M.M., In Interest of

• Decision Date: 15 April 1992
• Docket Number: No. 91-342,91-342
• Parties: In the Interest of M.M., A Child, J.M., Mother, Resister, State of Iowa and M.M., Applicants.
• Court: Iowa Supreme Court

Page 812

483 N.W.2d 812

In the Interest of M.M., A Child,

J.M., Mother, Resister,

State of Iowa and M.M., Applicants.

No. 91-342.

Supreme Court of Iowa.

April 15, 1992.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Special Asst. Atty. Gen., and Kathrine S. Miller-Todd, Asst. Atty. Gen., for applicant State.

Mary Lynn Neuhaus, Dubuque, guardian ad litem for the child, applicant.

Stuart G. Hoover of Bauer & Heckmann, P.C., Dubuque, for resister mother.

Paul J. Kaufman, Dubuque, for the father.

Considered by McGIVERIN, C.J., and SCHULTZ, CARTER, LAVORATO, and ANDREASEN, JJ.

LAVORATO, Justice.

In this termination proceeding, the juvenile court terminated the parent-child relationship between a child and her natural parents. Both parents appealed.

We originally transferred this case to the court of appeals. The court of appeals affirmed termination of the father's rights but reversed termination of the mother's rights for lack of clear and convincing evidence. The father has not sought further review. However, the State and the child's guardian ad litem did file an application for further review regarding the mother. We granted this application.

We now vacate that portion of the court of appeals' decision regarding the mother's parental rights and affirm the decree of the juvenile court.

I. Background Facts.

Tom and Jeannie--the parents involved in these proceedings--were married in 1985. Their daughter Melissa, who is the subject of these proceedings, was born in April 1988.

There are four other children in this family: Dan (twelve years old), Tina (eleven years old), Joshua (six years old), and Tommy (five years old). Dan, Tina, and Joshua are Jeannie's natural children but not Tom's. Besides Melissa, Tommy is the natural child of Tom and Jeannie.

The couple's marriage was turbulent. Tom was an alcoholic who inflicted physical and verbal abuse on Jeannie when he was under the influence.

The Iowa department of human services became involved with Melissa in January 1989 when the child was about nine months old. Jeannie had become concerned about Melissa's low weight and took her to the University of Iowa Hospitals and Clinics for diagnostic evaluation. The hospital doctors diagnosed Melissa as a "failure to thrive baby." She was about two months behind in development.

Melissa was placed in foster care on January 19, 1989. In March 1989--by stipulation of all the parties--Melissa was adjudicated a child in need of assistance. See Iowa Code § 232.2(6)(g) (1987).

The juvenile court entered a dispositional order on April 6, placing Melissa's care, custody, and control with the department. The order also approved a case plan developed by the department. The plan required the following of the parents: (1) supervised visitation with Melissa; (2) family counseling by Hillcrest Family Services; (3) homemaker visits by the Visiting Nurses Association; (4) supervised monthly contacts by the area education agency; (5) attending the nurturing program at the county mental health center as soon as it was available; and (6) looking for a larger residence and keeping their home safe and clean.

The case plan imposed additional requirements on Tom: (1) abstaining from alcohol; (2) attending substance abuse counseling; (3) refraining from physical abuse of Jeannie and the children; and (4) looking for a job.

II. Background Proceedings.

In November 1990 the State filed a petition to terminate the parent-child relationship between Melissa and both parents. See Iowa Code § 232.116(1)(g) (Supp.1989). The State alleged there was clear and convincing evidence that Melissa could not be returned to her parents as provided in Iowa Code section 232.102. After a hearing, the juvenile court did terminate both parents' rights under Iowa Code section 232.2(6)(b), (c), and (n).

Both parents appealed. Each challenged the sufficiency of the evidence to support termination. We transferred the case to the court of appeals which set oral arguments for September 5, 1991.

On August 30, 1991, the juvenile court had apparently held a dispositional hearing regarding the other four children. At the time of this hearing, these four children were out of the home and in foster care. Jeannie asked the court of appeals to supplement the record as to Melissa with the evidence taken at the August 30 hearing. She also wanted to include the juvenile court order entered following the hearing. The court of appeals granted Jeannie's request. The court also granted a similar request by the State to supplement the record concerning certain events that occurred in October 1991.

The court of appeals then affirmed termination of Tom's parental rights but reversed termination of Jeannie's rights. The court concluded there was insufficient evidence to terminate Jeannie's rights.

In their application for further review, the State and Melissa's guardian ad litem complain about the court of appeals' ruling allowing Jeannie to supplement the record. They also challenge the court of appeals' conclusion that there was insufficient evidence to terminate Jeannie's parental rights.

III. Scope of Review.

Principles of appellate review of termination proceedings are several and well-known. Preeminent is the fact that we review such proceedings de novo. Iowa R.App.P. 4; In re J.L.P., 449 N.W.2d 349, 351 (Iowa 1989). Accordingly, "we review the facts as well as the law and adjudicate rights anew." In re L.L., 459 N.W.2d 489, 493 (Iowa 1990). While we give weight to the factual determinations of the juvenile court--especially when considering the credibility of witnesses--we are not bound by them. In re A.M.S., 419 N.W.2d 723, 726 (Iowa 1988).

Our overriding concern in parent-child termination cases is the best interests of the child. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). The child's best interests are two-fold: (1) long-range interests and (2) immediate interests. In determining the child's long-range interests, we must consider what the future holds for the child if returned to the parent. In re L.L., 459 N.W.2d at 493-94. Evidence of the parent's past performance is relevant on this issue because it may show the quality of future care the parent is capable of providing. Id. at 494.

There is an inherent tension in parent-child termination cases between the interest of the parent and the interest of the State. We recognize a parental interest in preserving the integrity of the family unit. In addition, we recognize the statutory presumption that a child's best interest will be served by leaving the child with the parent. See Iowa Code § 232.1.

However, we also recognize that this parental interest is not absolute and may be lost by certain parental conduct. In re T.O., 470 N.W.2d 8, 10 (Iowa 1991). The State, as parens patriae, has the duty to make sure that every child within its borders receives appropriate care and treatment. In re D.T., 435 N.W.2d 323, 329 (Iowa 1989). Our juvenile statutes are designed to effectuate that duty. For example, a child cannot be returned to the parent under Iowa Code section 232.102 if by doing so the child would be exposed to any harm amounting to a new child in need of assistance adjudication. The threat of probable harm will justify termination, and the perceived harm need not be the one that supported the child's initial removal from the home. In re C.M.T., 433 N.W.2d 55, 56 (Iowa App.1988). If any one of the definitional grounds of a child in need of assistance are met, that is enough to terminate. See In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988).

Thus our statutory termination provisions are preventive as well as remedial. In re L.L., 459 N.W.2d 489, 494 (Iowa 1990). Their goal is to prevent probable harm to the child; they do not require delay until after the harm has happened. Id.

Finally, the grounds supporting termination of parental rights must be proven by clear and convincing evidence. Iowa Code § 232.116(1)(g)(4); In re A.M.S., 419 N.W.2d at 725.

IV. Supplementing the Record.

We first address the State's and the guardian ad litem's contention that the court of appeals erred when it allowed Jeannie to supplement the record. We think an appellate court can, in limited circumstances, remand to supplement the record. We think the court of appeals should not have done so in this case because the August 30 hearing involved children other than Melissa. The juvenile court made findings only as they related to these children. So the court of appeals was in the position of a trial court, making its own findings from the same evidence on the issue of termination regarding Melissa. This put the State and the guardian ad litem in the untenable position of having to respond to a record they never thought would be relevant in this appeal.

For these reasons, we do not consider the supplementation of the record on behalf of Jeannie or the one on behalf of the State. We limit our review to the record made in the termination proceeding involving Melissa.

V. The Termination Issue.

The State sought termination by way of Iowa Code section 232.116(1)(g). That section provides in relevant part:

232.116 Grounds for termination.

1. Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:

....

g. The court finds that all of the following have occurred:

(1) The child is three years of age or younger.

(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 six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.

(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's...