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IN THE COURT OF APPEALS OF IOWA No. 0-772 / 10-1389 Filed December 8, 2010 IN THE INTEREST OF K.F., R.B., and R.B., Minor Children, C.E.F., Father, Appellant, R.F., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

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

Tammy L. Banning of Tammy L. Banning, P.L.C., Waterloo, for appellantfather. Kelly J. Smith of Kelly J. Smith, P.C., Waterloo, for appellant-mother. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Steven J. Halbach, Assistant County Attorney, for appellee. Linnea Nicol, Assistant Juvenile Public Defender, Waterloo, attorney and guardian ad litem for minor children.

Considered by Sackett, C.J., and Vogel and Vaitheswaran, JJ.

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SACKETT, C.J. A mother and father each appeal from the order terminating their parental rights. The mother contends the court erred in ordering termination instead of establishing permanency through a guardianship. The father contends the court erred in ordering termination when "evidence supported deferring permanency" and when establishing a guardianship with a relative was a permanency option. We affirm on both appeals. BACKGROUND. R.F. is the mother of five children but only the youngest three, K.F., born in 1999, Ric.B., born in 2002, and Rik.B., born in 2004, are involved in these proceedings.1 C.F. is the father of K.F.2 In February of 2009 the mother left K.F. and T.B. with a maternal aunt and Ric.B. and Rik.B. with the maternal grandparents with no provision for the relative caretakers to be able to obtain medical care for the children, no support for the children, and no indication when the children would be picked up by the mother. After an unsuccessful attempt to meet with the parents, the Iowa Department of Human Services obtained a court order for temporary removal of the children in mid-February. Despite being notified, neither R.F. nor C.F. appeared at the hearing where the removal was confirmed. A child protective assessment completed in March was founded for physical abuse and denial of critical care. Neither parent participated

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The oldest child, T.B., born in 1996, is in the guardianship of the maternal aunt. Before the termination proceeding, the aunt moved to Texas with T.B. The next-oldest child, L.B., was twelve years old at the time of the termination hearing. The child has been in the care of a family friend and childcare provider for virtually all of her life under an informal arrangement. 2 The parental rights of the father of Ric.B. and Rik.B. also were terminated, but he is not involved in this appeal.

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in a family team meeting in late March. K.F. reported her dad hit her with a belt on the eye, which was swollen and bruised. The children witnessed the mother attempting to stab the father with a knife, cutting his arm. There was little food in the house. Meals mostly were Ramen noodles and snacks. The children

reported the parents were using drugs and have witnessed drug dealers in the house. The State petitioned to have the children found to be in need of assistance, alleging a history of domestic violence, substance abuse, mental health concerns, failure to provide critical care, and physical abuse. Following a hearing in early April, at which the parents appeared and stipulated to the finding, the court found the children in need of assistance under Iowa Code sections 232.2.(6)(b), (c)(2), (g), (j), and (n) (2009). The court ordered the parents to participate in family safety, risk, and permanency services, couples or domestic violence counseling, substance abuse evaluations, and random drug screens. It also ordered remedial services for the children and supervised visitation at the discretion of the department. Following a hearing in late May, at which neither parent appeared, the court issued a dispositional order. It found the parents were "totally uninvolved" and returning the children "to the custody of these uninvolved and uncaring parents" was contrary to the childrens welfare. It ordered the parents to

complete substance abuse and mental health evaluations and follow all recommendations. It further ordered them to participate in couples counseling and related domestic violence prevention services. The court continued the

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children in the custody of the department for continuing physical placement with relatives. The T.B. and K.F. remained with the maternal aunt; Ric.B. and Rik.B. remained with the maternal grandmother. Both relatives requested that the

children be removed from their care at the end of the school year, but later withdrew the requests. Both the department and the childrens guardian ad litem were concerned that the parents were being allowed unsupervised contact with the children by the relatives with whom they were placed. The aunt also

expressed concern that the parents lacked any incentive to work toward reunification as long as the children were placed with relatives. A review hearing took place November. By this time C.F. was in jail. Neither parent attended the hearing. The parents had not complied with or

participated in any of the court-ordered services. They had not participated in supervised visitation with the children nor in a family team meeting. The court noted the parents "have totally failed to seek to resume custody of the children" and "are not willing to provide them care or be involved in their lives." The court continued the children in relative placement, in part based on the relatives expressed desire to be considered as long-term and concurrent placements for the children. The court reiterated the orders for the parents to participate in various services. After a modification of disposition and permanency hearing on February 17, 2010, the court placed T.B. in the guardianship of the maternal aunt, who was moving to Texas. The court also moved K.F. from the aunts care to the care of the maternal grandmother, who then had all three children who are the

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subject of this appeal. The court noted that the grandmother had indicated she was not a permanent placement option, but "in light of new information concerning a potential relative placement, the grandmother has agreed to maintain the children in her home until that possibility can be more fully considered." The court continued the hearing on modification of disposition and permanency as to the three children until April. On February 19 the State filed applications for a temporary removal order and hearing after K.F. reported the mother was continuing to have frequent contact with the children without permission of the department, the mother and grandmother wanted all three children to move to another relative placement where the mother would be with the children after school and in the evening, and the mother stated she would take all the kids and move to Detroit, Michigan, if the State tried to take away her parental rights. The children were removed from the grandmothers care and placed in family foster care. Following an April 6 hearing on the temporary removal, modification of disposition, and permanency, the court found it in the childrens best interest to continue in family foster care and placed the children in the custody of the department for placement in family foster care. It ordered mental health

counseling, substance abuse and drug testing, family safety, risk, and permanency services, and visitation at the discretion of the department for the mother. The court prohibited telephone contact between the mother and the children because of its negative effect on the childrens stability. The GAL

recommended caution concerning contact with the mother because of extreme

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reactions of the children, especially Ric.B., after visitation such as enuresis and soiling himself, and the mothers inappropriate coaching of the kids. The GAL also expressed concern about Ric.B.s mental health and his need for a psychiatric evaluation and possible treatment because of his hallucinations. Ric.B. also reported his mother took a knife to cut herself when she was mad and he was going to cut himself when he was mad. Rik.B. becomes aggressive, biting, kicking, screaming. The father of K.F. was still incarcerated. After a combined pretrial hearing on permanency and termination in midMay, the court expanded the orders concerning Ric.B. to allow for his placement in a mental health facility for a thirty-day psychiatric evaluation. It also ordered "any and all home studies" be expedited in anticipation of the hearing on permanency and termination in July. The mother appeared at the July 9 hearing, but presented no evidence. The father appeared by telephone, testified, and presented evidence. As the court recounted the various proceedings in its findings of fact, it repeatedly noted the mothers refusal to participate in services, refusal to submit drug screens, and admissions she was using marijuana daily and drinking several times a week. In February of 2010 she was hospitalized for mental health issues including visual and auditory hallucinations and suicidal and assaultive thoughts. The court

noted the mothers inconsistent visitation with the children at times was positive and at other times was negative. The court further found the mother "has failed to participate or to participate with any meaning in most of the services offered by the department and has never invested in the reunification services to regain

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custody of her children." It found the mother and some relative caretakers "have engaged in deceitful behavior in violating court orders regarding contact between the mother and the children." Concerning the father of K.F., the court found he had not appeared at the majority of the case proceedings and "never participated in services or had meaningful contact with his daughter during any relevant period." In considering the fathers request for a six-month deferral of permanency, the court found: [K.F.s father] has a lengthy criminal history. He has been incarcerated five times. At the time of trial he was incarcerated. He had a parole review date in late July 2010, with an anticipated recommendation for release to a residential facility. If released on parole, it would likely be two to three months before he was able to be assigned to the residential facility and his placement there could last up to one year. Upon release to the residential facility, he will need to find employment and comply with the terms of the facility. The court terminated the mothers parental rights under Iowa Code sections 232.116(1)(d), (f), (i), (k), and (l). It terminated K.F.s fathers parental rights to her under sections 232.116(1)(d), (f), and (i). It terminated the parental rights of the father of Ric.B. and Rik.B. under sections 232.116(1)(b), (d), (e), (f), and (i). The mother and the father of K.F. appeal. SCOPE OF REVIEW. Our review of juvenile court orders in child-in-needof-assistance and termination-of-parental-rights proceedings is de novo. Iowa R. App. P. 6.907 (2009). The parent-child relationship is constitutionally protected. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511, 519 (1978); Wisconsin v. Yoder, 406 U.S. 205, 233, 92 S. Ct. 1526, 1542, 32 L. Ed. 2d 15, 35 (1972). The State must prove the statutory grounds for

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termination by clear and convincing evidence. (2009). DEFERRING PERMANENCY.

See Iowa Code

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