S.N., In Interest of, 92-401

• Decision Date: 19 May 1993
• Docket Number: No. 92-401,92-401
• Citation: 500 N.W.2d 32
• Parties: 4 NDLR P 61 In the Interest of S.N., S.N., and A.N., Minor Children, S.W.N., Father, Appellant, State of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 32

500 N.W.2d 32

4 NDLR P 61

In the Interest of S.N., S.N., and A.N., Minor Children S.W.N., Father, Appellant State of Iowa, Appellee.

No. 92-401.

Supreme Court of Iowa.

May 19, 1993.

Steven C. Pals of Klay, Veldhuizen, Bindner, De Jong & Pals, Orange City, for appellant.

Larry G. Postma, Sheldon, guardian ad litem for minor children.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Charles K. Phillips, Asst. Atty. Gen., and Dennis Cmelik, Asst. County Atty., for appellee State.

Considered by LARSON, P.J., and SCHULTZ, NEUMAN, SNELL and ANDREASEN, JJ.

SNELL, Justice.

This is a termination of parental rights case on further review from a decision by the Iowa Court of Appeals. The district court for O'Brien County determined that the parental rights of both S.W.N. (father) and J.N. (mother) should be terminated. J.N. dismissed her appeal which mooted the issues raised by her. On appeal by S.W.N., the court of appeals reversed the termination of his parental rights and remanded the case for placement of the children in long-term foster care. We now vacate the decision of the court of appeals and affirm the judgment of the district court.

Appellant S.W.N. was born on April 28, 1961. At the age of seventeen, he suffered a serious head injury in an automobile accident which resulted in the removal of a portion of his frontal lobe. As a result of these occurrences S.W.N. now suffers from diminished judgment, impulsiveness and a decreased mental capacity.

S.N., S.N., and A.N. are the natural children of S.W.N. and J.N. They were born on November 19, 1987, May 14, 1989, and November 12, 1990, respectively. On August 7, 1990, the district court adjudicated S.N. and S.N. to be children in need of assistance on the ground that the children had suffered or were likely to suffer harmful effects as a result of conditions created by their parents. The third child, A.N., was found by the district court to be a child in need of assistance on the same ground on December 4, 1990.

On April 15, 1991, the State filed a petition for the termination of both the father's and mother's parental rights as to S.N. and S.N. On August 29, 1991, the State petitioned to terminate the parental rights also as to A.N. The State pleaded that the parents' rights should be terminated pursuant to Iowa Code section 232.116(1)(g) (1991).

On February 10, 1992, the district court terminated both parents' rights to the three children. While stating that it was clear that the father S.W.N. loves his children, the court found that the children could not be protected without the termination.

I. The scope of review in this termination case is de novo. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). The termination of parental rights code section under which this matter proceeds is section 232.116(1)(g) (1991). It provides authority to terminate parental rights when the State has proven the following: (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; and (4) 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 at the present time.

Appellant S.W.N. argues that the State has failed to prove the final element in this section in that it failed to prove that the children cannot be returned to his care within the meaning of section 232.102. A child cannot be returned to parental care within the meaning of that section if the child would be placed in danger of physical abuse or any other harm that would warrant a child in need of assistance adjudication. Iowa Code § 232.102(5). The threat of a CINA harm will warrant continuance of the child in foster care and justify a termination of parental rights under section 232.116(1)(g). It need not be the harm that led to the child's initial out-of-the-home placement. In re C.M.T., 433 N.W.2d 55, 56 (Iowa App.1988). The threat of harm must be proved by clear and convincing evidence. "Clear and convincing" evidence connotes the establishment of facts by more than a preponderance of evidence but something less than establishing a factual situation beyond reasonable doubt. In re Henderson, 199 N.W.2d 111, 121 (Iowa 1972).

Central to a determination of this matter are the best interests of the child. Dameron, 306 N.W.2d at 745. The best interests are to be determined by looking at the child's long range as well as intermediate interests. The court is to consider what the future likely holds for the child if the child is returned to the parents. Id. Insight for that determination is to be gained from evidence of the parents' past performance, for that performance may be indicative of the quality of future care the parents are capable of providing. Id. Case history records are entitled to much probative force when a parent's record is being examined. Harter v. State, 260 Iowa 605, 609, 149 N.W.2d 827, 829 (1967).

II. S.W.N. focuses much of this appeal on issues of whether he complied with the case plan, whether termination of his parental rights can be predicated on his mental injury, and whether it can be based on the children's developmental delays. The State forthrightly admits that it does not contest many of the legal points made by S.W.N. in this regard. Noncompliance with a case plan is not in and of itself a ground for termination of parental rights. Neither is mental illness in and of itself a ground for termination. However, a parent's mental health does not constitute a defense against termination of parental rights where the condition prevents the parent from carrying out his or her duty of caring for the child. In re A.C., 415 N.W.2d 609, 614 (Iowa 1987), cert. denied, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 702 (1988).

No one doubts in this record the love that S.W.N. has for his children. S.W.N. has done what he can to provide the needed care for his children given the severe limitations from which he suffers due to the injury sustained in his automobile accident. Unfortunately, the testimony indicates that there is not a reasonable hope for a continued improvement in that condition. S.W.N. has been diagnosed as having organic personality syndrome and organic hallucinosis. The outcome of this condition is "very limited abilities in the areas of problem solving, insight and judgment." The psychological assessment of S.W.N. was that he is emotionally labile, impulsive and without insight. He makes little effort to deal with the emotional complexities of life, and has few of the resources necessary to make significant changes in his life. The assessment continued, that in spite of his motivation, he is unlikely to be able to provide adequate parenting or attention to his children.

The district court found with regard to S.W.N.:

Testing for organic brain function reveals severe frontal lobe damage resulting in a deficit in accuracy in his perceptions. He is unable to be flexible, his judgment is diminished. He is highly impulsive. He exhibits poor logic, all of this is borne out by MMPI, Rohrshach, and Bender-Galstalt tests. These deficiencies cannot be overcome with education, training or medication. He constitutes a threat to the physical safety of his children. He clearly loves his children, but he is not a good...