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IN THE COURT OF APPEALS OF IOWA No. 0-864 / 10-1634 Filed December 22, 2010

IN THE INTEREST OF A.E., Minor Child, A.C., Mother, Appellant, C.R.E., Father, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.

A mother and father appeal separately from the order terminating their parental rights. AFFIRMED ON BOTH APPEALS.

Robin Miller, Marion, for appellant mother. Delmer Werner, Cedar Rapids, for appellant father. Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Rebecca Belcher, Assistant County Attorney, for appellee State. Richard Mitvalsky, Cedar Rapids, for intervenor. Brandy Lundy, Cedar Rapids, for minor child.

Considered by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. A mother and father appeal from the order terminating their parental rights to their two-year-old daughter, A.E. Both parents argue the State failed to prove the grounds for termination by clear and convincing evidence and termination is not in the child's best interests. Given the father's criminal history, lack of contact with the child, and minimal participation in these proceedings, we affirm termination of his parental rights. We further affirm termination of the mother's parental rights, as there is no evidence the mother is willing or able to make the changes necessary to become a safe and stable parent for the child. I. Background Facts and Proceedings. This family came to the attention of the Iowa Department of Human Services (DHS) in September 2008, when the mother gave birth to the child in Wisconsin. At the time, the mother was seventeen-years-old and had been

adjudicated to be a child in need of assistance (CINA) in Iowa as a result of her drug use, mental health and behavioral issues, along with her parents' issues of substance abuse and lack of supervision. In January 2008, the mother had been ordered to be placed in a residential treatment program, but ran from her placement in a temporary shelter. The mother remained on the run until she was discovered in Wisconsin at the time of the child's birth. DHS arranged for the mother's return to Iowa and placement in temporary shelter care. The child was adjudicated CINA and was placed in family foster care in Iowa. At a hearing on September 18, 2008, the mother agreed A.E. should remain in foster care while she remained in temporary shelter care. In October 2008, DHS located a foster family home that was willing to accept both

3 the mother and A.E., a placement that allowed the mother to provide primary care for A.E. The mother and father have had an off-and-on relationship. During the times they were together as a couple, their relationship was volatile and unstable. The father requested paternity testing be completed when the mother identified him as A.E.'s father. The father, an adult, lives in Iowa with his mother, Terri (the father leaves Terri's home in spurts, and lives in his car or in hotels during these times). The father has a son from a previous relationship who was adopted by Terri. Terri has indicated she would also like to adopt this child. Although

employed, the father does not pay Terri for rent or other household expenses. He has a criminal history, including acts of violence and substance abuse. He was in prison in Illinois and was paroled in Iowa in 2007. He was discharged from parole in August 2008. DHS offered services to the father, and he began to receive weekly supervised visits with the child upon the mother and child's return to Iowa. In the foster care family placement, the mother obtained part-time employment and made plans to complete her GED. In April 2009, under the supervision of DHS and an independent living program, the mother moved into an apartment of her own, and DHS approved a trial home placement for the child in her care. The mother acknowledged that she regularly communicated with the father, but denied that she allowed him to have contact with the child. At this same time, the father notified DHS he would no longer attend his supervised visitation. In June 2009, the father was charged with possession of

4 drug paraphernalia and driving with a suspended license. In July 2010, he was charged with public intoxication and again with possession of drug paraphernalia. The mother's situation also deteriorated. By the permanency hearing on July 15, 2009, the mother had quit her job, had not made a consistent effort toward obtaining her GED, and was at risk of losing her housing. Despite those issues, the court approved the child's placement with the mother and the efforts toward reunification. The court also continued the requirement that any visitation with the father be supervised by a service provider. On July 19, 2009, the mother accepted the father's invitation to go boating. The mother brought the child, despite being aware the father was only to have supervised contact with the child. The police received a call from a bystander concerned with the operation of the boat and arrested the father for operating the boat while intoxicated. This was the father's second OWI charge.1 DHS became aware of the incident the following week and ended the trial home placement.2 The child was returned to family foster care, where she has

remained. The incident also resulted in a founded child abuse report naming the mother and father as perpetrators of denial of critical care.

The father's first OWI occurred in March 2008. The mother was pregnant with the child at the time and was a passenger in the vehicle. 2 The child was not placed with relatives due to concerns of the family's caseworker that the mother, father, and grandparents failed to report the incident to DHS. As the caseworker reported to the court in July 2008: The Department recommends that [the child] continues to remain in family foster care as relative placement would not be appropriate or safe for the child. . . . This worker believes that [the grandparents] would not be able to set firm boundaries with the mother and the father in order to keep the child safe. The grandparents continue to enable their children's behaviors and make excuses for their behaviors.

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5 The mother continued to be noncompliant with the independent living program requirements. She seldom stayed at her apartment, preferring instead to stay with friends and family members. After a dispositional review hearing in September 2009, the court approved a plan to help the mother reunite with the child, but required the mother to make significant progress within the next review period. A week later, the mother sent a suicidal text message to the child's foster mother. The foster mother and a caseworker went to the mother's apartment and persuaded her to go to the hospital for an evaluation. The doctor

recommended that she be admitted to the psychiatric unit, but the mother ran from the hospital. That same day, the father appeared at his mother Terri's home under the influence of marijuana and/or alcohol. When he would not leave, Terri called the police. The father threatened to blow up his own mother's home, threatened to commit suicide, and reported he had taken an overdose of prescription medication. He was belligerent and physically aggressive when police officers arrived and attempted to take him into custody. Eventually, the father was taken to the hospital and placed under a psychiatric hold. After this incident, the mother discontinued communication with DHS or service providers. She stopped visitation with the child and did not pay rent on her apartment. The foster mother reported the mother had taken a trip with a friend and was stranded in Kentucky. November 2009. The State filed its petition to terminate parental rights on December 2, 2009. The mother resumed visitation with the child the following week, but it was The mother returned to Iowa in late

6 apparent to caseworkers that the mother's absence had damaged her bond with the child, who was then just over one year old. Otherwise, the mother's situation had remained primarily the same--she did not have stable housing or employment; she was not credible in regard to her contact with the father; she had not addressed her mental health issues; and she had not submitted to drug testing as required. By the time the termination petition was filed in December 2009, the father had not had any contact with the child since July 2009, and any other involvement on his part throughout the proceedings had been minimal. However, Terri maintained regular visitation with the child throughout the proceedings until January 2010, when she moved to Kentucky. Terri and her husband (the father's stepfather) received permission through the interstate compact process to be an adoptive placement for the child, which would allow the child to maintain a relationship with her half-sibling who was adopted by Terri in 2006. Following a hearing taking place on January 7 and March 16, 2010, the court entered its order terminating the father's parental rights pursuant to Iowa Code section 232.116(1)(b), (e), and (h), and the mother's parental rights pursuant to section 232.116(1)(h). The parents now appeal. II. Standard of Review. We review termination proceedings de novo. In re Z.H., 740 N.W.2d 648, 650-51 (Iowa Ct. App. 2007). Although we are not bound by them, we give weight to the district court's findings of fact, especially when considering the credibility of witnesses. Iowa R. App. P. 6.904(3)(g); In re M.M.S., 502 N.W.2d 4, 5 (Iowa 1993). The parent-child relationship is constitutionally protected.

7 Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978). The State has the burden of proving the grounds for termination by clear and convincing evidence. In re P.L., 778 N.W.2d 33, 34, 39 (Iowa 2010); In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). III. Grounds for Termination. The father contends clear and convincing evidence does not support termination under Iowa Code sections 232.116(1)(b), (e), and (h). The mother contends clear and convincing evidence does not support termination under section 232.116(1)(h). We may affirm the termination if facts support the

termination of a parent's rights under any of the sections cited by the juvenile court. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). We focus our analysis in this appeal on section 232.116(1)(h). Termination is appropriate

under that section where the State has proved the following: (1) The child is three years of age or younger. (2) The child has been adjudicated CINA. (3) The child has been removed from the physical custody of the parent for at least six of the last twelve months. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents at the present time. Iowa Code

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