In re R.O.

• Court: Court of Appeals of Iowa
• Decided: December 20, 2017
• Docket: 17-1408
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1408 Filed December 20, 2017

IN THE INTEREST OF R.O., Minor Child,

M.C., Mother, Appellant,

R.O., Father, Appellant. ________________________________________________________________

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

District Associate Judge.

The mother and father appeal separately the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Annette F. Martin, Cedar Rapids, for appellant mother.

Craig Elliott, Anamosa, for appellant father.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Ryan P. Tang of Law Office of Ryan P. Tang, P.C., Marion, guardian ad

litem for minor child.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ. 2

POTTERFIELD, Judge.

The mother and biological father of R.O. appeal the termination of their

parental rights to the child.1 The mother maintains she should have been given

additional time to work toward reunification. The father maintains the State failed

to make reasonable efforts to reunify R.O. and claims this failure precludes the

termination of his parental rights.

I. Standard of Review.

“We review termination of parental rights de novo.” In re T.S., 868 N.W.2d

425, 431 (Iowa Ct. App. 2015). “We will uphold an order terminating parental rights

where there is clear and convincing evidence of the statutory grounds for

termination.” Id. Evidence is clear and convincing when there is no serious or

substantial doubt as to the correctness of the conclusions of law drawn from the

evidence.” Id.

II. Mother’s Appeal.

A. Background Facts and Proceedings.

At the time R.O. was born, in the spring of 2013, the Iowa Department of

Human Services (DHS) was already involved with the mother and her other

children2 due to the mother’s ongoing issues with methamphetamine and her

mental health. R.O. was born with marijuana in his system, and he was removed

from the mother’s care within a few days of his birth. He remained out of the

1 The parental rights of R.O.’s legal father were also terminated. He does not appeal. 2 The mother has three other minor children who were adjudicated children in need of assistance (CINA). Two of the mother’s children were in the care of their father and her third child resided with a family friend. The mother’s rights to her other children were not terminated. 3

mother’s care until September 2013. Even after his return, the CINA proceedings

continued until they were ultimately closed in October 2014.

The present case began in September 2015, after the mother was arrested

for possession of methamphetamine. R.O. remained in the mother’s care until

November, when she went to jail. The removal was short-lived, and R.O. was

returned to the mother’s care when she was released—after approximately one

week.

R.O. was removed from the mother’s care for a third time—the second

during these proceedings—in January 2016. The mother had been arrested again

and was unavailable to parent R.O. Additionally, she had other pending criminal

matters to deal with.

DHS attempted a trial home placement with R.O. and the mother in March

2016, but the mother relapsed on methamphetamine within a few days. The

mother also had a relapse in November 2016 and February 2017.

At the time of the termination hearing in May 2017, the mother was forty

years old and had a twenty-two-year history of using methamphetamine.

According to her testimony, her longest period of sobriety during that twenty-two

years was two or two-and-a-half years.

The hearing took place over two days—May 15 and 19. The mother was

released from jail between the first and second days of hearing; she had been

incarcerated in March 2017 following a probation violation. She remained on

probation.

The mother testified that she had a “breakthrough” in February 2017 and

was now addressing issues that she had never addressed before, such as 4

underlying trauma and how it had affected her decisions. She was also able to

verbalize how her drug abuse affected her children. She testified she believed that

her sobriety would last this time. The mother’s therapist testified she had seen a

change in the mother since February and agreed the mother was more committed

to sobriety than she had been earlier in their relationship.

At the hearing, the mother agreed she needed to “continue to address [her]

mental health and [her] sobriety issues” to have R.O. returned to her care. The

mother was asked, “How long—how much time do you reasonably think it would

be before [R.O.] could safely be returned to your care before we saw that, before

the department saw that this is a real thing?” She responded, “I’m in agreement

with what [the social worker] testified to as July is reasonable, the end of July.”

The court terminated the mother’s parental rights to R.O. pursuant to Iowa

Code section 232.116(1)(f) (2017). The mother appeals.

B. Legal Grounds.

The mother argues she “should have been allowed more time to

demonstrate that the therapy she finally received . . . has helped her understand

her addiction and mental-health issues and that she now has the coping skills to

maintain her sobriety and care for her children.” The court may order an additional

six-month period to work toward reunification only if the court makes “the

determination that the need for removal of the child from the child’s home will no

longer exist at the end of the additional six-month period.” Iowa Code

§ 232.104(2)(b).

While the mother maintains this time is different, she has been dealing with

her addiction to methamphetamine for over half of her life. She has maintained 5

relatively short periods of sobriety before—at most, two-and-a-half years—but thus

far has always returned to using the drug. Throughout these proceedings, the

mother had at least three relapses. Although she had maintained sobriety for

slightly more than three months at the time of the termination hearing, she was

incarcerated during approximately two of those months. Additionally, the mother’s

most recent relapse occurred after the petition to terminate her parental rights had

been filed. We hope the mother really has turned the corner in her battle with her

addiction, but we “look skeptically at ‘last-minute’ attempts to address longstanding

issues, finding them inadequate to preclude termination of parental rights.” In re

A.D., No. 15-1508, 2016 WL 902953, at *2 (Iowa Ct. App. Mar. 9, 2016). Based

on the mother’s long-term history of drug addiction, we cannot say the need for

R.O.’s removal would no longer exist if she was given additional time to work

toward reunification.

The child has been removed from the mother’s care a number of times since

his birth. He has stayed with a number of foster families, forcing him to depend on

a number of different individuals for his care and comfort. At the time of the

termination hearing, R.O. had been living with his current foster family for

approximately nine months, and the foster parents wanted to adopt R.O. They

were committed to providing R.O. with security and stability and indicated their

willingness to continue a relationship between R.O. and his siblings. This is in

R.O.’s best interests. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Insight

for the determination of the child’s long-range best interests can be gleaned from

‘evidence of the parent’s past performance for that performance may be indicative 6

of the quality of the future care that parent is capable of providing.’” (citation

omitted)).

We affirm the termination of the mother’s parental rights.

II. Father’s Appeal.

R.O.’s biological father was imprisoned in January 2015 and remained there

until February 2016—a number of months into the pendency of the present action.

The father requested visits with R.O. after his release from prison to a half-way

house; those visits did not begin for approximately one month.

The father and R.O. visited regularly throughout the time he remained in the

halfway house, but after his release in July 2016, the father began confirming and

attending visits less frequently. According to the father’s testimony, he relapsed

on methamphetamine in July and September. As a result, his parole was revoked,

and the father was sent back to prison in October.

In January 2017, after the court ordered the State to file the petition to

terminate the father’s parental rights, the father asked DHS to facilitate visits

between him and R.O. at the prison. DHS denied the request, and a court hearing

was held on the matter. The court denied the father’s request for visitation in

prison, stating:

The court notes that the permanency goal in this case has never been reunification with the father. The parents are not married. There are no district court custodial orders between the parents and the current permanency goal pending is return home to mother. Although Anamosa Penitentiary has a family visitation area and protocols in place for visits to occur and the distance from Cedar Rapids to Anamosa is not onerous for a child [R.O.’s] age based upon the record, the court finds that substantial evidence exists to believe that reasonable visitation or supervised visitation between 7

[R.O.] and his father at the Anamosa Penitentiary would cause an imminent risk to the child’s life or health herein.

The father participated in the termination hearing by way of phone, from prison.

He testified that he anticipated discharging his sentence in March 2018.

Following the termination hearing, the court terminated the father’s parental

rights pursuant to Iowa Code section 232.116(1)(f). The father appeals.

The father maintains the State failed to make reasonable efforts to reunify

him with R.O. Specifically, he focuses on the month-long delay between his

February 2016 prison release and the beginning of visits and the refusal to provide

him in-prison visits after his January 2017 request.3

The State must make reasonable efforts to reunify a parent and a child,

even when the parent is incarcerated. See In re S.J., 620 N.W.2d 522, 524–25

(Iowa Ct. App. 2000). “The services required to be supplied an incarcerated

parent, as with any other parent, are only those that are reasonable under the

circumstances.” Id. at 525. In determining what is reasonable, we consider:

the age of the children, the bonding the children have or do not have with their parent, including any existing clinical or other recommendations concerning visitation, the nature of parenting deficiencies, the physical location of the child and the parent, the limitations of the place of confinement, the services available in the prison setting, the nature of the offense, and the length of the parent’s sentence.

Id.

3 The father had a court hearing on his request for in-prison visits, and the court denied his request in a March 2017 permanency review order. The father did not appeal from the permanency review order. However, we assume without deciding the father may challenge the issue of reasonable efforts here on appeal. 8

We first consider the time lapse between the father’s request for visits with

R.O. in February 2016 and the start of visits on March 21. The father testified that

he met the social worker on February 18 and completed a social history. He

testified he then contacted the family safety, risk, and permanency (FSRP) worker,

who had to set up visitation and find a place for visits. The father also had to take

steps to get it approved with his counselor at the halfway house. Based on all the

steps that had to be taken, we cannot say the approximately one-month delay was

a failure to make reasonable efforts. As the father testified, “Scheduling and

everything takes time.”

We also cannot say DHS’s decision not to provide visits to the father while

he was in prison was a failure to provide reasonable efforts. Here, the father did

not request visits until after the termination petition had already been filed. The

father had not taken advantage of his scheduled visits before his parole was

revoked, and there did not appear to be much of a bond between R.O. and the

father when he did attend visits. The FSRP worker testified visits between the

father and R.O. were “mostly just fun and playing.” The father had spent most of

R.O.’s life in prison, and he was scheduled to remain in prison for approximately

fourteen more months at the time of his request—well past the statutory

requirement to determine permanency for R.O. Additionally, the father admitted

he had not sent any letters or made any phone calls to R.O. since he was sent

back to prison in October 2016.

Because the State established that it made reasonable efforts to reunify

R.O. and the father, and because termination of the father’s parental rights is in

R.O.’s best interests, we affirm the termination of the father’s parental rights. 9

IV. Conclusion.

Because there is clear and convincing evidence the statutory grounds for

termination have been met and termination is in R.O.’s best interests, we affirm

the termination of the mother’s and the biological father’s parental rights.

AFFIRMED ON BOTH APPEALS.