IN THE INTEREST OF M.K., 02-0225 (Iowa App. 4-24-2002)

IN THE INTEREST OF M.K., M.K., M.K., and M.B., Minor Children, S.B., Mother, Appellant, M.B., Sr., Father of M.B., Appellant.

No. 2-288 / 02-0225.Court of Appeals of Iowa.
Filed April 24, 2002.

Appeal from the Iowa District Court for Dubuque County, JANE M. MYLREA, Associate Juvenile Judge.

A mother appeals from the termination of her parental rights to four of her children. The father of M.B. appeals separately from the termination of his parental rights. AFFIRMED.

Daniel McClean, Dyersville, for appellant-mother.

Timothy G. Goen, Dubuque, for appellant-father.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Jean Becker, Assistant County Attorney, for appellee-State.

Clarence May, Dubuque, for minor children.

Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.

ZIMMER, J.

A mother of six children appeals a juvenile court order terminating her parental rights to her four oldest children; Matthew, Michelle, Melissa and Mariah. Mariah’s father, Mark Sr., appeals separately from the termination of his parental rights. We affirm the juvenile court’s termination orders as to both parents.

I. Background Facts and Proceedings.
Samantha is the mother of Matthew, born in 1987; Michelle, born in 1991; Melissa, born in 1992; Mariah, born in 1997; Megan, born in 1999; and Mark Jr., born in 2000. Her parental rights to Megan and Mark Jr. were previously terminated and are not at issue in this appeal. Mark Sr., Mariah’s father, is also the father of Samantha’s two youngest children, Megan and Mark Jr. His parental rights to Megan and Mark Jr. were terminated in another proceeding and are not at issue in this appeal.

In early December 2000, the children at issue, as well as Samantha’s two youngest children, were removed from their mother’s care. Their removal was based on allegations they were not receiving adequate care, and Samantha’s home was in deplorable condition. At the time the children were removed from Samantha’s care, Mark Sr. was incarcerated in a South Dakota federal penitentiary. A child protection worker contacted Mark Sr. in prison and arranged for Mariah, Megan, and Mark Jr. to be placed in foster care with Mark Sr.’s mother. The children have bonded with their grandmother, and she has expressed an interest in adoption pending the termination of parental rights. Matthew, Michelle, and Melissa were placed in the custody of the Department of Human Services (the department) for foster care placement. The children were adjudicated children in need of assistance (CINA) on February 8, 2001.

Following the children’s removal, Samantha was provided services designed to reunify her family. Samantha’s involvement with these services and dedication to change was inconsistent. Providers reported she was often unresponsive to the services she was offered. Samantha has diagnosed mental health issues and a history of substance abuse. Services were focused on addressing those two barriers to effective parenting.

At the time Samantha’s children were removed from her care, she was on probation for a felony offense. Upon the suggestion of her probation officer, Samantha entered the Julien Care Facility in June 2001. An initial thirty to sixty day observational period was designed to assess her substance abuse issues and determine whether she could maintain mental health in a less structured environment. Following the observational period, Samantha’s probation officer recommended she enter another treatment facility. She refused and remained at the Julien Care Facility. Samantha left the facility in December 2001 without reaching her mental health goals.

After leaving the Julien Care Facility, Samantha moved in with her mother. While staying in her mother’s home, she refused to comply with the conditions of her probation and failed to cooperate with reunification services provided by the department. She made no progress toward self-sufficiency and eliminating her many parenting deficiencies.

On December 13, 2001, the State filed a petition to terminate Samantha’s parental rights to Matthew, Michelle, Melissa and Mariah. The petition claimed termination was proper under Iowa Code section 232.116(1)(f) (Supp. 2001) because the children were four years of age or older, had been adjudicated CINA and removed from their parents’ care for at least twelve of the last eighteen months, and clear and convincing evidence existed that the children could not be returned to parental custody at the time of the termination hearing. Based on the same grounds, the State also sought termination of Mark’s parental rights to Mariah. At the time of the termination hearing Mark remained in federal prison in South Dakota.

Following hearing, the trial court found the grounds of section 232.116(1)(e) were satisfied as to both Samantha and Mark, and that termination was in the children’s best interests. Both parents appeal. Samantha contends the termination was in error because (1) the department failed to extend reasonable efforts to reunite her with her children, (2) the State failed to prove the children could not be returned to her care at the time of the termination hearing, (3) the juvenile court failed to consider Matthew’s opinion regarding termination, and (4) the juvenile court erred in terminating where her absence was due to her admission to an institution. Mark argues termination of his parental rights was unwarranted because (1) the State failed to prove Mariah could not be returned at the time of the termination hearing, (2) the State failed to provide reasonable efforts to reunify him with his daughter, (3) termination would not serve his daughter’s best interests, and (4) the juvenile court erred in failing to apply the exceptions to termination found in sections 232.116(3)(a) and (3)(c).

II. Scope of Review.
The standard of review in termination cases is de novo. Iowa R. App. P. 6.4; In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001).

III. Samantha’s Parental Rights. A. Reasonable Efforts.
Samantha contends the State failed to provide reasonable efforts designed to reunite her with her children. Except under certain limited circumstances, the department must make reasonable efforts toward reunification of a family, consistent with the children’s health and safety. Iowa Code § 232.102(7) and (10)(a); In re C.B., 611 N.W.2d 489, 492-93 (Iowa 2000). We disagree with Samantha’s contention that the State failed to satisfy this statutory mandate.

The record reveals ample evidence of departmental services tailored to deal with Samantha’s drug addiction, mental health issues, and parenting shortcomings. These efforts have included family-centered services, mental health treatment, substance abuse counseling, assistance with keeping appointments, transportation, daily living activities, and supervised visitation sessions with her children. When a parent is unable to maintain the safe environment necessary for the children to return home, termination is warranted. We conclude the requirement that reasonable services be provided was satisfied.

B. Statutory Grounds.
Samantha contends the State failed to present clear and convincing evidence that the children could not be returned to her care. The requirement of section 232.116(1)(e)(4) is met when the child cannot be returned to the parental home because the definitional grounds of a child in need of assistance exist. If any of the grounds listed in section 232.2(6) can be proven by clear and convincing evidence, there is a sufficient basis for termination.

Samantha argues the circumstances and conditions that led to the removal of her children no longer existed at the time of termination. After leaving the Julien Care Facility in December 2001, Samantha refused to consistently cooperate with department reunification services, visitation opportunities, and probationary requirements. She failed to secure employment and failed to obtain a suitable residence for her family. She continues to reside with her mother. The record indicates Samantha has made little progress in building necessary parenting skills and has not become self-sufficient. She continues to struggle with mental health issues which prevent her from providing a safe and stable home for her children. Care providers testified that all of the children would be at risk if returned to Samantha’s care. We conclude the State provided clear and convincing evidence that the children could not be returned to her care at the time of the termination proceeding.

C. Application of Sections 232.116(3)(b) and (3)(e).
The court need not terminate the relationship between the parent and child if the court finds the child is over the age of ten and objects to the termination. Iowa Code § 232.116(3)(b). Samantha argues the trial court erred in failing to clarify Matthew’s opinion regarding the termination of his mother’s parental rights. Additionally, Samantha argues her rights should not be terminated because her absence was due to her commitment to the Julien Care Facility. See Iowa Code § 232.116(3)(e). Both of these exceptions to termination set forth in section 232.116(3) have consistently been interpreted as permissive, rather than mandatory. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993).

Because the juvenile court did not address either of these code provisions, and Samantha failed to bring the issues to the attention of the court in an Iowa Rule of Civil Procedure 1.904(2) motion, we find she has failed to preserve error on the issue. See In re A.H.M., 516 N.W.2d 867, 872 (Iowa 1994).

IV. Mark Sr.’s Parental Rights. A. Statutory Grounds.
Mark Sr.’s parental rights were terminated to his daughter, Mariah, under to section 232.116(1)(e). Like Samantha, Mark claims the State did not provide clear and convincing evidence that Mariah could not be returned home at the time of the termination hearing. We have previously discussed our conclusion that the children could not be returned to Samantha’s care at that time. The court was not presented with the option of placing Mariah in Mark Sr.’s custody due to his incarceration at the time of the termination proceedings. He is not scheduled to be released from prison until 2003.

B. Reasonable Efforts.
Mark Sr. also contends termination of his parental rights was wrong because the State failed to provide him with adequate services to reunite him with Mariah. The State has the obligation to make reasonable efforts, but it is the parent’s responsibility to demand services if they are not offered prior to the termination hearing. In re L.M.W., 518 N.W.2d 804, 807
(Iowa Ct.App. 1994). Generally, if services are not requested at the appropriate time, the issue is not preserved for review. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App. 1999).

Mark Sr. did not challenge the adequacy of services he received during the CINA proceedings. Furthermore, it would have been difficult, if not impossible, for the State of Iowa to provide Mark with reunification services while he was imprisoned in South Dakota. Nevertheless, the services Mark received while incarcerated, including parenting classes, drug rehabilitation, and post-incarceration career preparation, were directed at issues which prevented the return of his children. We conclude the reasonable efforts requirement was satisfied.

C. Mariah’s Best Interests.
Next, Mark points out it is within the juvenile court’s discretion to forgo termination of parental rights, even where the statutory grounds have been met, if termination would not serve the child’s best interests. Following his discharge from the service Mark used drugs heavily and engaged in criminal activity. As a result, he was imprisoned in March 2000 and does not expect to be released until 2003. Even after his release, there is no evidence to indicate he would be capable of providing a safe and stable home for Mariah. Issues related to the termination of parental rights must be reviewed with a sense of urgency. Mariah should not be made to suffer indeterminacy until her father is released from prison and proves he has become a responsible adult. We conclude termination of Mark’s parental rights will serve Mariah’s best interests.

D. Section 232.116(3)(a) and (3)(c) Arguments.
Like Samantha, Mark argues the juvenile court should have applied an exception to termination set forth in section 232.116(3). Unlike Samantha, we conclude Mark preserved this issue for appeal by filing a timely Iowa Rule of Civil Procedure 1.904(2) motion.

First, Mark argues the juvenile court should have applied the exception to termination provided when a relative has custody of the child. See Iowa Code § 232.116(3)(c). Second, Mark claims the juvenile court should have refused to terminate based on the close relationship he had with Mariah. See Iowa Code § 232.116(3)(a). As previously stated, the exceptions set forth in 232.116(3) have been interpreted as permissive, rather than mandatory.

At the time of the termination hearing, Mariah, and Mark’s other two children with Samantha, were residing with his mother. The juvenile court found that Mark’s mother had bonded with the children and that they should be allowed to remain in her custody for legal adoption. While we agree with Mark’s contention that because Mariah is in his mother’s custody, it was within the juvenile court’s discretion to forgo termination of his parental rights, we also conclude the juvenile court’s decision to terminate Mark’s parental rights was likewise within its discretion. As noted earlier, after Mark was discharged from the Marine Corps he used and sold drugs. He has been unavailable to Mariah as a parent for more than two years because of his imprisonment. We agree with the juvenile court’s determination that Mark’s parental rights should be terminated even though Mariah is in his mother’s custody.

Mark also contends the strong relationship he shares with Mariah deserves special consideration and should be weighed against the State’s efforts to terminate. See Iowa Code 232.116(3)(a). Mark began using methamphetamine at about the same time Mariah was born. Mariah was three when Mark was incarcerated and will be almost six when Mark is released. With emphasis properly focused on Mariah’s best interests, we conclude the trial court properly found Mark’s parental rights should be terminated.

AFFIRMED.

VAITHESWARAN, J. concurs; SACKETT, C.J., concurs in part and dissents in part.

SACKETT, C.J. (concurs in part and dissents in part)

I concur in part and dissent in part. I agree with the majority that Samantha’s parental rights should be terminated to Mariah. I would not terminate the parental rights of Mark Sr. Rather, I find the facts here dictate the application of Iowa Code section 232.116(3)(a) (1999), which provides the court need not terminate if the child is in the custodial care of a relative. The decision as to whether this section is utilized should be governed by the particular circumstances of the case. Factors that should weigh on that decision are, first and foremost, whether the child’s interests is better served by termination. Other factors that may weigh on the decision are (1) the circumstances of the caregiver; (2) the caregiver’s attitude about whether parental rights should be terminated; (3) whether the caregiver can remain in that position as long as necessary; (4) the relationship between the caregiver and the parent; (5) whether the parent is making progress toward correcting the problems that led to the children’s removal; and (6) whether the caregiver is in need of financial assistance and there is evidence that the parent can or will in the future be able to supply it.

At the time of the termination hearing in August and September of 2001, Mark Sr. had completed a twenty-four hour parenting course, a six-hour anger management course, and an eleven-hour course in self-esteem. In addition, he had completed 239.5 hours of a 500-hour residential drug abuse program. This is evidence of his efforts to correct those problems that rendered him incapable of assuming custodial care of the child when she was removed from her mother’s care.

Mark Sr. was enrolled in a plumbing apprenticeship and had completed 1503 hours of the 8000-hour program. This plumbing apprenticeship was certified through the United States Department of Labor, and hours earned in prison were transferable, allowing Mark Sr. to continue the apprenticeship upon release from prison. Mark Sr.’s good conduct time-release date is projected to be March 29, 2003.

I recognize, as the majority points out, the problems Mark Sr. has had and that the child is bonded to his mother. What is unclear to me is whether it is Mark’s mother’s intention to adopt Mariah or to instead be named guardian and retain custody under a permanency order. Everyone agrees Mark Sr.’s mother gives Mariah excellent care. Whichever method of custody, the record indicates no intention on her part to disassociate herself from Mark Sr. upon his release or to isolate him from her. Therefore, although the State argues to the contrary, I do not believe a sense of urgency is a driving force in these proceedings.

Mark Sr.’s mother is in telephone contact with him once a week. She testified that he is concerned about the child. Mark Sr.’s mother and Samantha both testified that Mark Sr. was a good parent to all the children and was helpful with them. There is no evidence that Mark Sr. has been physically or sexually abusive to the children. The record does not indicate that there is any animosity between Mark Sr. and his mother.

Although the record is clear that Mark Sr.’s mother has been very involved in Mariah’s life, that she is bonded to her, and that she wants to keep her in her care, unfortunately the record does not indicate what her life circumstances are. The record does not tell me her age, her employment (other than that she works a second shift), or the state of her health. There is no evidence that she is able to support Mariah now or to her adulthood without financial assistance. The minimal evidence of the circumstances under which she took Mariah, her continuing contact with her son, and her belief that he is a good parent indicates to me she may be more interested in being her guardian than her adoptive parent.

There is no evidence Mark Sr. put Mariah at risk while she was in his care. The only evidence shows him to be a good and concerned caregiver. This evidence, together with Mark Sr.’s rehabilitative efforts and his continuing contact with his mother and Mariah, along with the fact that this mother has not asked to have his parental rights terminated and my belief that he will be in a position in the next several years to contribute to Mariah’s financial support, indicate to me it is in the child’s interest not to terminate his parental rights because the child is in the care of his mother. A major factor in my decision is the fact that termination cuts off a parent’s duty to support his or her children. Frequently, where future parents or guardians are not of sufficient financial means, the State is required to provide for or subsidize Mariah’s care. While the State, in advocating termination, is understandably more concerned about the children’s safety than their financial support, it does not seem advantageous to children or to society to relieve a parent who is able to contribute to a child’s financial support from providing that support. I do not believe it to be in the interest of the child or of society to terminate the parental rights of an individual who poses no risk to the child but who is unable to care for or temporarily unable to provide support for the child. If custody can be arranged whereby the parent presents no risk to the child, but his rights to the child, and thus obligations, remain intact, I believe we should strive for that arrangement.

Mark Sr., in all probability, will be gainfully employed after his release. He, not his mother or the State, should support Mariah to adulthood. While I would not terminate, I would remand for a permanency order to place Mariah in Mark’s mother’s care and assure that she would not be released to Mark Sr.’s custody unless he was suitable to care for her. I would not relieve him of his duty to support.