In the Interest of A.P., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1880 Filed March 4, 2020

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

D.P., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Eric J.

Nelson, District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Ryan M. Dale, Council Bluffs, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Maura Goaley, Council Bluffs, attorney and guardian ad litem for minor

child.

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

DOYLE, Judge.

A mother appeals the termination of her parental rights by the juvenile court.

Upon our de novo review, see In re L.T., 924 N.W.2d 521, 526 (Iowa 2019), we

affirm.

I. Background Facts and Proceedings.

D.P. is the mother of A.P., born in August 2018. The mother has a history

of methamphetamine use, which has required intervention by the Iowa Department

of Human Services (DHS) in the past. In 2016, a child-in-need-of-assistance

(CINA) case involving an older child—not at issue here—was opened related to

the mother’s methamphetamine use; it closed after that child was placed in a

familial guardianship. Sadly, the mother’s lack of sobriety remains a concern.

A.P. tested positive for methamphetamine and barbiturates at birth and was

removed from the mother’s care. In November 2018, the child was adjudicated a

CINA, and the mother was directed to participate in reunification services offered

by the DHS, including random drug testing as well as completion of substance-

abuse and mental-health evaluations with follow through with the

recommendations.

The mother first received drug testing through sweat patches, which tested

positive for methamphetamine. Despite the test results, the mother denied using

methamphetamine, claiming the positive result was caused by prescription

medication. The mother was told to get a letter from her physician about her

prescription, but she failed to do so. The mother requested the DHS provide a

combination of urinalysis and sweat-patch testing, and the mother’s request was

granted. But her later urine screens also tested positive for methamphetamine. 3

She failed to show for patch and urine testing many times. Yet the mother

continued to deny use.

It was not until February 2019 that the mother was admitted to an inpatient

substance-abuse treatment program. The mother was voluntarily but

unsuccessfully discharged from the treatment program in early April 2019. The

mother “expressed . . . she was still motivated to work [on] substance abuse

treatment in an outpatient setting.” But again, she missed several requested drug

screens.

The State petitioned for termination of the mother’s parental rights in July

2019. Following a hearing, the court terminated her parental rights. She now

appeals.

II. Discussion.

Under Iowa Code chapter 232 (2019), parental rights may be terminated if

these three conditions are true: (1) a “ground for termination under section

232.116(1) has been established” by clear and convincing evidence, (2) “the best-

interest framework as laid out in section 232.116(2) supports the termination of

parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to

preclude termination of parental rights.” In re A.S., 906 N.W.2d 467, 472-73 (Iowa

2018). Here, the mother challenges the juvenile court’s determination that all three

conditions were met. She also asserts she was not provided reasonable services

for reunification. We begin with the latter claim.

A. Reunification Services.

When a child is removed from the home, the DHS must “make every

reasonable effort to return the child to the child’s home as quickly as possible 4

consistent with the best interests of the child.” Iowa Code § 232.102(9); accord In

re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (“The State must show reasonable

efforts as part of its ultimate proof the child cannot be safely returned to the care

of a parent.”). Reasonable efforts are those efforts made to eliminate the need for

removal of the child or make it possible for the child to return home. Iowa Code

§ 232.102(12)(a). The DHS must balance its obligation to make reasonable efforts

with its obligation to protect a child from harm. See In re M.B., 553 N.W.2d 343,

345 (Iowa Ct. App. 1996). The DHS has to supply only those services that “are

reasonable under the circumstances.” In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.

App. 2000) (citation omitted). So, what constitutes “reasonable efforts” depends

on the circumstances of each case. See C.B., 611 N.W.2d at 493. Furthermore,

a “parent has an equal obligation to demand other, different, or additional services

prior to a permanency or termination hearing.” In re A.A.G., 708 N.W.2d 85, 91

(Iowa Ct. App. 2005); see also In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)

(citations omitted).

On appeal, the mother asserts she preserved error on her claim on the

State’s failure to make reasonable efforts because she requested the child be

placed with her at the treatment facility in February 2019. She also asserts she

should have been provided additional transportation services. Even if we assume,

without deciding, the mother raised these issues before the juvenile court

sufficiently to preserve the claim for our review, the record is abundantly clear that

the State provided the mother the requisite services for reunification.

This is not the mother’s first CINA case. There is no question the mother

knew what she needed to do to be reunified with the child—abstain from substance 5

abuse. The juvenile court declined the mother’s request to place the child with her

at the treatment facility because the mother had only just admitted she had been

using methamphetamine, despite the child’s extreme test results at birth and the

mother’s many positive test results after initiation of the present CINA case.

Nothing in the record suggests that had additional transportation been offered, the

mother would have committed to sobriety. Under the circumstances of this case,

it is clear the State met its burden of providing reasonable services to the mother

for reunification with the child.

B. Grounds for Termination.

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

statutory ground, we may affirm the juvenile court’s order on any ground we find

supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Here, we

focus on Iowa Code section 232.116(1)(h), which allows the court to terminate

parental rights if a child (1) is three-years old or younger, (2) has been adjudicated

a CINA, (3) has been out of the parent’s custody for at least six of the last twelve

months and any trial period at home has been less than thirty days, and (4) cannot

be returned to the parent at present without continued risk of adjudicatory harm.

The mother does not dispute the State proved the first three elements; indeed,

those elements are clear from the record. Rather, she appears to challenge only

the element that the child cannot be returned to her at present. See Iowa Code

§ 232.116(1)(h)(4); see also In re C.F.-H., 889 N.W.2d 201, 206 (Iowa 2016)

(explaining “[t]he words ‘resume’ and ‘returned’ imply restoration of a previous

custody situation”); In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (determining that

“[a]t the present time” refers to the time of the termination hearing). Upon our de 6

novo review, we find the State proved that element of paragraph (h) with clear and

convincing evidence.

At the termination-of-parental-rights hearing, there was no evidence the

mother had stopped using methamphetamine, the issue that led to the child’s

removal and CINA adjudication. The mother suggests her issues would have been

resolved had she been given additional transportation resources. But nothing in

the record supports this claim. The mother used methamphetamine before the

child was born, and she continued to use afterwards. We agree with the juvenile

court the State proved the child could not be returned safely to the mother at the

time of the termination-of-parental-rights hearing.

C. Best Interests, Permissive Factors, and Additional Time.

“If a ground for termination is established, the court must, secondly, apply

the best-interest framework set out in section 232.116(2) to decide if the grounds

for termination should result in a termination of parental rights.” In re D.W., 791

N.W.2d 703, 706-07 (Iowa 2010). In making the “best interests” determination, our

primary considerations are “the child’s safety,” “the best placement for furthering

the long-term nurturing and growth of the child,” and “the physical, mental, and

emotional condition and needs of the child.” In re P.L., 778 N.W.2d 33, 37 (Iowa

2010) (quoting Iowa Code § 232.116(2)). The “defining elements in a child’s best

interest” are the child’s safety and “need for a permanent home.” In re H.S., 805

N.W.2d 737, 748 (Iowa 2011) (citation omitted). Additionally, even if the court

determines termination is in a child’s best interests, it may decline to terminate a

parent’s parental rights if one of the permissive factors set forth in Iowa Code

section 232.116(3) applies. See also A.S., 906 N.W.2d at 475. 7

Here, the mother argues termination of her parental rights is not in the

child’s best interests because she “has made a lot of progress and should be given

an additional six months.” See Iowa Code § 232.104(2)(b) (allowing the court to

continue placement of the child for six more months if it determines “that the need

for removal of the child from the child’s home will no longer exist at the end of the

additional six-month period”). She further argues the court should decline to

terminate her parental rights because doing so would harm the child because of

the closeness of the parent-child relationship. Id. § 232.116(3)(c).

Upon our de novo review of the record, we agree with the juvenile court that

termination of the mother’s parental rights is in the child’s best interests and the

child’s need for permanency is not outweighed by the mother’s close relationship

to the child, nor would the situation be resolved by granting the mother additional

time for reunification. This is not the mother’s first case with DHS. As in her 2016

case, the mother was given resources and services for reunification. By all

accounts, she is a caring mother who does well with the child in their supervised

visits. The child is happy to see her at those visits, and the two share a bond. That

is not the problem here. The continuing issue is that the mother is either unwilling

or unable to commit to sobriety and put the child’s needs before her own. The

mother’s history of use and involvement with the DHS, along with her failure to

admit her use at the start of this case—despite continued positive drug screens—

hurt the child’s needs.

“A parent does not have an unlimited amount of time in which to correct his

or her deficiencies.” In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997).

The “legislature has carefully constructed a time frame to provide a balance 8

between the parent’s efforts and the child’s long-term best interests.” D.W., 791

N.W.2d at 707. So after statutory timelines have run, the child’s best interests are

promoted by termination. See In re S.N., 500 N.W.2d 32, 35 (Iowa 1993). Simply

put, children are not equipped with pause buttons, and they cannot wait indefinitely

for stable parents. See A.M., 843 N.W.2d at 112 (noting children must not be

deprived permanency on the hope that someday the parent will be able to provide

a stable home); In re T.J.O., 527 N.W.2d 417, 422 (Iowa Ct. App. 1994) (“Children

simply cannot wait for responsible parenting. Parenting cannot be turned off and

on like a spigot. It must be constant, responsible, and reliable.”); In re D.A., 506

N.W.2d 478, 479 (Iowa Ct. App. 1993) (“The crucial days of childhood cannot be

suspended while parents experiment with ways to face up to their own problems.”).

No question that achieving sobriety after years of substance abuse is

difficult, and the statutory time-frame of six months passes quickly. Even so, the

focus in CINA cases has to be the best interests of the child, not the parent. The

mother knew what was at stake. She chose to deny using methamphetamine

when she could have been receiving treatment. She chose to keep using

methamphetamine. Over a year passed between the child’s removal and the

termination hearing. The child should not have to wait any longer in the hope the

mother might stop using, particularly since nothing in the record shows she has

committed to sobriety. Under these facts, termination of the mother’s parental

rights is in the child’s best interests. And we decline to apply a permissive factor

to avoid terminating parental rights under these facts. See A.S., 906 N.W.2d at

475. The mother’s close relationship and bond with the child has not stopped her 9

use of methamphetamine, and there is no evidence that will change with additional

time.

III. Conclusion.

Upon our de novo review of the record, we find the State provided

reasonable reunification services to the mother as required in chapter 232, and the

State proved by clear and convincing evidence grounds for terminating her

parental rights under section 232.116(1)(h). We also conclude termination of her

parental rights is in the child’s best interests and those interests are not served by

granting additional time for reunification or application of a permissive factor to

avoid termination. For all these reasons, we affirm the juvenile court’s order

terminating the mother’s parental rights in all respects.

AFFIRMED.