T.J.O., In Interest of

• Citation: 527 N.W.2d 417
• Decision Date: 28 November 1994
• Docket Number: No. 94-668,94-668
• Parties: In the Interest of T.J.O., A Minor Child, D.W. and D.R.W., Parents, Appellants.
• Court: Court of Appeals of Iowa

Page 417

527 N.W.2d 417

In the Interest of T.J.O., A Minor Child, D.W. and D.R.W., Parents, Appellants.

No. 94-668.

Court of Appeals of Iowa.

Nov. 28, 1994.

Robert W. Conrad of Neuzil, Sanderson & Conrad, Knoxville, for appellants.

Bonnie J. Campbell, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., Kathrine Miller-Todd, Asst. Atty. Gen., and Mark Kruse, County Atty., for appellee-State.

Jonathan Willier, Centerville, guardian ad litem, for minor child.

Considered by HAYDEN, P.J., and SACKETT and HABHAB, JJ.

HAYDEN, Presiding Judge.

T.J.O., born November 17, 1990, is the son of David and Renee. Renee was married twice and is the mother of five children: M.O., a boy born in 1975; S.A., a girl born in 1980; J.O., a girl born in 1983; T.J.O.; and K.W., a girl born in 1993. Only T.J.O. is the subject of this appeal.

In 1991 only S.A. and T.J.O. were living with Renee. M.O. was living with his maternal grandmother, and J.O. was living with her maternal aunt. M.O. was visiting Renee on May 13, 1991, when Renee got into an argument with David while talking to him on the phone. Renee became angry and shook T.J.O.'s crib, shook T.J.O., and threw him down in the crib. Concerned for T.J.O.'s safety, S.A. and M.O. ran to a neighbor's house to call the police. The police arrived and arrested Renee for child endangerment.

Pursuant to a temporary removal order S.A. and T.J.O. were placed in foster care. After a removal hearing on May 16, 1991, the court confirmed the temporary order. The court found Renee and David each had a previous history of substance abuse and domestic violence. The court determined the children could not be returned to their custody and ordered they be placed with the department of human services (DHS) for placement in foster care. On the same date the State filed a petition alleging S.A. and T.J.O. were children in need of assistance (CINA).

On June 3, 1991, S.A. was adjudicated CINA pursuant to Iowa Code section 232.2(6)(c)(2), and T.J.O. was adjudicated CINA pursuant to Iowa Code sections 232.2(6)(c)(2) and 232.2(6)(b) (1991). S.A. was placed in the custody of her maternal aunt, and T.J.O. was placed in the custody of DHS for placement in foster care. The court ordered Renee and David to undergo substance abuse, psychiatric, and psychological evaluations. The court further ordered a crisis assessment of the family be undertaken by Iowa Children and Family Services, homemaker services be provided to Renee and David, and Renee and David be allowed supervised visitation.

Renee had a psychiatric evaluation in July 1991. Her evaluator recommended she continue with counseling and undertake reinforcement therapy for her alcohol problem. In November 1991 David was convicted of operating a motor vehicle while under the influence; Renee was convicted of the same offense in December.

At a January 1992 review hearing the court ordered S.A. continue in her maternal aunt's custody and T.J.O. remain in foster care. The court also ordered David and Renee undergo substance abuse evaluations and participate in individual counseling. Following a March 1992 substance abuse evaluation it was recommended Renee abstain from all mood altering chemicals, attend weekly Alcoholics Anonymous meetings, complete OWI school, and attend aftercare.

After an August 1992 review hearing the court found David had not completed any of the ordered evaluations and Renee had not pursued her recommended aftercare treatment. The court ordered T.J.O. and S.A. continue in their placements and DHS prepare and file a petition for termination of parental rights with respect to T.J.O. In September 1992 the State filed its petition to terminate. Following a February 1993 review hearing the court continued the children's placements and found Renee had not requested visits with T.J.O. since the last review hearing but had seen him at her mother's home. After several continuances a hearing on the petition was held in January and March 1994.

At the hearing evidence was presented David and Renee were married in December 1993. At the time of the hearing David had been steadily employed for two and one-half years. Renee was staying home to take care of K.W., born in 1993. In December 1993 David and Renee underwent psychological evaluations, but further counseling services were not recommended for either of them. Renee also underwent another substance abuse evaluation in February 1994, and it was recommended she attend outpatient treatment to assist her in remaining sober. Both Renee and David testified they had never had a problem with domestic violence, they had both stopped drinking, and they could care for T.J.O.

A family therapist, Doran Bollman, testified neither Renee nor David had requested his services for visitation from August 1992 until December 1993. Bollman stated he did not believe the parents had fully acknowledged or dealt with their problems with substance abuse and domestic violence. DHS caseworker Jon Wagner testified he did not think T.J.O. could be safely returned to Renee's and David's care. Both Bollman and Wagner acknowledged since December 1993 David and Renee were making positive changes in their lives.

On March 14, 1994, the court concluded Renee's and David's parental rights over T.J.O. should be terminated pursuant to Iowa Code section 232.116(1)(c) and (g) (1993).

Renee and David appeal. They first argue it is not in T.J.O.'s best interest to be separated from his sister, K.W. Renee and David next contend the court erred in finding the circumstances which led to T.J.O.'s CINA adjudication continue to exist. They claim there was not clear and convincing evidence presented they continue to have problems with drug and alcohol abuse or domestic violence. We disagree. We affirm the juvenile court's termination of Renee's and David's parental rights.

I. Scope of Review.

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) (quoting In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981)). 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.

The primary concern in termination proceedings is the best interest of the child. Iowa R.App.P. 14(f)(15); Dameron, 306 N.W.2d at 745 (citation omitted).

We look to the child's long-range, as well as immediate, interests. We consider what the future 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 the parent is capable of providing. Our statutory termination provisions are preventative as well as remedial. They are designed to prevent probable harm to a child.

In re R.M., 431 N.W.2d 196, 199 (Iowa App.1988) (citing Dameron, 306 N.W.2d at 745).

With these principles in mind, we address the substantive issues on appeal.

II. Separation of Siblings.

The first issue is whether the juvenile court erred in separating the siblings, T.J.O. and K.W. There is no indication in the record this issue was raised in the juvenile court. As a general rule, an issue not presented in the juvenile court may not be raised for the first time on appeal. In re R.J., 495 N.W.2d 114, 117 (Iowa App.1992) (termination proceeding) (citation omitted).

Even if this issue was preserved, these siblings have never resided together. There is no evidence in the record the two have even seen each other. None of the mother's older children reside with her. One child is with grandparents, and two children are with an aunt. T.J.O. is now strongly bonded to the foster parents with whom he has spent almost his entire life.

Our supreme court has held that wherever possible brothers and sisters should be kept together. In re L.B.T., 318 N.W.2d 200, 202 (Iowa 1982) (citation omitted). However, the paramount concern in these cases must be the child's best interests. The record is clear it would not be in T.J.O.'s best interests to now seek to establish a relationship with a sibling he does not even know. We affirm on this issue.

III. Termination of Parental Rights.

The second issue is whether the juvenile court erred in terminating the parents' parental rights to T.J.O. pursuant to Iowa Code sections 232.116(1)(c) and (g) (1993). Renee and David contend the court erred in finding the circumstances which led to T.J.O.'s CINA adjudication continue to exist. They claim there was not clear and convincing evidence presented they continue to have problems with drug and alcohol abuse or domestic violence. We disagree.

Iowa Code section 232.116(1)(c) provides for termination of parental rights when

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 circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

Iowa Code § 232.116(1)(c)(1), (2) (1993).

T.J.O. has been adjudicated to be in need of assistance after a finding the child has been physically abused and/or neglected by his mother. There is clear and convincing evidence the circumstances which led to the adjudication continue to exist. At the time of adjudication, there was concern with domestic violence, the use of drugs and/or alcohol, and the children's safety in the home.

For children the age...