In re M.B., A.B. and A.T.

• Court: Court of Appeals of Iowa
• Decided: February 7, 2018
• Docket: 17-1869
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1869 Filed February 7, 2018

IN THE INTEREST OF M.B., A.B., and A.T., Minor Children,

J.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.

A mother seeks reunification with her three children after the juvenile court

terminated her parental rights. AFFIRMED.

Kathryn E. Davis, Cedar Rapids, for appellant mother.

Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, guardian ad

litem for minor children.

Considered by Vogel, P.J., and Tabor and Bower, JJ. 2

TABOR, Judge.

This case involves three children—eight-year-old M.B., six-year-old A.B.,

and three-year-old A.T. In 2014, all three suffered physical abuse and death

threats from Ronald, the putative father of the two younger children and the

paramour of their mother, Justine. Since that abuse occurred, Justine has not

consistently provided the nurturing and support these children badly need to heal

and grow. After years of receiving services from the Iowa Department of Human

Services (DHS), Justine is still overwhelmed when called to care for all three

children at the same time and continues to expose the children to potentially

dangerous people. The juvenile court terminated Justine’s parental rights in

November 2017.1 After our review of the record,2 we find the termination complied

with the statutory grounds and was in the best interests of the children. See Iowa

Code § 232.116(1), (2), (3) (2017).

I. Facts and Prior Proceedings

This family’s involvement with the DHS dates back to 2009 when Ronald

reportedly strangled Justine in the presence of another child. In March 2011, the

DHS confirmed a child-abuse allegation involving the parents’ use of illegal drugs

in the home. Then in November 2014, a frightening event resulted in the

adjudication of M.B., A.B., and A.T. as children in need of assistance (CINA).

1 The order also terminated the parental rights of Ronald and Daniel, who is M.B.’s father. Neither father appeals. 2 Our review is de novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We are not bound by the juvenile court’s factual findings, but we give them weight, especially when witness credibility is key to the outcome. See id. Proof must be clear and convincing, meaning there are no “serious or substantial doubts as to the correctness [of] conclusions of law drawn from the evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). 3

Ronald threatened to kill Justine and all three children. He covered M.B.’s mouth

so she couldn’t breathe; he waved a metal pipe over his son A.B., saying “I bet this

would go through [the boy’s] skull”; and he forced a towel over baby A.T.’s face,

saying, “[Y]ou take care of that bitch.” Ronald was incarcerated for child

endangerment until July 2015. The DHS returned the children to Justine’s care on

her word she would not reunite with Ronald.

But in September 2015, the DHS confirmed Ronald was back in the home

and had physically abused M.B., leaving a bruise on her thigh. Justine testified at

the termination hearing that M.B. lied about what happened. Ronald was charged

with violating the no-contact order. A few days later, M.B. told staff at her school

that her family was moving away. Ronald was with Justine when the mother picked

up M.B. from school. Worried about the safety of the children, the DHS initiated

another removal and a second CINA adjudication.

From October 2015 through June 2017, Justine made some strides toward

reunification. She obtained an apartment with federal housing assistance for low-

income families, though she did not consistently stay there. Justine instead chose

to spend two to three nights per week at her mother’s home. But Justine’s mother

lost custody of Justine as a child and is not approved for contact with the

grandchildren. Justine held four different jobs during the pendency of the case;

she was employed at the time of the termination hearing.

Justine progressed in her visitation with the children, moving from fully

supervised to semi-supervised to unsupervised to overnight sessions. In early

June 2017, Justine had extended visitation of four overnight stays. Justine

complained to the foster parents and the DHS social worker that caring for all three 4

children at once was “very stressful.” In fact, it was so stressful that Justine

revealed to the foster mother that Justine started “smoking weed” to cope with the

situation. The DHS also learned Justine had exposed the children to a friend who

was charged with predatory sexual contact with a minor in Illinois. The FSRP

(family safety, risk, and permanency) worker explained, “[W]here she’s been fully

supervised and when people are there Justine seems to do a good job, but as the

level of supervision decreases, that’s when issues arise of people being there who

shouldn’t be.” The DHS returned Justine to supervised visitation in mid-June 2017.

Justine struggled with her mental health, having been diagnosed with a

bipolar disorder, ADHD, and anxiety. During the pendency of the case, she did

not consistently manage her medication or individual counseling needs. She

continued to swear at the children and threaten them with physical punishment,

even in the presence of the FSRP worker.

The State filed a petition to terminate parental rights in early January 2017.

At permanency hearings in March and May, the juvenile court decided to allow

Justine more time to reunify with the children. But after the DHS reinstituted

supervised visitation, the juvenile court held a trial on the petition to terminate

parental rights. At the September trial, the children had been out of Justine’s care

just shy of two years. On November 1, 2017 the court issued its termination ruling,

which Justine challenges here.

II. Analysis of Justine’s Claims

Justine’s petition on appeal raises three issues. First, she contends the

State failed to offer clear and convincing evidence in support of termination under

Iowa Code section 232.116(1)(f) and (h). Within that issue she asserts the DHS 5

failed to make reasonable efforts to reunify her with the children as required by

section 232.102(7). Second, she claims termination is not in the children’s best

interests. Iowa Code § 232.116(2). Third, she argues the closeness of the parent-

child relationship weighs against termination. Id. § 232.116(3)(c). We will address

each claim.

A. Statutory Grounds/Reasonable Efforts

“The first step in our analysis is to determine if a ground for termination

exists under section 232.116(1).” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). To

terminate Justine’s parental rights, the juvenile court relied on paragraph (f)3 for

the older children, M.B. and A.B., and paragraph (h)4 for the younger child, A.T.

We find clear and convincing evidence in the record to support the order under

paragraphs (f) and (h).

Justine argues the DHS did not make reasonable efforts, as defined in

section 232.102(7), to reunite her with the three children because the progression

of her visitation was “unreasonably delayed.” She also asserts that if her use of

“inappropriate language” around the children was truly a safety concern, it should

have been identified earlier in the case plan.

3 That provision requires proof of four elements: (1) the child is four years old or older; (2) the child has been adjudicated to be a CINA; (3) the child has been removed from the parent’s physical custody for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period in the home has been less than thirty days; and (4) clear and convincing evidence exists that at the present time the child cannot be returned to the custody of her parents as provided in section 232.102. 4 That provision also requires proof of four elements: (1) the child is three years old or younger; (2) the child has been adjudicated to be a CINA; (3) the child has been out of the parent’s custody for at least six of the last twelve months or the last six consecutive months and any trial period in the home has been less than thirty days; and (4) clear and convincing evidence exists that the child cannot be returned to the custody of her parents as provided in section 232.102 at the present time. 6

Justine’s contentions are not borne out by the record. A report from the

guardian ad litem (GAL) dated August 2016 noted Justine’s frustration and anger

with the children had been an ongoing concern for social workers. In a November

2016 report, the GAL expressed her view that Justine did not “seem able to care

for and manage the children on a regular basis by herself.” In her March 2017

report, the GAL told the court that Justine had not made any “lasting change” and

was “repeating the same patterns despite many years of services.” The DHS

worked with Justine in early 2017 to lessen the supervision of her visitations, but

Justine did not rise to the occasion. The experience of caring for all three children

at once proved too stressful for her. She continued the risky practice of exposing

these vulnerable children to individuals not approved by the DHS. The State

offered clear and convincing evidence the children could not be safely returned to

Justine’s care.

B. Best Interests

“The second step in the analysis is to consider the factors under section

232.116(2).” P.L., 778 N.W.2d at 40. This best-interests provision requires us to

give primary consideration to the children’s safety, to the best placement for

furthering their long-term nurturing and growth, and to their physical, mental, and

emotional condition and needs. Iowa Code § 232.116(2).

Because of their early exposure to violence, Justine’s children suffer from

trauma-related maladies. Justine acknowledged her relationship with Ronald

“caused a lot of damage to [her] children.” Especially alarming is the impact on

the oldest child, M.B. This eight-year-old girl has been diagnosed with and takes

medication for depression, anxiety, and childhood PTSD (post-traumatic stress 7

disorder). Because of her extreme behaviors, M.B. cannot safely live with her

younger siblings and has had three different out-of-home placements since she

was removed from Justine’s care. M.B. was also hospitalized for self-destructive

behaviors while in foster care. Her current foster family was not committed to

moving toward adoption. A.B. also has demonstrated behavioral problems and

has trouble with his temper.

Justine contends the upheaval in M.B.’s life and the uncertainty of her

adoption suggests termination was not in the best interests of the children. But the

record points to the opposite conclusion. These children are in desperate need of

stability after early years of violence and chaos. Despite her sincere efforts,

Justine has not shown she can provide for the long-term nurturing and growth or

meet the complex emotional needs of her traumatized children. Termination of her

parental rights is the necessary first step toward permanency for all three children.

See P.L., 778 N.W.2d at 41 (noting the adoptable age of the child and pointing out

we cannot delay a termination decision by “hoping someday a parent will learn to

be a parent and be able to provide a stable home for the child”).

C. Closeness of Relationship

Finally, Justine argues the juvenile court should have refrained from

severing her legal ties with the three children because the record included clear

and convincing evidence termination would be detrimental due to the closeness of

the parent-child relationship. Iowa Code § 232.116(3)(c). Justine points to her

regular visitations and asserts the children will be “harmed by not having her in

their lives.” 8

The DHS worker testified the children have a strong bond with Justine and

predicted an “emotional impact” from the termination of her parental rights. But

the worker also believed the children’s need for permanency outweighed the

detrimental effect of the termination. After reviewing the record, we conclude the

closeness of the parent-child relationship is not cause for declining to terminate

Justine’s parental rights. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010)

(explaining “our consideration must center on whether the [children] will be

disadvantaged by termination, and whether the disadvantage overcomes [the

parent’s] inability to provide for [the children’s] developing needs”).

AFFIRMED.