In the Interest of A.C., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1361 Filed November 27, 2019

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

M.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A mother appeals the termination of her parental rights to a daughter.

AFFIRMED.

Janet L. Hoffman, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

Adam Hanson, Des Moines, attorney and guardian ad litem for minor child.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ. 2

TABOR, Judge.

A.C.’s “entry into the world was tumultuous,” as the juvenile court found in

its order terminating the parental rights of her mother, Macey. A.C. was born in

Arizona with drugs in her system after Macey fled Iowa to evade outstanding arrest

warrants. The birth stunned Macey, who did not realize she was pregnant.

Eventually, Macey and A.C. returned separately to Iowa. Macey was incarcerated.

Meanwhile, A.C. settled into the care of her maternal grandfather. In this appeal,

Macey argues (1) termination is not in A.C.’s best interests, (2) breaking their bond

is detrimental to A.C., (3) the State failed to make reasonable efforts to reunite

mother and daughter, and (4) she should be given an additional six months to work

toward assuming custody.

On our review of the record, we affirm termination of Macey’s rights. 1 The

record shows A.C.’s best interests are served by moving toward permanency with

her grandfather. The strength of A.C.’s bond with Macey does not overcome the

child’s need for a safe and stable placement. The State made reasonable efforts

toward reuniting the pair. And an additional six months will not be enough time to

resolve Macey’s ongoing issues with substance abuse and instability. Our

independent assessment of the evidence matches the conclusions reached by the

juvenile court.

1 We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). While not bound by the juvenile court’s fact findings, we give them weight, particularly on credibility issues. Id. The State must present clear and convincing evidence to support the termination. In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014). Evidence satisfies that standard if no serious or significant doubts exist about the correctness of conclusions of law drawn from the proof. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The child’s best interests remain our primary concern. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). 3

I. Facts and Prior Proceedings

In early 2018, Macey was homeless and regularly used methamphetamine

and marijuana. She had a criminal history including theft, assault, harassment,

and drug possession. Because of outstanding warrants for her arrest in Iowa,

Macey fled to Arizona. When she found out she was pregnant, she took an oral

abortifacient medication. She did not realize it did not work. She kept using drugs.

Until she went into labor in September, she was unaware she was still pregnant.

Given those events, A.C. tested positive for methamphetamine and

marijuana at birth. Macey left the Arizona hospital without A.C. and returned to

Iowa. Abandoned, A.C. went into foster care in Arizona. When A.C. was two

months old, Arizona authorities contacted the Iowa Department of Human Services

(DHS) to coordinate her transfer to Iowa.

The Iowa juvenile court adjudicated A.C. as a child in need of assistance

(CINA) in November 2018. The DHS placed A.C. in the care of her maternal

grandfather, Dennis, where she has remained throughout this case. Dennis has

been attending to A.C.’s withdrawal-based medical issues including a tremor and

vision problems. A.C.’s guardian ad litem reports A.C. is doing well in his care,

and they share a strong bond.

About one month after Macey returned to Iowa, police arrested her on new

drug charges, leading to the revocation of her probation. She was in the Polk

County jail from early November 2018 until she transferred to the Iowa Correctional

Institution for Women in Mitchellville in December.

While incarcerated, Macey sought services to overcome her previous

instability and drug use. She has mental-health diagnoses of anxiety, depression, 4

and PTSD. She testified she takes medication and participates in therapy. She

also underwent substance-abuse evaluations and began a treatment program in

March.

Also while incarcerated, Macey has maintained contact with A.C. The DHS

provides supervised visitation at the prison once a month for one hour. And Dennis

brings A.C. to visit Macey at the prison on Saturdays and Sundays for three to four

hours at a time. The family safety, risk, and permanency (FSRP) worker assigned

to the case reported Macey assumes all parenting duties during their visits and

visits generally go well.

But in May 2019, the prison put Macey in lockdown and removed her from

a work-release program. Macey had been dishonest about arranging a meeting

with an acquaintance while at work outside the walls. Macey violated those prison

rules less than two months after starting the program. As a result, she lost her

privilege to have visits with A.C. for several months. Macey admitted she was not

showing that A.C. was her priority when she engaged in that conduct.

Macey also lost her place in the prison substance-abuse program because

of that rule violation. She resumed the program in June 2019, three months before

the termination hearing. The program lasts five months. Macey estimated she

would be eligible for parole when she finished the program in October 2019. After

she left prison, she planned to enter the House of Mercy, an inpatient facility that

would allow her to care for A.C. while receiving treatment. But her plans were not

a certainty. A July letter from Macey’s correctional counselor did not recommend

she be paroled to the House of Mercy because the counselor believed Macey

needed more time to demonstrate “her primary priorities.” 5

In late July 2019, the juvenile court held a termination hearing. Macey, who

remained incarcerated, participated by telephone. In September, the juvenile court

terminated Macey’s rights.2 Macey appeals.

II. Analysis

The juvenile court terminated Macey’s parental rights under Iowa Code

section 232.116(1)(h) (2019).3 The court decided Macey could not resume

custody of A.C. at the present time, and Macey does not contest that statutory

ground for termination. See A.M., 843 N.W.2d at 111 (interpreting statutory

language “at the present time” as the time of the termination hearing). Instead,

she contends the court should have rejected the State’s termination petition for

these reasons: (1) A.C’s best interests; (2) the closeness of the parent-child bond;

(3) the lack of reasonable efforts to reunite the family; and (4) Macey’s request for

an additional six months to demonstrate her ability to assume custody.

First, Macey contends it is not in A.C.’s best interests to terminate her

parental rights. In making the best-interests determination, we give primary

consideration to the child’s safety; the best placement for furthering her long-term

nurturing and growth; as well as her physical, mental, and emotional condition and

2 The court terminated the parental rights of A.C.’s father too, but only Macey appeals. 3 Termination under that section requires showing: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child's parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time. 6

needs. Iowa Code § 232.116(2); In re P.L., 778 N.W.2d 33, 37 (Iowa 2010). That

consideration may include a child’s integration into her foster family and whether

the foster family is willing to adopt. See Iowa Code § 232.116(2)(b). Safety and

the need for a permanent home mark the “defining elements in a child’s best

interest.” In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring

specially).

Macey says she knows “she must rise to the challenge” presented here.

She must overcome her substance-abuse and mental-health problems to parent

A.C. She emphasizes she is attending mental-health and substance-abuse

treatment, has signed up for a parenting class, and asked about entering the

House of Mercy after her release.

We appreciate Macey’s recent efforts. But the record shows termination is

in A.C.’s best interests. Macey has not proved she can provide a safe home for

her daughter. Macey was in prison at the time of the termination hearing. And

even before her incarceration, she did not have stable housing. She has not

completed substance-abuse or mental-health treatment. In fact, she squandered

her opportunity to accomplish that within the statutory timeframe for termination

when she broke the prison rules. Macey has never had A.C. in her care. Attending

to A.C.’s needs during visitation at the prison, while a step in the right direction, is

very different from resuming full-time custody. We have declined to delay

permanency “while parents experiment with ways to face up to their own

problems.” In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 1993).

Macey’s life before A.C. was characterized by bad decision-making. And

Macey has not fully demonstrated good judgment or a willingness to put A.C. first 7

since then. Given her tender age, A.C.’s need for a permanent home is urgent.

See C.B., 611 N.W.2d at 495 (“Once the limitation period lapses, termination

proceedings must be viewed with a sense of urgency. Insight for the determination

of the child’s long-range best interests can be gleaned from the parent’s past

performance.”). A.C. has lived with her maternal grandfather for most of her life.

She is doing well in his care, and he is willing to adopt her. Dennis is also caring

for another grandchild, a boy slightly older than A.C. The FSRP worker noted a

strong bond between the cousins. Clear and convincing evidence shows severing

Macey’s legal tie to A.C. is in the child’s best interests.

Second, Macey contends termination would be detrimental to A.C. because

of the closeness of the parent-child relationship. See Iowa Code § 232.116(3)(c).

Macey and the FSRP worker testified A.C. recognizes Macey, is excited to see

her, and they interact well together. But that positive interaction does not mean

termination of parental rights would be detrimental to A.C. Given A.C.’s need for

permanency, the fact she has never been in Macey’s custody, and her connection

to family in Dennis’s care, we cannot conclude termination would be detrimental.

Third, Macey asserts the DHS did not make reasonable efforts to establish

visitation or provide her other services. Macey complains the DHS case worker

has had “absolutely no contact of any kind” with her during the length of the case.

The DHS worker acknowledged in her July 2019 termination report to the court

that she had “minimal information” about Macey’s parenting skills. While the lack

of contact with the DHS worker is concerning, it does not establish a lack of

reasonable efforts here. 8

Parents whose children have been removed from their care have a duty to

ask for other services before the termination hearing. See In re L.M., 904 N.W.2d

835, 839–40 (Iowa 2017). In its orders during the CINA case, the court noted its

inquiry into whether Macey requested any additional services. On each occasion,

the court either noted Macey did not request additional services or granted

additional services. For example, Macey requested and received visitation in the

prison supervised with an FSRP worker. Macey also requested and received

approval for Dennis to bring A.C. to visit her on weekends. The State contends

Macey made no other requests that were not met. We agree the State’s efforts to

provide services and visitation were reasonable under the circumstances. Macey

waived any other complaints she has by not raising them earlier. See In re A.A.G.,

708 N.W.2d 85, 91 (Iowa Ct App. 2005).

Fourth and finally, Macey contends she should have been given additional

time to work toward reunification. To grant an extension of six months, under Iowa

Code section 232.104, the court must determine the need for removal will no

longer exist at the end of that time. Id. at 89. We cannot make such a

determination here. Macey has a long history of substance-abuse and mental-

health problems and has just begun to address them. Shortly after entering

Mitchellville, she broke a prison rule that curtailed her visitation time with A.C. and

detoured her treatment path. We do not have any reason to believe the problems

that exist now will disappear in six months. The extension is not warranted.