In the Interest of A.R., Minor Child, M.R., Father, M.L., Mother

• Court: Court of Appeals of Iowa
• Decided: February 19, 2014
• Docket: 4-070 / 13-1975
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 4-070 / 13-1975 Filed February 19, 2014

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

M.R., Father, Appellant,

M.L., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Stephen A.

Owen, District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

John J. Haney of Hinshaw, Danielson & Haney, P.C., Marshalltown, for

appellant-father.

Jeffrey P. Hazen of Grimes, Buck, Schoell Beach & Hitchins,

Marshalltown, for appellant-mother.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Jennifer Miller, County Attorney, and Luke B. Hansen,

Assistant County Attorney, for appellee.

Mary Cowdrey of Public Defender’s Office, Marshalltown, attorney and

guardian ad litem for minor child.

Considered by Vogel, P.J., and Tabor and McDonald, JJ. 2

TABOR, J.

The juvenile court terminated the parental rights of A.R.’s mother and

father—reaching the “unmistakable” conclusion they could not reunite with their

six-year-old daughter because they failed to timely address their long history of

serious drug abuse. The parents separately appeal the termination order. The

mother, Megan, asserts A.R. can be returned to her care at the House of Mercy,

an in-patient addiction treatment program and argues terminating her parental

rights is not in A.R.’s best interests. The father, Michael, argues the State did not

meet its burden of proof on the statutory grounds for termination.

The district court engaged in thorough fact finding and sound legal

analysis. Our de novo review of the record leads us to the same conclusion:

clear and convincing evidence supports severing the legal ties of A.R.’s birth

parents. A.R.’s need for stability, safety, and long-term nurturing and growth are

best served by allowing her maternal great aunt to move toward adoption. We

affirm on both appeals.

I. Background Facts and Proceedings

Her parents’ entanglement with methamphetamine first endangered A.R.

when she was just three months old. A drug raid at her home in April 2008

resulted in a court-ordered removal. The Department of Human Services (DHS)

placed A.R. with her maternal grandmother. Megan lived there as well, and she

completed outpatient treatment and complied with drug testing. The DHS closed

its case. 3

But Megan started using methamphetamine again in 2011. The court

adjudicated A.R. as a child-in-need-of-assistance (CINA) in January 2012. A.R.

has been living with her great aunt since that time. Megan has had supervised

visitation. By her own admission, Megan used drugs consistently between July

and November of 2012. She entered outpatient treatment in October 2012 and

reported completing that program in March 2013. Megan did not receive any

substance abuse treatment between March and August 2013.

A.R.’s father, Michael, also has an extensive history of using illegal drugs,

as well as a criminal record including domestic violence offenses. He did not

participate in substance abuse treatment or any counseling services offered by

the DHS. Michael has reported being diagnosed with bipolar disorder and

schizophrenia. According to witnesses, Michael has been angry, aggressive,

and unstable during the CINA case. Court security had to escort him from the

courthouse due to his behavior at a June 2013 hearing. The DHS reported not

having contact with Michael since July 2013.

The State filed a petition to terminate parental rights on July 9, 2013. The

petition cited Iowa Code sections 232.116(1)(f) and (l) (2013). On August 14,

2013, five weeks after the State filed the petition, Megan checked herself into the

House of Mercy’s inpatient substance abuse treatment program. Megan was

homeless and nearly nine months pregnant when she checked into the program.

She gave birth in late August to another daughter, who lived with her at the

House of Mercy at the time of the termination hearing. Michael is also the father 4

of that child. Megan is allowed to stay at the House of Mercy for up to two years,

but is free to leave at any time.

The juvenile court held a termination hearing on November 19, 2013.

Megan testified she started using drugs when she was thirteen years old and first

tried methamphetamine at age nineteen. Methamphetamine has been her “drug

of choice” since then. Megan was twenty-eight-years old at the time of the

termination order. She told the juvenile court the last time she used drugs was

November 2, 2012. But the DHS social worker testified it was not likely the

House of Mercy would have admitted Megan into an in-patient substance abuse

program if she was not currently abusing drugs.

Michael failed to attend the termination hearing, despite notice of the

proceedings. Michael’s attorney did not know why his client was not in

attendance. On December 2, 2013, the court issued its order terminating the

rights of the father and mother on both grounds listed in the State’s petition. The

parents filed separate appeals.

II. Standard of Review

We review terminations de novo. In re H.S., 805 N.W.2d 737, 745 (Iowa

2011). We examine both the facts and law, and adjudicate anew those issues

properly preserved and presented. In re L.G., 532 N.W.2d 478, 480–81 (Iowa Ct.

App. 1995). We accord considerable weight to the findings of the trial court,

especially concerning the credibility of witnesses, but are not bound by them. Id.

at 481. 5

We will uphold a termination order if we find clear and convincing

supporting any of the statutory grounds relied upon by the juvenile court. In re

D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Evidence is ‘clear and convincing’

when there are no serious or substantial doubts as to the correctness of

conclusions of law drawn from the evidence.” Id. (internal quotation omitted).

III. Analysis

For both parents, the termination order cited two grounds for termination:

Iowa Code section 232.116(1)(f)1 and section 232.116(1)(l).2 When the juvenile

court relies on more than one statutory basis, we may affirm on any ground

supported by clear and convincing evidence. Id. at 707. We will address each

parent’s claim in turn.

A. Father’s appeal

Michael’s petition on appeal makes a bare-bones assertion the State did

not meet its burden of presenting clear and convincing evidence warranting

1 The court may order termination if it finds 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. 2 The court may order termination if it finds all of the following have occurred: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102. (2) The parent has a severe substance-related disorder and presents a danger to self or others as evidenced by prior acts. (3) There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home. 6

termination of his parental rights. Michael does not pinpoint which elements the

State failed to establish. And he does not assert A.R. could have been returned

to his care at the time of the termination hearing.

We affirm the termination of Michael’s parental rights based under section

232.116(1)(f). That section requires clear and convincing proof the child cannot

be returned to the parents “at the present time.” “At the present time,” as used in

section 232.116(1)(f)(4) means at the time of the termination hearing. Despite a

return of service and a publication notice, Michael did not personally appear at

the termination hearing, and his attorney did not know how to contact him. The

father’s disinterest in the proceedings underscores that A.R. could not be

presently returned to his care. Moreover, we share the juvenile court’s concern

regarding Michael’s history of substance abuse, criminality, and unstable

behavior. Michael did not follow through with any evaluations, counseling, or

services recommended by the DHS to address his long-standing substance

abuse problem. Accordingly, the State proved by clear and convincing evidence

he could not provide a safe home environment for A.R.

Michael also raises a hearsay challenge to letters from A.R.’s therapist

describing the child’s high degree of stress during the separation from her

parents. The juvenile court expressly stated that it gave little weight to those

exhibits and would have reached the same conclusion based on other testimony

concerning the child’s anxiety related to the uncertainty of her situation.

Assuming without deciding the disputed exhibits were inadmissible, we 7

concluded Michael suffered no prejudice. See In re A.S., 743 N.W.2d 865, 869

(Iowa Ct. App. 2007).

Furthermore, Michael cites Iowa Code section 232.116(3) and notes A.R.

is in a relative placement. A juvenile court “need not terminate” if “a relative has

legal custody of the child.” Iowa Code § 232.116(3)(a); In re D.H., 688 N.W.2d

491, 493–94 (Iowa Ct. App. 2004). It is true A.R.’s great aunt has been her

caretaker throughout the CINA case. But given Michael’s lack of participation in

services and the faint prospect of him renewing safe and meaningful contact with

his daughter, we do not find the relative placement was cause for the juvenile

court to defer termination of the father’s rights.

B. Mother’s appeal

Megan contests the juvenile court’s conclusion that clear and convincing

evidence supported termination of her parental rights under sections

232.116(1)(f) and (l). She argues the court was wrong in determining A.R. could

not be returned to her at the time of the termination hearing. Megan contends

she could provide a secure residence for A.R. at the House of Mercy where she

is engaged in substance abuse treatment.

Like the district court, we conclude the State offered clear and convincing

evidence justifying termination under section 232.116(1)(f). During the more than

two years A.R. has been removed for her care, Megan has never progressed

from fully-supervised visitation. She continually struggled with substance abuse

and housing issues. Only after the State petitioned to terminate her rights to

A.R., and when she was nine months pregnant with A.R.’s sister, did Megan 8

seek in-patient drug treatment. At the termination hearing, Megan acknowledged

it would not be in A.R’s best interests to “just up and move her to me.” Megan

testified, “If she was returned to my care, I would prefer that she is transitioned

back to me and start out with, like, weekends, overnights, or you know, slowly

move her back into me and not upset her schooling and not upset, you know, her

whole life.”

We agree with the juvenile court’s determination A.R. could not be

presently returned to Megan’s care. Megan’s attempts to become clean, for her

own sake and that of her new baby, are commendable. But they come too late

and are too nascent to prompt reunification with A.R. As the State points out in

its brief, Megan’s long-term housing situation is still precarious, as she cannot

permanently stay at the House of Mercy. Moreover, Megan’s commitment to

ending her unhealthy relationship with Michael remains untested. A.R. cannot be

kept waiting while Megan works to overcome her addiction and attain stability.

See In re J.A.D.-F., 776 N.W.2d 879, 885 (Iowa Ct. App. 2009).

We also reject Megan’s argument that termination of her parental rights is

not in A.R.’s best interests. See Iowa Code § 232.116(2). “Section 232.116(2)

requires us to ‘give primary consideration to the child’s safety, to the best

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

the physical, mental, and emotional condition and needs of the child.’” In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010).

The juvenile court succinctly described relevant considerations:

The child’s safety is best ensured by the termination of parental rights as both the child’s mother and father have severe and 9

chronic substance abuse addictions. While the child’s mother has engaged in inpatient substance abuse services, these services have only been in place for 3 months. The child has already been removed from her parents for over two years. As [Megan] testified, the House of Mercy program may last for up to 2 years. By that time the child will be nearly 8 years old.

The court rightly recognized A.R. has developed a strong bond with her great

aunt, who is willing to adopt A.R. A.R. enjoys a comfortable routine in the great

aunt’s home; she is making friends at school and has joined Girl Scouts. On her

own, A.R. has started referring to the great aunt as “Mommy.” By contrast, A.R.

has a less strong relationship with Megan. The DHS worker testified A.R. looks

forward to visits with Megan, but mostly because A.R. is excited to see her baby

sister. The worker also believes interactions with the parents have caused A.R.

ongoing anxiety, manifesting itself in bed-wetting and bad dreams.

For the reasons discussed above, we conclude the State proved by clear

and convincing evidence that the parental rights of Megan and Michael should be

terminated. We also agree with the juvenile court’s assessment that termination

is in A.R.’s best interests.

AFFIRMED ON BOTH APPEALS.