No. 6-118 / 05-2062Court of Appeals of Iowa.
Filed March 1, 2006
Appeal from the Iowa District Court for Muscatine County, John G. Mullen, District Associate Judge.
A mother and father appeal from the order terminating their parental rights. AFFIRMED.
Mark J. Neary, Muscatine, for appellant mother.
Esther J. Dean, Muscatine, for appellant father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Gary Allison, County Attorney, and Korie Shippee, Assistant County Attorney, for appellee State.
Arlen L. Poock, Muscatine, for minor children.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
HUITINK, P.J.
Jackie appeals from the order terminating her parental rights to Gabrielle and Marcus. Mark appeals from the order terminating his parental rights to Marcus. We affirm.
I. Background Facts and Proceedings
Jackie is the mother of Gabrielle, born in April 2000, and Marcus, born in October 2004. Mark is the biological father of Marcus.[1]
Gabrielle was first removed from her mother’s care in December 2001 due to concerns related to Jackie’s use of methamphetamines. Gabrielle was subsequently adjudicated a child in need of assistance (CINA). She was returned to her mother’s care in April 2003, and the CINA proceedings were dismissed in August 2003.
Less than eight months later, in November 2004, the Iowa Department of Human Services (DHS) received a report that Jackie had attempted to give Gabrielle away. She claimed she found Gabrielle down the block and that Gabrielle was sick and needed help. She did not acknowledge Gabrielle was her daughter. It seemed apparent that Jackie was either under the influence of illegal drugs or her behavior was the result of mental illness. Jackie was involuntarily committed due to alleged substance abuse. Gabrielle was placed in the custody of her maternal grandmother. Marcus, who remained in the hospital after being born prematurely, was placed in the custody of DHS. Custody was transferred to the maternal grandmother when he was discharged from the hospital. Both children remained in their grandmother’s custody through the time of the termination hearing.
The juvenile court adjudicated the children CINA in January 2005. The basis of the adjudication was Jackie’s inability to provide appropriate care and supervision due to her history of substance abuse and mental health problems. The dispositional hearing was rescheduled on more than one occasion due to Jackie’s and Mark’s unwillingness to cooperate in the preparation of a social history. Following an uncontested dispositional hearing, the juvenile court filed a disposition order in April 2005, continuing placement with the maternal grandmother. Services offered to Jackie and Mark sought to address issues of substance abuse, mental health problems, domestic violence, and lifestyle issues.
Pursuant to a permanency order filed by the juvenile court, the State filed petitions to terminate parental rights in June 2005. The State sought to terminate Mark’s and Jackie’s parental rights to Marcus pursuant to Iowa Code sections 232.116(1)(d), (e), (h) and (l) (2005). The State sought to terminate Jackie’s parental rights to Gabrielle pursuant to sections 232.116(1)(d), (e), and (l).
Following a hearing in November 2005, the juvenile court entered an order on December 13, 2005 terminating Jackie’s and Mark’s parental rights. The court terminated Jackie’s parental rights to Gabrielle and Marcus pursuant to sections 232.116(1)(d), (e), (h) (Marcus) and (l). The court terminated Mark’s parental rights to Marcus pursuant to sections 232.116(1)(d), (e), (h), (l), and 232.117. Jackie and Mark filed separate appeals.[2]
II. Standard of Review
Our review is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001).
When the juvenile court terminates parental rights on more than one statutory ground, we need only find termination proper under one ground to affirm. In re S.R., 600 N.W.2d 63, 64
(Iowa Ct.App. 1999).
III. Statutory Grounds for Termination
Both Jackie and Mark argue the juvenile court erred in terminating their parental rights pursuant to section 232.116(1)(e), (h), and (l). Each contends the State failed to prove by clear and convincing evidence that they had not maintained significant and meaningful contact with the children during the previous six months and had not made reasonable efforts to resume care of the children despite being given the opportunity to do so. See Iowa Code § 232.116(1)(e)(3). Each parent also contends the State failed to present clear and convincing evidence Marcus could not be returned to their respective custody at the present time. See Iowa Code §232.116(1)(h)(4). Finally, Jackie and Mark contend the juvenile court erred in finding each one of them had a severe, chronic substance abuse problem. See Iowa Code § 232.116(1)(l).
Jackie has a history of substance abuse and has been in and out of treatment. She completed an intensive outpatient treatment program in May 2005, but was arrested in June 2005 for possession of drug paraphernalia and admitted to using methamphetamines and marijuana. She pled guilty to the possession of drug paraphernalia charge in August 2005. We agree with the juvenile court’s conclusion that Jackie “has never successfully addressed the substance abuse. She has not been able to establish or maintain a stable, sober lifestyle.”
Mark failed to cooperate with treatment for his ongoing substance abuse problems. Mark also has a history of domestic violence. He participated inconsistently in anger management counseling. In June 2005 police were called when Mark grabbed Jackie’s arm while they waited for a scheduled supervised visit with Marcus. In July 2005 Mark was arrested for domestic abuse following a separate incident. A short time thereafter, Mark was arrested for violating a no-contact order between him and Jackie. Jackie was arrested for aiding and abetting the violation of the order. In August 2005 Mark was arrested for a probation violation on a theft charge and sentenced to ten years in prison. He remained incarcerated at the time of the termination hearing. He testified he was in substance abuse treatment and expected to be out of prison by June 2006.
Mark and Jackie were not consistent in attending supervised visits with the children. At a certain point, Jackie chose not to have visits with her children at all because she disliked the service provider. At the time of the termination hearing in November 2005, she had not visited with the children since August 2005. Mark missed several visits with Marcus prior to his incarceration.
We conclude the State presented clear and convincing evidence to prove termination of Jackie’s and Mark’s parental rights pursuant to Iowa Code sections 232.116(1)(e), (h) (Marcus) and (l). Moreover, we conclude termination is in the children’s best interests. Gabrielle has been out of her mother’s custody for nearly half her life. Marcus has never been in his mother’s or father’s custody. The children should not have to wait any longer for responsible parenting. Their best interests are served by termination of parental rights and adoption.
IV. Request for Additional Time
Jackie argues the juvenile court erred by failing to grant an additional six months to allow her to continue to make progress on the case plan and have the children returned to her custody. The State argues Jackie failed to preserve this issue on appeal.
We assume without deciding Jackie preserved the issue for our review and conclude her argument is without merit. At the time of the termination hearing, Jackie had received about forty-two months of services. The children had been out of her custody for one-half (Gabrielle) or all (Marcus) of their lives. Jackie did not take advantage of the services offered during the CINA proceedings. She missed visits with the children and she did not participate in counseling on a consistent basis. We agree with the juvenile court’s conclusion that “additional services would not serve to resolve the adjudicatory harm given the inability or failure of the parents to cooperate with services over the past year.”
V. Section 232.116(3)(a)
Both Jackie and Mark contend the juvenile court should have granted a long-term guardianship pursuant to section 232.116(3)(a), instead of terminating parental rights. They argue placement with the children’s maternal grandmother eliminates the need for a termination. We disagree.
Termination of the parent-child relationship “is not to be countermanded by the ability and willingness of a family relative to take the child.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). The children’s best interests remain the first consideration. Id.; see also In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct.App. 1992). We have already indicated termination of Jackie’s and Mark’s parental rights is in the children’s best interests. Therefore, a long-term guardianship is not appropriate in this case.
VI. Conclusion.
We affirm the termination of Jackie’s and Mark’s parental rights.
AFFIRMED.