A.J., In Interest of

• Decision Date: 26 July 1996
• Docket Number: No. 95-2192,95-2192
• Citation: 553 N.W.2d 909
• Parties: In the Interest of A.J., C.J., and D.J., Minor Children, V.J., Mother, Appellant, F.J., Father, Appellant.
• Court: Iowa Court of Appeals

Page 909

553 N.W.2d 909

In the Interest of A.J., C.J., and D.J., Minor Children,

V.J., Mother, Appellant,

F.J., Father, Appellant.

No. 95-2192.

Court of Appeals of Iowa.

July 26, 1996.

As Corrected Dec. 6, 1996.

Peter W. Hansen, Burlington, for appellant-mother.

Gary L. Putnam and Aaron R. Bixby of Hirsch, Adams, Krekel, Putnam, Cahill & Miller, Burlington, for appellant-father.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant Attorney General, for appellee-State.

Kara D. Junkins of Aspelmeier, Fisch, Power, Warner & Engberg, P.L.C., Burlington, guardian ad litem, for minor children.

Heard by SACKETT, C.J., and HUITINK and VOGEL, JJ.

VOGEL, Judge.

Virginia and Francis were married in 1982; however, they have been separated for several years. They are the parents of A.J., born May 3, 1984, C.J., born August 2, 1985, and D.J., born March 7, 1987. Virginia is also the mother of three other children. Her parental rights to the oldest of these three other children were terminated in 1979; the other two children are in foster care but are not subjects of this appeal.

A temporary removal order was issued in May 1991, removing the children from Virginia and placing the children with their grandmother. On July 16, 1991, A.J., C.J., and D.J. were adjudicated children in need of assistance (CINA) based on Virginia's inability to provide reasonable supervision. Since Virginia's whereabouts were unknown and Francis was incarcerated, the children were then placed with their paternal grandmother and her husband in Clayton County. In June 1992, the grandmother moved out of state and the girls were placed in foster care.

Following an August 1993 review and permanency hearing, the court placed the girls with Virginia in Burlington. To accommodate the placement with Virginia, the case was then transferred to Des Moines County. The children were removed from Virginia's custody and again placed in foster care in January 1994 upon a finding Virginia had denied critical care to the children. Virginia moved to Davenport.

In May 1995, the State filed a petition to terminate Virginia's and Francis's parental rights pursuant to sections 232.116(1)(d), (e), (f), (h), and (k) (1993). Hearings on the petition were held in July 1995. The court in its ruling of November 28, 1995 terminated Virginia's parental rights pursuant to Iowa Code sections 232.116(1)(d), (e), (f), and (k) (1995) and Francis's parental rights pursuant to Iowa Code sections 232.116(1)(d) and (e) (1995).

Virginia and Francis appeal.

I. Scope of Review. Our review of termination proceedings is de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984) cert. denied sub nom. J.G. v. Tauke, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). We give weight to the findings of fact of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by those determinations. Id. at 491-92.

While the district court terminated the 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 the district court's ruling. In re R.R.K., 544 N.W.2d 274, 276 (Iowa App.1995).

II. Significant and Meaningful Contacts. Virginia and Francis both contend the district court erred in terminating their parental rights pursuant to Iowa Code section 232.116(1)(d) (1995). Section 232.116(1)(d) permits the juvenile 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 child has been removed from the physical custody of the child's parents for a period of at least six consecutive months.

(3) There is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. For the purposes of this subparagraph, "significant and meaningful contact " includes but is not limited to the affirmative assumption by the parents of the duties encompassed by the role of being a parent. This affirmative duty, in addition to financial obligations, requires continued interest in the child, a genuine effort to complete the responsibilities prescribed in the case permanency plan, a genuine effort to maintain communication with the child, and requires that the parents establish and maintain a place of importance in the child's life.

Neither of the first two factors listed under section 232.116(1)(d) is disputed by either Virginia or Francis. Both parties, however, argue the third factor, concerning maintaining significant and meaningful contacts and making reasonable efforts to resume care, was not met.

(A) Mother. Prior to the termination hearings in July 1995, the children had been outside their mother's care for forty-nine out of the previous fifty-four months. In the twenty-three months prior to the termination hearings, Virginia had only visited the children eight times. Virginia visited the children only once in the six months prior to the termination hearings. Telephone contact between Virginia and the children was sporadic at best. Virginia has been inconsistent on acknowledging birthdays and did not contribute to the children's care during the time period between January 1994 and January 1995. We find Virginia failed to maintain significant and meaningful contact with the children.

Virginia has been unable to provide a stable living situation for herself or her children in the past. Records show she moved twenty-one times between April 1977 and January 1989. From the time Virginia moved to Burlington until January 1995, Virginia had ten known addresses. Virginia moved away from the children when she moved to Des Moines County. The children were moved to Des Moines County and Virginia was given an opportunity to care for the children. When it was decided she could not care for the children, she again moved away from the children by moving to Scott County. We find Virginia did not make reasonable efforts to resume care for the children.

We conclude the district court did not err in terminating Virginia's parental rights pursuant to section 232.116(1)(d).

(B) Father. Francis visited the children six times in the six months prior to the termination hearings. However, prior to this six-month period, Francis had very little contact with the children. A court report, written on July 2, 1993, stated, "Francis has maintained very sporadic contact with his girls." From August 1993 until March 1994, Francis had no contact with the children. Francis had a supervised visitation on March 28, 1994. From March 1994 until November 1994, there was no contact at all between Francis and the children. A report to the court stated telephone contact between Francis and the children was set up in November 1994; however, telephone contact has been sporadic due to Francis's telephone being disconnected and due to the children not wanting to make telephone calls. A social worker testified that while visitations in the six months prior to the termination hearings went well, she had serious concerns regarding Francis's past history of going for long spans of time without having any contact with the children.

As of January 1994, Francis owed approximately $13,564 in back child support. Between 1990 and the termination hearings, Francis had eight known residences. Some of these different residences were due to incarceration. Francis has been incarcerated for a total of twenty-three months since 1990.

A parent's past performance may be indicative of the quality of care the parent is capable of providing in the future. In re L.L., 459 N.W.2d 489, 493-94 (Iowa 1990). Our examination of Francis's performance is not limited to the six months prior to the termination hearings. We find the district court did not err in finding Francis's parental rights must be terminated pursuant to section 232.116(1)(d).

III. Parents as Permanent Placements. Virginia and Francis both contend the district court erred in terminating their parental rights pursuant to Iowa Code section 232.116(1)(e) (1995). Section 232.116(1)(e) permits the juvenile 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 child has been removed from the physical custody of the child's parents 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.

None of the first three factors listed under section 232.116(1)(e) is disputed by either Virginia or Francis. Both parties, however, argue the fourth factor, concerning whether there was clear and convincing evidence the children cannot be returned to the custody of their parents, was not met.

The legislature has statutorily determined the interval for which patience with parents may last. "This period must be reasonably limited because patience on behalf of the parent can quickly translate into intolerable hardship for the children." In re R.J., 436 N.W.2d 630, 636 (Iowa 1989). A child should not be forced to endlessly suffer the parentless limbo of foster care. In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990). He or she need not endlessly await the maturity of his or her natural parent. In re T.D.C., 336 N.W.2d 738, 744 (Iowa 1983). "Children simply cannot wait for responsible parenting. Parenting cannot be turned off and on like a...