A.M.S., In Interest of

• Decision Date: 17 February 1988
• Docket Number: No. 86-1542,86-1542
• Citation: 419 N.W.2d 723
• Parties: In the Interest of A.M.S., a minor child, A.M., Natural Mother, Appellant.
• Court: Iowa Supreme Court

Page 723

419 N.W.2d 723

In the Interest of A.M.S., a minor child,

A.M., Natural Mother, Appellant.

No. 86-1542.

Supreme Court of Iowa.

Feb. 17, 1988.

James W. Cleverley, Jr., of Diehl, Clayton, Cleverley & Williams, Newton, for appellant.

Thomas J. Miller, Atty. Gen., Valencia Voyd McCown, Asst. Atty. Gen., and James R. Wilson, Asst. Co. Atty., for the State.

Gerald B. Feuerhelm, guardian ad litem, Des Moines, for the child.

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

LAVORATO, Justice.

This case is an appeal by the mother, Alice, from a juvenile court decree terminating the parent-child relationship between her and her four-year-old daughter, April. ¹ We originally transferred this case to the court of appeals, which reversed the juvenile court's decree. On further review, we now vacate the court of appeals decision and affirm the decree of the juvenile court.

I. On April 14, 1986, April's attorney initiated this proceeding by filing a petition pursuant to Iowa Code section 232.111 (1985) ² to terminate Alice's parental rights to April. The petition is grounded on section 232.116(5), which authorizes termination when the court finds that

a. The child has been adjudicated a child in need of assistance pursuant to section 232.96; and

b. The custody of the child has been transferred from the child's parents for placement pursuant to section 232.102 for at least twelve of the last eighteen months; and

c. There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102.

The Iowa Department of Human Services filed a child in need of assistance petition regarding April on April 1, 1985. See Iowa Code § 232.87. On April 19 the juvenile court adjudicated April to be a child in need of assistance. See Iowa Code *725s 232.96. Hence, the first condition described in section 232.116(5)(a) is satisfied.

On May 13 the court transferred custody of April to the department for foster care placement. See Iowa Code §§ 232.99, 232.102(1)(c). Because the court transferred custody eleven months before the petition to terminate was filed, Alice contends the twelve-month condition in section 232.116(5)(b) is not satisfied. Consequently, Alice argues, the court on October 1, 1986, had no jurisdiction to terminate Alice's parental rights to April following a termination hearing on September 19.

We rejected the same argument in In re J.L.H., 326 N.W.2d 284 (Iowa 1982). There is no jurisdictional requirement that the twelve-month period must pass before the petition to terminate is filed. Id. at 286. The twelve-month period begins to run on the date the court transfers custody and continues to run until the termination hearing. Id. If the evidence at the hearing shows that the twelve-month period has passed, that is sufficient. Id. Here, the evidence at the termination hearing shows that the court transferred April's custody to the department approximately sixteen months before the hearing. Contrary to Alice's contention, we think the twelve-month condition in section 232.116(5)(b) is satisfied.

What is left for us to decide is the single but difficult issue whether there is clear and convincing evidence that April cannot be returned to her mother's custody, as provided in section 232.102. See Iowa Code § 232.116(5)(c). Central to our determination here is section 232.102(3), which provides in pertinent part:

Whenever possible the court should permit the child to remain at home with the child's parent.... Custody of the child should not be transferred unless the court finds there is clear and convincing evidence that:

....

b. The child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance....

Thus, the requirement of section 232.116(5)(c) is met when the child cannot be returned to the parental home because the definitional grounds of a child in need of assistance, Iowa Code § 232.2(6), exist. In re K.L.C., 372 N.W.2d 223, 227 (Iowa 1985).

Pertinent to our determination here are the following definitional grounds of a child in need of assistance:

"Child in need of assistance " means an unmarried child:

....

b. Whose parent ... has physically abused or neglected the child, or is imminently likely to abuse or neglect the child.

c. Who has suffered or is imminently likely to suffer harmful effects as a result of:

(1) Conditions created by the child's parent ... or

(2) The failure of the child's parent ... to exercise a reasonable degree of care in supervising the child.

....

e. Who is in need of medical treatment to cure, alleviate, or prevent serious physical injury or illness and whose parent ... is unwilling or unable to provide such treatment.

....

g. Whose parent ... fails to exercise a minimal degree of care in supplying the child with adequate food, clothing or shelter and refuses other means made available to provide such essentials.

Iowa Code § 232.2(6). Proof by clear and convincing evidence of any one of the above types of harm is sufficient to support termination. See In re K.L.C., 372 N.W.2d at 228. In addition, contrary to Alice's contention, the court is not limited at the termination hearing to determining whether the facts found at the adjudication hearing still exist twelve months later. The proof must only show that any of the alleged definitional grounds of a child in need of assistance in section 232.2(6) exist at the time of the termination hearing. See id.; Iowa Code § 232.102(3)(b).

II. Previously enunciated principles pertinent to our appellate review here bear repeating:

Appellate review of proceedings to terminate a parent-child relationship is de novo; thus "it is our duty to review the facts as well as the law and adjudicate rights anew on those propositions properly preserved and presented to us." We accord weight to the fact-findings of the juvenile court, especially when considering the credibility of the witnesses whom the court heard and observed firsthand, but we are not bound by those findings.

Central to a determination of this nature are the best interests of the child. In this connection we look to the child's long-range as well as immediate interests. Hence, we necessarily consider what the future likely holds for the child if returned to his or her parents. Insight for this determination can be gained from evidence of the parent's past performance, for that performance may be indicative of the quality of the future care that parent is capable of providing.

In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981) (citations omitted). We have also recognized that our statutory termination provisions are preventive as well as remedial. Id. They are designed "to prevent probable harm to a child and do not require delay until after harm has occurred." Id.

III. With these principles in mind, we turn to the record to determine whether there is clear and convincing evidence that April will suffer any one of the harms specified in section 232.2(6)(b), (c), (e), and (g) if she is returned to the custody of her mother.

Alice is twenty-six years of age. She has an I.Q. of seventy-five and, thus, is mentally disabled. According to a psychiatrist who evaluated Alice, she suffers from an "intermittent explosive disorder." People suffering from such a disorder experience anger that is out of proportion to the stimulus causing it. They also have a history of striking others or destroying property when experiencing an explosive episode. If such a person is a parent, he or she might harm a child with inappropriately harsh discipline.

Alice's family moved to Iowa from Arkansas in 1975. The Iowa Department of Human Services first came into contact with Alice in 1977 when, at the age of sixteen, she was removed from her parental home and placed in foster care because she had been sexually abused by her father. Four years later she left the foster home after becoming pregnant.

Thereafter, Alice lived with relatives until shortly after April was born on June 24, 1982. After April's birth, her natural father, Danny, lived with Alice and April for several weeks. Since then he has had no further contact with either one. Alice and Danny were never married.

Shortly after April was born, the Department of Human Services began providing Alice with homemaking services. The homemaker health aide visited Alice's home three days per week. The aide instructed Alice on child care, hygiene, cooking, and money management. These services continued until November 1985, at which time Alice terminated them.

From the aide's testimony at the termination hearing we learn that Alice's care of April was deficient. The baby suffered from diaper rash and was not kept clean. The rash became so severe at times that the baby would bleed. According to the aide, Alice was unable to comprehend the fragileness of a baby and how some childhood illnesses and conditions could affect a child's overall health.

The aide described the unsanitary conditions to which the baby was exposed. Dirt was allowed to accumulate on the floor. Many times the aide would find vomit as well as bottles with sour milk in the baby's crib. At times the aide would arrive at the home and find the baby's diaper soaked and full. Constant prodding by the aide to correct these conditions had no effect on Alice.

The aide on occasions would find it necessary to instruct Alice to seek medical treatment for the child. Alice was less than consistent in administering medication to the child. She would do so at her convenience or if she remembered. For example, at times Alice would forget to put ointment on the diaper rash or to give the child antibiotics for a chronic ear infection.

In March 1983 Alice met and began living with Tom. Several months later Alice asked Tom to leave because of his drinking. In February 1984 Alice bore Tom's child, Crystal. According to the homemaker...