No. 5-480 / 05-0667Court of Appeals of Iowa.
Filed June 15, 2005
Appeal from the Iowa District Court for Wapello County, William S. Owens, Judge.
A mother and a father each appeal from a juvenile court order terminating their parental rights. AFFIRMED.
Jeffrey R. Logan of Curran Law Office, Ottumwa, for appellant-father of G.U.
Victoria R. Siegel, Ottumwa, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Mark Tremmel, County Attorney, and Jason Helm, Assistant County Attorney, for appellee.
Cynthia Hucks of Box Box, Ottumwa, guardian ad litem for minor children.
Kevin Parker of Elgin, Patin Parker, Indianola, for maternal grandfather.
Considered by Vogel, P.J., Miller and Hecht, JJ.
MILLER, J.
Kerry is the mother of Madeline, born in October 1999, and Gabriel, born in March 2002 (“the children”). Justin is Gabriel’s father. Kerry and Justin appeal from an April 12, 2005 juvenile court order terminating Kerry’s parental rights to the children and Justin’s parental rights to Gabriel. (The parental rights of Madeline’s father were previously terminated and are not at issue in this appeal.) We affirm.
The children came to the attention of the Iowa Department of Human Services (DHS) in January 2003. Concerns included child neglect in the form of lack of appropriate supervision, other child safety issues, and the parents’ use of marijuana and methamphetamine in the children’s presence. The juvenile court for Warren County ordered the children removed from the custody of Kerry and Justin and placed in the temporary custody of the DHS for suitable placement. The children were placed with grandparents.
In February 2003 the juvenile court adjudicated the children to be children in need of assistance (CINA) and continued them in the temporary custody of the DHS, which in turn continued their placement with grandparents. Following an April 2003 dispositional hearing the court ordered that the children remain with grandparents.
The DHS arranged for and offered numerous services to the family and its individual members beginning in early 2003. Kerry and Justin initially accepted the services. As of January 2004 the children were thriving in their respective placements with grandparents. However, the parents had substantially benefited from services and wished to be reunited with the children. They had completed parenting classes, had completed substance abuse treatment and avoided the illegal use of drugs for an extended time, had maintained stable housing for several months, and were maintaining a stable relationship. Kerry was attending beauty school. Justin was employed and attending community college.
In preparation for a January 2004 disposition review hearing the family’s DHS case manager noted the parents’ progress but expressed concern that “the children would suffer significant emotional trauma should a premature return fail.” She noted continuing concerns and opined that “uninterrupted employment, consistent housing, continued drug free lifestyle, school attendance, and absence of criminal conduct” needed to be demonstrated for an extended time prior to returning the children to their parents. She recommended the children remain with grandparents for an additional three-month period with weekend visits with the parents, to be followed by reunification if the parents maintained the progress they had made to date. She cautioned that:
[S]hould the children be returned prematurely, then removed, the effect emotionally would be devastating. Madeline is very bonded with her mother and such a tragic turn of events would be very disruptive. Gabe is still young, however transferring the primary care-giver bond to his mother, only to have it disrupted would be quite damaging to his emotional development.
Following the January 2004 review hearing the juvenile court ordered the custody of the children returned to Kerry and Justin. By then Kerry and Justin had apparently moved to Ottumwa, in Wapello County. By May 2004 Kerry had developed a relationship with an eighteen-year-old neighbor. Kerry and Justin had engaged in domestic disputes and were separated. The children were residing with Kerry. Justin had violated a no-contact order, resulting in jail time. He then spent more time in jail for non-payment of outstanding fines. Justin was living with his father and in danger of being without housing. Kerry had no driver’s license but was driving a vehicle, at times with one or both of the children with her. Kerry had left the children in the care of a neighbor whom she was aware had recently attempted suicide. The Wapello County juvenile court ordered the children again removed from Kerry and Justin and placed in the custody of the DHS which in turn again placed them with grandparents where they have thereafter remained. Services designed to achieve reunification were continued.
By late June 2004 an in-home worker for a service provider reported:
Kerry has been residing with her 18-year-old boyfriend and his mother in Cantril, IA. The home where Kerry has been residing is reported to have substandard living conditions with no plumbing and poor structure. Kerry has made statements regarding her use of drugs with her boyfriend and his mother. Kerry is temporarily residing with a friend in Lovilia, IA and plans to relocate with her boyfriend in Cantril, IA following the permanency hearing on June 22, 2004. Kerry has secured no residence, lacks financial stability, and has no means of supporting self. She is unable to form healthy relationships as evidenced by her affiliation with individuals who use drugs, demonstrate[d] lack of responsibility in maintaining employment with no resources, and continued engagement in negative activities.
Kerry later moved and lived with friends in Cantril, moved again in October 2004 to live with a friend in Ottumwa, and by the time of the mid-January 2005 termination hearing had moved in with yet another person in Ottumwa, a twenty-year-old male. As of the termination hearing Kerry had visited the children only about five times in approximately the last six months, only twice since September 2004.
The State filed a petition for termination of parental rights in October 2004. Following hearing the juvenile court entered an order on April 12, 2005, terminating Kerry’s parental rights to Madeline pursuant to Iowa Code section 232.116(1)(f) (2005) and Kerry’s and Justin’s parental rights to Gabriel pursuant to section 232.116(1)(h). Both appeal.
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).
On appeal Kerry and Justin both claim the State failed to prove the fourth element required for termination pursuant to sections 232.116(1)(f) and (h), and the juvenile court erred in finding the contrary. This fourth element is proved when the evidence shows that at the time of the termination hearing the children could not be returned to the parents’ custody without being subject to some harm which would justify their adjudication as CINA. See Iowa Code §§ 232.116(1)(f)(4), 232.116(1)(h)(4), and 232.102(5)(b).
Justin was incarcerated in August 2004 following arrest for domestic abuse assault of Kerry. In November 2004 he was imprisoned upon a conviction for that crime and a conviction for theft, and is not expected to be released until sometime after mid-2005. The children obviously could not be returned to him in January 2005, and neither parent so claims.
Kerry had apparently dropped out of beauty school, had no stable residence, had not kept the DHS or service providers informed of her whereabouts, was continuing with a series of rapidly changing relationships, had no driver’s license, and had only very limited contact with the children in the period of approximately six months before the termination hearing. She did not claim at the termination hearing that the children could then be returned to her, but rather asked for additional time to stabilize her situation and then have them returned. Upon our de novo review we find the children could not be returned to Kerry without being subject to the threat of neglect in the form of lack of appropriate supervision, lack of appropriate shelter, and/or other probable adjudicatory harm. See In re M.M., 482 N.W.2d 812, 814 (Iowa 1992) (holding the threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the children’s removal from the home). We affirm the juvenile court’s determination that the children could not be returned to either parent at the time of the termination hearing.
Justin claims the juvenile court erred in determining termination of his parental rights was in Gabriel’s best interest, arguing the evidence shows a bond between them and that Justin would remain a part of Gabriel’s life even if termination occurred. Kerry, citing Iowa Code section 232.116(3)(c), claims the juvenile court erred in determining termination was in the children’s best interest.
Even if other statutory requirements for termination are met, the decision to terminate must still be in the best interest of a child. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). A strong parent-child bond is a special circumstance which militates against termination when other statutory grounds have been satisfied. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct.App. 1998). Yet it is not an overriding consideration, but merely a factor to consider. Id. Section 232.116(3) is 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.
At the time of the termination hearing Gabriel was just short of thirty-five months of age. He had lived with Justin only the first twelve months of his life and later another four months, ending some eight months before the termination hearing. He had been out of Justin’s custody about twenty of the preceding twenty-four months. Although the evidence shows Gabriel knows Justin, the evidence does not show a close or even substantial parent-child bond. This lack of a substantial bond would be expected in view of the fact that Justin had only limited contact with Gabriel in the two years since Gabriel’s first birthday. Gabriel was again thriving in the custody of grandparents, who are potential adoptive parents.
At the time of the termination hearing Madeline and Gabriel had been out of Kerry’s custody for about twenty of the preceding twenty-four months. The evidence shows a substantial bond between Kerry and Madeline. The evidence does not show a strong parent-child bond between Kerry and Gabriel, again perhaps because of Gabriel’s age and the very limited contact Kerry had with him since his first birthday. Madeline, just as Gabriel, was again thriving in the custody of grandparents who are potential adoptive parents.
In addressing the question of best interest the juvenile court stated:
In this case, all of the persons with experience dealing with the family indicate that the best way for the children to obtain permanency is for parents’ parental rights to be terminated so that the children can be freed for adoption. Guardianship, while a legitimate permanency goal in some cases, is subject to re-litigation. These are young children, they deserve to know where they will be living tomorrow, next week, and next year. These children have been let down and disappointed not once, but twice by their parents. Gabriel and Madeline should not have to put their futures on hold until their parents mature enough to become a stable influence in their lives. The best way to ensure that Gabriel and Madeline will grow into the best adults they can be is to establish a truly permanent future for them. Clearly the best way for that to be accomplished is to terminate their parents’ parental rights so that they can be adopted.
We fully agree with the juvenile court’s analysis and conclusions concerning best interest, and find no abuse of discretion in its determination that termination of parental rights is in the children’s best interest. Our conclusion on this issue is not affected by the fact the children may be adopted by grandparents who do not intend to exclude the parents from the lives of the children.
AFFIRMED.