In the interest of a. K. And c. K., Minor Children



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IN THE COURT OF APPEALS OF IOWA
No. 6-043 / 05-1975

Filed February 15, 2006


IN THE INTEREST OF

A.K. AND C.K.,

Minor Children,
S.B., Mother,

Appellant,


C.K., Father,

Appellant.



Appeal from the Iowa District Court for Story County, Victor G. Lathrop, Associate Juvenile Judge.

A mother and father appeal the order terminating their parental rights. AFFIRMED.
Kathy Mace Skinner, Nevada, for appellant-mother.

Daniel Gonnerman of Gonnerman, Owen & Stonehocker, L.L.P., Ames, for appellant-father.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Stephen H. Holmes, County Attorney, and Richard J. Early, Assistant County Attorney, for appellee-State.

James Thornton, Ames, for minor child.


Considered by Sackett, C.J., and Vogel and Mahan, JJ.



VOGEL, J.

Sara and Carl Sr. appeal the district court’s order terminating their parental rights to their twin sons, Arthur and Carl. Because we find clear and convincing evidence supporting the grounds for termination and that termination is in Arthur and Carl’s best interests, we affirm.


I. Background Facts and Proceedings.

Arthur and Carl first came before the district court in May 2003, when the State filed a Child In Need of Assistance (CINA) petition and placed the then eight-month-old twins in foster care while Sara sought treatment for mental health issues. Sara has been diagnosed with major depressive disorder with psychotic features, generalized anxiety disorder, panic disorder with agoraphobia, and post traumatic stress disorder.1 Carl Sr. was incarcerated in the Story County jail at the time and was unavailable for the children. The CINA proceeding was held in abeyance to allow Sara to establish a history of cooperating with services from the Iowa Department of Human Service (DHS) and with her mental health treatment, and the petition was dismissed in October 2003. Arthur and Carl were voluntarily placed in foster care in November 2003, due to Sara’s feeling depressed and overwhelmed with child care responsibilities. While the twins returned home on December 2, Sara again sought voluntary foster placement for them on December 17, 2003. The State filed another CINA petition in March 2004, pursuant to Iowa Code sections 232.2(6)(c)(2) (child is likely to suffer harm due to parent’s failure to exercise care in supervising child) and 232.2(6)(n) (parent’s mental capacity or condition results in child not receiving adequate care) (2003). After a contested hearing,2 the district court adjudicated Arthur and Carl to be CINA in June 2004, pursuant to the code sections in the petition. The boys remained in foster care with plans for beginning unsupervised overnight visits with Sara in August 2004.

At a dispositional hearing on October 15, 2004, Sara indicated that she needed more time to transition the twins back to her care, and the district court ordered continued family foster care placement. Sara continued to receive services for her mental health treatment during this time, but it appears she was inconsistent with her participation—she missed appointments with her clinical social worker and others, continued to be significantly depressed and easily overwhelmed at times, and experienced cycles of more difficulty following through with appointments, getting out of bed in the morning and leaving her apartment. The district court entered a permanency order on December 10, 2004, continuing family foster care for the twins. The court found that termination was not in the children’s best interests at the time, even though they could not be returned to Sara after receipt of services, due to Sara’s assertions that she could complete services and regain custody of the boys within the next six months upon her belief she could successfully address her mental health issues. At a review hearing in May of 2005, the court ordered the State to proceed with termination because Sara’s progress significantly declined between December 2004 and April of 2005. She did not attend any of her counseling sessions or her medication management appointments. Carl Sr. remained incarcerated at this time.

The State filed a termination petition on June 9, 2005, under Iowa Code sections 232.116(1)(a) (parent consents to termination) and 232.116(1)(h) (children are three or younger, children CINA, removed from home for six of last twelve months and cannot be returned home). An amended and substituted petition also included section 232.116(1)(j) (children CINA, parent imprisoned and unlikely to be released for five or more years). At the August 3 hearing, Sara testified that she wished to terminate her parental rights to Arthur and Carl voluntarily. Sara withdrew this consent within days, and further evidence was received on termination on September 14 and October 5, 2005. The district court entered an order on November 21, 2005, terminating Sara and Carl Sr.’s parental rights to Arthur and Carl, from which they now appeal.


II. Scope of Review.

The scope of review in termination cases is de novo. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best interests of the child. In re J.J.S., Jr., 628 N.W.2d 25, 28 (Iowa Ct. App. 2001).


III. Termination of Sara’s Parental Rights.

Sara seeks reversal of the termination order on the following grounds: (1) whether her being “overwhelmed” constitutes grounds for DHS to conclude the boys could not be safely returned to her; (2) whether the evidence of her poor compliance with services from 2004 calls into question the value of the State’s evidence against her; (3) whether DHS “worked the clock” to meet statutory deadlines, reduced reasonable efforts and discouraged her from regaining custody;3 and (4) whether the evidence of her mental health issues is speculative as to her future ability to parent her children effectively. The issues appear to challenge whether clear and convincing evidence existed to terminate Sara’s rights under Iowa Code section 232.116(1)(h), particularly as to the inability for the twins to be returned to Sara’s care. When the district court terminates parental rights on more than one statutory ground, we only need to find grounds to terminate parental rights under one of the sections cited by the district court in order to affirm. In re A.J., 553 N.W.2d 909, 911 (Iowa Ct. App. 1996).

It is indisputable from the record that Sara’s progress at the time of termination, while commendable, was part of a recurring cycle of compliance and noncompliance with services. Sara’s social worker Kathy Solko, in-home provider from Lutheran Services Sadie Hildebrandt, and DHS caseworker Lynn Chitty all testified that Sara has a persistent pattern of doing well addressing her mental health problems and complying with services, only to sink into a downward trend and become unable consistently to maintain her level of progress. Solko testified that Sara did not attend any appointments with her psychiatric provider between December 29, 2004, and April 27, 2005. She also stated that when Sara is in a low cycle, she is very anxious, significantly depressed, easily overwhelmed, and has difficulty getting out of bed and even opening any curtains. Solko also testified that Sara has made self-adjustments to her medication without consulting her doctor. Sadie Hildebrandt testified that the frequency and duration of Sara’s visits with Arthur and Carl have been affected primarily by Sara’s becoming overwhelmed or otherwise requesting to alter or shorten visits. Hildebrandt also testified that Sara has vacillated between December 2004 and the time of termination as to whether she would voluntarily terminate her parental rights, resulting in decreased visits when Sara was in favor of adoption. Carl Sr. indicated in his testimony at the termination hearing that Sara had mentioned voluntary termination to him as early as March 2004. Lynn Chitty from DHS reaffirmed Sara’s vacillation on voluntary termination and additionally noted Sara’s cycle of working up to an unsupervised, four-day overnight visit only to regress later. She stated that Sara has not been able to have food in her home or get up from the couch to get the children food and drink—leaving them essentially to fend for themselves due to Sara’s mental health. Chitty testified that Arthur and Carl could not be returned to Sara at the time of termination. In addition, Sara herself admitted during her testimony that she could not handle even the four-day visits at the time of termination, let alone full-time care, but needed to work back up to that level.

As we have previously noted, “[c]hildren simply cannot wait for responsible parenting.” In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997) (citing In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)). We use the parents’ past performance to assess their ability to provide future care, giving substantial weight to case history records. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). In making a permanency determination, the child’s need for security, stability, and permanence in their young lives must come first. In re C.D., 509 N.W.2d 509, 513 (Iowa Ct. App. 1993). We conclude that clear and convincing evidence supported the inability to return the twins to Sara’s care at the time of termination, satisfying the statutory grounds under section 232.116(1)(h). We affirm the district court’s order terminating Sara’s parental rights to Arthur and Carl.



IV. Termination of Carl Sr.’s Parental Rights.

Carl Sr. asserts on appeal that (1) the State did not prove the criteria for termination by clear and convincing evidence; (2) the DHS did not provide adequate services to him while incarcerated or to Sara; (3) termination was not in the best interests of the children. His petition on appeal focuses in large part as to why it was inappropriate to terminate Sara’s parental rights. As we concluded above, the statutory grounds for termination under section 232.116(1)(h) have been proven by clear and convincing evidence as to Sara, and Carl Sr. could not have cared for the twins due to his continuing and indeterminate incarceration on two consecutive ten-year terms. Clear and convincing evidence supports termination of Carl Sr.’s parental rights under section 232.116(1)(h) or 232.116(j). Carl Sr. did not object to or otherwise challenge the level and type of services provided by DHS during the pendency of this case, thereby failing to preserve this issue for our review. See In re M.T., 613 N.W.2d 690, 692 (Iowa Ct. App. 2000) (holding a parent is not entitled to rely upon an allegation that DHS failed to provide reasonable services, where he did not timely request such services). We affirm termination of Carl Sr.’s parental rights as to his first two issues.

Carl Sr. also contends that termination was not in Arthur and Carl’s best interests. Even where there is a statutory basis to terminate parental rights, the termination must still be in the best interest of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). That determination considers both the children’s long-range and immediate interests. In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct. App. 1998). At the time of termination, Arthur and Carl had spent more than half of their lives in the care of a loving foster family who stood ready to provide a permanent home for them. Carl Sr. had minimal participation as a parent before he was incarcerated and would not be eligible to appear for his first parole hearing until mid-2007. Sara’s rollercoaster history of coping with her mental illness significantly disrupted the quality and stability of the twins’ young lives. We agree with the district court that termination was in their best interests and affirm the district court’s order.


AFFIRMED.

Mahan, J., concurs; Sackett, C.J., concurs and writes separately.



SACKETT, C.J. (concurs)

I too affirm. I concur with the majority. In doing so I note the mother has mental health issues but she has not sought special services to accommodate this disability and makes no claim on appeal that the State failed to provide such services. Had she done so, I might have reached a different result.




1 Sara also has an older daughter, who has been in and out of foster care since January 2004, but is not the subject of these proceedings.

2 Carl Sr. was incarcerated in the Story County Jail in March of 2004, on felony drug charges for which he was convicted in July 2005. At the time of termination, he was serving two consecutive ten-year prison terms and would not be eligible to appear for his first parole hearing until June 2007.

3 Sara did not request different or additional services during the course of the CINA or termination case, and we therefore do not address this issue. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (holding a failure to demand a service, other than those already provided, waives the issue of whether services were adequate).





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