In the Interest of A.Z., Minor Child

• Court: Court of Appeals of Iowa
• Decided: October 10, 2018
• Docket: 18-1420
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1420 Filed October 10, 2018

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

M.Z., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Angela L. Doyle,

District Associate Judge.

A mother appeals from an order terminating her parental rights pursuant to

Iowa Code chapter 232 (2018). AFFIRMED.

Douglas Cook of Cook Law Office, Jewell, for appellant mother.

Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Sarah J. Livingston of Thatcher, Tofilon & Livingston, PLC, Fort Dodge,

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Bower and McDonald, JJ. 2

McDONALD, Judge.

A mother, Miranda, appeals from an order terminating her parental rights in

her child, A.Z., pursuant to Iowa Code section 232.116(1)(h) and (l) (2018).

Miranda challenges the sufficiency of the evidence supporting the statutory

grounds authorizing termination of her parental rights, challenges the juvenile

court’s determination the State made reasonable efforts to facilitate reunification

of the family, and argues termination of her parental rights is not in the child’s best

interest. She also contends the juvenile court erred in denying her request for an

additional six months’ time to work toward reunification with the child.

I.

We review termination proceedings de novo. See In re A.M., 843 N.W.2d

100, 110 (Iowa 2014). The statutory framework authorizing the termination of a

parent-child relationship is well established. See In re A.S., 906 N.W.2d 467, 472–

73 (Iowa 2018). The burden is on the State to prove by clear and convincing

evidence (1) the statutory ground or grounds authorizing the termination of

parental rights and (2) “termination of parental rights is in the best interest[ ] of the

child[ ].” See In re E.H., No. 17-0615, 2017 WL 2684420, at *1 (Iowa Ct. App. June

21, 2017). Even where the State proves its case, however, the juvenile court has

the discretion to preserve the parent-child relationship where the parent proves by

clear and convincing evidence a statutory factor allowing preservation of the

parent-child relationship. See Iowa Code § 232.116(3) (setting forth permissive

factors to avoid the termination of parental rights); A.S., 906 N.W.2d at 476 (stating

it is the parent’s burden to prove an exception to termination). 3

II.

A.

We first address the sufficiency of the evidence supporting the termination

of Miranda’s parental rights. Where, as here, “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). We focus on Code section 232.116(1)(h). Miranda

only challenges the evidence supporting the fourth element under section

232.116(1)(h), which requires “clear and convincing evidence the child[ ] would be

exposed to an appreciable risk of adjudicatory harm if returned to the parent’s

custody at the time of the termination hearing.” Cf. E.H., 2017 WL 2684420, at *1.

Miranda came to the attention of The Iowa Department of Human Services

(IDHS) in June 2016 due to her use of methamphetamine while caring for her two

older children, who are the subjects of pending assistance cases and not at issue

in this appeal. IDHS removed the children from Miranda’s care but returned them

to her care after Miranda successfully completed an inpatient treatment program

in November 2016. After completing the inpatient treatment program, Miranda

failed to maintain contact with IDHS workers and failed to comply with her

outpatient treatment. She relapsed and tested positive for methamphetamine,

amphetamine, and Ecstasy in December. She was quickly readmitted into the

same inpatient treatment program, and the children were placed in her care. She

was also pregnant with A.Z. at this time. Although Miranda was residing at the

inpatient treatment facility and was pregnant with A.Z., she continued to use 4

controlled substances and alcohol. She tested positive for amphetamines and

alcohol shortly before A.Z.’s birth in April 2017.

Throughout the pendency of this case, Miranda continued to display the

same pattern of behavior. She would attend drug treatment, complete the

treatment, and relapse. For a period of time, IDHS actually thought Miranda was

sober, but it turned out Miranda was simply manipulating the drug test results.

Miranda told her providers she circumvented the drug tests by washing her hair

with dish soap prior to testing, having others wear her drug patch, and using

someone else’s urine for testing.

In addition to her substance abuse, Miranda failed to address other potential

risks of harm to the children. She was diagnosed with bipolar disorder, major

depressive disorder, and anxiety disorder among other things, but she did not

engage in mental-health treatment. She continued to associate with persons who

posed a risk of harm to her children. On one occasion, the police executed an

arrest warrant for a known fugitive harbored at Miranda’s residence. Miranda was

charged as an accessory to a misdemeanor for her attempts to hide the fugitive.

In addition to harboring a fugitive, Miranda had other criminals and known drug

users in the home around the children.

On de novo review, we conclude the State proved the grounds for

termination pursuant to section 232.116(1)(h). Miranda agreed A.Z. could not be

returned to her care at the time of the termination hearing. She has not been able

to demonstrate any appreciable period of sobriety since her involvement with IDHS

and repeatedly placed her children in danger by caring for them while under the

influence of methamphetamine. At the time of the termination hearing, the juvenile 5

court found the mother was not sober, stating: “Plain and simply, I don’t trust that

the mother is sober. . . . The Mother has very little, if any, credibility with this court.

I don’t trust that she’s sober. I don’t believe that she’s sober.” Because the juvenile

court has the ability to observe witnesses in person and it is best suited to make

credibility findings, we defer to its findings. See In re D.W., 791 N.W.2d 703, 706

(Iowa 2010). Finally, the mother has exposed the children to an additional risk of

harm by subjecting them to contact with known drug users and a fugitive. All of

these things, taken together, are sufficient evidence to prove the ground

authorizing the termination of Miranda’s parental rights. See In re M.M., No. 18-

1028, 2018 WL 4361074, at *2 (Iowa Ct. App. Sept. 12, 2018) (finding exposure to

known substance abuser created risk of harm to the child); In re T.B., No. 18-1139,

2018 WL 4361181, at *2 (Iowa Ct. App. Sept. 12, 2018) (noting continued

methamphetamine use creates a risk of adjudicatory harm); In re L.B., No. 18-

1017, 2018 WL 3650370, at *1 (Iowa Ct. App. Aug. 1, 2018 (collecting cases

determining child cannot be returned to drug-using parent).

B.

Miranda argues the State did not provide reasonable efforts to facilitate

reunification of the family. However, she “does not challenge that [I]DHS did not

offer the necessary supports to deal with her mental and substance[-]abuse

issues.” Instead, she argues the IDHS did not provide her with the “time and hope”

necessary for reunification. She argues the petition was filed swiftly, showing

IDHS’s efforts toward reunification were not genuine. We disagree. The timing of

the filing was dictated by statute and our case law. See In re N.F., 579 N.W.2d

338, 341 (Iowa Ct. App. 1998) (“We have repeatedly followed the principle that the 6

statutory time line must be followed and children should not be forced to wait for

their parent to grow up.”). Here, the termination hearing occurred in June 2018,

six months after removal and satisfying the statutory time line. See Iowa Code

§ 232.116(1)(h)(3) (requiring the child be removed from the parent’s care for at

least six months). Miranda concedes every beneficial service was provided to her.

It was Miranda’s decision to not avail herself of the services offered. We cannot

fault the State for taking prompt action when faced with a parent who has

demonstrated no sincere effort to care for her child.

C.

We next address Miranda’s contention that termination of her parental rights

is not in A.Z.’s best interest. She argues termination would separate A.Z. from his

older siblings. When making a best-interest determination, we “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.” Iowa Code § 232.116(2). While there is a

recognized interest in keeping siblings together, this interest does not trump other

considerations when making a best-interest assessment. See In re T.J.O., 527

N.W.2d 417, 420 (Iowa Ct. App. 1994).

Here, the future of the sibling relationship is tenuous. A.Z. has a positive

relationship with his siblings, but the future of this relationship is uncertain given

that the two older siblings are also the subjects of pending assistance proceedings.

It is thus uncertain whether A.Z. would remain in contact with the siblings in the

future even if Miranda’s parental rights were not terminated. 7

In contrast, A.Z. is doing well while not in Miranda’s care. A.Z.’s foster

parents have provided A.Z. with the support of a loving and stable home and are

considering adoption. See A.S., 906 N.W.2d at 475 (finding continued placement

in adoptive home was in the child’s best interest). The evidence does not support

the finding that termination of Miranda’s parental rights would in any way be

detrimental to A.Z. Termination of Miranda’s parental rights is in A.Z’s best

interest.

D.

We also conclude the juvenile court correctly denied Miranda’s request for

an additional six months’ time to work toward reunification. Iowa Code section

232.104(2)(b) permits a court to defer permanency for six months so long as the

need for removal would no longer exist at the end of the six-month period. In

granting an extension of time, the juvenile court must “enumerate the specific

factors, conditions, or expected behavioral changes which comprise the basis for

the determination that the need for removal . . . will no longer exist at the end of

the [extension].” Iowa Code § 232.104(2)(b). When asked by the court what steps

she would take to eliminate the need for removal in six months, Miranda stated

she would do “[w]hatever it takes . . . get employment, maintain [her] treatment,

sobriety, take [her] tests.” Given her past conduct, there is no reason to believe

she was sincere.

Even if sincere, there is no reason to believe Miranda has the ability to follow

through with her promises. See T.B., 2018 WL 4361181, at *3 (finding parent’s

reliance on recent improvements unpersuasive given the parent’s history of

unsuccessful treatment and continued drug use). Miranda’s long history of 8

treatment and relapse is indicative of her likely future conduct. See A.B., 815

N.W.2d at 778. Given Miranda’s uncertain future, we will not force A.Z. to wait for

permanency. See D.W., 791 N.W. at 707 (“We do not ‘gamble with the child[ ]’s

future’ by asking them to continuously wait for a stable biological parent,

particularly at such tender ages.” (citation omitted)).

III.

Finding no merit to Miranda’s challenges, we affirm the termination of her

parental rights in A.Z.

AFFIRMED.