Opinion
No. 5-084 / 04-2015
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
A mother and father separately appeal from the juvenile court order terminating their parental rights to their two sons. AFFIRMED ON BOTH APPEALS.
Patrick W. O'Bryan, Des Moines, for appellant-father.
Maria Ruhtenberg of Ruhtenberg Law Office, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee.
Kristin Parks, Des Moines, guardian ad litem for minor children.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
A mother and father separately appeal from the juvenile court order terminating their parental rights to their two sons. The mother contends the court should have declined termination under Iowa Code section 232.116(3) (2003) and termination is not in the best interest of the children. The father contends there is insufficient evidence supporting termination. We affirm on both appeals.
Background facts and proceedings
Patricia and Timothy Sr. are the parents of Timothy Jr., age twelve, and Kyle, age eleven. The children were first removed in January 2002 by parental consent because the parents' drug usage resulted in their inability to parent the boys. The parents made progress and the children were returned home in February 2003. In August 2003 they were removed again following their parents' relapse and failure to participate in numerous court-ordered services. The children remained in foster care from August 2003 through the time of the termination hearing in November 2004.
In September 2004 the State petitioned to terminate both parents' rights under Iowa Code sections 232.116(1)(d), (e), (f), and (l) (2003). After the close of evidence in the termination hearing, the State successfully moved to amend its petition to delete section 232.116(1)(e) from its allegations concerning Patricia. The juvenile court terminated both parents' rights under sections 232.116(1)(d), (f), and (l).
Scope and standards of review
The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). We give weight to the findings of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). The grounds for termination must be proved by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). "Clear and convincing evidence" means there are no serious or substantial doubts as to the correctness of conclusions of law drawn from the evidence. C.B., 611 N.W.2d at 492. When the juvenile court terminates parental rights on more than one statutory ground, we need find grounds to terminate under only one of the sections cited by the juvenile court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996).
Disposition
Patricia.
Patricia seeks reversal of the termination, but does not challenge any of the statutory grounds for termination cited by the juvenile court. Any challenge to the statutory grounds is waived. See Iowa R. App. P. 6.14(1)( c). Instead, she contends termination was not in the children's best interest and the court should have declined termination under sections 232.116(3)(b) and (c). The State contends error was not preserved on the section 232.116(3) claims because they were not raised in the termination hearing or decided by the juvenile court and no motion to amend or enlarge was filed. "Even issues implicating constitutional rights must be presented to and ruled upon by the district court in order to preserve error for appeal." In re K.C., 660 N.W.2d 29, 38 (Iowa 2003); see In re J.J.S., Jr., 628 N.W.2d 25, 29 (Iowa Ct.App. 2001) (noting motions under Iowa Rule of Civil Procedure [1.904(2)] may be used in termination proceedings).
The record reveals some brief statements that the boys have a bond with their parents and would prefer reunification over termination. It also contains evidence the boys have a bond with their foster mother and would prefer to remain with her if the court terminated their parents' rights. There was no mention of section 232.116(3) at the termination hearing or in the court's order terminating Patricia's and Timothy Sr.'s parental rights. Patricia did not file a rule 1.904(2) motion to obtain a ruling. We conclude these issues were not preserved for our review. Even had they been preserved, we would not find the circumstances of this case justify declining to terminate Patricia's parental rights. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App. 1997) (stating application of section 232.116(3) is permissive and within the sound discretion of the juvenile court).
At the time of the termination hearing, Patricia had only recently begun complying with the case permanency plan and making some minimal progress toward reunification. Given her past history of relapse into drug use, we are not convinced Patricia has demonstrated sufficient change or consistency of change over a period of more than a few months to convince us the boys could be returned to her care in the foreseeable future. The boys could not have been returned to her care at time of the hearing without subjecting them to various adjudicatory harms. We agree with the juvenile court the children's "interests . . . would be served by terminating the parental rights."
Timothy Sr.
Timothy contends there was insufficient basis to terminate his parental rights based on his very recent progress toward addressing case permanency plan requirements. The juvenile court found:
Since the time of the second removal, the parents' individual and collective responses to the services offered has been inconsistent, self-centered, and clearly not in the best interests of the children. The father's culmination of inconsistency occurred in the early part of this year.
In January 2004 the father was jailed for probation violation and was sentenced to serve a portion of his jail term at the Fort Des Moines Correctional Facility located in the City of Des Moines, Iowa. At the time of the termination hearing, [the father] testified that in January 2004 he went on "escape status" from the Fort Des Moines facility and that he remained on "escape status" until he was arrested some five (5) months later. He testified that during the time he was on "escape status" he did not comply or attempt to comply with the services being offered by DHS which were intended to reunite him with his children. He further testified that he was eventually arrested and was sentenced to a prison term. He completed his prison term and was released from prison a short time before this termination hearing.
When the father was running around enjoying his "freedom," needless to say he was taking away from precious time which should have been spent in efforts to be reunited with his children. He knew or should have known that when he was eventually arrested, his time of incarceration would result in additional time being separated from his children, yet he persisted in being a fugitive. It is easy to conclude from the foregoing that the father obviously placed his own interests above those of his children. To his credit, while he was in prison, [the father] did participate in substance abuse treatment and is currently involved in aftercare. Also, while he was in prison, he did write letters to his children in an attempt to maintain some contact. His visitation contact with the children one (1) week prior to the termination hearing was his first visitation with the children in almost a year.
Clear and convincing evidence in the record supports these findings and we adopt them as our own.
Although Timothy Sr. has demonstrated recent positive changes in his life, his record of relapsing into drug use after a short time and the lack of sobriety demonstrated over a period of time prevents us from considering returning the children to his care within a reasonable time. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (concluding a parent's past performance is indicative of the quality of care he is capable of providing). "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." In re A.C., 415 N.W.2d 609, 613 (Iowa 1987), cert. denied sub nom A.C. v. Iowa, 485 U.S. 1008, 108 S. Ct. 1474, 99 L. Ed. 2d 702 (1988). At some point, the rights and needs of the child rise above the rights and needs of the parents. J.L.W., 570 N.W.2d at 781. We have reached that point in this sad case. The children cannot risk continued uncertainty. They need and deserve a secure, stable home environment. We hope one can be found for them. We find clear and convincing evidence supports termination of Timothy Sr.'s parental rights under Iowa Code sections 232.116(1)(f) and (l).