A.Y.H., In Interest of

• Citation: 508 N.W.2d 92
• Decision Date: 02 September 1993
• Docket Number: No. 92-1717,92-1717
• Parties: In the Interest of A.Y.H., A Minor Child. C.D.H. and R.J.H. III, Mother and Father, Appellants-Cross-Appellees. State of Iowa, Appellee-Cross-Appellant.
• Court: Court of Appeals of Iowa

Page 92

508 N.W.2d 92

In the Interest of A.Y.H., A Minor Child.

C.D.H. and R.J.H. III, Mother and Father, Appellants-Cross-Appellees.

State of Iowa, Appellee-Cross-Appellant.

No. 92-1717.

Court of Appeals of Iowa.

Sept. 2, 1993.

Gary D. McKenrick of Gomez, May, McKenrick & Kelly, Davenport, for appellant father R.J.H. III.

Janice Roemer, Davenport, for appellant mother C.D.H.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Charles K. Phillips, Asst. Atty. Gen., William E. Davis, County Atty., and Gerald P. Schutte, Asst. County Atty., for appellee.

Thomas H. Preacher, Bettendorf, guardian ad litem, for minor child A.Y.H Heard by SCHLEGEL, P.J., and HAYDEN and SACKETT, JJ., but decided en banc.

HAYDEN, Judge.

C.D.H. and R.J.H. III are the natural mother and father, respectively, of minor child A.Y.H. The parents appeal a juvenile court order terminating their parental rights to A.Y.H. pursuant to Iowa Code sections 232.116(1)(g) and 232.117 (1991). The State cross-appeals, contending C.D.H. voluntarily released her parental rights and the juvenile court failed to terminate her parental rights pursuant to Iowa Code section 232.116(1)(a) (1991).

A.Y.H. was born on May 31, 1989. On August 28, 1989, C.D.H. contacted the Iowa Department of Human Services (DHS). The mother asked DHS to take A.Y.H. from her care and place the child in a foster home. C.D.H. told a DHS social worker she did not want A.Y.H. because she had expected to have a boy. On August 24, 1989, R.J.H.'s probation had been revoked, and he was reincarcerated on August 30, 1989.

A child in need of assistance (CINA) was filed on behalf of A.Y.H. on August 30, 1989. A week later, however, C.D.H. requested A.Y.H. be returned to her. DHS returned A.Y.H. to the custody of C.D.H. in October, at which time DHS began providing services.

On October 20, 1989, DHS made a report of denial of critical care against C.D.H. with regard to A.Y.H. and her sibling, V.T., age two and one-half years. The report noted two reddish-type bruises on A.Y.H.'s forehead and that the children had been left home unsupervised.

On December 8, 1989, A.Y.H. was hospitalized. Doctors diagnosed A.Y.H. as suffering from severe neglect. They noted A.Y.H. had lost over twenty-four percent of her body weight. Several bruises were also found on A.Y.H.'s body. On December 14, 1989, A.Y.H. was discharged from the hospital and placed in foster care. On January 19, 1990, A.Y.H. was adjudicated a child in need of assistance pursuant to Iowa Code sections 232.2(6)(b) and (6)(k) (1989). A.Y.H. has remained in foster care since December 1989.

At the time of A.Y.H.'s removal, R.J.H. was incarcerated following a long history of criminal activity. While he was in prison, R.J.H. did not contact A.Y.H., nor did he talk to her foster care worker. Throughout 1990 C.D.H. had little contact with A.Y.H. She visited the child only fifteen times in 1990. In 1991 R.J.H. was released from prison. He began to visit A.Y.H. and even prevented C.D.H. from voluntarily terminating her parental rights. R.J.H. filed a motion requesting custody be placed with him. The juvenile court denied the motion, and the Iowa Supreme Court affirmed the denial. In re A.Y.H., 483 N.W.2d 820 (Iowa 1992). C.D.H. lost her visitation privileges during this time.

In January 1991 C.D.H. requested her visitation privileges be reinstated. She repeated her request in March 1991. The juvenile court denied her requests. The State petitioned to terminate the parental rights of C.D.H. and R.J.H. The court, however, granted R.J.H. a temporary stay. The court found R.J.H. should be given the opportunity to reunify with A.Y.H. because he had only recently been released from prison. In February 1992, however, R.J.H.'s parole was revoked, and he was returned to prison.

Later a termination hearing was held. On October 21, 1992, the juvenile court entered an order terminating the parental rights of C.D.H. and R.J.H. as to A.Y.H. Both parents appeal.

R.J.H. contends his failure to visit A.Y.H. while he was incarcerated should not be held against him. C.D.H. claims DHS failed to provide adequate services.

Our scope of review in parental termination proceedings is de novo. Iowa R.App.P. 4. Our primary concern is the best interests of the child. In re J.K., 495 N.W.2d 108, 110 (Iowa 1993). Those best interests include the child's long-range as well as immediate interests. Id. We look to what the future likely holds for the children if returned to their parents. Id. The parents' past performance is the best evidence for this determination because past performance is indicative of the quality of future care the child may receive. Id. (citing In re M.M., 483 N.W.2d 812, 814 (Iowa 1992)). We address whether clear and convincing evidence supports the termination of C.D.H.'s and R.J.H.'s parental rights.

I. The juvenile court stated, in its termination order: "It is clear that the father is not a resource for the child. Due to his continuing criminal behavior, personal problems and lack of commitment to a sufficiently acceptable lifestyle to care for his child, return of the child to his custody is not possible." We adopt these findings as our own. R.J.H.'s criminal history has included first- and third-degree theft, numerous fraudulent activities, and several traffic violations. Less than two months after A.Y.H.'s birth, R.J.H. was arrested for operating while under the influence. R.J.H.'s probation was subsequently revoked, and he was reincarcerated in August 1989. While incarcerated, R.J.H. was charged for first-degree theft in connection with fraudulent collection of his grandmother's social security checks. R.J.H. was released on parole in January 1991. By February 1992, however, R.J.H. was back in prison due to violations of his parole. The parole revocation was based on R.J.H.'s writing of thirty-seven bad checks totaling over $5000. R.J.H.'s actions and attitude show a failure to mature and assume responsibility. A parent's past performance may be indicative of the quality of future care the parent may provide for the child. In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (citing In re L.L., 459 N.W.2d 489, 493-94 (Iowa 1990)).

C.D.H. has shown a pattern of disregard toward the welfare of A.Y.H. She has made several attempts to give up A.Y.H. for adoption. C.D.H. has failed to recognize her problems or work toward improving her parenting skills. C.D.H. has a history of terminating services sponsored by DHS. The incidents of severe nutritional deprivation and extensive bruising suffered by A.Y.H. are illustrative of C.D.H.'s lack of concern for her child. The disregard C.D.H. has shown toward A.Y.H. cannot continue. The best interests of the child demand she not be returned to the harmful atmosphere from which she was removed. In re Dameron, 306 N.W.2d 743, 747 (Iowa 1981).

II. DHS must make reasonable efforts to reunify the family and provide services. Iowa Code § 232.102(5) (1991). The record shows DHS established a case plan for C.D.H. and her family, identified problems within the family unit, and provided extensive services to C.D.H.

This record contains clear and convincing evidence to support a finding DHS made reasonable efforts to reunify this family. Upon R.J.H.'s release from jail in January 1991, DHS began supervised visitations between R.J.H. and A.Y.H. In February 1992, however, R.J.H.'s parole was revoked, and he was returned to prison. R.J.H.'s continuing criminal behavior, personal problems, lack of commitment to an acceptable lifestyle, and inability to provide a stable environment for A.Y.H. support a termination of his parental rights.

DHS became involved with C.D.H. on August 28, 1989, at which time she requested A.Y.H. be placed for adoption. DHS subsequently removed the child from the home and arranged for supervised visitations. C.D.H. missed some of the scheduled visits. DHS also arranged a psychological evaluation of C.D.H. and two or three subsequent sessions.

In October 1989 A.Y.H. was returned to C.D.H. DHS initiated family preservation services immediately. The organization arranged for her to join a mother's support group and provided transportation to the group meetings and other appointments. Family preservation withdrew its services on December 1, 1989. DHS initiated visiting nurse and homemaker services for C.D.H. on December 5, 1989. A family life specialist worked weekly with C.D.H. on parenting and child development. On March 26, 1990, C.D.H. requested this organization's services be terminated. The record shows C.D.H. has shown a lack of participation and commitment to the services offered to her.

Following A.Y.H.'s release from Mercy Hospital on December 14, 1989, she was placed into foster care. A.Y.H. remained in foster care throughout 1990. DHS continued to provide supervised visitations. C.D.H., however, attended only fifteen visitations during 1990.

Bethany Homes accepted responsibility for this case on March 14, 1990. The organization's services included supervised visitations, nurturing/parenting modeling, and problem-solving techniques. C.D.H. missed scheduled visitations on March 21 and 28, 1990. She resumed visitation on April 4, 1990, after being confronted regarding the consequences of her lack of visitation. From the end of March to the end of May C.D.H. missed five appointments with the Bethany Homes caseworker. The caseworker noted C.D.H. refused to work on parenting skills. Bethany Homes also tried to...