In the Interest of A.B., Minor Child, A.D., Mother, J.B., Father

• Court: Court of Appeals of Iowa
• Decided: July 19, 2017
• Docket: 17-0528
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0528 Filed July 19, 2017

IN THE INTEREST OF A.B., Minor Child,

A.D., Mother, Appellant,

J.B., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

District Associate Judge.

A mother and father appeal separately from the juvenile court’s order

terminating their parental rights. AFFIRMED ON BOTH APPEALS.

Lori M. Holm of Holm Law Office, West Des Moines, for appellant mother.

John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant

father.

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

General, for appellee State.

Erin E. Mayfield of the Youth Law Center, Des Moines, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

MULLINS, Judge.

A mother and father appeal separately from the juvenile court’s order

terminating their parental rights to their child. Both argue the State failed to

prove the statutory grounds for termination by clear and convincing evidence and

an exception to termination exists due to their close bond with their child. The

mother additionally argues termination is contrary to A.B.’s best interests and the

juvenile court should not have terminated her parental rights because the child is

placed with a relative. Upon our de novo review, we affirm both appeals.

I. Background Facts and Proceedings

The mother and father have one child, A.B., born in 2015. The family

came to the attention of the Iowa Department of Human Services (DHS) in

February 2016, due to the parents’ mental-health issues and use of

methamphetamine while caring for their child. The parents consented to the

temporary removal of the child, and the court ordered the child be placed with the

paternal grandmother. That same month, the State filed a child-in-need-of-

assistance (CINA) petition. The court held an uncontested hearing in April 2016

and adjudicated the child CINA under Iowa Code section 232.2(6)(c)(2) and

232.2(6)(n) (2016).

In May, the court entered a dispositional order confirming the adjudication

and continuing placement of the child with the paternal grandmother. The court

also adopted a case permanency plan outlining several requirements for both

parents to satisfy in order to have A.B. returned to their care. The plan provided

“both parents need to adequately address their mental health and substance

abuse concerns and demonstrate a period of sobriety as well as insight into how 3

substance use affects their ability to parent.” The court-adopted plan also

specified the parents were to participate in individual therapy, substance-abuse

treatment, drug screening, and other family services.

The court held a permanency hearing in September, after which the court

granted the parents an additional six months to work toward reunification with

their child. The court required each parent to “participate fully in services[,] . . .

abstain from use of illegal substances,” and further required “[the] mother obtain

a new substance abuse evaluation and follow recommendations.” A sweat patch

drug screen was administered to the mother immediately following the

permanency hearing, which resulted in a positive test for methamphetamine.

The mother did not obtain a new substance-abuse evaluation until early January

2017—nearly four months later—because she was recovering from a medical

procedure.

The record shows the father continued to use methamphetamine

throughout the CINA case and only occasionally attended therapy appointments.

He tested positive for methamphetamine as recent as January 2017, just a week

before the combined permanency review and termination hearing began. The

mother testified she did not know about the father’s continued methamphetamine

use until he disclosed it at a family meeting in December 2016.

The court and DHS also expressed concerns throughout the case

regarding the parents’ struggles with mental-health issues. In fact, one of the

main factors contributing to the child’s removal was the mother’s attempted

suicide by prescription overdose while the child was in her care. At the

termination hearing, the father acknowledged his substance abuse directly 4

related to his stress and depression. Both parents have participated in some

mental-health therapy, but neither has attended therapy consistently or fully

complied with the recommended services.

Furthermore, the mother and father’s ongoing relationship concerned the

juvenile court throughout the proceedings. In order to address its concern with

the parents’ relationship, the court’s permanency order included a requirement

that the mother “demonstrate the ability to be protective of the child regarding

[the] father’s contact with [the] child should she remain substance free and the

father does not.” On the last date of the termination hearing, the mother

informed the court for the first time that she and the father had ended their

relationship one week prior.

In December 2016, the State petitioned the court to terminate the parental

rights of the mother and the father pursuant to Iowa Code section 232.116(1)(h)

and (l). The court held a hearing on the petition in February 2017 and concluded

termination was proper under section 232.116(1)(h). The court found the State

had proved by clear and convincing evidence A.B. could not be returned to the

custody of either parent due to the parents’ continued use of illegal substances

and inability to exercise a reasonable degree of care with the child. The court

further found that returning A.B. to either the mother’s or the father’s custody

would subject the child to instability and uncertainty and that termination was in

A.B.’s best interests. Finally, the court found none of the exceptions under

section 232.116(3) applied to preclude termination in this case. Accordingly, the

juvenile court terminated the mother’s and the father’s parental rights.

The mother and father now separately appeal. 5

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re

M.W., 876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile

court’s findings of fact, but give them weight, especially in assessing the

credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa

2014)). We may affirm the order on any statutory grounds supported by clear

and convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

“Evidence is considered clear and convincing ‘when there are no “serious or

substantial doubts as to the correctness [of] conclusions of law drawn from the

evidence.”’” In re M.W., 876 N.W.2d at 219 (alteration in original). Our primary

consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798

(Iowa 2006).

III. Analysis

“Our review of termination of parental rights under Iowa Code chapter 232

is a three-step analysis.” In re M.W., 876 N.W.2d at 219. First we must

determine whether the State established the statutory grounds for termination by

clear and convincing evidence. See Iowa Code § 232.116(1); In re M.W., 876

N.W.2d at 219. Second, if the statutory grounds for termination are established,

we consider whether termination is in the child’s best interests under section

232.116(2). See In re M.W., 876 N.W.2d at 219–20. Finally, we consider

whether any exceptions under section 232.116(3) weigh against termination.

See id. at 220. 6

A. Statutory Grounds

The juvenile court terminated the parents’ parental rights to A.B. under

Iowa Code section 232.116(1)(h). Under that section, the court may terminate

parental rights if the court finds the child (1) is three years old or younger; (2) has

been adjudicated CINA; (3) has been removed from the physical custody of the

parent for at least six of the last twelve months, or the last six consecutive

months and any trial period at home has been less than thirty days; and

(4) cannot be returned to the parent’s custody at the time of the termination

hearing. Iowa Code § 232.116(1)(h).

The parents do not contest the first three elements of section 232.116(h):

the child is under the age of three, has been adjudicated CINA, and has been

removed from the parents’ custody since February 2016. Instead, the mother

argues the State failed to meet its burden to show by clear and convincing

evidence A.B. could not be returned to her custody at the time of the hearing.

The father argues the same in support of the mother. Because the father does

not have standing to assert legal arguments on behalf of the mother in order to

prevent the termination of his parental rights, we proceed only with the mother’s

statutory arguments. See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007);

see also In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005) (holding one

parent cannot argue facts or legal positions for the other parent).

The mother asserts A.B. could have been returned to her physical custody

at the time of the hearing because she has engaged in daily parenting of the

child and planned to move in with the child’s paternal grandmother and care for

A.B. while continuing her mental-health and substance-abuse treatment 7

programs. She maintains she has complied with her substance-abuse treatment

and has not used methamphetamine since February 2016, despite the positive

sweat test in September 2016. She further asserts she has broken off her

relationship with the father, a relationship the court had found concerning, given

his lack of progress and continued substance abuse.

We recognize the mother has made some progress. She has had almost

daily visits with the child under the supervision of DHS or the paternal

grandmother, and there were no concerns about the mother’s ability to parent the

child in this environment. However, the mother has not shown she is able to

parent the child independently and never progressed beyond supervised visits.

She failed to successfully complete substance-abuse treatment and tested

positive for methamphetamine after the court granted her an additional six

months to work toward reunification with her child. She then did not obtain a new

substance-abuse evaluation until one month before the termination hearing

began. The mother also failed to address her mental-health issues; she did not

consistently attend mental-health therapy and was hospitalized for stress in

September 2016. The mother did not end her relationship with the father until

after the termination hearing began, despite recognizing the relationship was a

barrier to reunification with her child. Furthermore, at the time of the hearing,

neither parent was able to provide for the child’s needs because they were

unemployed, did not have stable housing, and lacked reliable transportation.

“Children simply cannot wait for responsible parenting. Parenting . . .

must be constant, responsible, and reliable.” In re L.L., 459 N.W.2d 489, 495

(Iowa 1990); see also In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Time is a 8

critical element. A parent cannot wait until the eve of termination, after the

statutory time periods for reunification have expired, to begin to express an

interest in parenting.”). Upon our de novo review, we find the record shows clear

and convincing evidence A.B. could not be returned to the mother’s physical

custody at the time of the termination hearing. Thus, we find clear and

convincing evidence supports terminating the mother’s and the father’s parental

rights under section 232.116(1)(h).

B. Best Interests

The mother next contends termination was not appropriate here because

it is not in A.B.’s best interests. She argues her plan to resume custody of the

child and live with the child’s paternal grandmother is the least restrictive means

to achieve the child’s best interests. The father does not raise a best-interests

argument; thus, he has waived this issue. See Iowa R. App. P. 6.903(2)(g)(3);

Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on

the arguments [appellant] might have made and then search for legal authority

and comb the record for facts to support such arguments.”).

“Once we have established that at least one ground for termination under

section 232.116(1) exists, the next step of our analysis is to evaluate whether the

termination of parental rights would be in the best interest of the child under

section 232.116(2).” In re M.W., 876 N.W.2d at 224. “[T]he court shall give

primary consideration to the child’s safety, to the best placement for furthering

the long-term nurturing of and growth of the child, and to the physical, mental,

and emotional condition and needs of the child.” Iowa Code § 232.116(2).

“Insight for the determination of the child’s long-range best interests can be 9

gleaned from ‘evidence of the parent’s past performance for that performance

may be indicative of the quality of the future care that parent is capable of

providing.’” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In re C.B., 611

N.W.2d at 495).

The record reflects the mother continued to struggle with substance abuse

throughout the underlying CINA proceedings. As noted above, the mother

participated in substance-abuse treatment but was discharged unsuccessfully.

She tested positive for methamphetamine in September 2016 but failed to take

responsibility for the positive test. Additionally, the mother has unresolved

mental-health issues. She attended some therapy but missed multiple sessions.

Furthermore, the mother and father did not break off their concerning relationship

until just one week before the conclusion of the termination hearing.

Although the mother appropriately cared for A.B. during her visits with the

child, she never progressed past supervised visits. “We do not ‘gamble with the

child[]’s future’ by asking [him or her] to continuously wait for a stable biological

parent, particularly at such [a] tender age[].” In re D.W., 791 N.W.2d at 707

(citation omitted). A.B. is doing well in the paternal grandmother’s care, where

she has been placed for over a year. It is in A.B.’s best interests to terminate the

parents’ parental rights.

C. Exceptions to Termination

“Once we have established that the termination of parental rights is in the

[child’s] best interests, the last step of our analysis is to determine whether any

exceptions in section 232.116(3) apply to preclude termination.” In re M.W., 876

N.W.2d at 225. Both parents argue the juvenile court should not have terminated 10

their parental rights because they share a bond with their child. The mother also

argues termination was inappropriate because the child is placed with a relative.

Iowa Code section 232.116(3) provides:

The court need not terminate the relationship between the parent and child if: . . . (a) A relative has legal custody of the child[;] . . . [or] (c) There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.

The application of section 232.116(3) is permissive, not mandatory. In re A.M.,

843 N.W.2d at 113.

After our review of the entire record, we agree with the juvenile court that

the permissive factors in section 232.116(3) do not apply here. “It is well-settled

law that we cannot deprive a child of permanency after the State has proved a

ground for termination under section 232.116(1) by hoping someday a parent will

learn to be a parent and be able to provide a stable home for the child.” In re

P.L., 778 N.W.2d 33, 41 (Iowa 2010).

A.B. is very young and deserves permanency and stability. The record

reflects the parents cannot provide either. “An appropriate determination to

terminate a parent-child relationship is not to be countermanded by the ability

and willingness of a family relative to take the child.” In re C.K., 558 N.W.2d 170,

174 (Iowa 1997). Thus, even though the child is placed with a relative, we find

termination is in A.B.’s best interests. Similarly, the bond between A.B. and the

parents is limited and does not preclude termination in this case. Although A.B.

sees the parents often, A.B. does not know them as primary caregivers, and the

parents have not shown they can adequately provide for her care independently. 11

IV. Conclusion

Upon our careful, de novo review of the record, we conclude the State met

its statutory burden for termination of the mother’s and the father’s parental rights

and termination is in A.B.’s best interests. We further find no permissive factors

weigh against termination in this case. Accordingly, we affirm.

AFFIRMED ON BOTH APPEALS.