Opinion
No. 5-107 / 04-1938
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental rights to one child. AFFIRMED.
Aaron Siebrecht of Borseth, Siebrecht Siebrecht, Altoona, for appellant-mother.
Thomas J. Miller, Attorney General. Kathrine S. Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee.
Nicole Garbis-Nolan of Youth Law Center, Des Moines, guardian ad litem for minor child.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
Tonya is the mother, Matthew the putative father, and William the legal father, of Nellicia, born January 29, 2004. Tonya appeals from a November 15, 2004 juvenile court order terminating her parental rights to Nellicia. The order also terminated Matthew's and William's parental rights, but those rights are not at issue in this appeal. Upon our de novo review, we affirm.
Nellicia was removed from Tonya's physical custody at the hospital on the day after Nellicia's birth. The removal was due to Tonya's history of unsafe parenting and mental health concerns. The application for removal alleged, and evidence subsequently presented shows, that Tonya's parental rights to three other children had been terminated in prior proceedings, that Tonya had a history of mental health concerns and was not currently receiving treatment, and that Tonya had a history of substance abuse. Since her January 29, 2004 removal Nellicia has remained in the legal custody of the Iowa Department of Human Services (DHS) and the physical custody of foster parents.
Nellicia was adjudicated a child in need of assistance on March 19, 2004, pursuant to Iowa Code sections 232.2(6)(c)(2) (2003) (failure of parent to exercise reasonable degree of care in supervising child) and (6)(n) (parent's mental capacity or condition, imprisonment, or drug or alcohol abuse results in child not receiving adequate care). Following an August 19 and September 7 hearing the juvenile court filed its order terminating Tonya's parental rights on November 15, 2004. The court terminated Tonya's parental rights pursuant to Iowa Code sections 232.116(1)(d) (child adjudicated CINA for physical or sexual abuse or neglect, circumstances continue despite offer or receipt of services), (g) (child adjudicated CINA, parents' rights to another child were terminated, parent does not respond to services, additional period of rehabilitation would not correct the situation), (h) (child is three or younger, adjudicated CINA, removed from home six of last twelve months, cannot be returned at present time), and (k) (child adjudicated CINA, parent has chronic mental illness with repeat institutionalization and presents a danger, child cannot be returned within a reasonable time). Tonya appeals.
We review termination proceedings de novo. Although we are not bound by them, we give weight to the trial court's findings of fact, especially when considering credibility of witnesses. The primary interest in termination proceedings is the best interests of the child. To support the termination of parental rights, the State must establish the grounds for termination under Iowa Code section 232.116 by clear and convincing evidence.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (citations omitted).
Tonya claims the State failed to prove the statutory grounds relied on by the juvenile court. However, when the juvenile court terminates parental rights on more than one statutory ground, in order to affirm we need only find grounds to terminate under one of the provisions relied on by that court. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). We choose to focus on section 232.116(1)(h).
The first three elements of section 232.116(1)(h) do not appear to have been at issue, were clearly proved, and are not subject to reasonable dispute on appeal. Thus only the fourth element, whether the State proved Nellicia could not be returned to Tonya at the time of the termination hearing, is at issue in Tonya's appeal. This element is proved when the evidence shows the child cannot be returned to the parents because the child remains in need of assistance as defined by section 232.2(6). In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct.App. 1995). The threat of probable harm will justify termination of parental rights, and the perceived harm need not be the one that supported the child's removal from the home. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992).
Tonya was twenty-nine years of age at the time of the termination hearing. Her parental rights to one child had been terminated in 1997, her parental rights to another child had been terminated in 2002, and her parental rights to yet another child had been terminated in 2001 or 2002. Substance abuse issues and mental health issues were heavily involved in the three prior terminations.
In a February 9, 2004 order confirming Nellicia's removal from Tonya's physical custody the juvenile court ordered that Tonya receive a mental health assessment, a substance abuse assessment, and follow through on recommended treatment. It ordered that she procure employment, procure personal housing, and attend parenting classes. Tonya did thereafter secure an apartment, as discussed below. She also did attend and complete parenting classes. However, despite these small successes, Tonya failed in most other respects to comply with the case plan and the juvenile court's orders, and failed to remedy the circumstances which led to Nellicia's removal.
Tonya's history of substance abuse began at age fourteen. Although she claimed to have last "actively used" in about 1999, she acknowledged that she had relapsed and used as recently as February 2003. She denies any substance abuse problems. Between March 19 and June 14, 2004, inclusive, Tonya was required to provide urine for drug testing on fifteen occasions. She appeared and tested negative on only five of those fifteen occasions. On two other occasions, in March 2004, she failed to appear but her failure was excused. She failed to appear on the other eight occasions. Her last appearance was May 25, 2004, and she thereafter failed or refused to appear for the required testing. Unexcused failures to appear are considered to be the same as a positive test result.
Tonya underwent a psychosocial evaluation in 1996 as part of the juvenile court proceeding which resulted in termination of her parental rights to one child in 1997. She was again evaluated in March 2004 in the CINA proceeding involving Nellicia. Her diagnosis in 2004 remained essentially unchanged from her 1996 diagnosis, and both were largely consistent with a separate diagnosis in 2000. Her 2004 diagnosis consisted of (1) "Polysubstance Dependence (currently in remission by client report)", (2) "Depressive Personality Disorder with Anxious Features," and (3) "Borderline Personality Disorder with Dependent, Self-Defeating, Possessive-Aggressive, and Avoidant Traits, Paranoid and Antisocial Features, Schizoid and Narcissistic features." The 2004 evaluation indicates that Tonya showed the same personality traits and characteristics as shown in the 1996 evaluation, but with more depressive content.
The March 11, 2004 psychosocial evaluation recommended individual therapy. Tonya did not have an "intake" for such therapy until June 3, 2004, and did not begin individual therapy until after the petition for termination of parental rights was filed in June. Tonya's first individual therapy session was June 11, 2004. As a result of beginning such therapy she received increased supervised visitation with Nellicia. Tonya thereafter attended individual therapy sessions on June 20 and July 3, but then stopped attending and did not subsequently reinstitute or resume the sessions. Tonya has had ongoing anger management problems, and her therapist recommended anger management classes. As of the termination hearing Tonya had not commenced such classes.
Tonya denies having any mental health problems or issues, other than perhaps having had post-partum depression. She acknowledges she sleeps during the day, but denies her sleep patterns in any manner affect her ability to care for an infant or her ability to seek or secure employment. She did secure housing, an apartment, in March 2004. However, despite her denial of any substance abuse or mental health issues, she acknowledges that her rent is paid by a shelter care program because of her mental health and substance abuse issues. Tonya has not secured employment, and has not had any employment since sometime in 2004.
Tonya was offered, and to the extent she was willing to accept them received, numerous services not only in the juvenile court proceedings involving Nellicia, but also in the earlier juvenile court proceedings involving her other three children. Despite these services she has been unable or unwilling to secure employment and in fact sleeps days, perhaps as a result of depression. Despite overwhelming evidence that she has serious mental problems, Tonya denies such problems and has failed or refused to address them or her related anger management problem. We find, as the juvenile court did, that Nellicia cannot be returned to Tonya without being subject to the imminent likelihood of harm in the form or neglect or abuse. We conclude the State has proved by clear and convincing evidence the fourth element of section 232.116(1)(h) and the grounds for termination pursuant to section 232.116(1)(h). We need not and do not address whether the State also proved one or more of the other three statutory grounds relied on by the juvenile court.