T.O., In Interest of

• Decision Date: 15 May 1991
• Docket Number: No. 90-1004,90-1004
• Parties: 1 NDLR P 331 In the Interest of T.O., D.J., and V.J., Minor Children, R.S., Natural Mother. State of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 8

470 N.W.2d 8

1 NDLR P 331

In the Interest of T.O., D.J., and V.J., Minor Children R.S., Natural Mother State of Iowa, Appellant.

No. 90-1004.

Supreme Court of Iowa.

May 15, 1991.

Bonnie Campbell, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Judy Sheirbon, Asst. Atty. Gen., for appellant State.

Stephen W. Newport, Davenport, guardian ad litem, for appellant children.

Michael T. Hines of McCarthy & Lammers, Davenport, for resister mother.

Considered en banc.

SNELL, Justice.

This appeal involves three children, a girl, T.O., born October 24, 1985, and two boys, D.J. and V.J., born October 13, 1986, and October 30, 1987, respectively. All three children have the same mother, R.S., who is thirty-five years old; the two younger children have the same father, while the paternity of the older child is uncertain.

R.S. also has three older children. Further, it appears from the record that all six children have, at one point or another, been placed in foster care.

According to the State's evidence, the three children involved here have been either sexually or physically abused by the mother's boyfriend, I.J. (the father of the two youngest children). I.J. allegedly physically abused the mother as well. The State also asserts that the mother has neglected the children's medical needs, has failed to provide a home free of safety hazards, and has neglected the children's nutritional needs. In addition, the mother allegedly shows marked favoritism toward T.O. and neglects the emotional needs of the others. The mother, for the most part, contends to the contrary.

In April 1988, five of R.S.'s children were adjudicated in need of assistance (CINA) as defined in Iowa Code sections 232.2(6)(b), (6)(c)(2), (6)(d) and (6)(g) (1987) due to a lack of supervision, filthy conditions, and physical abuse in the home. By dispositional order dated June 8, 1988, the five children were placed with three different maternal aunts. Numerous services were offered R.S. and visitation was granted to her as well. At a January 1989 review hearing this disposition was continued.

On April 27, 1989, the disposition was modified to transfer T.O.'s and D.J.'s custody to the department of human services for foster care placement since the maternal aunt they were staying with no longer wished to care for them. On August 7, 1989, the court also ordered that the remaining three children, T. Jr. O., J.O. and V.J., be placed in foster care since the maternal aunt they were staying with was providing insufficient supervision.

A permanency/review hearing was held in December 1989. The three youngest children's foster care placements were continued and J.O. was placed in a residential treatment facility. Services and visitation with the mother continued.

On January 18, 1990, a petition for termination of the parental rights was filed for four children, T. Jr. O., T.O., D.J. and V.J. A termination hearing was held on March 27 and April 24, 1990. On May 23, 1990, the juvenile court filed its order denying the termination of the mother's parental rights regarding all four children and granting the termination of the fathers' parental rights on grounds of abandonment. The juvenile court based its decision on the mother's good faith attempts to improve her parenting ability, on her good visitation record, and on her success in recent months in maintaining a clean and stable home.

On June 21, 1990, the State filed a notice of appeal from this order insofar as it denied termination of the mother's parental rights regarding her three youngest children, T.O., D.J. and V.J. With respect to the older child, T. Jr. O., the State did not appeal noting there was substantial evidence of that child's bonding to the mother.

We transferred the case to the court of appeals where the decision of the juvenile court was affirmed. The State and guardian ad litem now appeal that decision of the Iowa Court of Appeals.

Appellate review of termination proceedings is de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). The court gives weight to the findings of fact of the juvenile court, especially when considering the credibility of witnesses, but is not bound by those determinations. Id. at 491-92.

The first and governing consideration of the courts in termination proceedings is the best interests of the child. Iowa R.App.P. 14(f)(15).

We look to the child's long-range as well as intermediate 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) (citing In re O'Neal, 303 N.W.2d 414, 423 (Iowa 1981); In re Ponx, 276 N.W.2d 425, 433 (Iowa 1979)); see also In re A.C., 415 N.W.2d 609, 613 (Iowa 1987).

This court recognizes the existence of a parental interest in the integrity of the family unit; nonetheless the court is also cognizant that this interest is not absolute, but rather may be forfeited by certain parental conduct. In re Wall, 295 N.W.2d 455, 457 (Iowa 1980). "Because the State, as parens patriae, has the duty to assure that every child within its borders receives proper care and treatment, it must intercede when parents abdicate that responsibility." Dameron, 306 N.W.2d at 745 (citing Long v. Long, 255 N.W.2d 140, 143 (Iowa 1977); In re Yardley, 260 Iowa 259, 268, 149 N.W.2d 162, 167-68 (1967)).

Furthermore, the statutory termination provisions applicable here are preventative as well as remedial. Dameron, 306 N.W.2d at 745. The provisions prescribe action to prevent probable harm to a child but do not require delay until after harm has occurred. O'Neal, 303 N.W.2d at 423; In re Kester, 228 N.W.2d 107, 110 (Iowa 1975).

Finally, the grounds alleged for termination of parental rights must, by statute, be proven by clear and convincing evidence. See generally Iowa Code § 232.116 (Supp.1989).

The statutory basis relied on by the State for the termination of R.S.'s parental rights is rooted in Iowa Code sections 232.116(1)(c), (1)(e) and (1)(g). These sections state that:

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:

....

c. The court finds that both of the following have occurred:

(1) The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.

(2) Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstances which lead to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

....

e. The court finds that 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 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, 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.

....

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 parents as provided in section 232.102 at the present time.

(Emphasis added.)

Section 232.116 vests the court with the authority to terminate both the parental rights with respect to a child and the relationship between the parent and the child. The State contends that this case presents facts which parallel our recent termination case of In re J.W.D., 456 N.W.2d 214 (Iowa 1990). There, we upheld the termination of a mother's parental rights as to her son because her borderline intellectual functioning combined with her mental illness of adjustment reaction with depressed mood made her unable to meet the needs of her son who also had some special needs. Id. at 218-19.

Turning to the record in this case, it reveals that R.S. has been tested at an I.Q. level of 55. Mental health professionals have confirmed her as being "mildly mentally retarded." The same professionals diagnosed R.S. as suffering from either an adjustment disorder with...