In the Interest of A.N., M.N., and A.B., Minor Children, A.B., Mother, S.N., Father

• Court: Court of Appeals of Iowa
• Decided: September 23, 2015
• Docket: 15-1028
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1028 Filed September 23, 2015

IN THE INTEREST OF A.N., M.N., AND A.B., Minor Children,

A.B., Mother, Appellant,

S.N., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Craig M.

Dreismeier, District Associate Judge.

A mother and a father appeal separately from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Roberta J. Megel of the State Public Defender Office, Council Bluffs, for

appellant father.

Sara Benson of Benson Law, P.C., Council Bluffs, for appellant mother.

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

General, Matthew Wilbur, County Attorney, and Eric Strovers, Assistant County

Attorney, for appellee State.

Marti Nerenstone, Council Bluffs, attorney and guardian ad litem for minor

children.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ. 2

DOYLE, Judge.

The mother appeals the termination of her parental rights to her children,

A.N., M.N., and A.B. The father appeals the termination of his parental rights to

his children, A.N. and M.N.1 Reviewing their claims de novo, see In re A.M., 843

N.W.2d 100, 113 (Iowa 2014), we affirm.

In determining whether parental rights should be terminated under Iowa

Code chapter 232 (2015), the juvenile court “follows a three-step analysis.” See

In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Step one requires the court to

“determine if a ground for termination under section 232.116(1) has been

established” by the State. See id. If the juvenile court finds grounds for

termination, the court moves to the second step of the analysis: deciding if the

grounds for termination should result in a termination of parental rights under the

best-interest framework set out in section 232.116(2). See id. at 706-07. Even if

the juvenile court finds “the statutory best-interest framework supports

termination of parental rights,” the court must proceed to the third and final step:

considering “if any statutory exceptions set out in section 232.116(3) should

serve to preclude termination of parental rights.” See id. at 707.

In December 2013, the children were removed from the mother’s home

and subsequently adjudicated children in need of assistance (CINA). The

children were first placed in a foster family home. Later, in January 2015, the

children were placed with their maternal grandmother. A petition to terminate

parental rights was filed in February 2015, and came on for hearing in May 2015.

The factual details underlying the removal, adjudication, and termination are

1 The father of A.B. does not appeal the termination of his parental rights to A.B. 3

spelled out in full in the juvenile court’s thorough twenty-one page termination-of-

parental-rights order. After our de novo review of the record, we adopt as our

own the juvenile court’s findings of fact. To repeat those facts here would serve

no useful purpose, particularly since termination of parental rights cases are so

fact specific.

The juvenile court cited six independent ground for termination under Iowa

Code section 232.116(1): paragraphs (b) (abandonment); (d) (adjudicated CINA

for physical or sexual abuse or neglect, and the circumstances continue despite

receipt of services); (e) (adjudicated CINA and removed from the parents' care

for a period of at least six consecutive months, and parents have not maintained

significant and meaningful contact with the child during the previous six

consecutive months); (f) (age four or older, adjudicated CINA and removed from

the parents’ care for the last twelve consecutive months, and cannot be returned

to the parents’ custody at the time of the termination hearing); (h) (age three or

younger, adjudicated CINA and removed from the parents’ care for six of the last

twelve months, and cannot be returned to the parents’ custody at the time of the

termination hearing); and (i) (adjudicated CINA for physical or sexual abuse or

neglect, the abuse of neglect posed a significant risk to the child's life, and the

receipt of services would not correct the conditions which led to the abuse or

neglect within a reasonable period of time). The mother and the father challenge

the termination of their parental rights as to all sections relied on by the juvenile

court.

“On appeal, we may affirm the juvenile court’s termination order on any

ground that we find supported by clear and convincing evidence.” See D.W., 791 4

N.W.2d at 707. After reviewing the record in this case de novo, we conclude

grounds for termination exist under section 232.116(1)(f) as to both parents.

As mentioned above, under that paragraph, termination may be ordered

when there is clear and convincing evidence a child age four or older, who has

been adjudicated in need of assistance and removed from the parent’s care for

the last consecutive twelve months, cannot be returned to the parent’s custody at

the time of the termination hearing. See Iowa Code § 232.116(1)(f). Although

the mother and father assert “the State did not prove by clear and convincing

evidence all four prongs of this code section were met,” they make no argument

the first three prongs were not proved. In any event, there can be no real dispute

the first three prongs of section 232.116(1)(f) have been met—at the time of

termination, A.N., M.N., and A.B. were all four years old or older,2 adjudicated

CINA, and had been out of the mother’s and father’s custody for the last

consecutive twelve months. See id. § 232.116(1)(f)(1)-(3). So, their claim really

implicates only the fourth element, see id. § 232.116(1)(f)(4) (“There is clear and

convincing evidence that at the present time the child cannot be returned to the

custody of the child’s parents.”).

2 A.N. was three years of age when the petition to terminate parental rights was filed, but turned age four a few days before the hearing. The age of a child is determined as of the last day of the termination hearing. See In re J.A., No. 13-0889, 2013 WL 5758054, at *3 (Iowa Ct. App. Oct. 23, 2013). Although the juvenile court found A.N. to be four years of age at the time of the hearing in its findings of fact, it applied section 232.116(1)(h) as to A.N in terminating the parental rights. Section 232.116(1)(h) requires that the court find the child in issue is three years of age or less. Under these facts and circumstances, the appropriate statutory section is 232.116(1)(f); the juvenile court’s reference to section 232.116(1)(h) is clearly a typographical error, which is harmless given our de novo review. See, e.g., In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991) (noting the juvenile court’s error was harmless in light of the de novo review of the appellate court). 5

The mother contends “the children could eventually be returned to her

care now that she [is] at the Lydia House.”3 At the termination hearing the

mother was asked, “Do you want the children placed back with you today?” The

mother responded, “No.” When asked “Why not?” the mother answered, “I don’t

think I’m stable enough. I don’t think I have the proper resources. I think . . . a

proper goal, like a month or so, I think, I would be more stable mentally and

physically.” The mother testified she had been using methamphetamine daily

when she entered the Lydia House in early April 2015. She left the house about

a week or two before the termination hearing. Because she was homeless upon

leaving Lydia House, the mother wandered, went to a friend’s house, and used

methamphetamine and marijuana. She last used methamphetamine about a

week before the termination hearing, and used marijuana less than a week

before the hearing. The mother then returned to Lydia House about two days

before the hearing. It is clear from the evidence that the children could not be

returned to the mother at the time of the hearing.

The father contends “the children could have been returned to his care

when he [will be] released from Nebraska in December 2015.” At the time of the

termination hearing the father was incarcerated at the Omaha Correctional

Center. He testified his discharge date was December 14, 2016, but that he

expected to be released on parole December 14, 2015. He testified he would be

able to resume care of the children two months after his release on parole. It is

clear from the evidence the children could not be returned to their father at the

time of the hearing.

3 Lydia House is an Omaha, Nebraska shelter home for homeless persons. 6

As we have stated numerous times, children are not equipped with pause

buttons. “The crucial days of childhood cannot be suspended while parents

experiment with ways to face up to their own problems.” In re A.C., 415 N.W.2d

609, 613 (Iowa 1987). While the law requires a “full measure of patience with

troubled parents who attempt to remedy a lack of parenting skills,” this patience

has been built into the statutory scheme of chapter 232. See In re C.B., 611

N.W.2d 489, 494 (Iowa 2000). Our supreme court has explained that “the

legislature, in cases meeting the conditions of [the Iowa Code], has made a

categorical determination that the needs of a child are promoted by termination of

parental rights.” In re M.W., 458 N.W.2d 847, 850 (Iowa 1990) (discussing then

Iowa Code section 232.116(1)(e)). Consequently, “[t]ime is a critical element,”

and parents simply “cannot wait until the eve of termination, after the statutory

time periods for reunification have expired, to begin to express an interest in

parenting.” See C.B., 611 N.W.2d at 495. At some point, as is the case here,

the rights and needs of the children must rise above the rights and needs of the

parent. See In re C.S., 776 N.W.2d 297, 299 (Iowa Ct. App. 2009). The public

policy of the state having been legislatively set, we are obligated to heed the

statutory time periods for reunification.

At the time of the termination hearing, the children had not been in the

mother or father’s care for some seventeen months. Insofar as both the mother

and father suggest they need a little additional time before the children could be

returned to them, “[w]e 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.” See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); 7

see also Iowa Code § 232.116(2). We conclude a grant of additional time for the

mother and father to work toward reunification is not justified here.

Having reviewed the record de novo, we unequivocally agree with the

juvenile court’s conclusion:

The final issue is to whether the children can be returned to the custody of either parent. As already noted, it has been determined that [the father] is not able to assume custody now or in the near future. . . . [The mother] has admitted she is unable to resume care of the children at this time but requests additional time in order to get her life settled. As noted, the children have been out of their parent’s care for the last sixteen months. They have never reunified with either parent for any period of time during this time span. During this period of time, [the mother] has had the same problems, i.e., homelessness, mental health issues and substance abuse issues. Since the termination hearing was continued to a new scheduled date, [the mother] had been at Lydia House and left only to return shortly before the termination hearing. She testified she left because she was depressed and while she was gone, she testified she was homeless and used illegal substances. This court believes the children need permanency and can’t continue to put their lives on hold for their parents to straighten out their lives. This Court finds the allegations under Iowa Code 232.116(1)(f) as the same relate to the parental rights between [the children] and their [mother and father] have been met by clear and convincing evidence.

Although the mother and father maintain termination is not in the best

interest of the children, we conclude the record demonstrates otherwise. In

making this determination, we “give primary consideration to the child[ren]’s

safety, to the best placement for furthering the long-term nurturing and growth of

the child[ren], and to the physical, mental, and emotional condition and needs of

the child[ren].” Iowa Code § 232.116(2). The children are doing well in their

current placement with their maternal grandmother who is interested in adopting.

The case worker testified, “It’s gone well. The children are happy and stabilized.

They are participating in social activities, school, counseling, and supportive 8

services.” Asked whether instead of termination she considered the possibility of

a guardianship being established with the children’s grandmother, the case

worker said she considered it but did not feel it was in the children’s best interest.

She believed that “[g]iven the ages of the children and their need for

permanency” “it’s in their best interest to be adopted by their maternal

grandmother.” We are not tempted to tinker with the children’s progress made

and stability gained. Taking into account the relevant factors, we agree with the

juvenile court that a guardianship does not provide the children with permanency

and that the children’s best interests are served by severing their legal ties with

the mother and the father. Furthermore, we see no evidence the bonds are so

strong as to outweigh the children’s need for permanency, thus the section

232.116(3) “closeness-of-the-parent-child-relationship” exception will not prevent

the termination. See In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). Accordingly, we

affirm the juvenile court’s order terminating the mother’s and the father’s parental

rights.

AFFIRMED ON BOTH APPEALS.