In the Interest of A.E. and D.E., Minor Children, A.E., Father, D.C., Mother

• Court: Court of Appeals of Iowa
• Decided: September 10, 2015
• Docket: 15-0076
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0076 Filed September 10, 2015

IN THE INTEREST OF A.E. AND D.E., Minor Children,

A.E., Father, Appellant,

D.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Angela L. Doyle,

District Associate Judge.

The mother and father separately appeal the termination of their parental

rights to their children, A.E. and D.E. AFFIRMED ON BOTH APPEALS.

Derek Johnson of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant

father.

Darren Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane

& Driscoll, P.L.C., Fort Dodge, for appellant mother.

Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney

General, Jennifer Benson, County Attorney, and Jordan Brackey, Assistant

County Attorney, for appellee State.

Kurt Pittner, Fort Dodge, attorney and guardian ad litem for minor children.

Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2

VOGEL, J.

The mother and father separately appeal the juvenile court’s termination of

their parental rights to their children, A.E. and D.E. They both assert the State

failed to prove by clear and convincing evidence their rights should be terminated

pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2013). They further

assert termination is not in the children’s best interests because they share a

bond with the children and, furthermore, that they should have been granted an

additional six months to work towards reunification. The father also claims the

court erred in admitting the report of a psychiatrist because a proper foundation

was not laid. We conclude the juvenile court properly terminated both parents’

rights under paragraphs (f) and (h), that termination is in the children’s best

interests, and the parent-child bond is not an impediment to termination.

Moreover, granting the parents an additional six months would not correct the

situation; furthermore, the father did not preserve error with regard to his

evidentiary claim. Consequently, we affirm the order of the juvenile court

terminating the parental rights of the mother and father to their children.

I. Factual and Procedural Background

A.E., born February 2010, and D.E., born January 2011,1 came to the

attention of the Iowa Department of Human Services (DHS) due to an incident of

domestic violence. The mother has an older child, J.M., born May 2000, who is

1 D.E. was born testing positive for marijuana in his system. 3

fathered by another man.2 On June 24, 2013, the father assaulted the mother,

D.E., and J.M. The juvenile court’s recitation of the event is as follows:

On June 24, 2013, law enforcement was called by a neighbor reporting that [the father] chased [the mother] down the street, pulled her back into the family’s home and physically assaulted [D.E.] and [J.M.]. During the altercation, [J.M.] texted [the father’s] father, [M.E], that [the father] was assaulting [the mother]. When [the father] discovered that [J.M.] had texted [M.E.] [the father] wrapped his arm around [J.M.’s] neck and choked him. [J.M.] suffered bruising and abrasions to his neck and a rug burn to his knee and complained of jaw pain. After law enforcement arrived, [the mother] denied that [the father] assaulted her, the children or [J.M.] and was not willing to speak with law enforcement. [J.M.] reported to law enforcement that [the father] chased [the mother] down the street and told her he would hurt one of the children if she did not return to the family home. [The father] reportedly grabbed [D.E.], then age two years, by the back of the neck and threw him into the house. [D.E.] had multiple scratches on his neck. [J.M.] reported that he could see [the father] yelling at [the mother], spitting in her face and hitting her. [The mother] took [J.M.] aside and talked with him in private away from law enforcement. [J.M.] then approached an officer, crying, and said everything he had reported was a lie. [J.M.] and [M.E.] later confirmed that [the mother] had told [J.M.] to lie.

The father was arrested and charged with two counts of child

endangerment causing bodily injury, and a no-contact order was entered in favor

of D.E. and J.M. The children were removed from the home and placed in foster

care, where they remained at the time of the termination hearing.3 A.E., D.E.,—

as well as J.M.—were adjudicated in need of assistance (CINA) on January 29,

2014. All children stated to various adults that they witnessed or were the

subject of physical abuse by the father.

2 The mother and J.M.’s father share physical custody. J.M. is not a subject of the current termination proceedings. 3 There were two foster home placements. The first placement was unable to handle the children’s behavioral issues. They were then moved to their current foster home, where the parents have indicated they wish to adopt the children if parental rights are terminated. 4

The father pled guilty to the two counts of child endangerment and was

sentenced to two years on each count, with the term of incarceration suspended.

He was ordered to enter a residential correctional facility but later escaped, and

in January 2014, he was charged with disorderly conduct and escape from a

residential facility; he was then moved to another residential facility, and he

resided there from March until the end of August, 2014.4 The father’s prior

convictions include several assault charges, harassment, probation violations,

criminal mischief, theft, interference with official acts, disorderly conduct, and

driving under the influence, among others; several of these offenses were

felonies. These convictions spanned from 2002 until 2014. According to the

district court, the mother’s criminal history includes convictions for domestic

abuse assault, theft, possession of drug paraphernalia, interference with official

acts, as well as driving-related offenses.

The June 2013 removal was the second time the children were removed

from the parents’ care. The previous incident was in March 2011, and also

involved allegations of domestic violence and drug use. Following the children’s

removal, the mother tested positive for methamphetamine and marijuana, and

the father was positive for methamphetamine. While they were initially

uncooperative with services, eventually the parents received treatment for their

substance abuse and mental health issues, and the children were returned to

their care on February 10, 2012. The underlying CINA case was closed in March

2013.

4 Following his stay in the residential facility, the DHS worker noted: “[T]here was a noticeable difference in [the father’s] demeanor and behavior. His attitude was much improved and he was very reasonable.” 5

Following the children’s June 2013 removal, the parents were

uncooperative with services until approximately three months before the

termination hearing. The mother cancelled several family team meetings, and

the parents only attended approximately three meetings throughout the

pendency of these proceedings. They also failed to attend consistently the

supervised visitation, and the DHS worker noted they appeared to be under the

influence of narcotics during several visits, displaying twitching, sweating, slurred

words, lack of coordination, sores, scabs, and an unkempt appearance.

Additionally, the DHS worker had concerns regarding the parenting of the

children during visitation, specifically with regard to the inappropriate discipline of

the children. The children have demonstrated maladaptive behaviors—including

self-harm, outbursts, and other behavioral issues—that grew worse after visits

with the parents, though these behaviors have reduced since the children have

been out of the parents’ care.

The parents also failed to attend many appointments for the court-

requested drug screenings and did not submit samples for testing until

September 27, 2014; while the mother attended appointments during May 2014,

she was a no-show for the rest of the scheduled testing. All drug screenings that

were submitted by the mother were negative for narcotics, though the September

27, 2013 test of the father returned positive for methamphetamine. The parents

maintain they have been drug-free since 2011. The mother attended substance

abuse treatment from May until July, 2014, and the father underwent treatment

while in the residential treatment facility. The father also received mental health

treatment there. 6

As of the time of the termination hearing, the mother and father had been

in a relationship for six years. During the pendency of these proceedings, the

parents had a third child together, born September 2014. He is residing with the

parents, and as of the termination hearing, he had not been the subject of

removal proceedings.

The following services were provided to the family during the pendency of

these proceedings: gamily team meetings; drug testing; foster care; supervised

visitation; transportation; parenting skills; family safety, risk, and permanency

(FSRP) services; parenting assessments; substance abuse evaluations; mental

health evaluations; behavioral assessments for the children; child well-being

assessments; therapy for the children; behavioral health intervention services;

and medication management.

The State filed a petition to terminate the mother’s and father’s parental

rights, and a contested hearing was held on October 1, 15, and 17, 2014, in

which the parents testified. The State introduced as one of its exhibits a DHS

report that had, as one of its attachments, the child-emotional-well-being

assessment performed by Resmiye Oral, M.D., to which the father objected on

hearsay grounds. On December 31, 2014, the juvenile court ordered the

termination of the parental rights of the mother and the father pursuant to Iowa

Code section 232.116(1)(e) as to both children, paragraph (f) as to A.E., and

paragraph (h) as to D.E. The mother and father appeal.

II. Standard of Review

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear 7

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the juvenile court terminates parental rights on more than one statutory

ground, we only need to find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id. To the extent we are reviewing evidentiary

claims, our review is for an abuse of discretion. In re N.N., 692 N.W.2d 51, 54

(Iowa Ct. App. 2004).

III. Termination

The parents both assert the juvenile court erred in terminating their rights

because the children could be returned home. Each argues evidence of drug

use or violence has not been present in the home since January 2014, and that

the evidence of previous violence was not credible; additionally, their third child is

residing with them and is not the subject of removal proceedings. They further

state they have regularly attended visits and have cooperated with all DHS

requirements.

To terminate parental rights pursuant to Iowa Code section 232.116(1)(h),

the State must establish the child is three years old or younger, adjudicated

CINA, removed from the home for six of the last twelve months, and cannot be

returned home at the present time. Iowa Code § 232.116(1)(h)(1)–(4). To

terminate rights under paragraph (f), the child must be four years of age or older,

adjudicated CINA, removed from the physical custody of the parents for at least

twelve of the last eighteen months or for the last twelve consecutive months, and

there is clear and convincing evidence that at the present time the child cannot

be returned to the custody of the parents. Id. § 232.116(1)(f)(1)–(4). 8

The record establishes the juvenile court properly concluded A.E. and

D.E. cannot be returned to the parents’ care, as defined in paragraphs (f) and (h),

respectively. Neither parent has shown much progress since their most recent

involvement with DHS in June 2013. As the juvenile court noted, the parents:

[D]id not attempt to meet any of their case plan goals or appear motivated to cooperate with services until termination of their parental rights was recommended, despite completion of the parenting assessments, mental health evaluations and substance abuse evaluations. [The mother] did not make any progress from the removal of the children in June 2013 until late April 2014, when she began substance abuse treatment and drug testing (even though she claimed sobriety for three years). [The mother] began mental health therapy with Lincoln Mental Health in July 2014. She attended four appointments before moving to Marshalltown. [The father] was able to obtain sobriety when he was sentenced to the residential correctional facility in January 2014. He was released from the residential correctional facility on August 27, 2014. He and [the mother] reside in Marshalltown, Iowa, with their new baby, born [in September] 2014. [The father] has been more cooperative over the past few months, attends visits once each week and is now on medication for mental health. He has not engaged in any substance abuse treatment, domestic violence counseling, anger management or batterer’s education class. His parenting skills during visits have only marginally improved.

We agree with the court that neither parent has made progress to the

point where the children can be returned to either parent’s care. Both parents

show a disturbing lack of awareness with regard to the danger the father poses

to the children—each deny that physical abuse of the mother and children

occurred, and they continue to assert that J.M. was lying about the abuse he

suffered or witnessed. They also deny drug use in the home since 2011, though

both have missed the majority of the drug screenings requested by DHS. The

professionals who evaluated the children, including Dr. Oral and the case

workers, noted that, without an acknowledgment of the domestic abuse and 9

substance abuse issues, the parents could not adequately or safely parent the

children. The record supports this assessment, particularly given the father’s

continued domestic abuse and the mother’s denial that the abuse occurs.

In determining the future actions of the parent, their past conduct is

instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). The mother and father

both deny any harm to the children resulted from the father’s perpetration of

domestic violence. This is contrary to the well-being of the children, who would

be subject to imminent harm—either physical abuse or drug use in the home—if

returned to the care of the parents. The children demonstrated significant

behavioral problems upon removal, and only after they were separated from the

parents has there been an improvement in the children’s behavior. It is also a

testament to the parents’ inadequate parenting skills that both refused to engage

in services until shortly before the time of the termination hearing. Therefore, we

agree with the juvenile court the children cannot be returned home at the present

time, and the State satisfied its burden showing both parents’ rights should be

terminated under Iowa Code section 232.116(1)(f), as to A.E., and paragraph (h),

as to D.E.

IV. Best Interests and Additional Time

The parents also argue termination is not in the children’s best interests.

They rely on the parent-child bond, and the father asserts the children should not

be separated from their sibling. They argue the considerations of Iowa Code

sections 232.111(2)(b)5 and 232.116(3)(a), preclude termination. They further

5 Iowa Code section 232.111 pertains to the filing of the petition rather than grounds to be proved. 10

assert the juvenile court improperly declined to grant them an additional six

months to work towards reunification.

With respect to the parent-child bond consideration under 232.116(3)(a),

we agree with the juvenile court any bond is not enough to render termination of

parental rights not in the children’s best interests. Both children have exhibited

maladaptive behaviors indicating the parents have exposed the children to

violence in the home with an overlay of drug use. Additionally, neither parent has

progressed beyond fully-supervised visitation, and the DHS workers were

concerned with behaviors exhibited by the parents during visits. While we agree

that it is important for A.E. and D.E. to have a relationship with their full sibling, it

is not enough to preclude the termination of parental rights.

Moreover, we do not agree with either parent’s assertion more time would

correct the situation. They have been involved with services since 2011, and yet,

substance abuse and physical violence continue to occur while the children are

present. Dr. Oral reported, and the DHS worker agreed, that the parents would

need an additional two years of services before the children could be returned to

the parents’ care. “We have repeatedly followed the principle that the statutory

time line must be followed and children should not be forced to wait for their

parent to grow up.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see

also Iowa Code § 232.116(2). The parents have had ample time to address their

issues, and an additional six months would not remedy the situation;

consequently, we agree with the juvenile court it is in the children’s best interests

the parental rights of the mother and father be terminated. See Iowa Code

§ 232.116(2). 11

V. Expert Testimony

The father’s final argument claims the juvenile court erred in admitting Dr.

Oral’s report. He asserts the report was not authenticated, because Dr. Oral did

not testify, nor did the FSRP worker state she saw Dr. Oral sign the report. The

father asserts this is contrary to the mandates set forth in Rumley v. Mason City,

320 N.W.2d 648, 651 (Iowa Ct. App. 1982).

The father did not preserve error on this argument. Though he objected to

the admission of the report on hearsay grounds, he does not present that

argument on appeal; moreover, the foundational issue he does raise was not

presented with respect to Dr. Oral’s report, and the juvenile court did not address

this specific claim. Consequently, error was not preserved, and we decline to

address the merits of the father’s foundation argument. See Lamasters v. State,

821 N.W.2d 862, 864 (Iowa 2012).

For the foregoing reasons, we affirm the juvenile court’s termination of the

mother’s and father’s parental rights to their children, A.E. and D.E.

AFFIRMED ON BOTH APPEALS.