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IN THE SUPREME COURT OF IOWA
No. 128 / 06-0459 Filed November 17, 2006 IN THE INTEREST OF J.E., Minor Child, R.E., Mother, Appellant. vs. STATE OF IOWA, Appellee. ________________________________________________________________________ On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Wapello County, William S. Owens, Associate Juvenile Judge.

State seeks further review after court of appeals reversed a juvenile court's termination order. DECISION OF COURT OF APPEALS

VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

Michael O. Carpenter of Webber, Gaumer & Emanuel, P.C., Ottumwa, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Jason Helm, Assistant County Attorney, for appellee.

Robert E. Breckenridge and Kenneth A. Duker of Breckenridge & Duker, P.C., Ottumwa, guardians ad litem for minor child.

2 STREIT, Justice. Due to a mother's neglect of her ten-year-old son, a juvenile court terminated her parental rights. The Iowa Court of Appeals reversed the juvenile court's decree. Because the child cannot be safely returned to his mother's care and because termination is in the child's best interests, we vacate the court of appeals' decision and affirm the decree of the juvenile court. I. Facts and Prior Proceedings Jerimiah was born on April 17, 1996. He is of low intelligence and suffers from attention deficit/hyperactivity disorder (AD/HD). He

operates on a much younger level than his age and is unable to make good or safe decisions. Jerimiah also has heart arrhythmia. He requires medication and a low-sugar, no-caffeine diet. His mother is Robyn and his father is alleged to be either Luther of La Plata, New Mexico or Kevin of Lakeside, Arizona. Jerimiah does not have a relationship with either man. Robyn has five other children:

Cody, born January 28, 1989; Cory, born September 18, 1990; Elyjah, born September 19, 1992; Cheyana, born September 12, 2000 and Savanah, born July 14, 2002. father, Michael, in Ottumwa. 1 Robyn's two daughters live with their During the juvenile court proceedings,

Elyjah lived with his father, Luther, in New Mexico part of the time. Jerimiah first came to the attention of the Iowa Department of Human Services (DHS) on July 7, 2004 when he was taken into custody by law enforcement and placed in foster care. On that date, Robyn had left Jerimiah home alone for up to fourteen hours. Jerimiah was eight
obtained a civil restraining order on Robyn. Cheyana was diagnosed as "failure to thrive" and there is a founded report of Robyn not providing adequate medical care for her.
1Michael

3 years old at the time. Concerned neighbors called the police because

Jerimiah did not know where his mother was or how to contact her. Two neighbors reported Jerimiah was often alone from morning until bedtime. He spent long periods of time at their homes because he was hungry and scared. Jerimiah told one of the neighbors his mother threw all of their food away because their home did not have electricity. While the police officers were interviewing Jerimiah in the front lawn, Robyn drove by. She paused and then drove on. She was later arrested for driving while barred. ($5877). During the investigation of this incident, Robyn admitted to a police officer her home did not have electricity. She consented to a drug test, which came back positive for opiates. Robyn said she had fallen the week before in a parking lot and was taking Tylenol 3 as a result. Her friend also gave her a pill to help with the pain. The test was negative for other substances. Robyn told a police officer she worked every day and had to do community service hours. A subsequent Child Protective Assessment verified the neighbors' allegations. This was the third founded report for denial of critical care based on Robyn's failure to properly supervise Jerimiah. 2 Robyn does not have her driver's license due to unpaid fines

was a founded report of denial of critical care concerning Jerimiah and his brother, Cody. On July 9, 2003, Robyn started an uncontained fire outside in order to burn some trash. She went inside leaving Cory and Jerimiah outside. At the time, Jerimiah was seven and Cory was twelve. Jerimiah played in the fire with a stick and burned a neighbor boy who had to be taken to the emergency room by his parents. There was also a founded report of denial of critical care concerning Jerimiah and his two younger sisters. On December 19, 2002, Robyn left Jerimiah and the girls in a vehicle unattended for five to fifteen minutes while she was in her landlord's home. Jerimiah was six and a half years old at the time and Cheyana and Savanah were two years old and five months old respectively. Robyn was unable to drive the children home because her driver's license was suspended.

2There

4 Two days after Jerimiah was removed from the home, Robyn and Jerimiah's brothers moved because Robyn did not have money to pay the electric bill. They lived for about two weeks at the home of their pastor and then moved to the Crisis Center. In mid-August they moved to a rented home on Kruger Street in Ottumwa. Due to a $700 unpaid

electric bill, Robyn had to have the utilities placed in a friend's name. At the end of March 2005 the family moved again to their current home on South Van Buren in Ottumwa. Robyn's gas was shut off in June 2005 because she did not pay her bill. She was able to get the gas turned back on within a few days. Robyn was unemployed throughout the

juvenile court proceedings except when she worked at Burger King for three months. The family receives welfare, food stamps, and medical

assistance from DHS. Jerimiah was adjudicated a child in need of assistance on October 12, 2004, as defined in Iowa Code section 232.2(6)(c)(2) (2003) and remained in the care and custody of DHS. provided to the family by DHS. Numerous services were

Services included parent skill

development services for Robyn, psychological evaluation of Robyn, psychiatric evaluation of Jerimiah, and individual therapy for Robyn and Jerimiah. Robyn accepted these services but her participation was

inconsistent. At times, Robyn was not awake or was not prepared for parent skills sessions which were conducted in her home. She was also inconsistent in attending Jerimiah's medical and psychiatric

appointments although she was requested to do so. At the department's behest, Robyn began seeing a therapist but failed to regularly attend her appointments. She was diagnosed with Robyn

AD/HD, depression, and post-traumatic stress disorder.

5 acknowledged physical and child sexual abuse by her father. Her mother died of a heart attack when Robyn was just two years old. She dropped out of school in the eleventh grade when she became pregnant. DHS continues to have concerns with Robyn's parenting ability. At the beginning of this case, Robyn told the in-home provider she relates to her children more as a peer than a parent. Robyn admitted she does not feel she needs to be a parent to her children all of the time "because she doesn't want to bitch at them." The DHS reports Robyn is not

affectionate toward Jerimiah and there is not much interaction between the two of them. At first, DHS limited Robyn to supervised visits with Jerimiah. Robyn progressed to partially unsupervised visits on October 25, 2004. Jerimiah's foster parents agreed to take Jerimiah to Robyn's home for visits and the in-home provider would be present for the second half of the visits. The unsupervised part of the visit was discontinued on

November 16, 2004 because Robyn was not keeping her appointments with her therapist and the in-home provider was concerned Robyn was not able to consistently provide a structured environment. Robyn did not regularly have activities and meals planned for Jerimiah during the visits. On February 2, 2005, DHS resumed partially unsupervised visits. Approximately three weeks later, DHS once again limited Robyn to supervised visits with Jerimiah because she was not attending her therapy appointments, was not calling Jerimiah daily as she had been requested to do, and she missed a parent/teacher conference. In March 2005, DHS resumed partially unsupervised visits because Robyn was calling Jerimiah more consistently and was keeping her therapy appointments. She met with Jerimiah's teacher. She went

6 to the library and checked out a book on parenting without prompting. Robyn even walked five miles in order to visit Jerimiah. DHS granted Robyn unsupervised overnight visits with Jerimiah in May 2005. A permanency hearing was held on July 8, 2005, at which time Robyn was given an additional six months to pursue reunification. On August 4, 2005, Robyn's visits with Jerimiah were increased from one overnight to three overnights a week. However, DHS once again limited Robyn to supervised visits after she was arrested for shoplifting at WalMart on August 8, 2005. 3 Jerimiah was in the store with Robyn and saw her get arrested. Robyn initially lied and told the social worker Jerimiah was not with her. Robyn testified at the termination hearing she lied out of fear DHS would terminate her parental rights. Jerimiah told a child protective worker it is okay for his mom to steal if she needs food for her children. Besides shoplifting, Robyn has made other poor decisions. In

December 2004, Robyn was ticketed for allowing her son Cody to drive without a license. In March 2005, Robyn was charged with violating the compulsory school attendance law for her son Cory. According to the

school attendance officer, Cory had missed thirty-one days of school by the month of March. Robyn pled guilty and was fined $100. On May 9, 2005, Robyn returned Jerimiah to his foster home thirty to sixty minutes early without notifying the foster parents. Neither foster parent was

home so Robyn left Jerimiah in the care of a teenage foster boy. A few days later, Jerimiah told Robyn the boy sexually abused him while they

3Robyn

was also arrested for shoplifting at Econo Foods on July 24, 2005.

7 were alone. 4 Additionally, Robyn considered allowing a truck driver,

whose last name she did not know, pick up Elyjah in New Mexico and return him to Ottumwa. After the in-home provider advised Robyn her idea was too risky, Robyn took a bus to New Mexico to pick him up herself. The State filed a petition for termination of parental rights on October 31, 2005. The juvenile court held a termination hearing on

November 21, 2005. The in-home provider for the family testified there is a lack of bonding between Jerimiah and his mother. However, Jerimiah has repeatedly stated he misses his mom and siblings and wants to be home with them. Jerimiah thinks Robyn is the "best mom ever." DHS recommended termination because Robyn is unable to provide a consistent, stable, and structured home environment for Jerimiah. Although Robyn has been able to make progress for short periods of time, she is unable to sustain those changes. DHS acknowledges Jerimiah has a close relationship with his brothers. During visits Jerimiah usually played with his brothers. They would play video games, play sports, draw, talk, joke around, play with action figures or watch movies. At the termination hearing, Cody

testified about his bond with Jerimiah. He said "we miss him a lot every day . . . . There's always a void." Jerimiah is a sweet and loving child. He is personable and gets along well with other children. He likes to give and receive attention.

Despite his special needs, DHS considers Jerimiah to be adoptable.

Robyn's credit, she immediately contacted DHS and consoled Jerimiah. She was very supportive of Jerimiah and fully cooperated with the child protective assessment and police investigation. Jerimiah was placed in a different foster home.

4To

8 The juvenile court terminated the parental rights of Robyn, Kevin and Luther (the alleged fathers) on March 7, 2006. appealed. Only Robyn

The Iowa Court of Appeals reversed the termination of her

parental rights on September 7, 2006. The court "question[ed] whether the State has proved the grounds for termination by clear and convincing evidence" because the court believed DHS made no effort to assist Robyn with child care. Moreover, the court was "not willing to find that

Jerimiah's best interests will be served by termination" because of his strong bond with his brothers. II. Scope of Review

We review termination of parental rights de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (citing In re S.N., 500 N.W.2d 32, 34 (Iowa 1993)). We give weight to the factual determinations of the juvenile court but we are not bound by them. In re T.A.L., 505 N.W.2d 480, 482 (Iowa 1993) (citing In re M.M., 483 N.W.2d 812, 814 (Iowa 1992)). Grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000). Our primary concern is the best

interests of the child. In re K.N., 625 N.W.2d 731, 733 (Iowa 2001). In seeking out those best interests, we look to the child's long-range as well as immediate interests. This requires considering what the future holds for the child if returned to the parents. When making this decision, we look to the parents' past performance because it may indicate the quality of care the parent is capable of providing in the future. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997) (citations omitted). III. A. Merits Whether Jerimiah Can be Returned to Robyn's Care

The juvenile court terminated Robyn's parental rights pursuant to section 232.116(1)(f) of the Iowa Code. Under section 232.116(1)(f),

9 parental rights may be terminated if the court finds all of the following have occurred: (1) (2) (3) The child is four years of age or older. The child has been adjudicated a child in need of assistance pursuant to section 232.96. The child has been removed from the physical custody of the child's parents 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. 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.

(4)

It is undisputed Jerimiah satisfies the first three elements. Robyn only contends the State has failed to prove by clear and convincing evidence Jerimiah cannot be returned to her custody. A parent may lose custody of his or her child if the court finds there is clear and convincing evidence "[t]he child cannot be protected from some harm which would justify the adjudication of the child as a child in need of assistance . . . ." Iowa Code

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