Opinion
No. 3-674 / 03-1237
Filed October 15, 2003
Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.
A mother appeals from the juvenile court order terminating her parental rights to one of her children. AFFIRMED.
John S. Moeller of O'Brien, Galvin Moeller, Sioux City, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Cindy Weber-Blair, Assistant County Attorney, for appellee-State.
Marchelle Denker of Sioux City Juvenile Office, Sioux City, guardian ad litem for minor child.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Appellant, Patricia, the mother of Janet, Cristina, Pat, Pablo, and Selena, appeals from the juvenile court order terminating her parental rights to Selena. Patricia contends the State did not meet its burden of proof by clear and convincing evidence on any of the grounds in the petition for termination. We affirm.
Background facts and proceedings.
Patricia is the mother of five children. The Department of Human Services (DHS) has been involved with this family since February 1999. After her arrest in June 2001 for possession of methamphetamine, the children were cared for by extended family members. In July, the family members determined they could no longer care for the children. Patricia refused voluntary placement of the children. The children were removed by ex parte order and placed in foster or shelter care. By the time of their adjudication as children in need of assistance in September, Patricia had been convicted and sentenced to ten years in prison. Selena, the only child involved in this appeal, was placed with her paternal grandmother.
After a February 2003 permanency hearing, the juvenile court ordered that termination proceedings be begun to terminate the parental rights of Selena's parents. In late March Patricia was paroled from prison to a half-way house program for her long-term substance abuse. After a June 24 permanency and termination hearing, the juvenile court terminated Patricia's parental rights to Selena on multiple grounds by order dated July 3, 2003. Patricia appeals.
Scope and standard of review.
Our review of termination proceedings is de novo. Iowa R.App.P. 6.4; In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001). The State must prove the grounds for termination by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa Ct.App. 1997). If the juvenile court terminates parental rights on more than one statutory ground, "[w]e only need to find grounds to terminate parental rights under one of the sections cited by the [juvenile] court in order to affirm its ruling." In re R.K., 649 N.W.2d 18, 19 (Iowa Ct.App. 2002).
The State's petition for termination stated Patricia's parental rights to Selena "should be terminated pursuant to sections 232.116(1)(b), (g), (i), and (k) of the 2003 Code of Iowa, as amended, for the following reasons . . . ." The petition then listed as reasons, the statutory language from section 232.116(1) subsections (b), (d), (e), (f), and (i). The juvenile court ordered Patricia's parental rights terminated "pursuant to sections 232.116(1)(b), (g), (i), and (k) of the 2003 Code of Iowa, as amended."
Parent has abandoned child.
Parent has had rights to another child terminated.
The offer or receipt of services will not correct the circumstances which led to abuse or neglect within a reasonable time.
Parent diagnosed with chronic mental illness.
Issues on appeal.
On appeal, Patricia contends clear and convincing evidence does not support termination on any of the grounds cited by the juvenile court. The State concedes parental rights should not have been terminated under subsections (g) or (k) because they do not apply to the circumstances of this case. The State claims Patricia has not preserved error as to subsections (d), (e), and (f), the language of which was listed in the petition but not cited by subsection in the petition or by the juvenile court.
Analysis.
We first address the allegation Patricia abandoned Selena. See Iowa Code § 232.116(1)(b). Abandonment is "a giving up of parental rights and responsibilities accompanied by an intent to forego them." In re D.M., Jr., 516 N.W.2d 888, 891 (Iowa 1994) (quoting In re Burney, 259 N.W.2d 322, 324 (Iowa 1977)). Abandonment involves both conduct and the accompanying state of mind. D.M., 516 N.W.2d at 891; In re A.B., 554 N.W.2d 291, 293 (Iowa Ct.App. 1996). The State cites cases in which the parental rights of an incarcerated parent were terminated in support of its claim the evidence supports termination on this ground. See, e.g., In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993); In re J.L.W., 523 N.W.2d 622, 624 (Iowa Ct.App. 1994); In re J.S., 470 N.W.2d 48, 51 (Iowa Ct.App. 1991).
Patricia's own actions led to her incarceration. While in prison, she took steps to reform herself and to correct the substance abuse problems which led to her incarceration. She also wrote letters to Selena. After her parole, Patricia obtained employment and housing. She began visitation with Selena. Although Selena has been out of Patricia's care for much of her life, we cannot say from the record before us that clear and convincing evidence supports termination on this ground.
The remaining ground for termination specifically cited by the juvenile court is in section 232.116(1)(i), which requires proof (1) of past physical or sexual abuse or neglect, (2) of a significant risk or imminent danger to the child, and (3) "that the offer or receipt of services would not correct the conditions which led to the abuse or neglect of the child within a reasonable period of time."
The record reveals a history of physical and sexual abuse of Patricia's four oldest children perpetrated by their father. At the time of the termination, he lived in Texas and was not involved with the family. Patricia's substance abuse led to neglect of the children and her eventual arrest and incarceration. As noted above, Patricia sought to deal with her substance abuse while incarcerated. She has been attending AA/NA meetings, receiving outpatient treatment, and participating in aftercare since her parole. The record suggests she has been sober from the time of her arrest on drug charges until the time of the termination. Patricia clearly has made an effort to correct the circumstances in her own life which led to the removal and CINA adjudication of her children. Although she had been out of prison only about three months by the time of the termination, and thus had not demonstrated a long period of change, we do not find clear and convincing evidence "the offer or receipt of services would not correct the conditions which led to the abuse or neglect of the child within a reasonable period of time." See Iowa Code § 232.116(1)(i)(3).
The petition for termination specifically cited subsections (b), (g), (i), and (k) of section 232.116(1). The juvenile court ordered termination pursuant to those subsections. The State concedes, and we agree, subsections (g) and (k) are not applicable in this case. We have determined clear and convincing evidence does not support termination under subsections (b) or (i). We therefore turn to the State's contention termination is proper under subsections (d), (e), and (f).
As noted above, the pertinent language from these subsections was included in the petition for termination as grounds for termination, although the language was not identified by statutory subsection. "In reviewing de novo, we will affirm if there is a proper basis for the decree entered by the trial court, even though the reasons for affirming are different than those upon which the trial court relied." Israel v. Farmers Mut. Ins. Ass'n, 339 N.W.2d 143, 146 (Iowa 1983); see DeVoss v. State, 648 N.W.2d 56, 60-63 (Iowa 2002) (discussing upholding the district court on grounds raised, but not relied on); In re Marriage of Yanda, 528 N.W.2d 642, 645 (Iowa Ct.App. 1994)). "Although we can resolve issues on appeal based upon grounds raised but not relied upon by the district court, those grounds must be supported by facts in the record unless the matter can be decided as a matter of law." Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 790 (Iowa 1999).
From our de novo review of the record, we find clear and convincing evidence supports termination under section 232.116(1)(f). There is no dispute the first three elements of this subsection were met. At the time of the termination, Selena was five years old. She was adjudicated in need of assistance pursuant to Iowa Code section 232.96. She had been out of Patricia's care for nearly two years with no trial periods at home. The only issue is whether or not Selena could be returned to Patricia's care at the time of the termination. We find clear and convincing evidence she could not.
As we consider whether or not Selena could be returned to Patricia's care, we gain insight into her prospects if returned by reviewing evidence of Patricia's past performance, for it may be indicative of her future capabilities. See In re M.S., 519 N.W.2d 398, 400 (Iowa 1994); In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Patricia has a long history of substance abuse and the related problems with her children. At the time of the termination, she had been out of prison only about three months and had not demonstrated a long period of change. To her credit, she has sought to address her substance abuse problem, has obtained employment and housing, and has considered obtaining her GED. She is not in a position, however, to resume care of Selena. Once the statutory period of patience for parents has passed, we are to view cases with a sense of urgency. In re C.K., 558 N.W.2d 170, 175 (Iowa 1997). Selena needs and deserves permanency now. She has been with her grandmother most of her life. She has not suffered the same trauma as her older siblings and does not share their resulting emotional and behavioral problems. Returning Selena to Patricia's care now would place her at risk. Our statutes are preventative as well as remedial; we need not wait for harm to occur. See Dameron, 306 N.W.2d at 745. Selena's "crucial days of childhood" need not be suspended while Patricia tries to address her problems. See In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We affirm the termination of Patricia's parental rights to Selena.