IN THE INTEREST OF G.F., 99-1986 (Iowa App. 10-13-2000)

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IN THE INTEREST OF G.F., Minor Child, M.J., Mother, Appellant.

No. 0-555 / 99-1986.Court of Appeals of Iowa.
Filed October 13, 2000.

Appeal from the Iowa District Court for Hardin County, Peter Newell, District Associate Judge.

Mother appeals from the order terminating the parental rights to her daughter. AFFIRMED.

James L. Beres of Letz, Sween Beres, P.C. Eldora, for appellant.

Thomas J. Miller, Attorney General, and Janet L. Hoffman, Assistant Attorney General, for appellee-State.

Mona Bowden of High, Bowden Bicknese, L.L.P., Iowa Falls, guardian ad litem for minor child.

Heard by Sackett, C.J., and Streit and Vaitheswaran, JJ.

STREIT, J.

Mary J. appeals the termination of her parental rights. She claims the juvenile court judge should have recused himself from the termination hearing and the grounds for termination were not supported by clear and convincing evidence. We affirm.

I. Background Facts Proceedings.
Mary and an unknown father are the biological parents of Gina, born August 15, 1990. In April of 1997 the juvenile court ordered an emergency removal of Gina from Mary’s custody after Gina had been hospitalized for oppositional behaviors. Gina’s treatment team believed her behavior was likely a reaction to a chaotic and abusive home environment. The team was also concerned for Gina’s welfare because Al, Mary’s boyfriend, arrived at the hospital under the influence of alcohol.

Gina was adjudicated a child in need of assistance in June of 1997.[1] In August of 1997 she was returned to Mary’s custody. In April of 1998 the juvenile court again removed Gina from Mary’s custody after Mary moved without informing the Iowa Department of Human Services and enrolled Gina in a new school without DHS’s approval. The new residence had no heat, water, or electricity.

Gina has not lived with Mary since the April 1998 removal. At a June 1999 permanency hearing the juvenile court ordered the county attorney or an attorney representing Gina to institute proceedings to terminate parental rights after finding Mary had not taken sufficient steps to make possible Gina’s return to her within six months. The juvenile court terminated the parental rights of Mary and Gina’s unknown father in November of 1999.[2]

Mary appeals the termination. She claims the juvenile court judge should have recused himself from the termination hearing and the grounds for termination were not supported by clear and convincing evidence.

II. Recusal. Mary argues the juvenile court judge figuratively stepped intothe county attorney’s shoes when the judge ordered him or anattorney representing Gina to institute proceedings to terminatethe parental rights of Mary and Gina’s father.[3] Because the judge assumed this purported prosecutorial role, she argues he should have recused himself and made arrangements for the termination hearing to be held before a different judge. She claims the judge’s failure to do so constitutes an abuse of discretion. See In re Marriage of Clinton, 579 N.W.2d 835, 837
(Iowa App. 1998).

Mary and her attorney were present at the termination hearing.They did not ask the judge to recuse himself from the hearing eventhough they knew, or should have known, he had ordered thetermination petition to be filed. Because this issue was notraised before the juvenile court, error has not been preserved forus to decide it on appeal. See In re T.J.O., 527 N.W.2d 417, 420
(Iowa App. 1994).

III. Clear and Convincing Evidence. Mary also claims the State did not prove the grounds forterminating her parental rights by clear and convincing evidence.The juvenile court found the State had established grounds forterminating Mary’s rights under section 232.116(1)(d) and section232.116(1)(e) of the Iowa Code.

We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). As was alluded to above, the State must prove the statutory grounds for termination by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa App. 1997). Our primary concern is the best interests of the child. In re A.B., 554 N.W.2d 291, 293 (Iowa App. 1996). If the juvenile court terminates parental rights based on multiple sections of the Iowa Code, we need only find grounds to terminate under one of the sections to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa App. 1996).

Pursuant to section 232.116(1)(e), the State had to prove (1)Gina was four years of age or older; (2) Gina had been adjudicateda child in need of assistance; (3) Gina had been removed fromMary’s custody for either twelve of the last eighteen months orfor the last twelve consecutive months and any trial period atMary’s home had been less than thirty days; and (4) Gina could notbe returned to Mary’s custody at the time of the terminationhearing. See Iowa Code § 232.116(1)(e). Mary concedes the State has proven the first three elements. She claims, however, the State has not proven Gina would suffer harm if returned home.

The record is replete with evidence showing Mary is unable toprovide appropriate care for Gina. See In re D.C., 436 N.W.2d 644, 645 (Iowa App. 1988) (stating that a parent’s past performance “may be indicative of the quality of future care that parent is capable of providing”). For instance, Mary disciplined Gina by making her suck on jalapeno peppers, allowed Gina to attend school dirty and improperly dressed, and wanted Gina to be hospitalized for her hyperactivity.[4] Mary has also had difficulty maintaining a suitable home. She had eleven residences within eighteen months, including various parks where she and Al lived in their camper. One of the residences where Gina had to live lacked running water, heat, and electricity. At one point, a sexual perpetrator lived with the family.[5] Gina struggled at school and with enuresis[6]
during this period. Finally, Mary has done relatively little to remedy concerns regarding her parenting ability. She withdrew from DHS services nine times since 1994. DHS had to deny Mary and Al supervised visitation with Gina because of their conduct towards Gina and DHS providers during visits. DHS also had to move Gina from a foster home to a respite care foster home because the foster family felt threatened by Mary and Al.

Despite Mary’s dubious parental performance over the past several years, she claims there is not clear and convincing evidence Gina cannot safely be returned to her custody given the recent changes in her life. Mary apparently has maintained employment for several months, and she and Al have found a better home. She has also made some progress in family therapy.[7] These changes, while encouraging, are not significant enough-or soon enough-to halt the termination of Mary’s parental rights. Gina is ten years old and has not been in Mary’s custody since April of 1998. She cannot wait any longer to see whether Mary’s positive efforts will ultimately transform her into a capable, responsible mother. See In re E.K., 568 N.W.2d at 831.

We find there is clear and convincing evidence Gina could not be safely returned to Mary’s custody. We also find termination of Mary’s parental rights is in Gina’s best interests. Because the juvenile court properly terminated Mary’s rights pursuant to section 232.116(1)(e), we need not address whether the State also had grounds for terminating Mary’s rights pursuant to 232.116(1)(d).[8]
AFFIRMED.

[1] Gina was adjudicated a child in need of assistance pursuant to section 232.2(6)(f): “`Child in need of assistance’ means an unmarried child . . . [w]ho is in need of treatment to cure or alleviate serious mental illness or disorder, or emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior toward self or others and whose parent . . . is unwilling or unable to provide such treatment.
[2] The juvenile court found there was clear and convincing evidence Gina had been abandoned or deserted by her father. See
Iowa Code § 232.116(1)(b) (1999).
[3] After a permanency hearing a juvenile court judge can “[d]irect the county attorney or the attorney for the child to institute proceedings to terminate the parent-child relationship.” Iowa Code § 232.104(2)(c).
[4] Gina has attention deficit hyperactivity disorder. While in Mary’s care, Gina took as many as three medications to control her behaviors. While in foster care, Gina took only one of these medications.
[5] The perpetration apparently was with male children. A second sexual perpetrator also lived with Mary and Al for a short period of time. Gina was not in Mary’s custody at this time, but the perpetrator did come to one of Mary and Al’s visits with Gina.
[6] “Enuresis is the involuntary passage of urine into the bed or clothes at least once or twice per month in a child who is at least five years of age.” Paul C. Reisser, The Focus on the Family Complete Book of Baby and Child Care 658 (1997).
[7] A therapist who counseled Mary testified he thought Mary would eventually be able to have visitation with Gina. He noted he had never seen Mary and Gina interact.
[8] Section 232.116(1)(d) requires the State to prove three elements to terminate parental rights: (1) the parent’s child has been adjudicated a child in need of assistance; (2) the child has been removed from the physical custody of the parent for at least six consecutive months; and (3) there is clear and convincing evidence the parent has not maintained significant and meaningful contact with the child during the previous six consecutive months and has not made reasonable efforts to resume care of the child despite being given the opportunity to do so. Iowa Code §232.116(d)(1).