In the Interest of A.O. and B.O., Minor Children

• Court: Court of Appeals of Iowa
• Decided: March 17, 2021
• Docket: 20-1555
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1555 Filed March 17, 2021

IN THE INTEREST OF A.O. and B.O., Minor Children,

M.M., Mother, Appellant,

R.O., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.

The mother and father each separately appeal the termination of their

parental rights. AFFIRMED ON BOTH APPEALS.

Mandy L. Whiddon of Whiddon Law, Omaha, Nebraska, for appellant

mother.

Kyle E. Focht of Focht Law Office, Council Bluffs, for appellant father.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

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

children.

Considered by May, P.J., and Greer and Schumacher, JJ. 2

GREER, Judge.

The father and mother separately appeal the termination of their parental

rights to their children, A.O. and B.O., born in 2014 and 2012, respectively. The

father’s rights were terminated pursuant to Iowa Code section 232.116(1)(e), (f),

and (l) (2020). And the mother’s rights were terminated pursuant to section

232.116(1)(e) and (f). Both parents challenge the sufficiency of evidence

supporting their statutory terminations. Each parent also challenges whether

termination is in the children’s best interests and maintain an exception to

termination should be applied to save the parent-child relationships.

I. Background Facts and Proceedings

The family first came to the attention of the Iowa Department of Human

Services (DHS) in 2014 due to the father’s use of amphetamines and

methamphetamine and because he allowed the children to be near their uncle

while he was using illicit substances. That case eventually closed, and the children

were returned to their parents’ care in 2015.

But, because of a second series of events, DHS again became involved.

On April 24, 2019, DHS received an intake that the parents were using

methamphetamine while caring for the children. Then, the mother was arrested

for domestic assault against the father. Two days later, the father submitted a drug

screen for his probation officer, which was positive for methamphetamine,

marijuana, and benzodiazepine.

Following a July 24, 2019 hearing, A.O. and B.O. were again adjudicated to

be children in need of assistance. The children were placed in the care of their

paternal grandmother. They have remained in her care since that time. With time 3

running down and no appreciable progress, a petition to terminate parental rights

was filed September 15, 2020.

The hearing for termination of parental rights occurred in October of 2020.

The juvenile court terminated both parents’ rights under section 232.116(1)(e) and

(f), and also terminated the father’s rights under section 232.116(1)(l). The parents

separately appeal.

II. Standard of Review

Appellate review of termination proceedings is de novo. In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). Our primary consideration is the best interest of the

children. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). An order terminating

parental rights will be upheld if there is clear and convincing evidence of grounds

for termination under section 232.116. In re D.W., 792 N.W.2d 703, 706 (Iowa

2010).

III. Analysis

An Iowa Code chapter 232 termination of parental rights follows a three-

step analysis. P.L., 778 N.W.2d at 39. First, the court must determine whether a

ground for termination under section 232.116(1) has been established. Id. If said

ground for termination is established, the court must then apply the best-interest

framework set out in section 232.116(2). Id. Third and finally, if the best-interest

framework supports termination of parental rights, the court must consider if any

of the statutory exceptions set out in section 232.116(3) weigh against the

termination of parental rights. Id.

This court need only find one paragraph of 232.116(1) met to affirm a

termination. In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We address each 4

parent separately using the statutory framework as applied to their respective

histories.

A. Mother’s Appeal

The mother first claims the juvenile court erred in terminating her rights

under section 232.116(1)(f). To establish a termination of parental rights under

this section, the court must find that all of the following have occurred:

(1) The child is four years of age or older. (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 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. (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 as provided in section 232.102.

The mother contests the fourth element. Pointing to her progress, she asserts that

she has been participating in drug treatment and has secured housing with a room

for the children to use as their own.

Contrary to her assertions, the record shows that the mother, at the time of

the termination hearing, was living with her boyfriend. Complicating the situation,

this boyfriend’s criminal record included domestic abuse, possession of a

controlled substance, and gun convictions, and he did not pass a background

check conducted by DHS. Her apartment contained only two bedrooms, yet four

adults resided there at the time of the hearing, including the boyfriend. DHS has

not evaluated the other residents of the apartment to determine whether they are

safe to be around the children. Further, it was not uncommon for the mother to

move frequently. 5

In addition to housing instability, the mother failed to address her substance-

abuse or mental-health issues throughout these proceedings. The mother suffers

from depression and anxiety. After failing to complete scheduled substance-abuse

and mental-health evaluations, she was discharged from her treatment due to poor

attendance. She has consistently failed drug tests or failed to show for the

screenings. The children cannot be returned to the mother’s care because of her

instability in housing and apparent refusal to appropriately address her mental-

health and addiction issues. For these reasons, we find the evidence supports

termination of the mother’s parental rights under section 232.116(1)(f).

Next, we consider whether termination is in the children’s best interests.

See P.L., 778 N.W.2d at 37. In evaluating this issue, 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); see

also J.E., 723 N.W.2d at 802 (Cady, J., concurring specially) (stating a child’s

safety and need for a permanent home are the “defining elements” in determining

a child’s best interests). The mother contends that “it is not in the best interest of

her children to have parental rights terminated as there is a bond with [her] and

she is capable of providing the necessary care to them.” We find her argument

unconvincing. Although the children may very well be bonded with their mother,

she has been unable to meet their needs. At the time of the termination hearing,

the mother could not offer the children a suitable permanent home; their safety

could not be assured with other adults un-vetted by DHS living in the apartment.

There are also questions about the level of care the mother could provide, due to 6

her lack of consistency in treatment for drug abuse and mental health. We also

note she had not moved past two visits per week with the children.

Insofar as we understand the mother’s passing statement of her “bond” with

the children to implicate section 232.116(3)(c), we also consider whether it should

be applied to save the parent-child relationship. See Iowa Code § 232.116(3)(c)

(allowing the court to forego termination when “[t]here 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”). So long as a parent can prove an

exception applies, the court may conclude termination is inappropriate. In re A.S.,

906 N.W.2d 467, 476 (Iowa 2018). We cannot say the children are so bonded to

their mother that the detriment of termination will outweigh the benefit they will gain

from having permanency and stability.

We affirm the termination of the mother’s parental rights to both children.

B. Father’s Appeal.

Similar to the mother, the father challenges the statutory grounds cited by

the juvenile court to terminate his parental rights. We choose to focus on

termination under paragraph (f), as we did for the mother. The court can terminate

under section 232.116(1)(f) when:

(1) The child is four years of age or older. (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 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. (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 as provided in section 232.102. 7

The father challenges both the third and fourth elements. He contends that when

he returned to the family home to live with the children and paternal grandmother

for approximately three months in early 2020, it constituted a “trial period at home,”

which lasted longer than thirty days. See Iowa Code § 232.116(1)(f)(3). He also

asserts the children could have been returned to his care at the time of the

termination hearing. See id. § 232.116(1)(f)(4).

Beginning with the third element, our case law establishes that it is met

when either a child has been removed from the physical custody of the child’s

parents for at least twelve of the last eighteen months or when a child has been

removed from the physical custody of the child’s parents for twelve consecutive

months and any trial period at home is less than thirty days. See In re D.M.J., 780

N.W/2d 243, 245–46 (Iowa Ct. App. 2010) (considering the language of section

232.116(h)(3), which mirrors the language in section 232.116(1)(f)(3)). In other

words, the “trial period at home” language only applies to the second part of the

clause. See id. So trial periods do not affect whether the third element has been

met if we are only considering whether the children have been removed for twelve

of the last eighteen months. And here, the children were removed on July 25, 2019

and remained outside of the parents’ custody until the time of the termination

hearing on October 19, 2020. So the children have been out of the parents’

custody at least twelve of the preceding eighteen months. Insofar as the father

maintains the children were never “removed” because they continued living in the

same home with the paternal grandmother while the parents moved out, this

argument also fails. See In re J.H., No. 18-1425, 2018 WL 5840198, at *3 (Iowa

Ct. App. Nov. 7, 2018) (“‘In the statute, the term “remove” and its derivatives—in 8

the context of physical custody—invariably involves a dynamic change of

circumstance, not stasis.’ ‘By construing “remove from physical custody” to require

a change from physical custody to lack of physical custody . . . the statute ensures

that before termination occurs . . . a parent has had a chance at physical custody

in the past that has been unsuccessful. . . .’ By ordering the father to vacate the

residence, a ‘dynamic change of circumstances’ occurred.” (citations omitted)).

Section 232.116(1)(f)(3) is met.

We also conclude the children could not be returned to the father’s care at

the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4). Even

without considering the father’s June 2020 relapse on methamphetamine and

arrest for operating while intoxicated, or his August 2020 arrest for trespassing, at

which time he admits he was using alcohol, the father’s own testimony at the

termination hearing established the children could not be returned to his care. The

father voluntarily moved into a sober living house in Nebraska less than a month

before the termination hearing. No ICPC study1 was completed by the time of the

termination hearing, and while the father enjoyed visits with the children at the

home, he testified he did not want the children to live with him there because they

would have to change schools and “because of [his] work schedule.” According to

the father, he plans to live at the sober living house for “the next year at least.”

Because the father rents only a room in the house, he failed to show he could have

the children live with him or that there was even space for them to stay. We

commend the father for doing what he needs to do to maintain his sobriety but, as

1A home study pursuant to the The Interstate Compact on the Placement of Children was required to move the children to Nebraska. 9

he recognized at the termination hearing, the children could not be returned to his

care.

The father mentions “best interests” in passing but does not make a specific

argument. See Iowa Code § 232.116(2). Despite many months of services

afforded through DHS involvement, the father is not yet able to provide the children

with a stable home and consistent care. Thus, termination is in the children’s best

interests. See A.S., 906 N.W.2d at 474 (“Children simply cannot wait for

responsible parenting.”).

Lastly, we must consider whether any statutory exceptions apply. Iowa

Code § 232.116(3). The father raises two arguments: first, he states that because

of the bond between him and the children, the termination should not occur. See

id. § 232.116(3)(c). Second, he argues that because the children are currently

living with their paternal grandmother, we should apply the section 232.116(3)(a)

exception to save the parent-child relationships. The paternal grandmother is

available to adopt, and given her role as the stable constant, we are unconvinced

by either argument as it would impede the progress toward a permanent home for

the children.

We affirm the termination of the father’s parental rights to both children.

AFFIRMED ON BOTH APPEALS.