No. 4-172 / 04-0165Court of Appeals of Iowa.
Filed March 24, 2004
Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.
A father and a mother each appeal a juvenile court order terminating their parental rights to one child. AFFIRMED.
Brad Schroeder of Hartung Schroeder, Des Moines, for appellant-father.
Michelle Saveraid of Bull Law Office, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Celene Coffman, Assistant County Attorney, for appellee-State.
Rachael Seymore, Des Moines, guardian ad litem for minor child.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
MILLER, J.
Ashley is the mother, and Ron the father, of Caron,[1]
born May 7, 2002. Both parents’ parental rights were terminated January 20, 2004. Both appeal. We affirm.
Prior to the birth of her son, Caron, Ashley had given birth to a daughter, Jada, in December 1999. Jada’s father was Keith. Jada was adjudicated a child in need of assistance (CINA) in December 2000. Services were provided and/or offered to Ashley beginning in about August 2000. Caron was born May 7, 2002. On August 2, 2002, the State filed a petition alleging Caron was a child in need of assistance. On September 26, 2002, the juvenile court entered an “Adjudication/Disposition Order” which suspended judgment on the question of whether Caron was a CINA and ordered services.
On October 29, 2002, the two children were removed from Ashley’s physical custody and placed in the legal custody of the Department of Human Services (DHS) for foster care placement. Caron has thereafter remained in the legal custody of the DHS and the physical custody of foster parents. In late 2002 the State filed, and subsequently amended, a petition seeking termination of Ashley’s and Keith’s parental rights to Jada and Ron’s and Ashley’s parental rights to Caron. Following an extended hearing held on many days over the first five months of 2003, the juvenile court entered its order on July 7, 2003. It terminated Keith’s parental rights to Jada. It terminated Ashley’s parental rights to Jada pursuant to Iowa Code sections 232.116(1)(d) and (l) (Supp. 2001).
The juvenile court did find and adjudicate Caron to be a CINA. However, it declined to terminate Ron’s and Ashley’s parental rights to Caron pursuant to section 232.116(1)(d) or (l), as each provision required proof that Caron had previously been adjudicated a CINA, and such had not occurred. The juvenile court also declined to terminate Ron’s parental rights pursuant to section 232.116(1)(b), finding that, as agreed by the parties, Ron had neither abandoned nor deserted Caron. The juvenile court dismissed without prejudice the petition to terminate Ron’s and Ashley’s parental rights to Caron.
The State thereafter continued to offer and/or provide services to Ron and Ashley. On October 28, 2003, the State filed a new petition seeking termination of their parental rights to Caron. The juvenile court held a hearing on December 22, 2003, and on January 20, 2004 entered its order. The order terminated both parents’ parental rights to Caron pursuant to Iowa Code sections 232.116(1)(d), (e), (g), (h), and (l) (2003).
On appeal Ron contends the State failed to prove by clear and convincing evidence one of the statutory elements for termination of his parental rights under each of sections 232.116(1)(d), (e), (g), and (l). The State points out that Ron does not challenge termination of his parental rights under section 232.116(1)(h). It suggests we could therefore affirm on that basis alone. While the State’s position is correct, in this case we prefer to address the merits rather than affirm on the basis of waiver.
On appeal Ashley contends the State failed to prove by clear and convincing evidence one or more of the statutory elements for termination of her parental rights under each of the five provisions relied on by the juvenile court. She also contends termination of her parental rights was not in Caron’s best interest.
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).
The juvenile court may order termination of parental rights with respect to a child in interest upon clear and convincing evidence that (1) the child is three years of age or younger, (2) the child has been adjudicated a CINA, (3) the child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days, and (4) the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. Iowa Code § 232.116(1)(h) (2003). The first three elements of this statutory provision are not in dispute. We therefore direct our attention solely to the fourth element. It requires a showing that at the present time the child cannot be returned to the custody of the parent without meeting the definition of a CINA. In re M.L.W. 461 N.W.2d 609, 611 (Iowa Ct. App. 1990).
Ron has a serious criminal history. He has also had a serious drug abuse problem. The case permanency plans and juvenile court orders required him to provide drug screens. He did so for a period of time, but then stopped in about April 2003 and did not thereafter keep case workers informed of his whereabouts. He was provided with parenting skill education and supervised visitation in an effort to foster a relationship with Caron, but stopped both on or about July 25, 2003, and thereafter had no contact with Caron. He was arrested on robbery charges in Nebraska in early September 2003. Although he maintained his innocence and stated he expected to be released in late February 2004, at the time of the December 22, 2003 termination hearing he remained incarcerated in Nebraska on the robbery charges. We find, as the juvenile court did, the State proved by clear and convincing evidence that as of the time of the termination hearing Caron could not be placed in Ron’s custody without being subject to some harm which would justify his adjudication as a CINA. As of the time of the termination hearing Ron was simply legally and physically unable to take custody of Caron and would apparently remain unable to do so for at least two more months.
Ashley has a lengthy history of drug abuse and emotional problems. Since August 2000 she has been provided with a plethora of services, including sheltered living, family centered services, visitation, parenting skills, drug screens, multiple substance abuse evaluations, substance abuse treatment, psychosocial evaluations, and foster care. Despite the services she was evicted from her apartment in May of 2003 and arrested for domestic abuse directed at Ron. In June 2003 she was discharged from the Beacon of Life program. She refused to sign releases of information to allow DHS to determine why she had been discharged, and refused to tell DHS where she would be residing.
In June or July 2003 Ashley’s visits with Caron were going poorly, with her losing her temper and yelling at him. Although physicians had concerns that Caron had medical problems, Ashley was unconcerned. Ashley did not provide required drug screens in June 2003, and entirely stopped providing them in August 2003. In September 2003 she consented to termination of her parental rights to Caron, but withdrew her consent at an October 28 pretrial conference. At that time she also informed the court she was moving to Shreveport, Louisiana, but could not or would not provide an address. She ended all services and shortly moved to Louisiana, where she gave birth to another child on November 3, 2003. She thereafter had no contact with Caron, and apparently had no contact with DHS or Iowa service providers other than at the termination hearing, at which she participated by telephone.
During several months in 2003 Ashley had provided “clean” drug screens. However, she had a longstanding, serious drug abuse problem, had been evaluated as having a very high risk of future substance abuse, and appeared to be motivated to avoid drug use only to the extent necessary to regain custody of Caron. In June or July of 2003 she was unable to remember her telephone number, had difficulty focusing, had eyes which appeared to be glazed over, lost her temper and yelled at fourteen-month-old Caron, and would not provide drug screens. This combination of facts creates at least a reasonable suspicion that, following the conclusion of the first termination hearing in May 2003, Ashley was again abusing drugs.
In the months leading up to Ashley’s move to Louisiana, Caron could not be returned to her custody because of her instability, emotional problems, history of drug abuse, and failure to cooperate with some of the services designed to address her problems. By moving to Louisiana she cut herself off from contact with Caron and contact with the DHS and service providers. She ended participation in the services necessary to improve her ability to provide for Caron and have him returned to her custody. We find, as the juvenile court did, the State has proved by clear and convincing evidence that as of the time of the termination hearing Caron could not be placed in Ashley’s custody without being subject to some harm which would justify his adjudication as a CINA.
Having found the State proved the grounds for termination as to both Ron and Ashley under section 232.116(1)(h), we need not determine whether the State also proved the 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) (holding that we only need to find grounds to terminate under one of the statutory provisions relied on by the district court in order to affirm).
Ashley claims termination of her parental rights is not in Caron’s best interest. Even if statutory requirements for termination are met, the decision to terminate must still be in the best interest of the child. In re M.S., 519 N.W.2d 398, 400
(Iowa 1994). Caron has been in foster care since late September 2002, fifteen months at the time of the termination hearing. Ashley has cut off her contact with him and with the services necessary to have him returned to her custody. Caron is in a pre-adoptive home and doing well. He needs and deserves the stability, security, and permanency he will apparently acquire if Ashley’s parental rights are terminated. We agree with the juvenile court that Caron’s best interest requires termination of Ashley’s parental rights.
AFFIRMED.