In the Interest of A.M.C., Minor Child, A.C., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0634 Filed August 17, 2016

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

A.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David C.

Larson, District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant.

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

Attorney General, for appellee State.

Shannon L. Sandy of Sandy Law Firm, P.C., Spirit Lake, for minor child.

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

TABOR, Judge.

The juvenile court terminated a mother’s parental rights to her three

children—ages nine, seven, and five. On appeal, she only challenges the court’s

decision regarding the youngest child, A.M.C. The juvenile court relied on Iowa

Code section 232.116(1)(f) (2015) as the basis for termination. The mother

argues the State did not prove the statutory grounds by clear and convincing

evidence. Additionally, the mother asserts the State did not exert reasonable

reunification efforts. Finally, the mother claims termination is not in the best

interests of the child. Because the State offered ample evidence A.M.C. could

not be returned to his mother’s care and termination offered him the best chance

at long-term nurturing and growth, we affirm.

I. Background Facts and Proceedings

A.M.C. lived with his mother, sister, and brother before 2014. The mother

was divorced from the children’s father, and the father had little to no involvement

with the children. The family first came to the attention of the Iowa Department of

Human Services (DHS) in 2012 because the mother was alleged to have used

methamphetamine and marijuana in the home while A.M.C. and his siblings were

sleeping. Following this incident, the mother received voluntary substance abuse

treatment until the DHS deemed the issue resolved in late 2013.

In April 2014, the father took his own life. Following the death of the

father, the mother increasingly struggled with her mental health, and the DHS

workers believed she was no longer able to care for her children. In July 2014,

A.M.C. and his brother were voluntarily placed with their maternal aunt after

being found unattended outdoors while their mother was home sleeping, 3

unaware they were missing. A.M.C.’s sister was living with the grandmother.

The mother moved in with her mother in November 2014 after losing her mobile

home.

On December 3, 2014, the voluntary placement became court ordered

when A.M.C. and his siblings were adjudicated as children in need of assistance

(CINA). During the pendency of the CINA proceeding, the DHS became aware

that A.M.C. and his brother were sexually abused by their maternal uncle.

Following the abuse, A.M.C. displayed inappropriate sexual behavior and had

difficulty trusting others. A.M.C. requires special care because of these

concerns—including near constant supervision and reinforcement of proper

behavior.

The mother underwent a psychological evaluation in January 2015, at

which point she was diagnosed with bipolar disorder, posttraumatic stress

disorder, and borderline personality disorder. The evaluator noted a belief the

mother would continue to struggle to put the children’s needs before her own due

to these mental health issues. The DHS provided services to help the mother

improve her mental health.

A.M.C. and his brother remained with their aunt until she requested the

boys be removed from her home in April 2015. This request was spurred by

sexual acts and violent behavior between A.M.C. and his brother. Thereafter,

A.M.C. was placed with a foster family, with whom he has remained. During this

time, the mother was offered a variety of services including, but not limited to,

phone calls with A.M.C., individual weekly supervised visits with A.M.C.,

transportation to those visits, parenting classes, and mental health services. 4

During the time leading up to the termination, the mother missed or was

late to a number of visits and scheduled phone calls with A.M.C. The mother

often refused to adjust her personal schedule to make time for visits with the

children. During the visits the mother did attend, she struggled to apply the

parenting skills she had been taught in the classes provided by the DHS.

Following visits and phone calls with the mother, A.M.C. would often become

upset easily, disobey his foster parents, and misbehave in school.

At the time of the termination proceedings, the mother had a paramour in

Minnesota, where she intended to move in the near future. The mother would

not provide the DHS with her paramour’s personal information.

The juvenile court held a termination hearing in January 2016. The court

issued an order terminating the rights of the mother to all three children on

January 27, 2016, under section 232.116(1)(f). The mother now appeals the

termination of her rights to A.M.C.1

II. Standard of Review

We review termination 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

we do give them weight, especially in assessing the credibility of witnesses.” Id.

(quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)). Clear and convincing

evidence must support the termination. Id. Evidence is clear and convincing

when we have no serious or substantial doubts as to the correctness of

conclusions of law drawn from it. Id.

1 The State filed a response to the mother’s petition on appeal and the guardian ad litem for the child joined in that response. 5

III. Analysis

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

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

whether the State established the statutory grounds for termination, here section

232.116(1)(f), by clear and convincing evidence. See id. If statutory grounds are

established, we next consider whether termination is in the child’s best interests

under section 232.116(2). See id. at 219-20. Finally, we determine whether any

exceptions contained in section 232.116(3) outweigh termination. See id. at 220.

Statutory Grounds. The mother argues the State failed to prove by clear

and convincing evidence A.M.C. could not be returned to her custody, as

required by section 232.116(1)(f)(4).2 She concedes she cannot presently take

care of all three children at the same time but contends she is able to adequately

care for A.M.C. alone. We conclude the State offered clear and convincing

evidence to satisfy the statutory requirements of section 232.116(1)(f).

A.M.C.’s special needs require above-average parenting skills. A.M.C.’s

therapist testified A.M.C.’s vulnerability requires him to live in a stable and

predictable environment in order to continue improving his mental health and

trust issues. Despite the services provided by the DHS to improve the mother’s

parenting skills, she has not attained the skills to satisfy A.M.C.’s needs. While

2 Iowa Code section 232.116(1)(f) states the juvenile court may terminate the rights of a parent to a child if: (1) [t]he child is four years of age or older, (2) [t]he child has been adjudicated a CINA pursuant to section 232.96, (3) [t]he child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days, and (4) [t]here is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102. The mother does not dispute the first three elements—she argues the State failed to prove the fourth element. 6

A.M.C. has made significant headway in addressing his mental health during his

time with his foster parents, his foster parents consistently observed regression

in his behavior following his mother’s visits. The mother continues to struggle to

understand A.M.C.’s need for intensive supervision and reinforcement of proper

The mother’s struggle with her own mental health has affected her ability

to provide adequate care for her children in the past. The mother’s psychological

evaluator stated it would likely be difficult for her to put the needs of her children

above her own due to her mental health diagnoses. Therefore, we agree with

the juvenile court’s assessment that the mother has not adequately addressed

her mental health needs or improved her parenting skills so as to be able to

provide the special care necessary to nurture the emotional welfare of A.M.C.

See In re A.M.S., 419 N.W.2d 723, 734 (Iowa 1988) (finding it unlikely mother

with mental disability could improve her parenting skills to meet special needs of

daughter).

Furthermore, the mother has not put forth a significant effort to maintain

financial stability. In the year leading up to the termination hearing, the mother

primarily worked part-time and had not saved sufficient funds to provide for

A.M.C. The mother did not have her own housing and did not take advantage of

the DHS services offered to assist her in obtaining independent housing. The

mother currently lives with the children’s grandmother and A.M.C.’s sister. It is

unclear how A.M.C. would interact with his sister given his inappropriate behavior

following the sexual abuse he experienced. Moreover, the mother often had

difficulty securing reliable transportation. The mother seemed unable to 7

understand emergencies requiring transportation may arise when caring for a

child and to understand she would be responsible for transporting A.M.C. to

therapy, additional doctor’s appointments, and other activities.

The mother has had significant time to improve her parenting skills and

place herself in a position to provide adequate care for A.M.C., but she has not

reached that level of stability. While there are no allegations A.M.C. suffered

intentional physical abuse at the hands of his mother, the record demonstrates a

number of instances of neglect. Our statutory termination provisions being both

preventative and remedial, the State need not wait until tangible harm has

occurred before initiating a termination. See In re J.E., 723 N.W.2d 793, 798

(Iowa 2006). Given the high probability of imminent harm and continued neglect,

we find clear and convincing evidence A.M.C. could not be safely placed in his

mother’s care at the time of the hearing. See id. Consequently, termination was

proper under subsection (f). See Iowa Code § 232.116(1)(f).

Reasonable Efforts. The DHS is required to “make every reasonable

effort to return the child to the child’s home as quickly as possible consistent with

the best interests of the child.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d

489, 493 (Iowa 2000). In turn, the parent must ask for additional services before

permanency or termination proceedings if they believe the current services to be

inadequate. In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005); see also

Iowa Code § 232.99(3). Consequently, to preserve for appeal the challenge that

DHS failed to use reasonable efforts toward reunification, the parent must have

demanded a change in the services. The record indicates the mother requested 8

additional and unsupervised visitation time with A.M.C. Because she sought

additional services, the mother preserved her claim for appeal.

The State’s duty to make reasonable efforts toward reunification is not “a

strict substantive requirement of termination.” C.B., 611 N.W.2d at 493.

“Instead, the scope of the efforts by the DHS to reunify parent and child after

removal impacts the burden of proving those elements of termination which

require reunification efforts.” Id.

While visitation is imperative in achieving reunification, its nature and

extent is always controlled by the best interest of the child. In re M.B., 553

N.W.2d 343, 345 (Iowa Ct. App. 1996). Before visits, A.M.C. was often anxious

and needed reassurance he would be returning to his foster family. The mother

was often distracted and did not make significant efforts to engage A.M.C. during

their visits. She did not employ the skills she was taught through parenting

education without prompts from supervisors. She often arrived late, and at times,

did not show up for scheduled visits. During one visit in particular, A.M.C. was

swimming with his mother when he suddenly became visibly upset, jumped out of

the pool, and ran to the bathroom. When his foster mother inquired about his

distress, A.M.C. said his mother inappropriately touched him while swimming.

Following visits with his mother, A.M.C.’s foster parents reported he was often

angry, destructive, and noncompliant.

The DHS provided the mother with a number of services, including but not

limited to, supervised visits, parenting-skills education, and therapy. Considering

the mother’s poor connection with A.M.C. during visits and A.M.C.’s behavioral 9

regression following visits, the DHS appropriately limited the mother’s visits and

made reasonable efforts to reunite her with her child. See id.

Best Interests and Factors Weighing Against Termination. The

mother argues termination of her rights will sever the bond between A.M.C. and

his siblings. The mother further argues termination would be detrimental to

A.M.C. due to the close parent-child bond. See Iowa Code § 232.116(3)(c).

In determining the best interests of the child, we give primary

consideration to the child’s safety, to the best placement for furthering his long-

term nurturing and growth, and to his physical, mental, and emotional condition

and needs. Iowa Code § 232.116(2); see also D.W., 791 N.W.2d at 708. We

agree with the juvenile court’s conclusion the child’s needs are best served by

moving toward adoption.

First, we address the mother’s contention that it is not in the best interests

of the siblings to be separated from each other. Our supreme court has

expressed a preference to keep siblings together if possible. In re L.B.T., 318

N.W.2d 200, 202 (Iowa 1982). But, that preference does not outweigh the

consideration of the best interests of the individual child. Id. Here, A.M.C. and

his brother displayed inappropriate sexual behavior toward one another when

living together. The two boys were separated as a result of this behavior, and

reports from DHS workers indicate the risk of harm would return if they were

again in each other’s company without proper supervision. Given the dynamics

of the sibling relationships in this case, it is not counter to A.M.C.’s interests to

separate him from his brother. Furthermore, the mother’s rights have been 10

terminated as to A.M.C.’s siblings, and as such, the three children would not

have a legal relationship even if A.M.C. were returned to his mother’s custody.

Finally, we do not find the closeness of A.M.C.’s relationship with his

mother outweighs his need for permanency. The mother’s current lack of

independent housing and plan to relocate to Minnesota in the near future to live

near her paramour do not coincide with A.M.C.’s need for a consistent and safe

home. Further, A.M.C. was often fearful when faced with the prospect of

returning to his mother’s care and reluctant to speak to his mother on the phone.

During supervised visits, A.M.C. routinely chose to engage his foster mother

rather than his biological mother. After visits with his mother, A.M.C. exhibited

aggressive and inappropriate behavior. A.M.C.’s behavior and mental health has

significantly improved since placement with his foster family. A.M.C. calls his

foster parents “mom” and “dad” and has voiced his desire for his foster family to

be his “forever family.” His foster family has expressed the intent to move

forward with adoption. While the mother shares a bond with A.M.C., we do not

find termination would be detrimental to A.M.C. due to the closeness of this bond.