In the Interest of D.H., No. 4-067/03-2029 (Iowa App. 2/11/2004)

• Decision Date: 11 February 2004
• Docket Number: No. 4-067/03-2029,4-067/03-2029
• Parties: IN THE INTEREST OF D.H., T.H., and C.T., Minor Children, A.H., Mother, Appellant, M.S. and N.S., Grandparents, Appellant.
• Court: Iowa Court of Appeals

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IN THE INTEREST OF D.H., T.H., and C.T., Minor Children A.H., Mother, Appellant M.S. and N.S., Grandparents, Appellant.

No. 4-067/03-2029

Court of Appeals of Iowa

Filed February 11, 2004

Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.

A mother, maternal grandmother, and step-grandfather appeal the juvenile court's order terminating parental rights to three children.

AFFIRMED.

Henry Keyes of Keyes Law Offices, Cedar Rapids, for appellant-mother.

Judith Amsler, Cedar Rapids, for appellant-grandparents.

Thomas J. Miller, Attorney General, Katherine S. Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Lance Heeren, Assistant County Attorney, for appellee-State.

Crystal Usher, Cedar Rapids, guardian ad litem for minor children.

Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.

SACKETT, C.J.

In this appeal from an order terminating the parental rights of Darius born May 8, 1997; Trevon, born November 17, 1999; and Carmella, born December 30, 2001; Anne, the children's mother; Mary, the children's maternal grandmother; and Norwood, Mary's husband and the children's step-grandfather, challenge a December 9, 2003 order terminating Anne's parental rights. The parental rights of the children's fathers also were terminated, but they are not parties to this appeal. Anne contends (1) the grounds for termination were not proven by clear and convincing evidence, (2) the State failed to show termination was in the children's long term interests, (3) reasonable efforts were not made to reunite Anne with her children, (4) the State failed to show the children could not be returned home at this time, and (5) the Department of Human Services's ("Department") refusal to comply with and facilitate mediation, and its denial of requests that reasonable efforts be made to reunite Anne with her children, deprived Anne of due process of law. Mary and Norwood contend the juvenile court should have granted them custody of the children. We affirm.

We review termination proceedings de novo. In re S.N., 500 N.W.2d 32, 34 (Iowa 1993). We may review the facts as well as the law and adjudicate the parents' rights anew. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa Ct. App. 1997).

A parent has the right to due process and a fair trial when the State seeks to terminate parental rights. In re R.B., 493 N.W.2d 897, 898 (Iowa Ct. App. 1992); see also Alsager v. Iowa Dist. Ct., 406 F. Supp. 10, 22 (S.D. Iowa 1975). A parent has the right to have custody of his or her child terminated only with the utilization of the required constitutional safeguards. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923); In re T.R., 460 N.W.2d 873, 875 (Iowa Ct. App. 1990). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972).

Anne was arrested in early February of 2002 in Henry County, Illinois, on charges of possession of a controlled substance. She was stopped while driving with Carmella and Carmella's father who had some $1,300 in cash on his person. There were four ounces of cocaine in the car and Anne told officers it was hers. Anne was nursing Carmella, and two weeks after the arrest Carmella was tested and found to have cocaine in her system.

At the time of her arrest Anne was living with or near her mother and stepfather, and they had substantial involvement with the children. Anne has remained incarcerated since she was arrested, but at the time of trial in October of 2003, she had a projected release date of January of 2004.

On February 27, 2002 a temporary removal order issued and the children were placed with the Department of Human Services and in the care of Norwood and Mary. A study of their home was done by the Department. It showed neither party had any criminal convictions or a record of child abuse¹. Their home and financial resources were determined to be adequate to care for the children and they were willing to cooperate with services in the home. The report voiced concern about three other children of Mary's who lived in the home. The oldest of the three was eighteen, had dropped out of high school in tenth grade, had several traffic violations which resulted in a loss of his license, and was convicted for first offense use of tobacco as a minor. He had employment but did not work full-time. Another child in the home was placed in Eldora and was on probation. The child apparently has a low IQ. A sixteen-year-old girl was waiting to get in the Job Corps Program. She had dropped out of school, had a shoplifting charge, and had for a time been placed in a psychiatric unit for running away and threatening to harm herself.

The report further noted that Norwood and Mary had cooperated with the Department, wished to remain the children's custodians, and were willing to cooperate with services in the home. The report then went on to provide:

Of most concern to the Department at this time is the considerable amount of drug use and activity that appears to occur in the home. All of the adults in the home either admit to using drugs/alcohol or have had drug related charges in the past. The couple has been supportive of M.T.'s active involvement with their daughter [this daughter does not live in their home] in spite of his extensive criminal history and involvement in drugs. As previously indicated, all the adolescents in this home have experienced difficulties abiding by the law. While the couple indicates they will cooperate with services, Mary has only been minimally cooperative with services provided on behalf of her daughter [who seeks admission to the Job Corps].

The report did not approve placement but had certain requirements that needed to be met before they would consider placement, namely, (1) Mary and Norwood have substance abuse assessments and follow recommended treatment, (2) Mary and Norwood not allow anyone to live in their home who is not a member of their immediate family or has a criminal history of known involvement with drugs, (3) Mary and Norwood demonstrate sobriety, (4) Mary agrees to participate in all services recommended by the Department, and (5) Mary and Norwood not allow others to take care of the children.

Faced with the home study and its recommendation Mary and Norwood suggested placement of the children with Robert and Kim, Anne's maternal aunt and uncle. This enabled Mary and Norward to maintain a relationship with the children. Apparently problems arose between the two couples when the issue of a permanent placement for...