In re T.P.

• Decision Date: 27 August 2008
• Docket Number: No. 08-0908.,08-0908.
• Parties: In the Interest of T.P. and A.T., Minor Children, S.P., Mother, Appellant, T.P., Minor Child, Appellant.
• Court: Iowa Court of Appeals

757 N.W.2d 267

In the Interest of T.P. and A.T., Minor Children,

S.P., Mother, Appellant,

T.P., Minor Child, Appellant.

No. 08-0908.

Court of Appeals of Iowa.

August 27, 2008.

Thomas Graves, Des Moines, for appellant mother.

Nichole Mordini of Mordini Law Office, Des Moines, for appellant minor child.

Andrea Flanagan of Sporer & Ilic, P.C., for appellee father of T.P.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Chris Gonzales, Assistant County Attorney, for appellee State.

Michael Bandstra, Des Moines, guardian ad litem for minor children.

Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.

VOGEL, J.

Sherri, the mother of Angelina (born in 2003) and Taylar (born in 1994), appeals from the district court order terminating her parental rights to the two girls. Taylar separately appeals. We affirm.

I. Background Facts and Proceedings

In January 2005, Angelina and Taylar were removed from Sherri's custody due to Sherri's methamphetamine use, which resulted in a founded child abuse assessment of denial of critical care. Subsequently, Angelina and Taylar were adjudicated to be children in need of assistance pursuant to Iowa Code sections 232.2(6)(b), (c)(2), & (n) (2005). The children were returned to Sherri's care in May 2005, but were once again removed in September 2005 and have remained out of Sherri's care since that time.

Although Sherri was offered numerous services, her participation was sporadic and she did not follow through with substance abuse treatment. In June 2006, the State filed a petition seeking to terminate Sherri's parental rights. In August 2006, following the close of evidence in the termination hearing, the district court declined to terminate Sherri's parental rights. It granted Sherri an additional six months to work toward reunification, partly to give her time to address her recent diagnosis of bipolar disorder, stating:

At this time, I conclude it is in the best interests of the children to allow [Sherri] a final chance to demonstrate that treatment of her mental illness will allow her to overcome the deficiencies in her parenting that have been demonstrated in this case.

Unfortunately, Sherri soon stopped participating in mental health counseling and did not comply with the recommended substance abuse treatment.

In May 2007, following the second termination hearing, the district court terminated Sherri's parental rights to Angelina and Taylar. Sherri appealed asserting the district court erred in allowing the same attorney, Mike Bandstra, to serve both as Taylar's attorney and guardian ad litem. She argued Bandstra could not serve in that dual capacity as Taylar's preference to be returned to Sherri's custody conflicted with Bandstra's recommendation that Sherri's parental rights be terminated. This court examined Bandstra's dual role as attorney and guardian ad litem for Taylar. We found that although an attorney may act in both capacities, in this case, Taylar's age and maturity necessitated separate counsel be appointed to give voice to her wishes apart from the position advocated by her guardian ad litem. See Iowa Code § 232.116(3)(b) (2007) (stating that a court need not terminate the parent-child relationship if the child is over ten years of age and objects to the termination). We remanded for the district court "to appoint a separate attorney for Taylar" and to hold a new hearing on the petition to terminate Sherri's parental rights. In re A.T., 744 N.W.2d 657, 665-66 (Iowa Ct.App.2007).

Following remand, Nicole Mordini was appointed as Taylar's attorney. Bandstra continued as guardian ad litem for Taylar and as attorney and guardian ad litem for Angelina. Upon Sherri's application, a hearing was then held to determine whether visitation should resume. In March 2008, the district court ordered that semi-supervised visitation resume between Sherri and Taylar. However, in light of the case workers' and Taylar's therapist's concerns regarding Sherri's inappropriate behavior and statements during visits, only supervised visitation resumed between Sherri and Taylar. In April 2008, a third termination of parental rights hearing was held, and in May 2008, the district court terminated Sherri's parental rights to Angelina and Taylar pursuant to Iowa Code sections 232.116(1)(d), (f), and (l) (2007).¹ Sherri and Taylar separately appeal from the district court's order.

II. Standard of Review

We review termination of parental rights cases de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). We give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them.² Id.; Iowa R.App. P. 6.14(6)(g). The grounds for termination must be proved by clear and convincing evidence. J.E., 723 N.W.2d at 798. Our primary concern is always the best interests of the children. Id.; Iowa R.App. P. 6.14(6)(o).

In seeking out those best interests, we look to the child's long-range as well as immediate interests. This requires considering what the future holds for the child if returned to the parents. When making this decision, we look to the parents' past performance because it may indicate the quality of care the parent is capable of providing in the future.

J.E., 723 N.W.2d at 798 (quoting In re C.K., 558 N.W.2d 170, 172 (Iowa 1997)).

III. Best Interests of the Children

A. Sherri's Appeal

Sherri claims that termination of her parental rights was not in the best interests of Angelina and Taylar.³ In January 2005, the family became involved with the Iowa Department of Human Services (DHS) due to Sherri's methamphetamine use. Sherri was offered numerous services, including in-home services, mental health counseling, substance abuse evaluation, substance abuse treatment, drug testing, and supervised visitation. However, Sherri's participation in these services was sporadic, as she has continued to struggle with her drug addiction and has not followed through with appropriate treatment. Sherri has not been able to maintain independent or stable housing arrangements for nearly two years. Additionally, Sherri has not addressed her mental health issues, nor has she been forthcoming with DHS workers as to critical information throughout the case.

Prior to the first termination hearing in August 2006, Sherri tested positive for methamphetamine, refused many required drug tests, and was discharged unsuccessfully from outpatient substance abuse treatment. After Sherri was granted an additional six months to work towards reunification, she stopped attending mental health counseling, was jailed twice,⁴ and admitted to using methamphetamine with her oldest daughter, who is not a party to this case. Additionally, Sherri did not enter a residential treatment facility until just prior to the May 2007 hearing and was unsuccessfully discharged shortly thereafter.

In May 2007, the district court terminated Sherri's parental rights. Sherri appealed the district court's order, and while her appeal was pending, she entered into and was unsuccessfully discharged from two additional residential programs.⁵ She was also offered visitation with Angelina and Taylar as long as she sought treatment in a residential facility, but as she did not comply, visitation was denied. Subsequently, the case was remanded to the district court and Sherri resumed supervised visitation with Taylar. Finally, in April 2008, five days before the third termination hearing, Sherri entered into a residential treatment program for the fourth time in approximately one year.

Angelina and Taylar have been out of Sherri's custody for nearly three years. Sherri claims she has been clean from drugs since February 2007, but that is not bore out by the record as she stopped using DHS services, did not submit to drug tests, and has not completed a substance abuse treatment program. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App.1998) ("[I]n considering the impact of a drug addiction, we must consider the treatment history of the parent to [determine] the likelihood the parent will be in a position to parent the child in the foreseeable future."). Further, because Sherri has not complied with recommended mental health services, it is clear Sherri cannot care for Angelina and Taylar either now or in the foreseeable future. The children need a safe and permanent home. J.E., 723 N.W.2d at 801 (Cady, J., concurring specially) (stating children's safety and their need for a permanent home are the defining elements in determining a child's best interests). Taylar and Angelina are very fortunate to have found a safe and stable home with their foster parents, who are willing to adopt them. Both girls have thrived in this home, and Taylar's therapist reported that her foster parents provide her with "all her physical and emotional needs, which Sherri has not been able to provide for Taylar." We have stated many times that "[a]t some point, the rights and needs of the [children] rise above the rights and needs of the parents." In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct.App.1997). Therefore we agree with the district court that it is in Angelina and Taylar's best interests that Sherri's parental rights be terminated.

B. Taylar's Appeal

Separately, Taylar asserts that termination is not in her best interests.⁶ Taylar testified that she wanted to return to her mother's custody, regardless of whether that would require separation from Angelina. She acknowledged that she would be very sad if she was separated from Angelina, but could cope with that situation as long as she was able to maintain contact with Angelina. However, Taylar's therapist reported that it would be detrimental to Taylar if she was separated from Angelina. All of the case workers recognized not only the bond between Taylar and Sherri, but also the bond Taylar has with her foster parents and Angelina. Taylar also...