No. 4-546 / 04-0979.Court of Appeals of Iowa.
August 26, 2004.
Appeal from the Iowa District Court for Polk County, Odell G. McGhee, District Associate Judge.
A father appeals from a juvenile court order terminating his parental rights to three children. AFFIRMED.
Michael B. Oliver of Oliver Law Firm, P.C., Des Moines, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson Assistant County Attorney, for appellee-State.
Samuel Marks, Des Moines, for mother.
Ryan J. Ellis, Indianola, guardian ad litem for minor children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
MILLER, J.
Jerry is the father, and Melissa the mother, of three children, Jasmine, Jerry, Jr., and Danielle (hereafter “the children”), born in January 2000, April 2001, and August 2002 respectively, whose interests are at issue in this appeal.[1] Jerry appeals from a June 21, 2004 juvenile court order terminating his parental rights to the children. We affirm.
The children were removed from Melissa’s physical custody and placed in the legal custody of the Iowa Department of Human Services (DHS) on October 29, 2002, when drugs and drug paraphernalia were found in her home. Jerry was in jail at the time. The children were adjudicated children in need of assistance (CINA) on November 21, 2002, pursuant to Iowa Code sections 232.2(6)(c)(2) (2003) (child who has suffered or is imminently likely to suffer harmful effects as a result of failure of parents to exercise a reasonable degree of care in supervising in the child) and (n) (child whose parent’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care).
On March 11, 2003 the children were returned to Melissa’s physical custody, under DHS supervision. They were again removed from her physical custody and placed in the custody of DHS on June 2, 2003. Jerry had been removed from the home in late April 2003 because of protective concerns, including the fact he had not been compliant with required services. The children’s removal resulted from Jerry, who was to have only supervised visits with the children, being found caring for Jerry, Jr. and Danielle by himself on May 30, 2003. On or about June 10, 2003, the children were placed in the custody of their paternal grandmother. They were removed from her care and again placed in the custody of the DHS on February 11, 2004. This latest change of custody occurred when Jerry and Melissa, who were not complying with required services and were to have only supervised visitation, were found to have had unsupervised contact with the children in the paternal grandmother’s home. The children thereafter remained in DHS custody, and in family foster care after February 18, 2004.
The State filed a petition seeking termination of Jerry’s parental rights to the children pursuant to sections 232.116(1)(b), (d), (e), and (l), to Jasmine pursuant to section 232.116(1)(f), and to Jerry, Jr. and Danielle pursuant to section 232.116(1)(h). The juvenile court held a hearing on May 12, 2004 and thereafter filed its findings of fact, conclusions of law, and a termination order on June 21, 2004. In its conclusions of law the juvenile court concluded the State had proven grounds for termination of Jerry’s parental rights to the children pursuant to sections 232.116(1)(e), (i), and (l), to Jasmine pursuant to section 232.116(1)(f), and to Jerry, Jr. and Danielle pursuant to section 232.116(1)(h). It then ordered termination of Jerry’s parental rights pursuant to sections 232.116(1)(b), (d), (e), (f), (h) and (l).[2] Jerry appeals.
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).
Jerry first contends the State did not prove by clear and convincing evidence the grounds for termination under any of the six statutory provisions relied on by the juvenile court. Upon our de novo review we find clear and convincing evidence supports termination of Jerry’s parental rights to Jasmine pursuant to sections 232.116(1)(f) (child four or older, adjudicated CINA, removed from parents at least twelve of last eighteen months, cannot be returned at present time), and to Jerry, Jr. and Danielle pursuant to section 232.116(1)(h) (child three or younger, adjudicated CINA, removed from parents at least six of last twelve months, cannot be returned at present time). Only the final element of each provision is subject to any reasonable dispute.
Jerry has long-standing problems with criminal activity, mental health, substance abuse, and domestic violence. He has, among numerous others, criminal convictions for possession of drug paraphernalia in 1996, possession of a controlled substance in 2000, assault in 1995, domestic abuse assault in early 2002, and second offense domestic abuse assault later in 2002. He was in jail from October 2002, when the children were removed, to December 2002, and then was in a residential correctional facility until March 2003. He tested positive for methamphetamine use shortly after entering the residential correctional facility. After about a three-month stay in that facility he began living in Melissa’s home, but was required to leave in April 2003 because of his lack of compliance with services and resulting protective concerns.
A warrant issued for Jerry’s arrest in late May or early June 2003. He avoided arrest until July 14, 2003, and following arrest was incarcerated until August 14, 2003. He thereafter had sporadic and somewhat limited contact with the children, and did not provide urine samples for drug testing. The in-home provider who supervised Jerry’s March 4, 2004 visitation with the children observed Jerry to be sweating profusely and very unstable, alternating laughing and joking, yelling at the children, and crying. She was concerned he was either using drugs or not taking medication for his schizophrenia. On March 10 and 22, 2004, service providers informed Jerry that he would have to provide a urine sample for drug testing before having any further visitations with the children.
Jerry had no contact with his attorney after a March 3, 2004 juvenile court hearing, and did not appear for the May 12, 2004 termination hearing. He did not sign a June 24, 2004 notice of appeal filed by his attorney.[3] He has not provided urine samples for drug testing since his August 2003 release from prison, and has not had or sought visitation with the children since March 2004.
Because of Jerry’s many problems and issues he was offered and required to participate in numerous services to facilitate return of the children to his custody. He has failed or refused to participate in, or successfully complete, almost all of those services. They include, but are not limited to, psychosocial evaluation, substance abuse treatment, domestic abuse classes, parenting classes, anger management classes, medication management for his mental illness, and submission of urine samples for drug testing. Based on the limited information available to service providers and the juvenile court, it appears he was unemployed, had no stable residence, and perhaps was homeless. We conclude the fourth element of sections 232.116(1)(f) and (h) has been proven by clear and convincing evidence that the children could not be returned to Jerry’s custody at the time of the termination hearing without being subject to harm which would justify their adjudication as children in need of assistance.
Having found the State proved the grounds for termination under sections 232.116(1)(f) (Jasmine) and (h) (Jerry, Jr. and Danielle), we need not determine whether it also proved grounds for termination under the several other statutory provisions it also relied on. See In re A.J., 553 N.W.2d 909, 911
(Iowa Ct.App. 1996).
Jerry also claims that termination of his parental rights was not in the best interests of the children because of their emotional bond with him. Even if statutory requirements for termination are met, the 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). Jerry’s claim of error arguably implicates a statutory provision which provides that the court need not terminate if the court finds there is clear and convincing evidence termination would be detrimental to the child at the time due to the closeness of the parent/child relationship. See
Iowa Code § 232.116(3)(c).
Jerry has been only an inconsistent figure in the children’s lives. He has been incarcerated and absent at those times. When not incarcerated he has exercised only relatively infrequent and sporadic visitation. He did not see the children from May 2003 to September 2003, and has not visited them since March 3, 2004. There is no substantial evidence of a close bond between Jerry and the children. The evidence in fact shows there is no substantial parent/child bond between them.
In the eighteen-month period leading up to the termination hearing the children had been removed from their mother twice and from their paternal grandmother once. They cannot be returned to Jerry at the present time, within the foreseeable future, or perhaps ever, given the number and nature of his problems and his inability or unwillingness to deal with those problems. The children are doing very well in family foster care. They have developed a substantial, positive bond with their foster parents. The foster parents hope to make the children a permanent part of their home. Termination of Jerry’s parental rights is necessary to give the children an opportunity for the stability, security, and permanency they need and deserve. We fully agree with the juvenile court that termination of Jerry’s parental rights is in the children’s best interest.
AFFIRMED.