No.5-155 / 05-0085.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for Pottawattamie County, Gary K. Anderson, District Associate Judge.
A father appeals an order terminating his parental rights to his daughter. REVERSED AND REMANDED.
Phil R. Caniglia, Council Bluffs, for father-appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Matthew Wilber, County Attorney, and Dawn Eimers, Assistant County Attorney, for appellee.
Roberta Megal, Council Bluffs, for the mother.
SueEllen Overton, Council Bluffs, for the child.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
VAITHESWARAN, J.
The story of this termination action begins as many do, with drugs. Jeffrey, by his own admission, “us[ed] drugs and committ[ed] crimes.” Eventually, he was incarcerated. His daughter Jadyn was born in July 2003, while he was in prison. Nine months later, Jeffrey saw Jadyn for the first time. She was happy, healthy and attached to her maternal aunt and uncle with whom she lived.
The story might end here. The State petitioned to terminate Jeffrey’s parental rights to Jadyn, the district court granted the petition, and the State cites as grounds to affirm that decision the damaging facts set forth above. Jeffrey does not minimize those facts. Instead, he suggests he has come to terms with his criminal history and has taken affirmative steps to avoid repeating his mistakes. On our de novo review of the record, we agree with Jeffrey.
I. Statutory Grounds for Termination
Jeffrey contends there was not clear and convincing evidence to support termination under Iowa Code sections 232.116(1)(h) (requiring proof that child under three cannot be returned to parent’s custody) and 232.116(1)(l) (requiring proof of severe, chronic substance abuse that presents danger to self or others).
Iowa Code section 232.116(1)(h).
The Department recommended termination of Jeffrey’s parental rights under this provision based on the fact he was living in an institutional setting that did not allow children and he would need time to “establish a residence and show some consistency as far as being clean while he’s not in the legal system out there.” Both statements are accurate. Neither statement captures Jeffrey’s progress.
As noted, Jeffrey was imprisoned before Jadyn’s birth. While in prison, he obtained his general education degree and completed a parenting course, both on his own initiative. After eight months, Jeffrey was released to a “work ethic” camp. In the week before he reported to camp, he met his daughter. He stated the visit “was painful.”
Jeffrey successfully completed the camp program. He was then released to a halfway house. He immediately contacted the Department of Human Services to set up visitation with his daughter. Jeffrey regularly attended these weekly sessions. On his own initiative, he also obtained a full-time job paying $9.00 an hour and began seeing a credit counselor. He consistently provided his probation officer with urine samples that tested negative for the presence of illegal substances. He also completed a substance abuse evaluation and attended Alcoholics Anonymous sessions five times per week.
Jeffrey quickly graduated to a three-quarter way house. He described the house as “a place you pay rent, you come in, you come and go as you please.” He easily met his rent obligation of $210 per month on his earnings of $1600 per month. He also paid off all his fines in Nebraska and was working toward paying off approximately $5,000 in Iowa fines, due within three years. As the house did not provide drug treatment, he continued his participation in Alcoholics Anonymous, increasing his attendance to six times per week. He also arranged for an apartment that would accommodate himself and his daughter on his release from the house in January 2005. In short, he complied with every expectation set by the Department and, with the exception of supervised visitation, did so without the Department’s assistance.
Despite this progress, we recognize the three-quarter way house was an “institutional setting” that could not accommodate Jadyn. Therefore, the State satisfied the key requirement of Iowa Code section 232.116(1)(h) (child cannot be returned to parent’s custody).
Iowa Code section 232.116(1)(l).
Iowa Code section 232.116(1)(l) requires the State to prove that “the parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.” Jeffrey argues he “did not have a chronic drug problem at the time of the termination of parental rights hearing.” Having already found that the State proved one statutory ground for termination, we would not be required to address this provision See In re S.R., 600 N.W.2d 63, 64 (Iowa 1999). However, the evidence in support of this ground sheds light on Jeffrey’s prospects as a parent.
The State presented no evidence that Jeffrey used drugs following his release from prison in April 2004. In fact, the Department’s social worker stated, “I believe that he’s been clean, sober. I don’t believe he’s using drugs.” In response to a question about whether Jeffrey was taking his relapse prevention seriously, she stated “[h]is whole attitude has changed. He’s been clean.” She further admitted he was attending AA or NA meetings. Because the State did not establish that Jeffrey was using drugs, it also could not establish that he presented a danger to self or others. Therefore this ground for termination was not proven.
II. Best Interests
Even where the elements for termination of parental rights are met, termination is only warranted if it is in the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000); see also In re C.W., 554 N.W.2d 279, 282 (Iowa Ct.App. 1996). Jeffrey contends “[t]hat due to the strong bonding between Jeffrey and Jadyn, termination of parental rights is not in the best interest of the child.”
At the time of the termination hearing, Jeffrey was within two months of being released from the three-quarter way house. While at the house, Jeffrey had a degree of freedom that mirrored what he would have on his release. He used his freedom and his prior incarceration wisely. He (1) abstained from drugs for almost a year, (2) developed a support system to protect against relapse, (3) severed ties with Jadyn’s drug-using mother, (4) moved away from his drug-using friends in Iowa, (5) completed his education, (5) secured parenting assistance, (6) obtained employment that allowed him to support himself and his daughter, and (7) made efforts to deal with his debts.
The provider who supervised visitation between Jeffrey and Jadyn recommended against immediate termination of Jeffrey’s parental rights based on Jeffery’s progress. He testified “Jeff and Jadyn have appeared to bond quite well.” He stated, “she’s very smiling, bubbling toward him. Will curl up to him. They’re both affectionate toward each other.” While conceding Jadyn needed a permanent home, he opined that a four to six months delay of termination would afford Jeffrey a second chance in life while still serving the Department’s goal of permanency.
As Jadyn was placed with her maternal aunt and uncle, who had a good relationship with Jeffrey, we can discern few if any negative consequences of a delay in termination. See Iowa Code § 232.116(3)(a). Commendably, Jeffrey recognized the strong bond Jadyn had developed with her aunt and uncle and expressed every intention of maintaining that relationship in the interests of the child. While moving Jadyn from her relatives’ home may not be in her best interest at the present time, neither is termination of her father’s parental rights.
It has often been said that prior conduct is a good predictor of future behavior. In re J.L.P., 449 N.W.2d 349, 352 (Iowa 1989). While Jeffrey’s early conduct appeared to seal his fate, his progress within the eighteen months preceding the termination hearing bodes well for his relationship with his daughter. We conclude Jadyn’s best interests will be served by continuing that relationship. We reverse the ruling terminating Jeffery’s parental rights to Jadyn and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.