Opinion
No. 4-595 / 04-1053.
August 26, 2004.
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Both parents appeal the termination of their parental rights to their four children. AFFIRMED.
Nancy L. Pietz, Des Moines, for appellant-father.
Debra Hockett-Clark, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Olubunmi Salami, Assistant County Attorney, for appellee-State.
Kimberly Ayotte, Youth Law Center, Des Moines, guardian ad litem for the children.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Kandi and Toddappeal the termination of their parental rights to four children: Dylan (D.O.B.: 8/26/96), Tammy (D.O.B.: 3/4/99), Summer (D.O.B.: 10/12/00), and Kody (D.O.B.: 2/20/02). Both contend 1) the grounds for termination relied on by the district court are not supported by clear and convincing evidence, 2) termination is not in the children's best interests, and 3) the court should have granted them additional time to meet Department of Human Services' expectations. On our de novo review, we disagree with all three contentions.
I.
The district court relied on a number of grounds in terminating parental rights, including Iowa Code sections 232.116(1)(f) (2003) (requiring proof of four elements including child four or older cannot be returned to parent's custody) and 232.116(1)(h) (requiring proof of four elements including child three or younger cannot be returned to parent's custody). We may affirm if the record supports termination on any of the grounds cited by the court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). Therefore, we will focus only on the two cited grounds.
A. Mother.
At the termination hearing, Kandi admitted all the elements of Iowa Code sections 232.116(1)(f) and (h), including that the children could not be returned to her custody. The following exchange with the prosecutor is instructive:
Q. Now, when were [the children] removed from you? A. Last April.
Q. And is that 2003? A. Yeah.
Q. And since 2003 have the children been returned to you? A. No.
Q. Do you know why that is? A. I've had a struggle with the use of methamphetamines, a lot of dirty UA's, and things like that.
Urine analysis.
Q. Is the removal last year, has that been your first contact with Juvenile Court Services? A. No.
Q. When the children were removed, did you know what the expectations were to get your children back? A. Yes.
Q. In your opinion, have you fulfilled those expectations? A. No.
. . .
Q. With respect to UA's, how well would you say you've participated since December 15? A. I just started dropping consistently in May after I got out of the Polk County Jail.
Q. In May 2004? A. Yeah.
Q. And prior to May, is there any particular reason other than during your time of incarceration for three weeks that you did not drop? A. I had some relapses and stuff like that.
Q. And what was your drug of choice when you relapsed? A. Methamphetamines and marijuana.
Q. You also brought up the issue of therapy. Have you participated in therapy like you were ordered to — or you were required to? A. I started to at Eyerly Ball, and then I just kind of fell out of it because I was, you know, using every once in a while, and now I'm back on track at Broadlawns.
Q. When you say you fell out of it, what do you mean?
A. I just wasn't going to my scheduled appointments with my therapist.
Q. Do you attribute that to your drug use then?
A. A lot of it.
. . .
Q. Do you have a stable home environment to have the children returned to you today?
A. Not today.
Q. So you would agree with me that as of today the [older two] children cannot be returned to you?
A. Yeah.
. . .
Q. And do you think [the younger] two children can also be returned to you today?
A. No.
Q. Why do you think, other than your housing, the children cannot be returned to you today?
A. Mainly because I need more consistent thing in my recovery, more consistent pattern.
. . .
Q. Do you believe that until you substantially address your drug substance abuse issue, that the children would be in some sort of danger when a parent uses meth? Would you agree with that?
A. Oh, yeah.
Q. What kind of danger do you think a child would be in if a parent uses meth?
A. Neglect, just anything along those lines.
Q. And would you agree with me that until recently you haven't done what you were supposed to do to eliminate those dangers?
A. Yeah.
Based on these admissions, we find clear and convincing evidence to support termination of Kandi's parental rights to Dylan and Tammy under Iowa Code subsection 232.116(1)(f) and Summer and Kody under Iowa Code section 232.116(1)(h).
B. Father.
At the termination hearing, Todd also admitted all the elements of Iowa Code sections 232.116(1)(f) and (h) in response to questioning by the prosecutor. He testified he used methamphetamine until three months before the termination hearing. He agreed he did not comply with reunification services and he further agreed that his drug use presented a danger to others. Finally, he conceded he was not able to take any of the children home because he did not have a home. Therefore, we find clear and convincing evidence to support termination of Todd's parental rights to Dylan and Tammy under Iowa Code section 232.116(1)(f) and to Summer and Kody under subsection (h).
II.
The parents next argue that termination was not in the children's best interests given the bond with them and with each other. See Iowa Code § 232.116(3)(c) (stating court need not terminate parental rights if termination would be detrimental to the child due to close parent-child bond); In re L.B.T., 318 N.W.2d 200, 202 (Iowa 1982) (discussing sibling bond). The record does support the parents' claim that they shared a close relationship with the children. However, a service provider who supervised visitation testified that despite the "strong bond" he saw between mother and children and the love the father had for the children, he supported termination of parental rights "based on the length of time" and prior "lack of follow-through by the parents." Similarly, Tammy's therapist acknowledged that Tammy missed her parents but stated, "I just don't see that they have stopped using drugs for a long enough period that I feel comfortable in sending Tammy home." Dylan's therapist echoed this sentiment, stating Dylan loved his parents. She opined that it "it would be very difficult for him to be separated" from them but she also testified:
I think Kandi and Todd, while they are demonstrating some commendable progress, I think they are still in a vulnerable state in terms of relapsing; and so I would be very concerned about how stable they may be over the next couple of months.
Finally, a lead social worker with the Department of Human Services recognized the bond between the parents and children as well as the parents' recent attempts at sobriety but opined that neither parent could resume care of the children.
As for the alleged bond among siblings, we recognize that, wherever possible, siblings should be kept together. In re L.B.T., 318 N.W.2d at 202. Here, Tammi and Kody were placed in one foster home, where they remained. Dylan and Summer were placed in separate foster homes but eventually ended up together. The two sets of foster parents attempted to mitigate the effects of separation by arranging visits approximately twice a month. Additionally, until January 2004, all four children visited their parents at the same time, which facilitated bonding among them but reduced individual bonding with their parents.
Balanced against the separation of these siblings is the parents' progress towards sobriety. That progress is detailed in Division III. It was insufficient to convince the district court of the parents' commitment to reunification and, on our de novo review, is insufficient to convince us that the sibling bond warranted deferment of termination. We agree with the district court that termination was in the children's best interests.
III.
The parents finally contend that the district court should have entered a permanency order continuing their present placement for an additional six months. Iowa Code § 232.104(2)(b). The record reveals that, shortly before the termination hearing, the parents made some progress toward meeting Department expectations. Specifically, both parents' urine samples were drug-free in the month of the termination hearing, Todd successfully completed an outpatient drug treatment program, and Kandi obtained a substance abuse evaluation and began treatment. However, both had been in other treatment programs and relapsed after completion of the programs. Additionally, professionals opined that the uncertainty of the children's placement was taking its toll. For example, Dylan's therapist stated, "I think it's to his benefit to make a decision very soon." In light of this evidence, we agree with the district court judge, who wrote, "It is highly unlikely that the parents will be able to provide the children with a stable environment within the next six months."