Opinion
No. 3-311 / 03-0383
Filed May 29, 2003.
Appeal from the Iowa District Court for Dubuque County, JANE MYLREA, Associate Juvenile Judge.
A mother appeals an order terminating her parental rights to two children, and the State cross appeals the portion of the order that transfers guardianship and custody of the children to a maternal great uncle. AFFIRMED ON APPEAL AND CROSS-APPEAL.
Daniel McClean, Dyersville, for appellant.
Timothy Goen, Dubuque, for appellee-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Fred H. McCaw, County Attorney, and Jean Becker, Assistant County Attorney, for appellee-State.
Monica Ackley, Dubuque, guardian ad litem for minor children.
Considered by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
Dorothy is the mother of Vincent, born in November 2000, and David, born in May 2002. The children were removed from her physical custody on June 10, 2002, due to her mental illness, diagnosed as schizoaffective disorder-bipolar type, multiple hospitalizations, and inability to provide appropriate care for the children even while living with and receiving assistance from her sister. The children were adjudicated children in need of assistance (CINA) on August 21, 2002, pursuant to Iowa Code section 232.2(6)(n) (Supp. 2001) (child whose parent's mental capacity or condition results in child not receiving adequate care) on the grounds Dorothy suffered from chronic schizophrenia with symptoms of hallucinations, distractions, delusions, and paranoia, with no insight or ability to care for either herself or the children. The juvenile court subsequently terminated Dorothy's parental rights, and the parental rights of each of the boys' fathers, on February 7, 2003, pursuant to Iowa Code section 232.116(1)(h) (child three or younger, adjudicated CINA, removed from parents' physical custody six of last twelve months or last six consecutive months, cannot be returned to parents at present time). By a subsequent order nunc pro tunc the juvenile court placed the children in the guardianship and custody of their maternal great uncle, pursuant to Iowa Code section 232.117(3)(a). Dorothy appeals, and the State cross-appeals. We affirm both on the appeal and on the cross appeal.
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.
In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Issues on Appeal. Dorothy asserts the juvenile court should have exercised its discretion to not terminate her parental rights, as allowed by Iowa Code section 232.116(3)(a) because a relative, her uncle, has legal custody of the children. Section 232.116(3) has been interpreted to be permissive, not mandatory. In re J.L.W., 470 N.W.2d 778, 781 (Iowa Ct.App. 1997). 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 this section. Id. We must consider a child's long-range and immediate interests. Id. Section 232.116(3) does not require the juvenile court to make specific findings to this section unless it relies upon one of the section's grounds to not terminate. In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990).
We find the juvenile court was correct in not applying section 232.116(3)(a). One child was thirty-three months of age, the other was nine months of age, and both had been out of Dorothy's care for eight months. Dorothy suffers from mental illness, is of borderline intelligence (full scale I.Q. of 79) and has learning disabilities and cognitive difficulties, and is unable despite extensive services to safely provide for the children's care. The children need stability, certainty, consistency, and permanency. Placement of a child with a relative under a permanency order is not a legally preferred alternative to termination of parental rights, because generally the needs of a child are promoted by termination if statutory grounds for termination exist. In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct.App. 1992). The children's maternal great uncle and his wife are interested in adopting Vincent and David, another factor favoring termination. See In re B.K.K., 500 N.W.2d 54, 57 (Iowa 1993) (finding termination appropriate where adoption by grandparents was likely). We affirm on this issue.
Dorothy asserts she was not provided reasonable services to promote reunion with her children. Reasonable services must be offered to preserve the family unit. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). The reasonable efforts requirement is not a strict substantive requirement for termination of parental rights, but rather the scope of the efforts by the State to reunify parent and child after removal impacts the burden of proving termination elements which require reunification efforts. In re C.B., 611 N.W.2d at 493. The State must show reasonable efforts as part of its proof the child cannot be safely returned to the care of a parent. Id.
More specifically, Dorothy complains of a lack of effort by the State to provide her with the services of the Lantern Center, the Family Empowerment Program, and the Maria House. All three had been mentioned as possible services in one or more case permanency plans, reports, and juvenile court orders. The Lantern Center provided services such as help in finding a job, job interviewing skills, access to a telephone, and tutoring for the classes Dorothy was attempting to take. Dorothy had been referred to the Lantern Center, made an initial contact, and received information on available services, but then did not return despite encouragement to do so. Dorothy's Department of Human Services (DHS) social worker/case manager later made four appointments, over a period of months, to take Dorothy back to the Lantern Center. The first time Dorothy slept through the appointment. The second and third times Dorothy was unavailable or sleeping. The fourth time she accompanied her social worker to the appointment and apparently began receiving services, but this occurred shortly before the termination hearing. We find no lack of effort or services on the State's part regarding the Lantern Center, but rather a lack of interest or effort on Dorothy's part.
The Family Empowerment Program and the Maria House provided a "structured living environment" or a "supervised setting." Certain case permanency plans, reports, and orders include such things as "consideration" being given to those services, a "referral" to investigate such services, and a recommendation or order that Dorothy secure her own apartment or look into the Family Empowerment Program and the Maria House as options for residency. The record shows that Dorothy's social worker investigated the Family Empowerment Program and the Maria House as possible residences for Dorothy. However, neither was willing to accept her because of her mental illness. In addition the Family Empowerment Program had a several month waiting list and did not believe Dorothy would be able to benefit from its program, and Dorothy did not meet the Maria House's criteria of being homeless. Further yet, Dorothy wanted her own apartment, had secured and was living in her own apartment, and had no intention of living elsewhere unless the doctor treating her mental illness said she needed to do so.
The services of the Family Empowerment Program or the Maria House might have been of some additional, marginal benefit to Dorothy. However, the record shows the State attempted to provide these services but for a variety of reasons they were not available or practical. The record also shows that even if these services had been available, Dorothy preferred to have her own apartment and would not have taken advantage of the services. Of additional importance, the record shows the State offered, and to the extent Dorothy was willing to receive them provided, services that included but were not necessarily limited to the following: family-centered services, case facilitation, protective daycare, specific modeling of child care, visiting nurses, foster care, foster care review, supervised visitations, drop-in visits, psychiatric evaluation and treatment, psychological evaluation, mental health counseling, individual therapy, and the Lantern Center. We conclude the State provided reasonable efforts and services toward reunification, despite Dorothy's inability (and perhaps unwillingness) to reside at the Family Empowerment Program or the Maria House.
Issue on Cross-Appeal. The State asserts that the best interests of the children did not dictate moving them from the foster home where they had been residing to a relative's home. It argues the children had strong bonds with "pre-adoptive foster parents" and little or no relationship with their great uncle.
When removed from Dorothy's care the children were initially placed in the custody of Dorothy's sister. Later, about five months before the termination hearing, they were placed in the legal custody of the DHS and placed in the physical custody of a foster family. The record shows that Dorothy has a large, interested, and supportive extended family, and many relatives appeared at hearings and indicated an interest in placement of the children. The juvenile court ordered home studies of several such relatives. For some reason or reasons that are not apparent from the record, the study of the home of Dorothy's maternal uncle, Roosevelt, and his wife, Michelle, was substantially delayed. A report on a study of Roosevelt's home, dated February 4, 2003, and introduced at the termination hearing, recommended that Roosevelt and Michelle be considered as a viable placement for the children.
Roosevelt and Michelle live in Illinois. Roosevelt believed the DHS did not allow him to visit the boys. However, the DHS's position may only have been that Roosevelt could not have visitation in Illinois. As a result of his understanding of DHS requirements, Roosevelt's contact with Vincent was limited to about five times occurring before the juvenile court proceedings, and Roosevelt had had little or no contact with David.
Roosevelt is thirty-eight years of age and employed as a network administrator at an income of $66,000 per year. Michelle is thirty-six, and employed as a business analyst with an income of $35,000 per year. They have been together for twelve years, have been married for the last six years, and their marriage is stable. Michelle's daughter, age fourteen, resides with them. All are enthusiastic about Vincent and David being placed with them and about the prospect of adopting them.
Following termination of parental rights, there is no statutory preference for placement of a child with a relative under section 232.117(3). In re R.J., 495 N.W.2d 114, 117 (Iowa Ct.App. 1992). The paramount concern is the child's best interests. Id. In assuring the best interests of the child, we evaluate long-range as well as immediate interests. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). We give primary consideration to the physical, mental and emotional condition and needs of the child. Id.
The evidence clearly shows that the children's foster family has provided excellent care for them and a significant bond has developed. However, some evidence indicates the bond was not yet an extremely strong one, which is not surprising given the fact the children had been in the foster home less than six months at the time of the termination hearing. The children's court-appointed special advocate (CASA) recommended that the children's guardianship and custody be placed with their great uncle, Roosevelt, for the purpose of proceeding to adoption. The children's guardian ad litem made the same recommendation. The children's immediate interests might be best served by guardianship and custody with the DHS or the foster family, with a view toward possible adoption by the foster family. However, we believe and conclude the juvenile court's decision is in the children's long-range best interests. It is supported by the children's CASA and the children's guardian ad litem, and was requested by the children's mother, Dorothy, if her parental rights were terminated. That decision will place the children with close relatives in a large, interested, and supportive extended family and allow them to know and grow in that family. We conclude, as the juvenile court did, that such a placement and environment will be best for the children's physical, mental, and emotional needs and development.
Post-Submission Filings. This case was assigned to a panel of the Court of Appeals on April 24, 2003. Following submission Dorothy filed a response to the State's petition on cross-appeal on May 5, Dorothy filed an application on May 5 requesting that the court "dismiss" the State's response to Dorothy's petition on appeal as untimely, Roosevelt filed a motion on May 7 requesting that the State's petition on cross-appeal be dismissed as untimely, and on May 7 the State filed a resistance to Dorothy's motion to dismiss.
Under the de novo scope of our review we are required to review the record in order to assure that our decision complies with the law and is in the best interests of the children in interest. In reviewing the record we should consider, and have done so, what the evidence shows, whether or not referred to and pointed out in the parties' filings. We have addressed the merits of the State's petition on cross-appeal, and have therefore considered Dorothy's response to it. Our resolution of the issues raised in Dorothy's petition on appeal would be the same whether or not we consider the State's response to it. Granting Dorothy's application to strike the response would thus not benefit her position. We have resolved against the State the issue raised in its petition on cross-appeal. Roosevelt's motion to dismiss the State's petition is thus moot. We therefore deny Dorothy's May 5 application and Roosevelt's May 7 motion.