Opinion
No. 2-612 / 02-0905.
Filed July 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, DANIEL BLOCK, Associate Juvenile Judge.
A mother and father appeal the juvenile court order terminating their parental rights to their two children. AFFIRMED.
Kelly J. Smith of Rickert Leistikow, Waterloo, for appellant-mother.
Dawn Newcomb of Newcomb Law Office, Waterloo, for appellant-father.
Thomas J. Milller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Steven Halbach, Assistant County Attorney, for appellee-State.
Tim Baldwin, Waterloo, for minor children.
Considered by SACKETT, C.J., and MAHAN and ZIMMER, JJ.
Colleena is the mother of Kyle, born in 1996, and Sara, born in 1999. The juvenile court terminated her parental rights to the two children on May 20, 2002. Colleena has filed a petition for appeal, contending that (1) reasonable efforts to reunify her with her children were not made, (2) there were not sufficient facts presented to support the termination of her parental rights, and (3) the juvenile court incorrectly determined that termination of her parental rights was in the children's best interests. Jeffrey, the father of Sara, also had his parental rights terminated, and he has also filed a petition on appeal. He contends (1) the State failed to make reasonable efforts to allow him to maintain contact with his daughter and resume her care, and (2) the State failed to show that Sara could not be returned to his care at this time. We affirm.
Kyle's birth father did not appear or challenge the termination.
We review the termination de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied sub nom. J.G. v. Tauke, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). However, we give weight to the juvenile court's findings of fact, especially the credibility of the witnesses. W.G., 349 N.W.2d at 491-92; In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996). The State has the burden of proving the grounds for termination by clear and convincing evidence. See In re T.A.L., 505 N.W.2d 480, 483 (Iowa 1993). A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. See In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D.Iowa 1975). A parent's right to have custody of his or her child should be terminated only with the utilization of the required constitutional safeguards . See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct.App. 1990). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972).
Both Colleena and Jeffrey have spouses, but apparently neither has much contact with him or her. In January of 2001, while Colleena and Jeffrey were living together, Sara was taken to the emergency room of a local hospital after ingesting the prescription drug Xanax. Upon admittance she was lethargic and unresponsive. According to emergency room personnel, both parents appeared to be under the influence of drugs at the time. An investigation of the parents' home was conducted immediately, and methamphetamine, marijuana, drug paraphernalia and prescription drugs were found in the home. At that time both parents were on parole, and both Sara and Kyle were living in the home. Kyle was administered a HairStat test and tested positive for methamphetamine. He also had tested positive for the substance at birth.
Colleena's husband was found to have abandoned the children, and he has not appealed.
Colleena and Jeffrey were both arrested for and subsequently convicted on drug related charges and for child endangerment. The children were removed from Colleena's and Jeffrey's care and have not been returned. The children were found to be children in need of assistance in February of 2001. Colleena and Jeffrey were each sentenced to four years in prison. During the parents' incarceration there were orders in place prohibiting them from contacting their children.
While incarcerated at Mitchellville, Colleena was offered and took advantage of a number of courses, including the opportunity to earn a high school equivalency diploma, receive substance abuse treatment, and take a course in parent-child reunification. Certificates entered as exhibits indicated successful completion of these courses. She also was employed at a job that allowed her to leave the facility while incarcerated. She tried to send a letter to Kyle but was told by the foster parents they could not give it to him because of the no-contact order. Colleena's parole officer testified as a witness on her behalf, saying he had weekly meetings with her, and that she could maintain her sobriety through involvement with Narcotics Anonymous. He further verified her attendance at Narcotics Anonymous meetings and testified that she would be given random tests for illegal substances. The parole officer further indicated Colleena had voluntarily stopped taking prescription medication for depression, she was working to obtain employment and housing, and she was living with a friend of her mother's.
Colleena, born in 1974, also has two older children who were not in her custody. While she was incarcerated, she wrote the ten-year-old in his father's custody every week. The child visited her while she was in prison, and they have had overnight visits since her release. Her second child is eight. She wrote him as well, and he responded. He did not visit her in prison but has visited her since her release. She indicated she might take custody of him if her circumstances were to allow it.
Jeffrey was born in 1960. He was released from prison in January of 2002, a month before Colleena was. While in prison he completed classes in anger management and drug awareness, and he received a GED. Since release he started attending courses in family matters and substance abuse. He works in his father's business. Jeffrey has four other children and is substantially deficient in paying child support obligations. The order terminating his parental rights was entered May 20, 2002.
At the time of the termination hearing Kyle was living with his birth father's second cousin and wife. Sara was living with her paternal uncle and aunt in Illinois. Kyle's and Sara's foster mothers are sisters, so the children enjoy association with each other. Both children appear to have bonded with their caretakers. Sara's aunt, Bridgett, testified and indicated she and her husband have not attempted to represent themselves to Sara as her parents. Bridgett does not seem intent on keeping the child from her biological parents but has concerns about their taking her unless there is assurance they have their problems resolved.
Both parents contend the State failed to make reasonable efforts to reunify them with their children. The core of the reasonable efforts mandate is that the child welfare agency must make reasonable efforts to prevent placement or to reunify families in each case. In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App. 1997). There is a requirement that reasonable services be offered to preserve the family unit. See In re A.L., 492 N.W.2d 198, 201 (Iowa Ct.App. 1992); In re B.L., 491 N.W.2d 789, 791-93 (Iowa Ct.App. 1992); In re A.W., 464 N.W.2d 475, 478 (Iowa Ct.App. 1990); In re M.H., 444 N.W.2d 110, 113 (Iowa Ct.App. 1989). While the State had the obligation to make the efforts, the parents have a responsibility to demand services prior to the termination hearing. In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct.App. 1994). Challenges to the plan for reunification should have come when the plan was entered. Id. It is too late to challenge the service plan at the termination hearing. Id.
As the parents argue, we recognize that the no-contact order entered at the time they were sentenced to prison precluded any direct reunification with the children. There is no evidence that the reunification order was challenged at the time it was entered; consequently, any challenges to it have come too late. The parents were offered services to correct their use of illegal substances, which was the problem leading to the children's removal. The parents also were offered other services that directly addressed parenting abilities. Colleena has taken advantage of these courses, and she deserves to be commended for the progress she has made. She has made many mistakes in her life, and her road to recovery has been and will be difficult. Jeffrey also has made progress, although the evidence of his progress is not as persuasive.
Both parents complain that the State failed to implement visits with the children after their release from prison. Of her own volition, Colleena made arrangements to visit with Sara at the home of Sara's foster parents in Illinois. She cleared the visit with her social worker and parole officer. She spent four hours with Sara during the visit. According to the foster parents, who supervised, Colleena's visit went well. To his credit, Jeffrey requested assistance in also arranging a visit with Sara. His lack of a driver's license made travel to Illinois difficult for him, and despite the request, no provision was made for the visits. However, Jeffrey was able to visit Sara one time. We agree with the parents that contact with children is an element of reunification, and there is no indication in the record that the parents, if they were sober, could not adequately care for their children. But the real problem necessitating the focus of the State's efforts in this case was the parents' substance abuse, which has proven to be ongoing. The parents were offered services for these problems. There is no evidence they requested additional services in this area. We find no basis to reverse on the claim that reasonable efforts were not made. In reaching this decision, we do not intend to imply that visits should not be a part of most reasonable efforts programs in order to maintain the bond between parent and child.
The parents next challenge the evidence supporting the finding that their parental rights should be terminated.
When the juvenile court terminates parental rights on more than one statutory ground, we need only find grounds to terminate under one of the sections cited by the juvenile court to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct.App. 1996). There is clear and convincing evidence the children cannot be returned to their parents' care at this time. Both parents are recovering addicts with a short history of sobriety after a year's incarceration. Though we commend them both for their efforts, we cannot rely on their assurances that their use of illegal substances is over and their children are not at risk. Furthermore, because they both remain on parole, a slight violation in all probability will result again in incarceration, making them unavailable to the children. Neither has a home to which the children can come to live. There is clear and convincing evidence supporting termination.
The next question we address is whether the juvenile court was correct in finding that termination is in the children's "best interests." The question more realistically is whether the children are better served by termination than they are by not having their parental rights terminated. The parents' extended family, to their credit, assisted the children when they were removed from their parents' care. It appears that both foster families want to adopt the children, and the children have bonded to them. Consequently, if the children are adopted by these foster parents, they will enjoy stability and consistency in their lives, and their interests will be better served than they would have been remaining in the foster home while additional efforts were made to assist their parents in resuming their care. We affirm on this issue. In doing so, we trust that the State and guardian ad litem, in advocating for termination, will make every effort to assure that the adoptions proceed with due haste.
AFFIRMED.