In the Interest of B.B., Minor Child, J.B., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1036 Filed August 19, 2015

IN THE INTEREST OF B.B., Minor Child,

J.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.

A mother appeals the termination of her parental rights to her eight-year-

old daughter. AFFIRMED.

Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C.,

Mason City, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Janet

Hoffman, Assistant Attorneys General, Carlyle D. Dalen, County Attorney, and

Nichole Benes, Assistant County Attorney, for appellee.

Mark A. Young, Mason City, attorney and guardian ad litem for minor

child.

Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2

TABOR, J.

B.B. will turn nine years old this August. She was removed from the care

of her mother, Joleen, in March 2013 because of concerns from the Department

of Human Services (DHS) about Joleen’s use of methamphetamine and failure to

engage in treatment or participate in services. In the intervening two years,

Joleen has continued to struggle with drug addiction and instability, leading to the

juvenile court’s termination of her parental rights to B.B.

On appeal, Joleen argues the juvenile court impermissibly based its

termination order on Iowa Code section 232.116(1)(f) (2015). She also contends

the juvenile court should have opted to preserve the parent-child relationship

under section 232.116(3)(a) and (c) because B.B. is doing well in the custody of

her father and has a strong bond with her mother. Because the juvenile court

properly followed the three-step analysis for termination of parental rights and we

concur with its conclusions, we affirm.

I. Background Facts and Proceedings

Joleen has previously appealed an order terminating her parental rights to

B.B. On March 25, 2015, our court reversed the juvenile court’s order because

the State’s amendment of its petition during the termination hearing violated

Joleen’s due process rights. In re B.B., No. 14-2087, 2015 WL 1332004, at *1

(Iowa Ct. App. Mar. 25, 2015). In our decision, we noted Joleen’s admitted

methamphetamine use and her sporadic attendance at drug testing and

visitation. But because of the due process violation, we did not discuss the

merits of the termination decision. 3

The day after we issued our decision, Joleen contacted DHS worker Kerry

Knudsen to ask if she could resume having visits with her daughter B.B. After

initially agreeing to come meet with the case workers, Joleen informed them she

could not come in because she had an outstanding arrest warrant related to a

probation revocation for not participating in treatment. Joleen still inquired about

visitation with B.B., but the child’s therapist, Brigid Christenson, opined visitation

would not be in B.B.’s best interest.

On March 31, 2015, the State refiled a petition seeking to terminate

Joleen’s parental rights under Iowa Code sections 232.116(1)(a), (e), and (f)

(2015).

On April 6, 2015, B.B. was returned to her father’s care. The DHS worker

reported the reunification was going well. Her father was helping B.B. with

school work, taking her to activities, and was not allowing her to have

unauthorized contact with Joleen. Meanwhile, Joleen was arrested on April 25

for the probation violation. She remained in jail until she entered in-patient

treatment.

The district court held a termination hearing on May 29, 2015. The State

called two witnesses, DHS case worker Knudsen and Pam Stemmerman from

Lutheran Services of Iowa. Joleen did not testify. On June 1, 2015, the district

court issued its order terminating Joleen’s parental rights under Iowa Code

section 232.116(1)(f). Joleen now appeals. 4

II. Standard of Review

We review proceedings terminating parental rights de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the juvenile court’s

findings of fact, especially in assessing witness credibility, but are not bound by

them. Id. We will uphold an order terminating parental rights if the record

contains clear and convincing evidence of grounds for termination under Iowa

Code section 232.116. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Clear

and convincing” means we have no “serious or substantial doubts as to the

correctness of conclusions of law drawn from the evidence.” Id.

III. Analysis

The decision to terminate parental rights under chapter 232 must follow a

three-step analysis. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

juvenile court must determine if a ground for termination under section

232.116(1) has been established. Id. Second, if a ground is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the child’s best interests. Id. Third, if the

statutory best-interests framework supports termination, the court must consider

if any factors in section 232.116(3) tip the scales away from termination of

parental rights. Id.

We start with the statutory ground. The juvenile court based its decision

to terminate the legal relationship between Joleen and B.B. on section

232.116(1)(f). That section states:

The court finds that all of the following have occurred: (1) The child is four years of age or older. 5

(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.

Joleen argues section (f) was not satisfied because B.B.’s biological father has

custody and the statute requires the child be removed from both parents. Our

supreme court has rejected this argument. In re N.M., 491 N.W.2d 153, 155

(Iowa 1992).

Joleen also argues the State failed to prove B.B. could not be protected

from “adjudicatory harm” if returned to her care. Joleen’s petition on appeal

contends an inquiry regarding the imminent likelihood of potential harm if the

child is returned home is “hypothetical and hinged upon the imagination of the

factfinder.” Her counsel further argues “[i]t strains credulity to think that a Mother

who saw her child daily is an imminent danger to her child when the daily contact

has not resulted in any actual harm to the child.”

We reject Joleen’s argument for two reasons. First, at the termination

hearing, Joleen’s counsel conceded B.B. could not be returned to Joleen’s care

at the present time: “no one is suggesting that she’s going to be going to live with

Joleen.” Second, our child welfare statutes are designed to prevent probable

harm to a child. In re E.B.L., 501 N.W.2d 547, 549 (Iowa 1993). They do not

require the State to wait to take action until actual harm has occurred. In re

Dameron, 306 N.W.2d 743, 745 (Iowa 1983). 6

At the time of this termination hearing, Joleen was recently released from

jail. In the termination order the district court noted “Joleen has a pending

probation revocation based on her continued use of methamphetamine; it

appears she faces jail or prison time.” The court also noted Joleen entered

inpatient treatment just two days before the May 27 hearing.

To her credit, Joleen promptly asked about visitation with B.B. after we

reversed the first termination order. But ultimately she avoided contact for fear

she would be arrested due to her outstanding warrant. This case has been

ongoing since 2013 and despite the services offered by DHS, Joleen has not

made progress in addressing her addiction nor has she found stable employment

or housing. Using Joleen’s past performance as an indicator of her future

capabilities, we believe the State proved grounds for termination by clear and

convincing evidence. See In re M.S., 519 N.W.2d 398, 400 (Iowa 1994).

The juvenile court also found termination was in the best interests of B.B.,

citing the language of section 232.116(2). The court said,

Joleen has, in over two years of [DHS] services, failed to address her methamphetamine addition, her housing situation or found employment. She is facing additional jail time due to a probation revocation. She is not stable and cannot parent [B.B.] at this time. [B.B.] is not safe in Joleen’s care, as demonstrated by Joleen’s exposure of [B.B.] to criminal activity . . . and her continual lack of concern about the issues that brought the family to the attention of the [DHS].

Joleen does not appeal this finding and we agree that under these

circumstances, Joleen is not the best placement to ensure B.B.’s safety or long-

term nurturing and growth. 7

Lastly, Joleen claims termination was not necessary based on the factors

in section 232.116(3)(a) and (c). These countervailing factors are permissive,

not mandatory. A.M., 843 N.W.2d at 113.

Under 232.116(3)(a), the juvenile court is allowed to decide against

termination when a “relative has legal custody of the child.” Id. The juvenile

court acknowledged that B.B. remained in her father’s custody, but noted the

child has “suffered by being put in the middle of her parents.” The court recalled

that “Joleen manipulated [the father] for visitation and money” during the

pendency of B.B.’s removal. Given these circumstances, the court concluded

B.B.’s placement with her father did not overcome the need to protect the child

from Joleen’s “criminal and drug-addicted thinking.” After our de novo review of

the record, we agree with the juvenile court’s conclusion.

Under 232.116(3)(c), the court may decide against termination if it finds

clear and convincing evidence that severing the parent-child relationship would

be detrimental to the child due to closeness of the relationship. The juvenile

court acknowledged a bond between Joleen and B.B., but found the bond

strained by Joleen’s continued reversion to a “drug lifestyle.” We agree the

closeness of their relationship does not overcome the advantages of permanency

and stability for B.B.

The case worker acknowledged Joleen is a good parent when clean and

sober. But Joleen has not been successful in retaining the information and

implementing the strategies necessary to deal with her drug addiction. In

addition, she has not made progress regarding stable employment or housing. 8

Meanwhile, B.B.’s father has successfully completed the DHS case plan, and the

case workers expected to close the CINA case this summer. B.B.’s father

expressed support for terminating Joleen’s rights. To achieve permanency for

B.B., we agree it is best to allow the father to move forward with his parenting

without the stress of the mother’s fluctuating involvement. Accordingly, we

conclude the juvenile court appropriately terminated Joleen’s rights.

AFFIRMED.