and you understand you have that right today? A. Yes,
ma’am.
Q: And . . . you’re comfortable proceeding with the
statements that were made by [your attorney]? A. Yes, ma’am.
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A.M.V.’s guardian ad litem argued that termination of the mother’s parental rights
was in A.M.V.’s best interests, not a guardianship.
On June 16, 2009, the juvenile court entered its order terminating the
mother’s parental rights to A.M.V. pursuant to Iowa Code sections 232.116(1)(d)
(2009) (child CINA for physical or sexual abuse (or neglect), circumstances
continue despite receipt of services ) and 232.116(1)(f) (child four or older, child
CINA, removed from home for twelve of last eighteen months, and child cannot
be returned home). Additionally, the court concluded:
The State is unable to document compelling reasons to
maintain the parent/child relations, and the court is unable to find
them. Accordingly, even though the permanency plan is for a
relative to adopt [A.M.V.], termination of parental rights is in
[A.M.V.’s] best interest and would be less detrimental than the harm
that would be caused to her by continuing the parent/child
relationships. Given her age, need for permanency, and the
extended amount of time that the parents were given to
demonstrate sobriety, stability, and suitability to parent this child,
their past behaviors indicate that it would be contrary to [A.M.V.’s]
welfare to enable them to potentially disrupt a guardianship. Given
her age, and her parents’ inability and inconsistency in succeeding
with reunification services, permanency for [A.M.V.] can best be
established by termination of parental rights.
The mother now appeals. The mother argues the State failed to establish
by clear and convincing evidence grounds for termination.
Additionally, the
mother contends the court erred in determining termination was in the child’s
best interests.
II. Scope and Standards of Review.
We review termination proceedings de novo. In re R.E.K.F., 698 N.W.2d
147, 149 (Iowa 2005). Although we give weight to the juvenile court’s findings of
fact, we are not bound by them. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001).
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When the juvenile court terminates parental rights on more than one statutory
ground, we only need to find grounds to terminate under one of the sections cited
by the court in order to affirm the court’s ruling. In re S.R., 600 N.W.2d 63, 64
(Iowa Ct. App. 1999). The grounds for termination must be supported by clear
and convincing evidence.
In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).
Evidence is clear and convincing when it leaves no serious or substantial doubt
about the correctness of the conclusion drawn from it. In re D.D., 653 N.W.2d
359, 361 (Iowa 2002). Our primary concern in termination cases is the best
interests of the child. In re A.S., 743 N.W.2d 865, 867 (Iowa Ct. App. 2007).
III. Discussion.
A. Grounds for Termination.
The mother contends the State failed to establish by clear and convincing
evidence grounds for termination.
The State argues the mother failed to
preserve error on this issue, given her position at the termination hearing. We
agree.
The mother did not challenge the grounds for termination asserted by the
State in its petition to terminate parental rights. An issue not presented in the
juvenile court may not be raised for the first time on appeal, even an issue of
constitutional dimensions. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App.
1994). We thus conclude the mother has not preserved error on this claim.
Nevertheless, we find the state proved by clear and convincing evidence that the
child could not be returned home. The mother acknowledged at trial that the
child could not be returned to her care, thus satisfying section 232.116(1)(f).
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B. Best Interests and Child in Legal Guardianship of a Relative.
Additionally, the mother contends termination of her parental rights is not
in the child’s best interests and is contrary to Iowa Code section 232.116(3). We
disagree.
Even if the statutory requirements for termination of parental rights are
met, the decision to terminate must be in the child’s best interests. A.S., 743
N.W.2d at 867; see also In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). The
child’s safety and the need for a permanent home are now the primary concerns
when determining the child’s best interests. In re J.E., 723 N.W.2d 793, 801
(Iowa 2006) (Cady, J., concurring specially).
Those best interests are to be
determined by looking at the child’s long-range as well as immediate interests. In
re C.K., 558 N.W.2d 170, 172 (Iowa 1997). We are to consider what the future
likely holds for the child if the child is returned to her parent. In re J.K., 495
N.W.2d 108, 110 (Iowa 1993). Insight for that determination is to be gained from
evidence of the parent’s past performance, for that performance may be
indicative of the quality of the future care that the parent is capable of providing.
In re L.L., 459 N.W.2d 489, 493-94 (Iowa 1990); In re Dameron, 306 N.W.2d 743,
745 (Iowa 1981).
At the termination of parental rights hearing, the mother acknowledged
that A.M.V. could not be placed with her and recognized that D.F. was at that
time the best placement for A.M.V. She requested, in lieu of termination of her
rights, that the court established a guardianship with A.M.V.’s legal custodians
because of the bond between her and A.M.V. and the closeness of their
relationship. Pursuant to Iowa Code section 232.116(3), a termination, otherwise
12
warranted, may be avoided if “[a] relative has legal custody of the child” or
“[t]here is clear and convincing evidence that the termination would be
detrimental to the child at the time due to the closeness of the parent-child
relationship.” The factors in section 232.116(3) are permissive, not mandatory,
and it is in the court’s discretion, based on the unique circumstances of the case
and the best interests of the child, whether to apply such factors. In re A.J., 553
N.W.2d 909, 916 (Iowa Ct. App. 1996).
After a careful review of the record, we agree with the juvenile court that
even though the permanency plan was for a relative to adopt A.M.V., termination
of the mother’s parental rights was in A.M.V.’s best interests and would be less
detrimental than the harm that would be caused to her by continuing the parentchild relationship.
While we commend the mother for her progress, A.M.V.
remains waiting for a mother to be able to care for her and protect her in a secure
environment, as well as provide stability. The child’s therapist and guardian ad
litem both noted A.M.V.’s need for permanency and recommended the
termination of the mother’s parental rights. Given the mother’s recent setbacks
combined with her acknowledgement that A.M.V. could not be returned to her
immediate care, we agree that termination of the mother’s parental rights is in
A.M.V.’s best interests. Our legislature has made the determination that point is
reached when the statutory time for patience with a parent has passed. In re
C.B., 611 N.W.2d 489, 494 (Iowa 2000). 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). There is no dispute that A.M.V. is bonded with
her current legal custodians and doing very well in their care. D.F. and J.F. have
13
indicated they desire to adopt A.M.V. should none of A.M.V.’s biological family be
able to do so. Because the mother is unable to provide stability or safety to
A.M.V., we conclude the juvenile court did not abuse its discretion in terminating
the mother’s parental rights and therefore affirm.
IV. Conclusion.
Because we conclude the mother failed to preserve error on her statutory
grounds claim and termination of the mother’s parental rights was in A.M.V.’s
best interests, we affirm the judgment of the juvenile court.
AFFIRMED.
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