IN THE COURT OF APPEALS OF IOWA
No. 13-1418 Filed July 16, 2014
IN THE INTEREST OF A.S. JR., Minor Child,
E.W., Mother, Appellant,
A.S. SR., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara Liesveld,
District Associate Judge.
E.W. appeals the juvenile court order terminating her parental rights.
AFFIMRED.
Edward F. Crowell, Cedar Rapids, for appellant-mother.
Anthony H. Janney, Vinton, for appellant-father.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Jerry Vander Sanden, County Attorney, and Kelly J. Kaufman, Assistant
County Attorney, for appellee-State.
Cynthia S. Finley, Cedar Rapids, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
BOWER, J.
E.W. appeals the juvenile court order terminating her parental rights. She
claims she has complied with all requirements set by the juvenile court and the
positive drug tests preventing reunification are unreliable. We find termination of
E.W.’s parental rights was proper under Iowa Code section 232.116(1)(h) (2013).
E.W.’s positive drug tests are sufficiently reliable, and her explanation for the
large number of abnormal test results is unconvincing. Because termination is in
the child’s best interests, we affirm.
I. Background Facts and Proceedings
In an August 20, 2013 order, the juvenile court terminated E.W.’s parental
rights to A.S. At the time of termination, A.S. was eleven months old. The child
came to the attention of the department of human service (DHS) because E.W.
was believed to have been abusing drugs and alcohol during her pregnancy, and
because E.W. was attempting to obtain prescription drugs while hospitalized
following childbirth. E.W. has a lengthy history of substance abuse, and DHS
was immediately concerned with her ability to care for A.S.
This is not E.W.’s first experience with DHS or termination proceedings.
Her parental rights to an older child were terminated in 2008 after police
discovered she was selling drugs out of her home.1 The juvenile court noted that
many of those same concerns and issues are once again present in this case.
1 At the time some of the drugs and paraphernalia were found in places that could be easily reached by the child. 3
Following removal of A.S. from E.W.’s2 care, E.W. has been offered a
number of services aimed at addressing her substance abuse problems. The
offered services included an outpatient substance abuse treatment program.
E.W.’s attendance at the program was poor. Over the past several years, E.W.
has been in substance abuse treatment at least six times. The juvenile court
found she has a history of relapse, denying her substance abuse problems, and
later admitting to her relapses and substance abuse.
Of greater concern is the juvenile court’s conclusion E.W. has failed to
abstain from all mood altering substances as ordered since A.S. was removed
from her care. There is one positive test for alcohol, and a complicated history of
drug screens. E.W. tested positive for synthetic marijuana five times after
removal, and admitted to some use through April 2013. Two of the positive tests,
however, were conducted after E.W. claims her drug use ceased.
Evaluation of E.W.’s drug tests is complicated by a high number of missed
tests. Since May 21, 2013, E.W. had missed seven drug tests. Of the ten tests
conducted, seven were considered abnormal.3
E.W. has engaged in regular visitation with A.S., however, visits have
often been shortened due to scheduling difficulties. At the time of trial, E.W. was
unemployed. There has been a history of miscommunication between E.W. and
2 E.W. was incarcerated at the time of the removal 3 Two of the tests were considered missed because they were dilute, two more because of abnormally high creatinine levels, one was positive for benzodiazepines and two were positive for synthetic marijuana According to the testimony, dilute tests are considered unreliable because the test may indicate an individual attempting to skew the results by ingesting a large amount of water. 4
A.S.’s foster parents. E.W. has not always known what formula A.S. is on or how
to use necessary medical equipment.
A.S. is developmentally behind, but has improved since the removal. A.S.
has sucking and tongue thrust issues, which are being addressed by physical
therapy and the foster parents. Visits with E.W. have been conducted outside
E.W.’s home because A.S. has respiratory problems and E.W. continues to
smoke in her home.
The parental rights of A.S.’s father were terminated at the same time the
juvenile court terminated E.W.’s rights. The father failed to timely appeal. By
order of our supreme court, dated May 14, 2014, we are directed to disregard the
father’s appeal. During much of the pendency of this case, the father was
incarcerated. He was released from federal prison in June 2013 and
subsequently married E.W., despite the advice of his parole officer to stay away
from her. It is clear returning A.S. to E.W.’s care is tantamount to returning the
child to the father’s care.
II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815, N.W.2d
764, 773 (Iowa 2012). We give weight to the factual findings of the juvenile
court, particularly on matters of credibility, but we are not bound by them. Id.
III. Discussion
The juvenile court terminated E.W.’s parental rights on two grounds. First,
the juvenile found the State satisfied the grounds set forth in Iowa Code section
232.116(1)(h) (2013). This section allows for termination when the child is three 5
years old or younger, has been adjudicated in need of assistance, has been
removed from the parent’s custody for a set period of time, and there is clear and
convincing evidence the child cannot be returned to the parents at the present
time. Id. Second, the juvenile court terminated E.W.’s rights under section
232.116(1)(l). This section provides for termination when the child has been
adjudicated in need of assistance, the parent has a substance-related disorder
placing the parent or child in danger, and there is clear and convincing evidence
the child cannot be returned to the parent in a reasonable time. Id.
In termination proceedings, we engage in a three-step process. See In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). If we find grounds to terminate under
section 232.116(1), we then consider the best interests of the child under section
232.116(2). Id. Finally, we determine whether the permissive exceptions under
section 232.116(3) apply. Id. Where a parent’s rights are terminated under
multiple sections, we need to find grounds under only one section to affirm the
juvenile court. In re R.K., 649 N.W.2d 18, 19 (Iowa Ct. App. 2002).
E.W. claims in this appeal that A.S. can be returned to her. We agree with
the juvenile court that A.S. cannot be returned to the mother. The evidence
makes clear A.S. is less than three years of age and has been removed from
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IN THE COURT OF APPEALS OF IOWA
No. 13-1418 Filed July 16, 2014
IN THE INTEREST OF A.S. JR., Minor Child,
E.W., Mother, Appellant,
A.S. SR., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara Liesveld,
District Associate Judge.
E.W. appeals the juvenile court order terminating her parental rights.
AFFIMRED.
Edward F. Crowell, Cedar Rapids, for appellant-mother.
Anthony H. Janney, Vinton, for appellant-father.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Jerry Vander Sanden, County Attorney, and Kelly J. Kaufman, Assistant
County Attorney, for appellee-State.
Cynthia S. Finley, Cedar Rapids, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ. 2
BOWER, J.
E.W. appeals the juvenile court order terminating her parental rights. She
claims she has complied with all requirements set by the juvenile court and the
positive drug tests preventing reunification are unreliable. We find termination of
E.W.’s parental rights was proper under Iowa Code section 232.116(1)(h) (2013).
E.W.’s positive drug tests are sufficiently reliable, and her explanation for the
large number of abnormal test results is unconvincing. Because termination is in
the child’s best interests, we affirm.
I. Background Facts and Proceedings
In an August 20, 2013 order, the juvenile court terminated E.W.’s parental
rights to A.S. At the time of termination, A.S. was eleven months old. The child
came to the attention of the department of human service (DHS) because E.W.
was believed to have been abusing drugs and alcohol during her pregnancy, and
because E.W. was attempting to obtain prescription drugs while hospitalized
following childbirth. E.W. has a lengthy history of substance abuse, and DHS
was immediately concerned with her ability to care for A.S.
This is not E.W.’s first experience with DHS or termination proceedings.
Her parental rights to an older child were terminated in 2008 after police
discovered she was selling drugs out of her home.1 The juvenile court noted that
many of those same concerns and issues are once again present in this case.
1 At the time some of the drugs and paraphernalia were found in places that could be easily reached by the child. 3
Following removal of A.S. from E.W.’s2 care, E.W. has been offered a
number of services aimed at addressing her substance abuse problems. The
offered services included an outpatient substance abuse treatment program.
E.W.’s attendance at the program was poor. Over the past several years, E.W.
has been in substance abuse treatment at least six times. The juvenile court
found she has a history of relapse, denying her substance abuse problems, and
later admitting to her relapses and substance abuse.
Of greater concern is the juvenile court’s conclusion E.W. has failed to
abstain from all mood altering substances as ordered since A.S. was removed
from her care. There is one positive test for alcohol, and a complicated history of
drug screens. E.W. tested positive for synthetic marijuana five times after
removal, and admitted to some use through April 2013. Two of the positive tests,
however, were conducted after E.W. claims her drug use ceased.
Evaluation of E.W.’s drug tests is complicated by a high number of missed
tests. Since May 21, 2013, E.W. had missed seven drug tests. Of the ten tests
conducted, seven were considered abnormal.3
E.W. has engaged in regular visitation with A.S., however, visits have
often been shortened due to scheduling difficulties. At the time of trial, E.W. was
unemployed. There has been a history of miscommunication between E.W. and
2 E.W. was incarcerated at the time of the removal 3 Two of the tests were considered missed because they were dilute, two more because of abnormally high creatinine levels, one was positive for benzodiazepines and two were positive for synthetic marijuana According to the testimony, dilute tests are considered unreliable because the test may indicate an individual attempting to skew the results by ingesting a large amount of water. 4
A.S.’s foster parents. E.W. has not always known what formula A.S. is on or how
to use necessary medical equipment.
A.S. is developmentally behind, but has improved since the removal. A.S.
has sucking and tongue thrust issues, which are being addressed by physical
therapy and the foster parents. Visits with E.W. have been conducted outside
E.W.’s home because A.S. has respiratory problems and E.W. continues to
smoke in her home.
The parental rights of A.S.’s father were terminated at the same time the
juvenile court terminated E.W.’s rights. The father failed to timely appeal. By
order of our supreme court, dated May 14, 2014, we are directed to disregard the
father’s appeal. During much of the pendency of this case, the father was
incarcerated. He was released from federal prison in June 2013 and
subsequently married E.W., despite the advice of his parole officer to stay away
from her. It is clear returning A.S. to E.W.’s care is tantamount to returning the
child to the father’s care.
II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815, N.W.2d
764, 773 (Iowa 2012). We give weight to the factual findings of the juvenile
court, particularly on matters of credibility, but we are not bound by them. Id.
III. Discussion
The juvenile court terminated E.W.’s parental rights on two grounds. First,
the juvenile found the State satisfied the grounds set forth in Iowa Code section
232.116(1)(h) (2013). This section allows for termination when the child is three 5
years old or younger, has been adjudicated in need of assistance, has been
removed from the parent’s custody for a set period of time, and there is clear and
convincing evidence the child cannot be returned to the parents at the present
time. Id. Second, the juvenile court terminated E.W.’s rights under section
232.116(1)(l). This section provides for termination when the child has been
adjudicated in need of assistance, the parent has a substance-related disorder
placing the parent or child in danger, and there is clear and convincing evidence
the child cannot be returned to the parent in a reasonable time. Id.
In termination proceedings, we engage in a three-step process. See In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). If we find grounds to terminate under
section 232.116(1), we then consider the best interests of the child under section
232.116(2). Id. Finally, we determine whether the permissive exceptions under
section 232.116(3) apply. Id. Where a parent’s rights are terminated under
multiple sections, we need to find grounds under only one section to affirm the
juvenile court. In re R.K., 649 N.W.2d 18, 19 (Iowa Ct. App. 2002).
E.W. claims in this appeal that A.S. can be returned to her. We agree with
the juvenile court that A.S. cannot be returned to the mother. The evidence
makes clear A.S. is less than three years of age and has been removed from
E.W.’s care for the period required by section 232.116(1)(h)(3). A.S. has also
been adjudicated in need of assistance. Iowa Code § 232.116(1)(h)(2). E.W.
continues to struggle with drug use and is not honest or forthcoming about her
addiction. She offers vague explanations for the numerous missed drug screens,
abnormal results, and she still tested positive for drug use. Her history of abuse, 6
partial recovery, and relapse place A.S. in danger and prevent reunification. 4
E.W.’s decision to marry and plan a future course with the father is also
concerning. See In re A.Y.H., 483 N.W.2d 820 (Iowa 1992) (child could not be
returned to parents under section 232.110 when the father continued to live with
mother who was not a responsible caretaker, and where the father had no track
record of providing responsible care). There is no history of responsible choices
by E.W. that would indicate she is able to resume care of A.S. Accordingly, we
find grounds for termination under section 232.116(1)(h).
We next turn to the best interests of the child analysis under section
232.116(2). Again, we agree with the juvenile court that termination is in A.S.’s
best interests. E.W. has proved she is reluctant to make the changes necessary
to properly care for A.S. The home was physically unsuitable due to A.S.’s
respiratory problems, and E.W. failed to make a simple change needed for her
child to safely reside with her. E.W.’s continued cycle of addiction and continued
substance abuse presents a danger to the child. Since removal from the home,
A.S. is no longer physically behind from a developmental standpoint and is
getting the physical therapy and attention needed to thrive. We find termination
is in the best interests of the child.
E.W. does not claim any of the permissive exceptions in section
232.116(3) apply. Finding none, we affirm the decision of the juvenile court.
AFFIRMED.
4 E.W. vaguely attacks the validity of the tests conducted by DHS. Her claim is essentially an evidentiary challenge to the introduction of the tests as evidence. We find no basis to exclude the introduction of the tests.