Opinion
No. 5-558 / 05-0670
Filed July 27, 2005
Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.
Mother appeals the order terminating her parental rights to her daughter, and maternal grandmother appeals the order placing guardianship of the child with the Iowa Department of Human Services. AFFIRMED.
Ryan J. Mitchell of Orsborn, Baurle, Milani Grothe, L.LP., Ottumwa, for appellant-mother.
Mary Baird Krafka of Krafka Law Office, Ottumwa, for appellant-grandmother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, and Robert Bozwell, County Attorney, for appellee State.
Thomas Anders of Anders Law Office, Centerville, for minor child.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
Crystal appeals the juvenile court's order terminating her parental rights to her daughter Millie born in October of 2001. Crystal's mother Nancy separately appeals that part of the juvenile court's order that placed guardianship of Millie with the Iowa Department of Human Services (DHS). We affirm.
I. Background Facts and Proceedings
Millie first came to the attention of DHS in July of 2003 following a report that her mother, Crystal, was using marijuana and methamphetamine in Millie's presence. A drug test later revealed that Millie had been exposed to marijuana. Crystal tested positive for use of amphetamines, methamphetamines, cocaine, and marijuana. As a consequence, Millie was removed from Crystal's care in August of 2003 and placed with Crystal's mother, Nancy. Millie was then adjudicated a child in need of assistance (CINA) in October of 2003. Despite the numerous services offered to Crystal by DHS to help her address her substance abuse and mental health issues, Millie has not returned to the care of Crystal since her removal in August of 2003.
Crystal started smoking marijuana at age eight, and first used methamphetamine at age twelve. Crystal was admitted to drug and alcohol treatment programs four times between the ages of twelve and twenty-two. Crystal also has a history of mental illness and has been diagnosed with depression, anxiety, multiple personality disorder and schizophrenia.
When this case first came to the attention of DHS, Crystal was on probation for a conviction of theft and forgery. In June of 2004 Crystal tested positive for marijuana use and also stole syringes from a pharmacy. As a consequence, her probation was revoked. At the time the final hearing was held on the State's petition to terminate Crystal's parental rights she was residing in a residential correctional facility in Ottumwa, Iowa.
Millie remained in Nancy's care until, in July of 2004, she was removed pursuant to an ex parte order for temporary removal. Millie has remained in foster care since that time. In November of 2004, the State filed a petition to terminate Crystal's parental rights. In April of 2005, following hearing dates occurring in February, March, and April, the juvenile court terminated Crystal's parental rights pursuant to Iowa Code section 232.116(1)(h) (2003) (child is three or younger, CINA, removed from home for six of last twelve months, and cannot be returned home). The juvenile court order also stated that legal custody and guardianship of Millie shall remain with DHS. Crystal appeals the termination of her parental rights and Nancy appeals the continuation of custody with DHS.
The juvenile court order also terminated Millie's father's parental rights pursuant to this provision. He does not appeal this order.
II. Scope of Review
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). The State must prove the grounds for termination by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 831 (Iowa Ct.App. 1997). Our primary concern is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Issues A. Crystal's Appeal 1. Statutory Grounds
Crystal argues that clear and convincing evidence does not support the termination of her parental rights pursuant to Iowa Code section 232.116(1)(h). Of the four elements of proof required by this subsection, only the last is disputed. Although not entirely clear from her petition on appeal, it appears Crystal contends that her cooperation with court-ordered services precluded the State from demonstrating that Millie cannot be returned to her care. We disagree.
At the termination hearing the State introduced evidence indicating that Crystal had a long history of both substance abuse and mental illness. Crystal has been offered numerous services to help her cope with and recover from these problems. However, the evidence indicates that she has been unsuccessful, choosing instead to continue to abuse illegal drugs. This conclusion is most aptly demonstrated by the fact that Crystal chose to use drugs and chose to steal syringes, while on probation, nearly a year after Millie had been removed from her care. These acts predictably resulted in the revocation of Crystal's probation and her incarceration. Clearly, Crystal's past behavior indicates that she cannot put the needs of Millie before her own desires. See In re T.B., 604 N.W.2d 660, 662 (Iowa 2000) ("The future can be gleaned from evidence of the parents' past performance and motivations.").
Crystal also asserts that if she is given more time to cooperate with DHS services Millie could be returned to her. Iowa Code section 232.116(1)(h) establishes a six-month standard during which a parent may prove her ability to care for her child, and once that time frame is met, the case is viewed with a sense of urgency. See In re C.K., 558 N.W.2d 170, 175 (Iowa 1997); In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) ("It is unnecessary to take from the children's future any more than is demanded by statute."). The State introduced evidence indicating that a significant amount of time was needed before Crystal would be able to get her drug addiction under control, which led the juvenile court to find, "Crystal is simply no closer to having Millie returned today than she was when she was first removed." Upon our review, we agree. Consequently, we conclude the grounds for termination under Iowa Code section 232.116(1)(h) were demonstrated by clear and convincing evidence.
2. Best Interests
"Even if the statutory requirements for termination are met, the decision to terminate must still be in the best interest of the [child]." In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). Crystal contests the juvenile court's conclusion that the termination of Crystal's parental rights was in Millie's best interest. Crystal claims she has "bonded with her child" so that it is not in Millie's best interest to have Crystal's parental rights terminated.
As previously noted, Crystal was incarcerated at the time of the termination hearing. During this incarceration, Crystal's contact with Millie was very limited, which had a negative effect on Crystal's bond with Millie. See In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994) (Noting an incarcerated parent is responsible for the results of their incarceration). Moreover, in the year leading up to Crystal's incarceration, while Millie was living with Nancy, Crystal chose to put her own wants before Millie's needs by engaging in drug use while on probation. There is little evidence in the record which would reflect a strong bond between Millie and Crystal.
Millie has been removed from Crystal's home since August of 2003, and removed from her grandmother's home since July of 2004. She has had her stability interrupted by the serious problems in both her mother's and grandmother's lives. See In re Interest of S.V.G., 496 N.W.2d 262, 264 (Iowa Ct.App. (1992) (stating that children deserve stability). Millie can no longer wait for responsible parenting from Crystal. See In re L.L., 459 N.W.2d 675, 677 (Iowa 1990). It was in Millie's best interest for Crystal's parental rights to be terminated.
B. Nancy's Appeal
Nancy asserts that sufficient evidence exists to place guardianship of Millie with her and that it is in Millie's best interest to be placed with Nancy. Our review of the record reveals that Nancy had custody of Millie from August of 2003 until July of 2004, when Millie was removed from Nancy's care pursuant to an ex parte order for temporary removal. This removal order was made in response to an incident that occurred at a Wal-Mart parking lot in Ottumwa when, on a warm day in July, Nancy left Millie in a locked car with the engine running for nearly an hour while Nancy shopped. This incident alone raises serious concerns as to whether Nancy can adequately and responsibly care for Millie. Moreover, this incident becomes of even greater concern when it is considered in conjunction with the following statement of the psychologist who performed a psychological assessment of Nancy: "[Nancy] does have many personality characteristics which may well make it rather challenging for her to prioritize the need of a child over her own. . . ."
Yet, the record contains even more information reflecting negatively on Nancy's ability to care for Millie. For instance, the record indicates that DHS has long harbored concerns regarding Nancy's ability to care for Millie because of Nancy's history of drug abuse and mental illness as well as her pattern of failing to be honest and forthcoming with DHS. Nancy also lives with a paramour who has a long history of substance abuse and has been convicted of operating a motor vehicle while intoxicated on at least five occasions. In addition, a child and family resource specialist overseeing Millie's progress testified that she did not see a bond between Nancy and Millie. Finally, and most importantly, we wholeheartedly agree with the following findings of the juvenile court:
The best evidence of [Nancy's] parenting ability is the fruits that have grown through her parenting of [her] daughter. Crystal has a substance abuse history dating back to age eight, she has failed at numerous substance abuse treatment programs, she was sexually abused while in [Nancy's] care, and she is currently in a residential correctional facility.
To this laundry list, we would add the fact that Nancy admitted to being a drug dealer while raising her children, and that both Crystal and Nancy admitted that Nancy has smoked marijuana with Crystal. Consequently, we join in the juvenile court's conclusion that "[t]his track record does not bode well for Millie having a bright future if she was placed in [Nancy's] care. . . ." See In re T.C., 522 N.W.2d 106, 108 (Iowa Ct.App. 1994) (Suggesting that in assessing what the future will hold for a child if placed in the care of a party, we look to the past performance of that party, which is indicative of the quality of care that party is capable of providing); see also In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (recognizing that the interest in family integrity can be forfeited by conduct). We accordingly affirm the juvenile court order terminating Crystal's parental rights and placing guardianship of Millie with the DHS.