Opinion
No. 4-254 / 04-0245
July 14, 2004
Appeal from the Iowa District Court for Polk County, Odell McGhee, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental rights to two children. AFFIRMED.
Tiffany Koenig, Des Moines, for appellant-mother.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and Will Sales, Assistant County Attorney, for appellee-State.
Michael Bandstra, Des Moines, guardian ad litem for minor children.
Alyssa Joneson, Des Moines, for father of P.C.
Alexandra Nelissen of Nelissen Law Office, Des Moines, for father of P.O.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Tanya is the mother of Princess, born in late May 2000, and Promise, born in late July 2002. James is Princess's father and Earl is Promise's father. Tanya appeals from a February 3, 2004 juvenile court order terminating her parental rights to the children. (The juvenile court also terminated James's parental rights to Princess and Earl's parental rights to Promise, but neither is a party to this appeal.) We affirm.
Tanya has a long history of mental illness, domestic violence, illegal drug use, and other criminal activities. The children were removed from her physical custody on or about August 2, 2002, after Promise tested positive for cocaine at birth. They were adjudicated children in need of assistance (CINA) on October 11, 2002.
The children were returned to Tanya on or about January 8, 2003, but were again removed on or about May 21, 2003, when Tanya tested positive for cocaine use. They have thereafter remained in the legal custody of the Iowa Department of Human Services (DHS) and in foster family care.
The children's guardian ad litem filed a petition to terminate parental rights on August 18, 2003. In late 2003 Tanya's probation on a charge of prostitution was revoked and she was imprisoned. She was also convicted of and imprisoned on a new charge of prostitution.
Following a January 12, 2004 hearing, the juvenile court terminated Tanya's parental rights on February 3, 2004. Its findings of fact included findings on all of the essential elements of Iowa Code section 232.116(1)(h) (2003), specifically that the children were three and one years of age; the children had been adjudicated CINA; the children had been removed from Tanya's care from August 12 (sic), 2002 to January 8, 2003, and from May 21, 2003 to the termination hearing; and that to return the children to their home at that time would subject them to specified adjudicatory harms. It also found that the best interests of the children would be served by termination of parental rights.
The juvenile court made conclusions of law consistent with the foregoing findings, but also expressly referred to other statutory grounds for termination and made conclusions consistent with termination on those different and additional grounds. In the "Order" portion of its ruling the court stated that the petition for termination of parental rights was granted pursuant to Iowa Code section 232.116(1), but did not state which one or more of the many paragraphs of that subsection its order for termination was grounded on. Tanya asserted on appeal that the juvenile court did not terminate her parental rights under section 232.116(1)(h), the only provision pursuant to which the guardian ad litem had sought termination. We remanded to the juvenile court with directions to clarify its ruling by stating what specific statutory provision or provisions it relied on in terminating Tanya's parental rights, retaining jurisdiction as to all other issues raised in the appeal.
This is yet another in a series of recent cases in which the claim, or a claim, on appeal is that the juvenile court terminated parental rights on a ground or grounds not pled. A common denominator in these cases is that the juvenile court's ruling does not state what specific statutory provision or provisions for termination alleged in the petition the court has found to have been proved. In rulings terminating parental rights the juvenile court should, separately as to each parent whose parental rights it is ordering terminated, specify the statutory provision or provisions pursuant to which it is ordering termination. Doing so will avoid unnecessary issues on appeal, and in some cases perhaps avoid the appeal itself.
The juvenile court entered an order specifying that Tanya's parental rights were terminated pursuant to section 232.116(1)(h), repeating certain of its previous findings and noting that the children had been removed from Tanya's custody for over six months continuously and for over six of the last twelve months. Tanya then sought full briefing. We ordered briefing, limited to the issue of whether the juvenile court properly terminated Tanya's parental rights pursuant to section 232.116(1)(h). We have received the parties' briefs and proceed to address Tanya's claims of error by the juvenile court.
Tanya claims Princess did not meet the age requirement of Iowa Code section 232.116(1)(h)(1), which requires a finding the child is "three years of age or younger." This claim of error rests on statutory interpretation, for which our review is for correction or errors of law. In re E.H., III, 589 N.W.2d 243, 245 (Iowa 1998).
Tanya further asserts that because Promise (sic) would not fall under the Code section, and because siblings should not be separated, Tanya's parental rights to Princess (sic) should also not be terminated as it would not be in Princess's (sic) best interests to separate her from her sister. However, in view of our resolution of the issue of statutory interpretation we need not and do not reach this issue.
Princess was born in late May 2000. When the petition for termination was filed she was about three years and three months of age. At the time of the termination hearing and subsequent ruling she was about three years and eight months of age. The Code does not define the phrase "three years of age." However, section 232.116(1)(f) applies to children "four years of age or older." If section 232.116(1)(h) did not apply to a child who had reached his or her third birthday but had not reached his or her fourth birthday, the statutory grounds for termination under sections 232.116(1)(f) and (h) (child of certain age, adjudicated CINA, removed for requisite period of time, cannot be returned) would apply to all children except for those between their third and fourth birthdays, an unreasonable result. We do not attribute such an intent to the legislature. See Iowa Code § 4.4(3) (presuming that in enacting a statue a just and reasonable result is intended); Baldwin v. City of Waterloo, 372 N.W.2d 486, 493 (Iowa 1985) (declining to interpret a statute in a manner that "would make no sense"). We hold section 232.116(1)(h) applies to all children up to their fourth birthday, and thus conclude Princess was "three years of age or younger" at the relevant times.
In her brief Tanya also claims that termination of her parental rights was not in the children's best interest. The State asserts that Tanya has not preserved error on this issue, as it was not raised in her petition on appeal. We choose to pass the question of error preservation and address the merits. Our review is de novo; although not bound by them, we give weight to the trial court's findings of fact, especially when considering the credibility of witnesses; and the grounds for termination must be proved by clear and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Tanya has longstanding mental illness which is reasonably controllable with medication, but she frequently will not comply with directions to take medications. She has a lengthy, serious, and apparently unresolved problem with using illegal controlled substances. She engages in criminal behavior, which has resulted in her recent incarceration. From Tanya's testimony at the termination hearing, it appeared clear she would not be released from prison for at least three months. Even then, perhaps her anticipation of being released that early was based more on hope than fact. As a result of multiple removals and placements Princess has suffered from anxiety, temper tantrums, emotional breakdowns, and boundary issues. Promise is at risk for the same problems unless she acquires permanency. At the time of the termination hearing the children had been out of Tanya's care for thirteen of the preceding seventeen months. Promise had been out of Tanya's care for all but four months of her life. The children have little, if any, bond with Tanya, who had not seen them in at least the eight months preceding the termination hearing. The children had established a positive bond in a pre-adoptive foster home. Princess's therapist, as well as the children's foster care specialist, opined that the children needed permanent placement and the accompanying security and stability, and needed it presently rather than at some indefinite time in the future. We agree with the juvenile court that termination of Tanya's parental rights is in the children's best interest so that they are able to acquire the permanency they badly need.