IN RE J.M., 713 N.W.2d 249 (Iowa App. 2006)

No. 6-042 / 05-1810Court of Appeals of Iowa.
Filed February 15, 2006

Appeal from the Iowa District Court for Mahaska County, Michael R. Stewart, District Associate Judge.

N.M. and J.M. appeal from the termination of their parental rights. AFFIRMED.

Terri A. Beukelman, Pella, for appellant mother.

Jeffrey A. Smith, Oskaloosa, for appellant father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Charles A. Stream, County Attorney, and Misty White-Reinier, Assistant County Attorney, for appellee State.

Michael S. Fisher of Fisher Law Office, Oskaloosa, for minor child.

Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.

HUITINK, P.J.

N.M. appeals from the juvenile court’s decision terminating her parental rights to J.M.

I. Background Facts Proceedings.

J.M. was born in October of 1995. J.M., Sr. and N.M. are his parents. On December 5, 2003, the State filed a petition alleging J.M. was a child in need of assistance under Iowa Code sections 232.2(6)(c)(2) (2001) (child is likely to suffer harm due to mental injury), 232.2(6)(f) (parent fails to provide needed treatment for a serious mental illness), and 232.2(6)(n) (parent’s mental capacity (or condition, or drug or alcohol abuse) results in child not receiving adequate care). On January 8, 2004, the juvenile court adjudicated J.M. a child in need of assistance pursuant to Iowa Code section 232.2(6)(f) (parent fails to provide needed treatment for a serious mental illness). The court’s resulting dispositional order entered on February 12, 2004, left J.M.’s custody with his parents. The placement was conditioned on N.M.’s continued receipt of mental health services and additional counseling for J.M., Sr. The court also ordered additional services to improve the safety and stability of the parental home.

In March 2004 J.M. was placed in family foster care because the parents permitted him to have contact with a registered sex offender on two separate occasions. On July 15, 2004, the juvenile court approved a revised permanency plan allowing the parents in-home supervised visits with J.M., as well as continued parenting skills training and mental health services.

On June 22, 2005, a petition was filed to terminate the parental rights of both J.M., Sr. and N.M. pursuant to Iowa Code sections 232.116(1)(d) (child CINA for physical or sexual abuse (or neglect), circumstances continue despite receipt of services) and 232.116(1)(f) (child four or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home). On October 27, 2005, the court entered an order terminating both parents’ rights pursuant to Iowa Code section 232.116(1)(f) (child 4 or older, child CINA, removed from home for twelve of last eighteen months, and child cannot be returned home) The juvenile court found that J.M.’s behavioral issues had been successfully addressed in foster care and that his physical and mental health were at risk if returned to parental custody. The court also determined that N.M.’s dysfunctional relationship with J.M., Sr. prevented her from parenting J.M. The court further found that termination of parental rights was in the J.M.’s best interests because returning J.M. to his parents would deprive him of the long-term nurturing and growth needed to meet his physical, mental, or emotional needs.

On appeal, N.M. raises the following issues:

I. The court erred in finding clear and convincing evidence that custody of J.M. cannot be returned to his mother.
II. Even if the statutory requirements for termination have been satisfied, the court erred in finding termination was in the best interest of the child.

J.M., Sr.’s appeal was dismissed.

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). Our primary concern is the best interests of the child. In re J.L.W., 570 N.W.2d 778, 780 (Iowa Ct.App. 1997).

III. Merits.

Iowa Code section 232.116(1)(f) provides for termination of parental rights if the court finds there is clear and convincing evidence that (1) the child is four years of age or older, (2) the child has been adjudicated a child in need of assistance, (3) the child has been removed from the physical custody of a parent for twelve of the last eighteen months, and (4) the child cannot be returned to the physical custody of the parent. “`Clear and convincing’ evidence connotes the establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond reasonable doubt.” In re S.N., 500 N.W.2d 32, 34 (Iowa 1993) (citing In re Henderson, 199 N.W.2d 111, 121 (Iowa 1972)). The parent’s failure to follow the department’s permanency plan “can be considered evidence of the parent[‘s] attitude toward recognizing and correcting the problems which resulted in the loss of custody.” In re J.L.P., 449 N.W.2d 349, 352 (Iowa 1989). While “the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,’ Iowa has built this patience into the statutory scheme of chapter 232.” In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re D.A., Jr., 506 N.W.2d 478, 479
(Iowa Ct.App. 1993)).

Moreover, “[a] parent’s mental disability, while not alone sufficient to terminate parental rights, can be a contributing factor to the parent’s inability to perform essential parenting functions, and termination can be appropriate where a parent lacks the capacity to meet a child’s present and future needs.”In re T.T., 541 N.W.2d 552, 556 (Iowa Ct.App. 1995) (citin In re A.M.S. 419 N.W.2d 723, 733 (Iowa 1988)). The necessity for termination arises when “the disabled parent lacks the capacity to meet the child’s present needs as well as the capacity to adapt to the child’s future needs.” In re A.M.S., 419 N.W.2d 723, 734 (Iowa 1988).

Because the first three criteria are not disputed, the only issue is whether J.M. can be returned to N.M.’s custody. After reviewing the record, we, like the trial court, conclude that he cannot.

J.M. is a special needs child. He is classified as Axis II mild mental retardation. His I.Q. is 49. The department’s social history prepared in February 2004 described J.M.’s situation at the time he was adjudicated in the following terms:

[J.M.] is the only child residing in the home. He attends 1st grade and is in the B.D. classroom. [J.M.] likes school and tries to be a social person. He attempts to make friends but is not able to maintain a relationship with peers. He can be a problem in the classroom. He has received special services to help with his speech disability. He has been mean and aggressive with peers, causing total chaos in the classroom. Due to his limited abilities [J.M.] is not able to do all the things other children do thus this causes him to become very frustrated. At home, he needs constant supervision. He does have waiver service providers that meet each day with him, after school. They take him out in the community, attempt to teach him age appropriate independent living skills and appropriate behavior in the community. This is not always successful. They have attempted to teach [J.M.] how to keep himself safe in the home and out in the community. He does not have capabilities of understanding or comprehending how to apply the things that most children his age would do. As a he grows and reaches different development stages, he will need someone to keep reinforcing the old ideas as well as trying to teach new ideas. . . .

At the time the department requested commencement of termination proceedings in June 2005, J.M.’s situation was described as follows:

[J.M.] has been in and out of home placement for approximately 16 months. With extensive and intensive services to [J.M.] and his parents, he continues to be unable to return to their care today. [J.M.] has demonstrated his ability to make great progress academically, socially, medically, and emotionally in his foster home setting. [J.M.] has responded extremely well to the structured and consistent routine of this foster family. He has also learned from his foster parents that he can be trusting of adults to meet all of his needs. This appears to be a new experience for [J.M.] and he has flourished. [J.M.] deserves a permanent home where he can continue to make this kind of progress. It appears that the parents have tried to do their very best during this last year. Unfortunately, their best does not meet the needs of this child. The Department would recommend that a petition be filed as quickly as possible for the Termination of Parental Rights of [J.M. Sr.] and [N.M.] and that [J.M.] be allowed permanency.

The contrast in J.M.’s situation reflected by the foregoing reports illustrates the complexity of J.M.’s special needs, as well as the level of parental competence and commitment required to sustain J.M.’s improved mental, physical, and emotional wellbeing. Despite the department’s best efforts to improve N.M.’s parenting skills, she lacks the mental capacity to comprehend or provide for J.M.’s special needs. We therefore affirm on this issue.

IV. Best Interests.

Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child’s best interests. In re M.M.S., 519 N.W.2d 398, 400 (Iowa 1994). “A parent does not have an unlimited amount of time in which to correct his or her deficiencies.” In re H.L.B.R., 567 N.W.2d 675, 677
(Iowa Ct.App. 1997). A child should not be perpetually kept in foster care. In re J.P., 499 N.W.2d 334, 339 (Iowa Ct.App. 1993). Section 232.116(3)(c) (2003) provides that a strong bong between a parent and child is a special circumstance which may mitigate against termination. However, the strong bond is merely a factor and not an overriding consideration. In re N.F., 573 N.W.2d 338. 341-42 (Iowa Ct.App. 1998).

J.M. has been taken off his psychotropic drugs. He communicates with his peers and follows directions. His speech has improved, and he has made progress academically. Before placement in foster care, J.M. was unable to use the bathroom. He was mean, aggressive, and disruptive at school. He did not follow instructions or form friendships with his peers. Despite his improvements, he still needs constant supervision, and he needs to be reminded to use the bathroom. N.M. did not demonstrate she can provide either of these needs. Although N.M. clearly loves J.M., she is not able to give him a stable environment. J.M.’s best interests are served by the termination of N.M.’s parental rights.

AFFIRMED.