No. 4-895 / 04-1844Court of Appeals of Iowa.
Filed January 26, 2005
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother and father appeal from the termination of their parental rights. AFFIRMED.
Julie De Vries of the De Vries Law Office, L.L.C., Des Moines, for appellant-father.
Heather Dickinson, West Des Moines, for appellant-mother.
Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee-State.
Victoria Meade, West Des Moines, guardian ad litem for minor children.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
HECHT, J.
Donella is the mother of Skai, born January 23, 1997, Anthony Jr., born October 19, 2000, and Ar-Keavius, born July 31, 2002. Anthony Sr. is the father of Anthony Jr. and Ar-Keavius. Marcus is the father of Skai, and his parental rights are not at interest in this appeal. Skai and Anthony Jr. first came to the attention of the Department of Human Services (DHS) in 2001 when it was discovered Donella and Anthony Sr. were smoking marijuana in Anthony Jr.’s presence. Skai later tested positive for cocaine, and the children were adjudicated to be in need of assistance (CINA) based on their exposure to drugs. All three children were removed from their parents’ care in July of 2002, but they were later returned when the CINA case was closed.
The children were again removed in September of 2003 after they were left alone in the middle of the night and one-year-old Ar-Keavius became trapped between a bed and a wall. At the time of removal, Skai and Anthony Jr. tested positive for cocaine. Anthony Jr. and Ar-Keavius were placed in foster care, while Skai was placed with her father. The children were again adjudicated CINA pursuant to Iowa Code sections 232.2(6)(c)(2) and (o) (2003).
On July 9, 2004 the State filed a petition seeking to terminate Donella’s and Anthony Sr.’s parental rights. Following a hearing on the petition, the court granted the petition and terminated their parental rights under sections 232.116(1)(d), (e), and (f). Both Donella and Anthony Sr. appeal from this ruling.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
Anthony Sr.
Anthony Sr. maintains first that termination is not in the children’s best interests. Second, he asserts counsel was ineffective in (1) failing to file an interlocutory appeal on the denial of his motion to appear at the termination hearing, and (2) failing to raise the issue of relative placement.
Upon our de novo review of the record, we find termination of Anthony Sr.’s parental rights is in the best interests of Anthony Jr. and Ar-Keavius. Despite a long involvement with DHS, Anthony Sr. has made little progress toward reunification. As noted, Anthony Sr. has a history of exposing his children to his drug use. Although he now admits to a drug problem, he has not put himself in a position that would enable him to regain custody of the children within any reasonable timeframe. At the time of the termination, he was incarcerated on child endangerment charges and consequently unavailable to parent the children. He only testified to a hope of release in January of 2005. We concur with the juvenile court’s conclusion that termination is in the best interests of Anthony Jr. and Ar-Keavius.
In addition, we reject Anthony Sr.’s claims of ineffective assistance of counsel. First, Anthony Sr. was allowed to testify telephonically at the termination hearing. There is no claim he was denied the ability to present any sort of evidence due to his physical absence from the trial. Furthermore, in In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.App. 1991), we rejected a parent’s contention he was denied due process when the juvenile court overruled his motion to be transported to the termination hearing.
We also conclude counsel was not ineffective in failing to “request that [DHS] explore the appropriateness of the [father’s] relative as placement.” Even where a relative has placement of the children, the decision to terminate is within the discretion of the court. We conclude that regardless of the placement of Anthony Sr.’s children, termination was the appropriate response. Counsel was not ineffective in failing to pursue this issue.
Donella
Donella asserts the State did not prove by clear and convincing evidence the requisites to termination under sections 232.116(1)(d) and (e). She further claims termination of her parental rights to Skai was unnecessary in that Skai was in relative placement. Finally, she argues termination is not in the children’s best interests.
We conclude the juvenile court properly terminated Donella’s parental rights to all three children under section 232.116(1)(d). First, it is undisputed the children previously had been adjudicated CINA based a finding of abuse or neglect by Donella. Moreover, clear and convincing evidence supports that Donella was offered services but the circumstances which led to adjudication continue to exist. Donella and the children have been involved with the juvenile court system for much of the children’s lives. Despite the wealth of services offered and opportunities available to Donella to prove her ability to parent the children during the current and previous CINA case, she has failed to meet DHS expectations. In fact, she has had little contact with the children, either in-person, by telephone, or by letter. For these reasons, we also conclude termination was in the best interests of the children, regardless of their placement with a relative. Donella has shown minimal interest in the children, was incarcerated at the time of the termination hearing with an uncertain release date, and has not demonstrated the kind of parenting skills that would protect the children from adjudicatory harm if returned to her care. We therefore affirm the termination of Donella’s parental rights.
AFFIRMED.