IN THE INTEREST OF J.A.D.-F., Minor Child, J.C.D., Father, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-871 / 09-1353
Filed November 12, 2009
IN THE INTEREST OF J.A.D.-F.,
Minor Child,
J.C.D., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Brian L.
Michaelson, Associate Juvenile Judge.
A father appeals from the order terminating his parental rights.
AFFIRMED.
John S. Moeller of O’Brien, Galvin & Moeller, Sioux City, for appellant
father.
Robert J. Pierson of Furlong & Pierson, Sioux City, for mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Patrick Jennings, County Attorney, and Diane Richardson,
Assistant County Attorney, for appellee State.
Joseph Kertels, Sioux City, for minor child.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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DOYLE, J.
A father appeals from the order terminating his parental rights. Upon our
de novo review, we affirm.
I. Background Facts and Proceedings.
J.C.D. is the father and A.L.E. is mother of J.A.D.-F., born July 1997.1 The
mother gave care of the child to the father when the child was approximately one
and a half years old. Thereafter, the father was awarded custody of the child,
and the mother had little contact with the child.
The child came to the attention of the Iowa Department of Human
Services (Department) in July 2008 following an incident with his father. It was
reported that the father had begun drinking at 10:30 a.m. that day and continued
to drink throughout the day. In the early evening, the child asked the father if he
could go to the child’s adult brother’s home and the father agreed. The child
called the brother and asked if he could visit him because the father was
intoxicated; the brother agreed and picked the child up. Thereafter, the father
called the brother several times to have the child returned home. Due to the
father’s state of intoxication, the brother tried to persuade the father to allow the
child to stay with him. The father initially agreed, but later called back to again
ask that the child be returned home. The father then drove to the brother’s home
to pick up the child, and the father was arrested for operating while intoxicated.
The father’s preliminary breath test indicated the father’s blood alcohol
concentration was about .257. It was reported that the father was participating in
1
This appeal concerns only the father’s parental rights. The child’s mother has not
appealed from the termination of her parental rights.
3
an outpatient treatment program at the time due to his issues with alcohol. The
child reported that the father drank every day. The child also reported that the
child was made to ride with the father when the father drove while intoxicated.
The father reported to the Department that he began drinking when he
was eighteen years of age and that his usage increased gradually.
He has
several alcohol related arrests. In February 2008, the father’s employer placed
him on a thirty-day leave of absence after he came to work smelling of alcohol.
He successfully completed an inpatient substance abuse program after the work
incident, but he was ultimately discharged by his employer. The father admitted
he immediately began drinking again after his discharge. He was arrested for
public intoxication in May 2008, and his brothers and adult child initiated
involuntary substance abuse commitment procedures on his behalf. He returned
home after five days and entered another outpatient program. He admitted that
he continued to drink thereafter.
On September 15, 2008, the State filed its petition alleging the child to be
a child in need of assistance (CINA).
On October 3, 2008, the child was
removed from the father’s care after the mother presented a fraudulent court
order for the child’s removal. When authorities learned the order was fraudulent,
a valid removal order was issued by the juvenile court concerning the father on
October 5, 2008, finding the child was in imminent danger under the care of a
parent who was abusing alcohol. The valid removal order placed the child into
relative care with the paternal aunt and her husband. The child has resided with
the aunt since that time and has thrived in her and her husband’s care.
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On October 16, 2008, the court adjudicated the child CINA. In October of
2008, the father’s outpatient treatment program reported that his attendance was
sporadic, but noted he was doing much better about participating in group.
However, the father continued to drink. In November, the father’s siblings again
sought that the father be involuntarily committed due to his drinking, and the
father entered an inpatient treatment program. The father was discharged in
December, and his counselor opined that the father’s prognosis was poor but
could improve if he followed recommendations.
Following a dispositional hearing in December 2008, the court entered its
order finding that the father purchased alcohol the same day he was discharged
from the inpatient treatment program.
The court further found that it was
recommended that the father enter a halfway house program, but the father was
uncertain as to whether or not he would follow through with the recommendation,
claiming that he would be able to maintain his sobriety on an outpatient status.
The court continued the child’s placement with the aunt.
The father then began outpatient treatment again in January 2009.
It
appeared the father was progressing in treatment, but it was reported that he
continued to abuse alcohol. It was reported that the father was drinking again in
March and had threatened service providers. On March 31, 2009, the father’s
therapist recommended that the father be again placed in inpatient treatment as
soon as possible due to the father being a threat to himself and possibly others
because of his continued alcohol use.
In April, the father was back in outpatient treatment. The father re-entered
inpatient treatment on May 27, 2009, although he was resistant to it. The father
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was intoxicated at the time of his inpatient admission. Although he successfully
completed all the necessary steps for inpatient treatment, the father’s therapist
found that the father did not put forth much effort in his treatment until his final
three days there. The therapist recommended that the father return to intensive
outpatient treatment until he was able to enter a halfway house. It was also
recommended that the father abstain from all mood-altering substances and
attend at least two AA/NA meetings each week.
On June 3, 2009, the court entered its permanency order following a
hearing. The court found that the father had continued to abuse alcohol since
entry of the dispositional order. The court found that the father had been in
inpatient treatment twice since January 2008, and that after completing the
programs, he immediately returned to drinking on nearly a daily basis. The court
also found that the father had not had any regular visits with the child since
February due to the father’s ongoing drinking, noncompliance, and threatening
demeanor. The court noted that the father had placed several harassing phone
calls to the case manager and service providers since the last court hearing. The
court ordered that termination of parental rights proceedings be initiated.
It was reported that the father continued to drink in July. On July 14,
2009, the State filed its petition for the termination of the father’s parental rights.
A contested hearing was held on August 24, 2009. A report from the child’s
social worker was entered into evidence. The worker stated she had taught the
child some coping skills and other ways to deal with issues revolving around the
father, including recognizing that the father’s addiction to alcohol was not the
child’s fault. The child reported to the worker that the child worries about the
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father and that the father’s alcoholism was the biggest problem in their family.
The child verbalized that the child understood living with the aunt was a much
better environment for the child, although getting used to having rules,
expectations, and chores was and would continue to be a big adjustment for the
child. The child reported that the child previously had to take care of the father,
and that the child did a lot of laundry, dishes, and picking up the house when the
father was unable to do so. The child told the worker that the child wanted the
child’s family to be normal, explaining that normal would be the child living with
the aunt, the father not drinking, and everyone getting along with one another.
The father testified at the hearing that he relapsed early in July 2009, but
had remained sober since. The father submitted a progress update from his
therapist, stating that the father had reported his relapse but he continued to
participate in outpatient treatment on a regular basis and was sober. The report
stated that the father was setting boundaries with old alcohol-using friends, and
was attending two to three AA meetings a week. The father admitted that twice it
had been recommended that he move into a halfway house, but he did not follow
the recommendation because he was not employed and unable to pay for the
service. The father admitted he did not ask family members to help him pay to
reside at the halfway house. The father admitted that the child made significant
progress with regard to the child’s social skills, academic performance, and
coping skills since being placed with the aunt. The father also admitted the aunt
would allow the father to continue to have contact with the child if his rights were
terminated, as long as the father was sober. The case worker testified she had
concerns that the father was still drinking at the time of the termination hearing.
7
The child’s guardian ad litem and attorney recommended that the father’s
parental rights be terminated, explaining:
I’ve talked to [the child] on several occasions about the
recommendations today and the recommendations in the past.
[The child] tells me [the child would] be okay with the adoption.
My main concern is . . . [the child’s] health, you know. At
[the child’s] age, . . . [the child] needs not to be worried about [the
father] so much. [The child] doesn’t need to be worried about [the
child’s] home life. [The child] needs to have a good environment.
Since [the child has] been with [the] aunt and uncle, [the
child’s] been having an excellent environment for [the child]. [The
child] still worries about [the father], but I believe the termination
and adoption’s going to give [the child] more permanency; it’s going
to give [the child] a place where [the child] knows [the child’s] going
to be there, you know, [until the child] graduates from high
school . . . .
On August 26, 2009, the juvenile court entered an order terminating the
father’s parental rights to the child pursuant to Iowa Code section 232.116(1)(d)
(2009) (child CINA for abuse or neglect, circumstances continue despite receipt
of services), (i) (child meets definition of CINA, child was in imminent danger,
services would not correct conditions), and (l) (child CINA, parent has substance
abuse problem, child cannot be returned within a reasonable time). The father
now appeals.
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).
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
8
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.
The rules governing appeals in CINA and termination of parental rights
cases employ expedited procedures. “The petition itself is a streamlined, fill-inthe-blanks form, designed to be completed in an expeditious manner.” In re
L.M., 654 N.W.2d 502, 506 (Iowa 2002). Iowa Rule of Appellate Procedure
6.201(1)(d) provides that the petition on appeal shall substantially comply with
Form 5 in rule 6.1401. Paragraph 8 of Form 5 requires a petitioner to “State the
legal issues presented for appeal, including a statement of how the issues arose
and how they were preserved for appeal.” Iowa R. App. P. 6.1401–Form 5. The
form further provides:
The issue statement should be concise in nature setting forth
specific legal questions. General conclusions, such as “the trial
court’s ruling is not supported by law or the facts,” are not
acceptable. Include supporting legal authority for each issue
raised, including authority contrary to appellant’s case, if known.
(Emphasis in original.) “[C]ounsel is not expected to exhaustively review the
evidence at trial, nor must counsel cite to the record to demonstrate error.” L.M.,
654 N.W.2d at 506. “The petition is limited in content and directs the appellant to
raise issues for appeal rather than arguing issues in a full appellate brief.” In re
R.K., 649 N.W.2d 18, 21 (Iowa Ct. App. 2002). “[W]hile the appellate procedure
under the . . . rules is streamlined, the reviewing court’s ability to thoroughly
appraise the legality of the termination is not compromised.” In re C.M., 652
N.W.2d 204, 211 (Iowa 2002). Our de novo review requires us “to review the
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facts as well as the law and adjudicate rights anew on those propositions
properly preserved and presented to us.” In re R.J., 436 N.W.2d 630, 635 (Iowa
1989) (citations omitted).
For each issue raised by the father, he merely states the State failed to
meet its burden of proof by a showing of clear and convincing evidence, and he
cites only to those Iowa Code sections relied on by the juvenile court for
termination. Other than his general conclusory statements, the father makes no
argument and cites no case law. This is little more than saying, “I appeal.” With
precious little guidance, this court is essentially forced to divine what the father
believes supports the issues he raises. By this notation, we make no suggestion
that the father’s counsel was deficient in any way as the practice of not providing
an argument is not atypical and not in violation of the letter of the rules,
particularly in light of the above-cited pronouncements. And, we give his appeal
a de novo review with thorough appraisal of the legality of the termination.
Although Form 5 does not specifically require an argument, the rules give
an appellant “a full opportunity to identify issues for review.” C.M., 652 N.W.2d at
211. Some argument, some support for the issues raised, some showing as to
how the State failed to carry its burden of proof and where we should focus our
review would be helpful to the court.
Practitioners routinely make closing
arguments and post-trial motions without the benefit of a transcript. Similarly,
arguments, albeit abbreviated, could be employed in termination appeals.2
2
In making this suggestion, we are mindful of the challenges faced by appointed counsel
and the obligations imposed by Iowa R. App. P. 6.201(1)(a).
10
On appeal, the father claims the State failed to establish by clear and
convincing evidence grounds for termination.
Although the juvenile court
terminated the father’s parental rights on three statutory grounds, we need only
find that termination is appropriate on one ground to affirm.
In re S.R., 600
N.W.2d 63, 64 (Iowa Ct. App. 1999).
Upon our de novo review of the record, we find clear and convincing
evidence supports termination of the father’s parental rights under Iowa Code
section 232.116(1)(l). The child has been adjudicated a CINA and removed from
the father’s physical custody. See Iowa Code § 232.116(1)(l)(1). The father has
a severe, chronic substance abuse problem and presents a danger to himself, as
evidenced by his frequent committals and inpatient treatments.
See id.
§ 232.116(1)(l)(2).
Additionally, there is clear and convincing evidence the child will not be
able to return to the father’s custody within a reasonable period of time
considering the child’s age and need for a permanent home.
See id.
§ 232.116(1)(l)(3). We commend the recent progress the father has made in
attempting to overcome his long-standing abuse of alcohol, but it is far too early
to have any confidence that the father will be able to maintain sobriety and his
commitment to change.
[A] good prediction of the future conduct of a parent is to look at the
past conduct. Thus, in considering the impact of a drug addiction,
we must consider the treatment history of the parent to gauge the
likelihood the parent will be in a position to parent the child in the
foreseeable future. Where the parent has been unable to rise
above the addiction and experience sustained sobriety in a
noncustodial setting, and establish the essential support system to
maintain sobriety, there is little hope of success in parenting.
11
In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (citations omitted). We are
sympathetic to the father’s struggle to maintain sobriety, and recognize that many
are able to successfully free themselves from the tenacious grip of addiction. Yet
the interests in permanency for the child must prevail over the father’s long and
uncertain battle with alcohol. See id. We have repeatedly followed the principle
that the statutory time line must be followed and a child should not be forced to
wait for the parent to overcome their addiction.
Id.
The father’s frequent
relapses during the pendency of this case evidence that the child will not be able
to return to the father’s custody within a reasonable period of time considering
the child’s age and need for a permanent home.
Furthermore, the record reveals that termination is in the child’s best
interests. “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).
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 the
child’s 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).
Here, the evidence establishes that the child will not be able to return to
the father’s custody within a reasonable period. Additionally, the evidence at trial
12
established that the child is in need of permanency, and the child should not
have to wait any longer.
In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)
(“[P]atience with parents can soon translate into intolerable hardship for their
children.”). “At some point, the rights and needs of the child rise above the rights
and needs of the parents.” In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.
1997). The child is doing very well in the care of the aunt and her husband. The
child’s grades have improved substantially, and the child appears to be truly
happy.
The aunt and her husband wish to adopt the child, and the child is
agreeable to the adoption. For all of these reasons, we conclude the district
court did not err in terminating the father’s parental rights.
AFFIRMED.
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