Opinion
No. 2-847 / 02-1230
Filed October 30, 2002
Appeal from the Iowa District Court for Marion County, Terry Wilson, District Associate Judge.
Mother and father appeal from the order terminating their parental rights to their daughter. AFFIRMED.
Todd Miler, West Des Moines, for appellants.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Marc Wallace, Assistant County Attorney, for appellee-State.
Julie Fisher of Clements, Pothoven, Stravers et al, Oskaloosa, guardian ad litem for minor child.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Jerry C. and Mona C. are the parents of Jennifer C., who was born on September 28, 1991. They are also the parents of Jerry Lee, born February 19, 1985, and Tony, born June 5, 1988. Jennifer first came to the attention of the Department of Human Services (DHS) in April of 2001 after she reported to a school counselor that Jerry Lee had sexually abused her. In particular, she alleged he had exposed himself to her, licked her breasts and vagina, and had her touch his penis over a period of approximately four months. Because Jerry Lee remained in the home and Jerry and Mona disbelieved their daughter, Jennifer was removed from the home and placed in foster care. By order on July 18, 2001, the juvenile court adjudicated Jennifer to be in need of assistance pursuant to Iowa Code section 232.2(6)(d) (2001).
On June 14, 2002, the State filed a petition seeking to terminate Mona's and Jerry's parental rights to Jennifer under sections 232.116(1)(d) and (e). Following a hearing, the court granted the petition and terminated their parental rights. Jerry and Mona appeal from this order.
Now codified as Iowa Code sections 232.116(1)(e) and (f) (Supp. 2001).
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995). Our primary concern is the best interests of the child . In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
We reject Jerry and Mona's first assertion that their rights to due process or effective assistance of counsel were violated when the DHS refused to provide their new attorney with detailed reports of services offered and accepted by them. First, we find DHS provided this information to the parents' first attorney who withdrew as their counsel. Current counsel, Todd Miler, was appointed on April 29, 2002, nearly one month prior to the permanency hearing and over two months prior to the termination hearing. Moreover, a review of the record reveals that reports detailing the history of services provided to Jerry and Mona had been filed and were accessible to their present counsel in the court file. Finally, because we conclude the services provided were adequate under the circumstances, we cannot say the parents were prejudiced by the State's failure to produce the documents twice. See In re Marriage of Hatzievgnakis, 434 N.W.2d 914, 916 (Iowa Ct.App. 1988) (noting prejudice must be shown in order to warrant reversal).
We also reject the parents' next contention that the court erred in refusing to grant their motion to dismiss based on the State's failure to itemize in the petition a list of the specific services provided to them, as required by Iowa Code section 232.111(4)(e). The petition stated that the following services were provided: family centered services, family preservation services, parent skill development services, family foster care placement, psycho-social parenting evaluation, individual therapy, psychiatric counseling, sex abuse therapy, and individual counseling for Jennifer. We conclude this itemization is sufficiently detailed to apprise the parents of the nature of the allegations and services and therefore complies with the requirements of section 232.111(4)(e).
This provision requires a termination petition to include a complete list of services which have been offered to preserve the family and to address the reasons stated for the child's removal. Iowa Code § 232.111(4)(e).
Finally, Jerry and Mona contend the court erred in concluding Jennifer could not be returned to their custody. See Iowa Code § 232.116(1)(e)(4). The record paints a picture of two passive parents who are unable to control the behavior of their two sons and unwilling or unable to protect Jennifer from her siblings' outrageous behavior. For example, Tony hits his parents and Jerry Lee lives without constraints, warning that something "gruesome" would happen if his parents should try to impose rules on him. When asked at one point how he could control Jerry Lee and Tony in the future, Jerry responded that he would use a stun gun. In addition to the sexual abuse by Jerry Lee, Jennifer complained that both of her brothers physically abused her, while her parents did nothing to intervene.
Evidence was also introduced regarding Jerry Lee's intent to return to his parents' home upon his release from custody at the age of eighteen. Moreover, one service provider noted that Jerry informed her that he and Mona would have to let Jerry Lee stay with them if he wanted to return. Despite the requirement in their case permanency plan, neither Jerry nor Mona obtained psychological treatment and they did little to improve Jennifer's living conditions. We are not persuaded that Jerry and Mona will be able to protect Jennifer against injurious contact with Jerry Lee after his release from the State Training School.
On our de novo review, we conclude clear and convincing evidence establishes that Jennifer cannot be returned to the custody of Jerry and Mona. Accordingly, the juvenile court properly terminated their parental rights.