No. 4-548 / 04-0818.Court of Appeals of Iowa.
August 26, 2004.
Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.
A father appeals the termination of his parental rights.AFFIRMED.
Tomas Rodriguez, Cedar Falls, for appellant-mother.
Charles Brown, Jr., Ryan, for appellant-father.
Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Tom Ferguson, County Attorney, and Steven Halbach, Assistant County Attorney, for appellee-State.
Linnea Nicol, Juvenile Public Defender, Waterloo, guardian ad litem for the child.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
VAITHESWARAN, J.
Stephon Jr. (D.O.B.: 8/29/02) was removed from his parents’ home at the age of six months after it was discovered that his mother was smoking crack cocaine in his presence. His mother’s and father’s parental rights were terminated and Stephon Jr.’s father, also named Stephon, filed an appeal.[1]
Stephon raises constitutional challenges to the expedited nature of the appeal proceedings. He additionally contends the State failed to prove its case for termination under Iowa Code section 232.116(1)(h) (2003) (requiring proof of certain uncontested elements and proof by clear and convincing evidence that child cannot be returned to custody of child’s parents). The Iowa Supreme Court has resolved the constitutional issues Stephon now raises. See In re L.M., 654 N.W.2d 502, 505-506 (Iowa 2002); In re C.M., 652 N.W.2d 204, 210, 212 (Iowa 2002). Therefore, we will focus only on whether the State satisfied its burden of proof under Iowa Code section 232.116(1)(h). Our review of this issue is de novo. Iowa R. App. P. 6.4.
At the time of Stephon Jr.’s removal, his mother admitted she used cocaine. She stated Stephon also used cocaine but later retracted this statement. Stephon denied the allegation. As the case progressed, the Department of Human Services acknowledged scant evidence of drug use by Stephon but declined to recommend him as a placement option in light of his “enabling” conduct.[2] Specifically, staff cited his refusal to follow a Department directive to move out of the home which he shared with the child’s mother, her alcoholic parents, and others.
The record supports the Department’s recommendation. At the termination hearing, Stephon admitted he had not done anything to disassociate himself from the mother because he wanted to remain with her and “be supportive.” He stated, “I never had given up on her. I think she can still do it.” These statements were made in the face of evidence that the mother had a long-standing drug abuse problem that led to the termination of her parental rights to two older children, as well as evidence that she was presently refusing to remain substance-free.
Stephon’s continued relationship with the child’s mother and her substance-abusing family lent credence to the Department’s opinion that reunification would place his son in harm’s way. Notably, Stephon was not without other housing options. He owned a home in Springfield, Illinois and testified at the termination hearing that he would move there if Stephon Jr. were returned to him. This overture came months too late. A service provider testified that she was aware Stephon had a home in Illinois. She told Stephon he had a better chance of recovering his son if he separated from the child’s mother. In her words, Stephon responded that “he and [the child’s mother] are a unit and they do everything together and don’t even go there.”
At the termination hearing, Stephon suggested that a move to Illinois was not a viable option during the early stages of the case because it would have jeopardized his chances of reunification with his son. However, there is no evidence that Stephon raised this concern with the Department or with the district court prior to the termination hearing. To the contrary, the Department’s case manager testified that Stephon “had the opportunity to go back to Illinois at any point and maintain his household. And there’s never been any restriction placed on him that he couldn’t, you know, demonstrate that ability to live independently from someone who was involved with substances.” She went on to affirm that if Stephon Jr. had been placed with his father in Illinois, the Department would have been empowered to “arrange for suitable supervision,” with court approval.
Under these circumstances, we are compelled to agree with a psychologist’s assessment that “it is not likely that Stephon Sr. would adequately protect Stephon Jr. from exposure to [the mother’s] substance abuse,” notwithstanding his independent “ability to responsibly care for Stephon Jr.”
We conclude the State satisfied its burden of proving that Stephon Jr. could not be returned to his father.
AFFIRMED.