IN RE J.F., 683 N.W.2d 128 (Iowa App. 2004)

No. 4-259 / 04-0367Court of Appeals of Iowa.
April 28, 2004.

Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge.

V.F. appeals the termination of her parental rights to her minor child. AFFIRMED.

Victoria Meade, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Andrea Vitzthum, Assistant County Attorney, for appellee-State.

Christopher Kragnes, Des Moines, for father.

Leanne Krell of Jackowski, Krell Graves, Clive, guardian ad litem for minor child.

Considered by Sackett, C.J., and Huitink and Miller, JJ.

PER CURIAM

I. Background Facts Proceedings

Vickie and Charles are the parents of Jesse, born in September 1989. The parents were divorced, and Jesse lived with Vickie. The family became involved with the Iowa Department of Human Services in February 2002, after Jesse stated he was physically abused by his mother. Jesse was adjudicated to be a child in need of assistance (CINA) pursuant to Iowa Code sections 232.2(6)(b) (Supp. 2001) (parent has physically abused child) and (c)(2) (child is likely to suffer harm due to parent’s failure to exercising care in supervision).

Jesse was initially placed in the care of Charles. In the disposition order, filed in June 2002, the juvenile court determined Jesse should be placed in foster care because Charles was not complying with services. In March 2003 Jesse was placed in the care of the paternal grandmother and her husband

Vickie had a psychosocial evaluation and was diagnosed with post-traumatic stress syndrome and a personality disorder. The report noted, “Vickie’s anxiety and stress levels are so high they severely affect her ability to think and respond clearly.” Vickie participated in therapy, but denied she had abused Jesse and did not see any reason to change her behavior. Vickie was later diagnosed with depression and placed on medication for her condition.

At times, Vickie had problems controlling her behavior. She threatened bodily harm to courthouse employees, attorneys, and social workers. Vickie was disruptive during two court hearings. She has been criminally charged with assault and harassment.

In August 2003 the State filed a petition seeking to terminate the parental rights of Vickie and Charles. Charles consented to the termination of his rights. The juvenile court terminated Vickie’s parental rights under sections 232.116(1)(d) (2003) (child CINA for physical abuse, circumstances continue despite the receipt of services) and (f) (child four or older, CINA, removed from home for at least twelve months, and cannot be returned home). Regarding Vickie, the court found, “The record is replete with evidence, including in-court observations, of a person who is unstable and unable to control her temper.” The court also found, “Vickie continues to be a danger to herself and others, especially to Jesse.” Vickie appeals the termination of her parental rights.

II. Standard of Review
The scope of review in termination cases 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).

III. Best Interests
Vickie claims termination of her parental rights is not in Jesse’s best interests. She points out that Jesse is living with relatives, and that under section 232.116(3), termination of parental rights was not mandatory in these circumstances.

Under section 232.116(3)(a), the juvenile court need not terminate the parental relationship if a relative has legal custody of a child. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781
(Iowa Ct.App. 1997). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, whether to apply this section Id. We must consider a child’s long-range and immediate best interests. Id.

On this issue, the juvenile court ruled:

A guardianship arrangement would not alleviate the stress for Jesse, particularly with respect to Vickie, because it would enable her to attack the placement on an annual basis. He needs to be protected from the disruptions to which his mother has subjected him. Given her past behaviors, there is no reason to believe that things will change for the better in the foreseeable future.

We conclude the juvenile court did not abuse its discretion by terminating Vickie’s parental rights. It is in Jesse’s best interests to terminate her parental rights. Jesse has indicated he is not interested in a further relationship with Vickie because of the physical abuse he was subjected to in the past.

IV. Reasonable Efforts
Vickie contends the State did not engage in reasonable efforts to reunite her with Jesse. She asserts she should have had more visitations with Jesse.

Reasonable services must be provided to attempt to reunite a family before the State can terminate parental rights. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). The reasonable efforts concept would broadly include a visitation arrangement designed to facilitate reunification while protecting the child from the harm responsible for the removal. In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). The nature and extent of visitation is controlled by the best interests of the child Id.

Throughout much of this case there was a no-contact order between Vickie and Jesse due to the physical abuse. Jesse was very reluctant to have visitation with Vickie. After visitation began, it was soon suspended on the advice of Jesse’s therapist. Vickie later requested additional visitation, but withdrew her request by the time a hearing on her request was scheduled. We conclude additional visitation would not have been in Jesse’s best interests.

We affirm the decision of the juvenile court.

AFFIRMED.