Opinion
No. 1-496 / 00-1637
Filed September 26, 2001
Appeal from the Iowa District Court for Polk County, Constance Cohen, District Associate Judge.
Father of three of the children and the mother appeal juvenile court's termination of their parental rights. AFFIRMED.
Marla Suddreth and Cathleen J. Siebrecht of Borseth, Genest Suddreth Law Office, Altoona, for appellant-father of T.N., J.N., and R.N.
Amy Kepes, Altoona, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Cory McClure, Assistant County Attorney, for appellee-State.
Thomas McCann, Des Moines, for minor children.
Michael Miller, Des Moines, for father of K.D.
Considered by Huitink, P.J., and Miller and Hecht, JJ.
The father and mother appeal separately from the juvenile court ruling terminating their parental rights. The mother, Chonte, contends the court erred in (1) ordering termination of her parental rights in two of her four children, because permanency would better promote the children's best interest when one is in a permanent placement with her father and the other is in placement with relatives, and (2) finding reasonable efforts were provided to reunify her with the four children. The father, Johnney, argues that the court erred in (1) terminating his parental rights to his three children, because the State failed to provide him with reasonable efforts, (2) finding there was clear and convincing evidence that termination of his parental rights was in the best interest of the children, (3) not granting him additional time for reunification, and (4) terminating his parental rights to one of his children, as she was placed with relatives. We affirm.
I. BACKGROUND FACTS
Chonte is the biological mother of Kaneesha (Kay), born March 26, 1994, Teyjionna (Tey), born December 30, 1995, RayJhaun (Ray), born November 7, 1997, and Jon'Tavene (Jon), born September 16, 1998. The father of Kaneesha is Kenny. The putative father of Tey, Ray and Jon is Johnney.
Chonte is also the mother of Tyzhanae (Ty) born January 16, 2000, who is not a child in interest in the present termination action.
The children first came to the attention of the State in April 1999 when they were removed from the custody of their mother. Chonte had left the children with their grandmother the day before and promised to return that evening to pick them up. When she did not return to pick them up that evening, and had not returned for them by the next afternoon, their grandmother called the police because she was no longer able or willing to take care of the children. The State filed a child in need of assistance (CINA) petition in April 1999 based on Iowa Code sections 232.2(6)(c)(2) and (6)(n) (1997).
In May 1999 the court adjudicated the children to be in need of assistance pursuant to the allegations in the petition. The court agreed to place the children in the custody of their mother under the supervision of the Department of Human Services (DHS) so long as the mother complied with Gordon's Treatment Program. Chonte and the children were admitted to Gordon's in Sioux City, Iowa. The placement, however, was short lived and Chonte was unsuccessfully discharged in June 1999 at which time the children were once again removed from her care. Kay and Tey were placed in the temporary legal custody of their maternal aunt Rosemary and uncle Jack while Ray and Jon were placed in the temporary legal custody of DHS for foster care placement. Since the date of the second removal on June 23, 1999 the children have remained in out-of-home placement with no trial periods at home.
Shortly after this second removal Chonte was arrested for a probation violation. At the CINA disposition hearing on July 2, 1999 Chonte was ordered not to use alcohol or drugs unless prescribed as she had tested positive for illegal substances and was pregnant at the time of the hearing. Other services ordered by the juvenile court at that time included protective day care, therapy, substance abuse treatment, drug screens, visitation, substance abuse evaluations, psychosocial parenting evaluations, and other family centered services designed to reunite the family. The court also specifically notified the parties that failure to identify any deficiency in services or to request additional services might preclude them from challenging the sufficiency of the services in any termination proceeding.
In the July 1999 order the court also ordered Johnney, the putative father of Ray, Tey, and Jon, to make his intentions in relation to his three children known. Since November of 1998 Johnney had been serving a ten-year sentence at the Correctional Facility in Fort Dodge. He had not had any contact with his children since at least April 23, 1999, nor had he provided any financial support since his incarceration. The court also granted the request for withdrawal of Johnney's court appointed counsel for his failure to file a financial affidavit and failure to contact his counsel at that time. Johnney did eventually leave a message with DHS in February of 2000 stating he was concerned for his children. However, as of March 2000 he had not had any direct contact with DHS.
After her arrest for probation violations in June 1999, Chonte underwent a ninety-day shock program at Mitchellville, after which she was placed at the Women's Residential Correctional Facility in Des Moines in the intense supervision program. Limited visitation began on November 24, 1999, during Chonte's time at the Residential Facility. This was the first contact she had with the children since June 17, 1999. Chonte failed to show for visits scheduled on November 30, December 1, and December 13, 1999. She excused these absences with reports of lack of transportation or oversight. However when rescheduling was offered she declined. During the visitations which did take place between November 24, 1999 and February 2, 2000 Chonte's expectations of the children were described by the visitation supervisor as unrealistic. It was further noted that she failed to notice when the children engaged in unsafe behavior and the visitation supervisor had to repeatedly intervene to keep the children out of harm's way. Chonte apparently would be easily distracted by one child and lose all sense of what the others were doing and often failed to respond to the children's attempts to engage her.
Prior to this time Kay had been transitioned into her father's home in October of 1999 while Tey remained with her aunt and uncle.
At the December 29, 1999 review hearing the children were confirmed to be children in need of assistance with court aid required. Chonte was ordered by the court to participate in substance abuse treatment and provide urine specimens. Other services previously ordered were to continue. DHS was ordered to actively proceed with concurrent planning.
Chonte failed to meet certain requirements of the program at the Residential Facility, such as obtaining employment, and while there committed numerous rule violations. As a result she was sent to the Violator's Program at Mitchellville for an additional four to six months in February of 2000. Once released from the Violators Program she would again be required to participate in an intensive supervision program which would prohibit her from resuming care and custody of any of her children for at least another six to nine months.
Based on Chonte's request a new caseworker was assigned to the case in April of 2000. As of that time both Chonte and Johnney remained incarcerated while all of the children were settling in and transitioning well to their new homes. The State filed a petition to terminate the parental rights of both Chonte and Johnney on June 5, 2000. After the petition was filed Johnney contacted the judge to indicate his interest in his children, apparently able to overcome the hurdles which he claimed had prevented him from contacting DHS prior to this despite the fact he had received papers regarding the May 1999 removal of his children.
A hearing was held before the court on the petition to terminate on July 10 and 12, 2000. On September 11, 2000 the court issued its order terminating Johnney's parental rights to his three children pursuant to Iowa Code sections 232.116(1)(d), (e) and (g) and terminating Chonte's parental rights to all four children pursuant to Iowa Code sections 232.116(1)(e) and (g). Both parties appeal from this termination.
Chonte argues that the juvenile court erred in (1) terminating her parental rights to Kay and Tey, because Kay is in permanent placement with her father, Tey is in relative placement, and permanency would better promote their best interests pursuant to Iowa Code sections 232.116(3)(a) and (c), and (2) finding that reasonable efforts were provided to her by the State. Johnney contends the court erred in (1) terminating his parental rights, because the State failed to provide reasonable efforts to him, (2) finding there was clear and convincing evidence that termination was in the children's best interests, (3) failing to grant him additional time for reunification and (4) terminating his parental rights to Tey, as she was placed with relatives. We will address each parent's claims separately.
II. SCOPE AND STANDARDS OF REVIEW
We review termination proceedings de novo. Iowa R. App. P. 4; In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.App. 1999). Accordingly, we review both the facts and the law and adjudicate rights anew. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993). We give weight to the factual determinations of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. Id. The grounds for termination must be proven 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. Id.
III. MERITS
The controlling standard in cases involving the termination of parental rights is the best interest of the children involved. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
We look to the child's long-range, as well as immediate, interests. We consider what the future holds for the child if returned to his or her parents. Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care the parent is capable of providing. Our statutory termination provisions are preventative as well as remedial. They are designed to prevent probable harm to the child.In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998) (citing In re C.M.W., 503 N.W.2d 874, 875 (Iowa Ct.App. 1993)). It is well established there exists a parental interest in maintaining the integrity of the family unit. Dameron, 306 N.W.2d at 745. This interest, however, is not absolute and may be forfeited by certain parental conduct. Id. The State has a duty to assure that every child within its borders receives proper care and treatment and it must intercede when parents abdicate that responsibility. Id. When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by that court to affirm the termination. S.R., 600 N.W.2d at 64.
A. Chonte
1. Best Interests of Kay and Tey
Chonte concedes that the elements of Iowa Code section 232.116(1)(e) were met with regard to Kay and Tey. However, she contends it is not in Kay or Tey's best interests to terminate her parental rights and the court should have continued the parent-child relationship pursuant to Iowa Code sections 232.116(3)(a) and (c). We have recognized that in addition to meeting the statutory requirements for termination set forth in section 232.116(1)(e) the termination must be in the best interest of the children. See In re C.W., 554 N.W.2d 279, 282 (Iowa Ct.App. 1996). Thus, termination is not mandatory upon finding the requisite elements in this section. Id.
Chonte notes that under Iowa Code section 232.116(3)(a) and (c) a court need not terminate parental rights if the court finds either "[a] relative has legal custody of the child" or "[t]here is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship." She points out that Kay and Tey were both in relative placements and both could have remained in those placements on a permanent basis without termination of her parental rights. Therefore, she argues, termination was not in the children's best interests.
As set forth above, at the time of termination Kay was residing with her biological father, Kenny, and his family and had been since October of 1999. The court found that Kenny was providing Kay with a safe, stable home and meeting her special needs. "Father and stepmother are ready, willing and able to provide Keneesha with a safe permanent home in which she can continue to thrive." Similarly, Tey had been residing with her aunt and uncle, Jack and Rosemary, for over a year at the time of termination. At the termination hearing they stated their preference for Chonte to have additional time to reunify with her children, but also stated that they were willing to adopt Tey if Chonte's parental rights were terminated.
We question whether this issue has been preserved for our review. The termination order did not address the section 232.116(3) issues of relative placement and closeness of the parent-child relationship raised by Chonte on appeal. The juvenile court noted the fact these two children had been placed in relatives homes and that these placements were going well. However it did not address what effect, if any, these section 232.116(3) factors had on its determination. Chonte did not file a motion to enlarge or modify the court's findings pursuant to Iowa Rule of Civil Procedure 179(b). An issue not presented in the juvenile court may not be raised for the first time on appeal. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct.App. 1994). Even issues of constitutional dimension may not be raised for the first time on appeal. See In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding procedural due process claim waived when raised for first time on appeal). By failing to file a 179(b) motion in juvenile court, Chonte waived this issue. Id.
If we were to address the merits of this issue, we would find the juvenile court did not abuse its discretion by not applying sections 232.116(3)(a) and (c) to save the parent-child relationships. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997); In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct.App. 1993). It is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, whether to apply section 232.116(3). J.L.W., 570 N.W.2d at 781. We must consider the children's long-range and immediate best interests. Id.
Chonte conceded that she is unable to handle all the children at one time and thus asked the court to return them gradually. She also acknowledged that it would be approximately six months before any of the children could be returned to her due to her incarceration at the time of the trial. To Chonte's credit she had made some improvements at the time of the termination. She had completed her GED, her attitude had improved, she had been more affectionate to her children and apologized to them, and she had set several praiseworthy goals for herself. However, we agree with the juvenile court that here, as in many of the cases of this nature which come before us, the ultimate issue is whether Chonte had done too little too late.
The children have been living in parentless limbo for over a year and need to have permanency and stability in their young lives. None of the children have strongly bonded with Chonte because of her repeated incarcerations which can only be attributed to her own problems with substance abuse and the poor decisions she has made throughout her life. She did not provide proper care for these children prior to her incarceration and has not demonstrated her ability to adequately parent during visitations. She did not seek visitation with her children until after her arrest, was uncooperative with services at times, and continued to violate her probation even though she was aware of the consequences of such actions and the effect they would have on her ability to have the children returned to her. The seriousness of Chonte's conduct, coupled with her refusal to cooperate fully with services designed to help remedy the problems that led to the children's removal, overcomes the presumption it is in the best interest of the children to be returned to her. See In re K.L.C., 372 N.W.2d 223, 229-30 (Iowa 1985).
Furthermore, even though Kay and Tey were in relative placements at the time of termination the juvenile court had discretion concerning what weight to give to such placements. The juvenile court's written judgment makes it clear the court was aware of and took into account the relative placements and still determined it was in the children's best interest to terminate Chonte's parental rights. We agree with the decision of the juvenile court.
We recognize there are cases where children in the care of relatives should not have their parental rights terminated, even when grounds for termination exist. In this case, however, we defer to the decision of the trial judge who is closer and more able to observe the parties and the actual family dynamics.In re D.E.D., 476 N.W.2d 737, 738 (Iowa Ct.App. 1991). Even where the children in interest are in relative placement, long-term foster care is not generally preferred to termination of parental rights. See e.g., In re R.L., 541 N.W.2d 900, 904 (Iowa Ct. App. 1995).
"While we recognize the law requires a `full measure of patience with troubled parents who attempt to remedy a lack of parenting skills,' Iowa has built this patience into the statutory scheme of Iowa Code chapter 232." In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (quoting In re A.C., 415 N.W.2d 609, 613 (Iowa 1987)). Therefore, this time period and patience are "limited because patience on behalf of the parent can quickly translate into intolerable hardship for the children." In re R.J., 436 N.W.2d 630, 636 (Iowa 1989). We find it is time for patience with Chonte to yield to the needs of her children to have stability and permanency in their lives. "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). "A child should not be forced to endlessly suffer the parentless limbo of foster care." In re C.D., 524 N.W.2d 432, 435 (Iowa Ct.App. 1994). "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).
There is not clear and convincing evidence such closeness of the parent-child relationship between Chonte and Kay or Tey exists that termination would be detrimental to either. We agree with the juvenile court that "[t]here is no compelling reason to extend [Kay and Tey's] parentless limbo."
Therefore, we find it was in Kay and Tey's best interests that Chonte's parental rights be terminated. Termination will be less detrimental than the harm that would be caused to them by continuing the parent-child relationship and the parentless limbo they have been forced to suffer over the last year due to Chonte's inability to put the interests of her children ahead of her own.
2. Reasonable Efforts
Chonte also argues on appeal that the juvenile court erred in finding reasonable efforts had been provided by the State, and thus her parental rights should not have been terminated. She requests that the petition to terminate her parental rights be dismissed, or that the termination order be vacated and the matter be remanded to the juvenile court. While the State has an obligation to provide reasonable reunification services, the parent has an equal obligation to demand other, different or additional services prior to the termination hearing. In re S.R., 600 N.W.2d at 65; see also In re J.L.W., 570 N.W.2d at 781 (stating challenges to services should be made when the case plan is entered). When the parent alleging inadequate services fails to demand services other than those provided, the issue of whether services were adequate is not preserved for appellate review. S.R., 600 N.W.2d at 65.
The only different or additional service Chonte requested prior to the termination proceeding was additional visitation with Ray and Jon while she was incarcerated at Mitchellville. Therefore this is the only issue relating to the reasonableness of the State's efforts toward reunification properly before us on appeal. She contends such visitation would have provided her with an opportunity "to parent and care for [Jon and Ray], at least on a trial basis, in an attempt to integrate the family." There was testimony from the DHS caseworker that when Chonte requested visitation with Ray and Jon at Mitchellville the caseworker told her that would not be her recommendation and visitation would start again when she "got out." Visitations did in fact start again when Chonte went to the residential facility in November of 1999. Visits occurred once a week, except for several occasions when Chonte failed to show up, and continued until she was once again incarcerated on February 3, 2000.
"Visitation between a parent and child is an important ingredient to the goal of reunification." In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.App. 1996). However, it is only one element in what is often a comprehensive, interdependent approach to reunification and the nature and extent of visitation still continues to be controlled by the best interest of the children. See id. If services directed at removing the risk or danger responsible for limited visitation have failed to achieve their objective, increased visitation would most likely not be in the children's best interests. A decision to limit visitation can be justified by the mother's "poor overall progress" in resuming custody of her children. Id.
Here Chonte did not initially seek out visitation after the second removal of her children from June 17 through June 28, 1999. She did not request visitation until after she was incarcerated on June 28. When visitation was reinitiated at the Residential Facility in November she missed the first three of the four scheduled visits and expressed no desire to reschedule them. When she did begin to show up for the weekly visitations it was noted by the visitation supervisor that Chonte often had unrealistic expectations of the children and did not notice when they engaged in unsafe activities which required the visitation supervisor to intercede in order to keep the children safe. Furthermore, these visitations were fairly short lived, continuing only until February of 2000, when Chonte was once again incarcerated due to her numerous probation violations.
Based on the limited interest Chonte initially showed in having visitation with her children, the limited parenting skills she was able to demonstrate during the visitations that did occur, and the poor overall progress she was making in resuming custody of her children based on her repeated probation violations, substance abuse problems, and subsequent incarcerations, increased visitation would not have been in the best interests of Ray and Jon. We agree with the trial court's determination that extensive services were provided and reasonable efforts were made to reunify this family. The lack of visitation with Ray and Jon during Chonte's incarceration at Mitchellville does not require or justify dismissal of the petition to terminate her parental rights, or vacation of the termination order.
B. Johnney
1. Reasonable efforts
Johnney contends the State never attempted or intended reunification between him and his three children, Tey, Ray, and Jon. He argues he was ignored throughout the proceedings and while both he and Chonte were incarcerated during the majority of these proceedings, she was offered extensive services while he was not. We disagree with Johnney's characterization of the State's efforts towards him in this case and find error was not preserved on this issue.
An application for appointment of counsel and financial statement were sent to Johnney at the Fort Dodge Correctional Facility on May 20, 1999, shortly after the CINA adjudication. In the letter it was made clear that he must fill out the financial statement prior to the next hearing if he desired continued representation. Johnney was represented when he received this documentation and if he did not understand it he had recourse through his attorney. He failed to fill out the financial statement prior to the next hearing on July 2, 1999 and thus at that hearing the court granted the request for withdrawal of his appointed counsel.
Johnney had apparently been appointed counsel prior to receipt of this letter as he was represented at the prior CINA hearing, although it is unclear from the record when exactly counsel was appointed.
These forms were finally returned on February 19, 2000. Johnney called the DHS on February 18, 2000 and left a message stating he was concerned for his children. This was the first contact he had with the DHS despite being notified nearly nine months earlier of the CINA adjudication and removal of the children from Chonte. There is no credible evidence in the record to show that Johnney requested additional services during the CINA proceedings or at any time prior to the initiation of the termination proceedings. When the parent alleging inadequate services fails to demand services other than those provided, the issue of whether services were adequate is not preserved for appellate review. S.R., 600 N.W.2d at 65. Therefore, we conclude the issue of whether the State provided adequate services and efforts at reunification to Johnney has not been preserved for appeal and is not properly before us.
2. Best Interests
Johnney next argues that the court erred in finding there was clear and convincing evidence that termination of his parental rights was in the best interest of the children. Based on our review of the entire record before us we disagree.
Johnney has a criminal history that includes assault with intent to commit sexual abuse and controlled substance violations. At the time of the termination proceeding he was serving a ten-year sentence for possession with intent to deliver crack cocaine and had been incarcerated since November of 1998. Johnney was twenty-four at the time of the termination hearing and since he became eighteen years of age two years was the longest period of time he had not been incarcerated. He testified he thought Ray would remember him but he doubted that Jon would. Jon would have been only one month old and Ray only one year old when Johnney went to prison. It is doubtful either child would remember him. Johnney had provided no support to his children since his incarceration and had not had any contact with any of his children, except for a few very recent conversations with Tey on the telephone, for over a year at the time of the termination hearing. He was apparently initially eligible for parole in June of 2000, however because he had not completed his substance abuse treatment he was not reviewed for parole at that time. He anticipated being considered for parole in October of 2000, and had a tentative release date of November 5, 2003.
Considering Johnney's past criminal record, his current incarceration, the uncertainty of any parole date, the length of time that has passed since he has had any meaningful contact with the children, and the apparent lack of interest he had shown in his children until the petition for termination was filed, we find termination of Johnney's parental rights to be in the best interest of his children. His parental rights were not terminated solely because he was in prison at the time of the termination proceeding.
There does not appear to be any significant bond between the three children and their father and continued foster care would only perpetuate the children's parentless limbo unnecessarily. We agree with the juvenile court's determination that the termination of Johnney's parental rights would be less detrimental than the harm that would be caused to them by continuing the parent-child relationship.
3. Additional time for reunification
Johnney further contends on appeal that the court erred in refusing to grant his request for additional time for reunification with his children. We reiterate here that the full measure of time and patience with parents who attempt to remedy their parental deficiencies is built into the statutory scheme of Iowa Code chapter 232. See In re C.B., 611 N.W.2d at 494. This time period and patience are "limited because patience on behalf of the parent can quickly translate into intolerable hardship for the children." R.J., 436 N.W.2d at 636.
Therefore, as with Chonte's request for additional time, we find that it is time for patience with Johnney to yield to the needs of his children to have stability and permanency in their lives. "The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems." A.C., 415 N.W.2d at 613. A child should not be forced to endlessly suffer the parentless limbo of foster care. In re C.D., 524 N.W.2d at 435. "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a spigot. It must be constant, responsible, and reliable." L.L., 459 N.W.2d at 495. Johnney's request for additional time for reunification was properly denied.
4. Relative Placement
Johnney's final claim on appeal is similar to Chonte's claim with regard to the court's consideration of Tey's placement with a relative and the implications of such placement based on Iowa Code Section 232.116(3)(a). For all of the same reasons detailed above with regard to Chonte's similar claim, we find Johnney's claim to be without merit. Regardless of Tey's current relative placement, the juvenile court was correct in finding it would be in her best interest to terminate Johnney's parental rights.
IV. CONCLUSION
For all of the reasons set forth above, based on our de novo review of the entire record we find the juvenile court was correct to find the best interests of the children were met by terminating Chonte and Johnney's parental rights. Section 232.116(3) is a permissive, not mandatory, statute and it is within the sound discretion of the juvenile court, based upon the unique circumstances before it and the best interests of the child, to determine what weight to give the factors listed in this section in making its best interest determination. We further find the State provided Chonte with reasonable efforts toward reunification. Johnney did not preserve the issue of "reasonable services" for appeal as he did not ask for additional or different services prior to the termination proceedings. We have considered all issues and claims raised by the parties and find them either not preserved, without merit, or both. We affirm the order of the juvenile court terminating Chonte's and Johnney's parental rights.
AFFIRMED.