No. 5-543 / 05-0875Court of Appeals of Iowa.
Filed July 27, 2005
Appeal from the Iowa District Court for Marshall County, Victor Lathrop, Associate Juvenile Judge.
A mother appeals from the termination of her parental rights to her child. AFFIRMED.
Jennifer Steffens of Grimes, Buck, Schoell, Beach Hitchins, Marshalltown, for appellant mother.
J.M., father, Marshalltown, pro se.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Jennifer Miller, County Attorney, and Susan Klaessy, Assistant County Attorney, for appellee-State.
John Swain, Marshalltown, guardian ad litem for minor child.
Considered by Mahan, P.J., and Zimmer and Vaitheswaran, JJ.
ZIMMER, J.
Michele O. appeals from the juvenile court’s order terminating her parental rights to her child. Upon our de novo review, we affirm.
I. Background Facts and Proceedings
Michele is the mother of T.O., born in April 2004, T.M., born in March 2002, and C.O., born in December 1991.[1] John M. is the father of the three children. The family came to the attention of the Department of Human Services in February 2004, as a result of allegations that the parents were using methamphetamine. Michele tested positive for methamphetamine on February 27, 2004, and March 3, 2004. T.M. and C.O. were placed in foster care under a voluntary placement agreement. Michele completed inpatient chemical dependency treatment in March 2004, but she did not successfully complete the recommended outpatient treatment program.
Michele was not aware she was pregnant until she gave birth to T.O. on April 20, 2004. T.O. was approximately seven weeks premature. She was placed in a foster home after her discharge from the hospital. Except for one weekend after her birth, T.O. has never lived with either Michele or John.
The juvenile court adjudicated T.O. and her two older siblings as children in need of assistance under Iowa Code section 232.2(6)(n) (2003) on June 8, 2004. At the dispositional hearing on July 15, 2004, the court ordered the children to remain in foster care. The State petitioned to terminate Michele’s parental rights to T.O. on January 13, 2005. Following a contested hearing, the court terminated Michele’s parental rights as to T.O. on May 10, 2005. The court also terminated the parental rights of T.O.’s father, John M. Only Michele appeals.
II. Scope of Review
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). 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 C.B., 611 N.W.2d 489, 492 (Iowa 2000). When the court terminates parental rights on more than one statutory ground, we will affirm if at least one ground has been proven by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
III. Discussion
On appeal, Michele claims (1) the State failed to prove by clear and convincing evidence that the child could not be returned to her; (2) the State did not make reasonable efforts towards reunification; (3) the State did not prove termination was in the child’s best interests; and (4) the guardian ad litem provided ineffective assistance to the child. We will address each of these arguments in turn.
The juvenile court terminated Michele’s parental rights to T.O. under Iowa Code sections 232.116(1)(h) and (l) (2005). In order to terminate a parent’s rights under section 232.116(1)(h), the State must establish that the child is three years of age or younger, has been adjudicated CINA, has been removed from the parent’s physical custody for at least six of the last twelve months, and “there is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.” Iowa Code §232.116(1)(h). As part of its proof that the child cannot safely be returned to the parents, the State is required to show reasonable efforts had been made to reunify the family. C.B., 611 N.W.2d at 493. Michele does not dispute the age, adjudication, and time removal elements. However, she asserts the State failed to show by clear and convincing evidence that T.O. could not be returned to her. We reject this assignment of error.
We initially note that while the State has an obligation to provide reasonable services aimed at reunification, Michele had the obligation to challenge the offered services, or demand different or additional services, at the time the services were provided. See In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). Michele does not identify any other services that should have been provided by the department, nor is there any indication that she requested additional services or otherwise challenged the offered services at the time the case plan was entered. Her failure to timely challenge the services provided waives error on appeal. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999). Accordingly, in considering the sufficiency of evidence to support termination, our focus is on the services actually provided by the department and Michele’s response to those services.
The record reveals the State offered Michele numerous services aimed at reunification. These services included, but were not limited to, substance abuse treatment and aftercare, mental health services, and in-home family-centered services. The department also provided Michele with money for a place to live. Unfortunately, the reports and testimony presented by the State reveal that Michele failed to take advantage of these services, and she failed to progress to a point where T.O. could be returned to her care at the time of the termination hearing.
Michele was unsuccessfully discharged from outpatient treatment at least three times. On at least two occasions, she falsely represented to the department that she had obtained employment. During a supervised visit with her two older children in August 2004, Michele smelled of alcohol, was verbally abusive and had to be escorted from the department’s office. In mid-November 2004, Michele was evicted from a house she was renting. On the day she was evicted, she went to the department’s office and reported ingesting a bottle of anti-anxiety medication. While hospitalized for this incident, she admitted to a hospital therapist that she used methamphetamine the week before her eviction. The hospital recommended that she return to an inpatient substance abuse program, but Michele refused to do so. Around this same period of time, Michele falsely reported to the department that she was attending mental health counseling.
At the time of the termination hearing in March 2005, Michele was residing at a shelter for domestic abuse victims, but she had obtained applications for low-rent housing. The week before the hearing, Michele scheduled a substance abuse evaluation. She also began receiving mental health treatment sometime before the termination hearing. Michele did not have any visitation with T.O. from November 2004 until March 16, 2005, the day before the termination hearing. Although Michele seemed motivated toward rehabilitating herself at the time of the termination hearing, a parent cannot wait until the eve of termination after the statutory time periods for reunification have expired to begin to express an interest in parenting. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997).
We agree with the juvenile court’s conclusion that the child could not safely be returned to her mother’s care at the time of the hearing given Michele’s continued use of controlled substances at least until November 2004, her history of failed attempts at substance abuse treatment and mental health counseling, her lack of a stable residence, and her failure to obtain employment. We conclude that the State made reasonable efforts at reunification and clear and convincing evidence supports the juvenile court’s decision to terminate Michele’s parental rights to T.O. under section 232.116(1)(h).[2] We therefore turn to Michele’s contention that termination was not in T.O.’s best interests.
Even if the statutory requirements are met, termination of Michele’s parental rights must still be in T.O.’s best interests In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In determining the child’s best interests, we consider what the future likely holds if she is returned to Michele. See In re J.W.D., 458 N.W.2d 8, 10 (Iowa Ct.App. 1990). “Insight for that determination is to be gained from evidence of the parents’ past performance for that performance may be indicative of the quality of future care the parents are capable of providing.” In re A.J., 553 N.W.2d 909, 913 (Iowa Ct.App. 1996).
As detailed above, Michele has a lengthy history of relapses and sporadic attendance at substance abuse treatment and mental health counseling. Children should not be forced to endlessly await the maturity of a natural parent. C.B., 611 N.W.2d at 494. At some point, the rights and needs of the children rise above the rights and needs of the parent. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997). T.O. has lived with the same foster family since she was born, and the family is willing to adopt her. We agree with the juvenile court that termination of Michele’s parental rights is in the best interests of T.O.
Michele’s last contention is that the guardian ad litem provided ineffective assistance to the child. A guardian ad litem is “a person appointed by the court to represent the interests of a child in any judicial proceedings to which the child is a party.” Iowa Code § 232.2(22)(a). The duties of a guardian ad litem are set forth in section 232.2(22)(b). Our supreme court has applied the principles of Strickland v. Washington, 466 U.S. 668, 687, 109 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 691
(1984) to considerations of the effectiveness of counsel in a proceeding to terminate parental rights. See In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988).[3] Michele argues the guardian ad litem’s performance was deficient because he did not obtain any first-hand knowledge of the evidence in this matter, did not interview the parents or foster parents, and did not visit the child.
A guardian ad litem as defined in section 232.2(22)(a) includes a Court-Appointed Special Advocate (CASA). See Iowa Code §232.89(5). A CASA was appointed for T.O. in June 2004. We agree with the juvenile court that all of the statutory duties of a guardian ad litem were carried out either by the guardian ad litem or the CASA appointed for the child. While the guardian ad litem did not personally interview or visit with the child, T.O. was less than one year old and not verbal at the time of the termination hearing. The guardian ad litem spoke with the caseworker and service providers, reviewed all reports prepared by them, and attended all scheduled hearings. The guardian ad litem relied on these individuals’ assessment that the foster home was appropriate. Furthermore, the CASA had face-to-face contact with T.O., the foster parents, the parents, and the caseworker as well as numerous telephone or e-mail contacts. Information the CASA obtained was provided to the court and parties through written reports, and the CASA was available at hearings to be called as a witness by any party.
When comparing the performance of the guardian ad litem in this case to that of the guardian ad litem in In re J.V., 464 N.W.2d 887, 892 (Iowa Ct.App. 1990), we cannot say his performance fell below minimum adequacy. Michele has not overcome the strong presumption that the guardian ad litem performed competently. In re D.W., 385 N.W.2d 570, 580 (Iowa 1986). We also agree with the juvenile court that Michele has not shown that actual prejudice to T.O. resulted. Id. We accordingly reject the mother’s contention that the guardian ad litem provided ineffective assistance to the child.
We affirm the juvenile court’s decision to terminate Michele’s parental rights to T.O.
AFFIRMED.
(Iowa Ct.App. 1999) (“When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm.”).