E.B.L., In Interest of, 92-1372

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Considered by McGIVERIN; ANDREASEN
• Citation: 501 N.W.2d 547
• Parties: In the Interest of E.B.L. and H.B.L., Minor Children, M.L., Mother, Appellant, State of Iowa, Appellee.
• Docket Number: No. 92-1372,92-1372
• Decision Date: 16 June 1993

Page 547

501 N.W.2d 547 In the Interest of E.B.L. and H.B.L., Minor Children,
M.L., Mother, Appellant,
State of Iowa, Appellee. No. 92-1372. Supreme Court of Iowa. June 16, 1993.
Rehearing Denied July 30, 1993.

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Kay E. Dull, Sioux City, for appellant.

Debra Y. Lulf, Sioux City, guardian ad litem for minor children.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., and Kathrine S. Miller-Todd, Asst. Atty. Gen., for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

The mother appealed an order of an associate juvenile judge terminating her parental rights as to two of her children. The court of appeals reversed and remanded. We granted further review. Having reviewed the record, we vacate the decision of the court of appeals and affirm the termination order.

I. Background.

M.L. is the natural mother of seven children: M.L. (born September 19, 1980), T.L. (born March 16, 1982), E.B.L. (born March 18, 1983), H.B.L. (born October 28, 1984), P.L. (born April 30, 1986), A.L. (born October 12, 1987), and Z.L. (born March 15, 1989). O.L. is the natural father of the six oldest children.

In February 1988, after allegations that the father had been sexually abusing his oldest daughter, M.L., the State filed a child in need of assistance (CINA) petition. The father was charged with criminal sexual abuse. On April 1, the juvenile court found the children to be CINA. The court ordered the father to have no contact with the children. Pending a dispositional hearing, the court gave the mother temporary custody of the children. The court ordered the mother to have no telephone communications with O.L. On April 5, the department of human services (DHS) learned that the father and mother had left Iowa with their children. The DHS then issued a nationwide protective service alert. Later, the father was found in Chicago. The mother and children were located in New York after they applied for shelter services. The mother was charged with child endangerment. The father and mother

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were extradited to Woodbury County and the court ordered the children be placed in foster care upon their return to Iowa.

In February 1989, the father pleaded guilty to two counts of indecent exposure. The court sentenced him to two consecutive two-year terms of imprisonment.

On March 15, 1989, Z.L. was born while the mother resided with D.S.; the natural father of Z.L. After he assaulted the mother, she obtained a restraining order against him. Thereafter, Z.L. was adjudicated CINA and placed in his mother's care, subject to protective supervision by the DHS. Later, the court terminated D.S.'s parental rights.

On May 24, 1990, the State filed a petition for termination of parental rights as to the six oldest children. Their father voluntarily agreed to and the court ordered termination of his parental rights. The mother consented to termination of her parental rights as to P.L. and A.L. and in July 1990, the court ordered termination. The court ordered the two oldest children, M.L. and T.L., be returned to their mother's care and ordered H.B.L. and E.B.L. to continue in foster care.

On April 24, 1992, the State filed a petition for termination of the mother's parental rights as to E.B.L. and H.B.L. Following a three-day hearing, the juvenile court terminated, on August 5, 1992, the mother's parental rights as to E.B.L. and H.B.L. The mother appealed. ¹ The court of appeals reversed and remanded. The court of appeals determined the State had not established by clear and convincing evidence the elements of Iowa Code sections 232.116(1)(e) and (f) (1991). The State was granted further review.

II. Standard of Review.

Appellate review of proceedings to terminate a parent-child relationship are de novo. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We review the facts as well as the law and adjudicate the parents' rights anew. Id. We give weight to the fact findings of the juvenile court, who is able to observe the witnesses, but we are not bound by them. In re S.O., 483 N.W.2d 602, 603 (Iowa 1992); Iowa R.App.P. 14(f)(7). Our statutory termination provisions are preventive as well as remedial. They are designed to prevent probable harm to a child. In re J.S., 427 N.W.2d 162, 163 (Iowa 1988). Our first and governing consideration in termination proceedings is the best interests of the child. Iowa R.App.P. 14(f)(15).

III. Termination of Parental Rights.

The State sought termination of the mother's parental rights pursuant to Iowa Code sections 232.116(1)(e) and (f). Iowa Code section 232.116(1)(e) permits the court to terminate the parent-child relationship if the court finds all of the following have occurred:

(1) The child is four years of age or older.

(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(3) The custody of the child has been transferred from the child's parents for placement pursuant to section 232.102 for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days.

(4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.

Iowa Code § 232.116(1)(f) permits the court to terminate the parent-child relationship if the court finds all of the following have occurred:

(1) The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(2) The court has terminated parental rights pursuant to section 232.117 with

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respect to another child who is a member of the same family.

(3) There is clear and convincing evidence that the parent continues to lack the ability or willingness to respond to services which would correct the situation.

(4) There is clear and convincing evidence that an additional period of rehabilitation would not correct the situation.

All parties agree that the requirements of (e)(1), (2) and (3) and (f)(1) and (2) of subsection 232.116(1) have been satisfied. The issues on appeal therefore relate only to (e)(4), (f)(3) and (4) of subsection 232.116(1).

IV. CINA.

Section 232.116(1)(e)(4) requires proof that the child cannot be returned to the parent because the child remains a "child in need of assistance" as defined in section 232.2(6). See In re M.W., 458 N.W.2d 847, 850 (Iowa 1990); In re J.L.P., 449 N.W.2d 349, 351 (Iowa 1989); In re K.F., 437 N.W.2d 559, 562 (Iowa 1989). The juvenile court relied on four alternative definitions in its findings. Upon our de novo review of the record, we find clear and convincing evidence E.B.L. and H.B.L. would remain CINA if returned to the custody of their mother.

It is likely E.B.L. and H.B.L. would be neglected if returned to their mother's custody. See Iowa Code § 232.2(6)(b). Both have been emotionally and physically harmed through the actions of their father and inaction of their mother and are fearful they will again be harmed. During supervised visits there was little interaction between E.B.L. and H.B.L. and their mother. E.B.L. is made the scapegoat by his mother and she attempts to turn the other children against him. See In re J.W.D., 456 N.W.2d 214, 217 (Iowa 1990) (every child deserves a safe, healthy and stimulating environment in which to grow and mature).

Both children need treatment for mental and emotional problems that their mother is unable to provide. See Iowa Code § 232.2(6)(n); see also Iowa Code § 232.2(35) (definition of mental injury). E.B.L. was both sexually and physically abused by his father while in the presence of his mother. He has...