In the Interest of B.C. and B.C., Minor Children, K.S., Mother

• Court: Court of Appeals of Iowa
• Decided: April 27, 2016
• Docket: 16-0481
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0481 Filed April 27, 2016

IN THE INTEREST OF B.C. and B.C., Minor Children,

K.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark Fowler, District

Associate Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant mother.

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

L. Hoffman, Assistant Attorneys General, for appellee State.

Patricia A. Rolfstad, Davenport, attorney and guardian ad litem for minor

children.

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

MULLINS, Judge.

A mother appeals from the juvenile court’s order terminating her parental

rights to her two children, B.C., born in 2012, and B.C., born in 2013. She

argues (1) termination was not in the children’s best interests, (2) termination is

detrimental due to her strong bond with the children, and (3) she should have

been allowed additional time to reunify with the children.

I. Background Facts and Proceedings

In September 2013, the children came to the attention of the Iowa

Department of Human Services (DHS). At that time, the elder child and mother

tested positive for cocaine. The mother admitted a relapse in October 2013 and

tested positive for cocaine in November 2013. The children were adjudicated

children in need of assistance (CINA) in March 2014, and were placed in the

custody of their maternal aunt. In April, following the mother’s participation in

services, the children were returned to the custody of their mother.

In July 2014, the mother contacted DHS and admitted to a relapse that

same month. The mother stated she took the children to the maternal aunt

during the relapse but resumed care of the children the following day. The

children received a drug screen, and the younger child tested positive for

cocaine. Though recommended, the mother did not immediately reengage in

outpatient treatment services. In August 2014, the children were again placed in

the care of their maternal aunt. The mother regained custody of the children in

April 2015.

In May 2015, the mother was arrested for driving while intoxicated. DHS

recommended the mother attend three substance abuse group meetings twice a 3

week. From May 1 until July 20, the mother attended only three times. The

mother failed to disclose to DHS her continued drug use until a drug test was

requested on July 20. The mother refused to take the drug test, instead

admitting to using cocaine several weeks prior. At that time, the children’s hair

had been cut too short for a drug test.1 Pursuant to a removal order dated July

27, the children were removed again from the mother’s care and placed in family

foster care. The children were not placed with the maternal aunt due to the

aunt’s health issues and DHS’s opinion the aunt appeared overwhelmed by

caring for the children in past placements. Further, the aunt had not followed

DHS’s visitation arrangements and had allowed the mother over regularly to help

care for the children. At trial, the case worker expressed concerns that the

maternal aunt would allow continued unsupervised contact with the mother and

possibly even allow the mother to take the children back.

Following removal, the mother’s participation in services was inconsistent.

She also failed to regularly attend the visitation opportunities made available to

her. From September 3, 2015, until the date of the termination hearing on

January 27, 2016, the mother had visited her children three times, with the last

visit on November 24, 2015, despite being offered weekly visits.

At the termination hearing, which the mother did not attend, the children’s

case manager, the guardian ad litem, and the State recommended termination.

The fathers did not contest the termination of their rights and neither has

appealed. The court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(g), (h), and (l) (2015). The mother appeals.

1 The children were drug tested in late September 2015, and both tests were negative. 4

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but we are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interests of the children. Id. at 776.

III. Analysis

To review a decision terminating parental rights, we conduct a three-step

analysis. First, we must determine whether the State established statutory

grounds for termination by clear and convincing evidence. See Iowa Code

§ 232.116(1); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Second, if the State

established statutory grounds for termination, we consider whether termination is

in the children’s best interests under section 232.116(2). See In re P.L., 778

N.W.2d at 40. Finally, we consider whether any exceptions under section

232.116(3) weigh against termination. See id. at 41. The mother does not

appeal the statutory grounds for termination. Thus, we consider only the final

two steps in this analysis.

A. Best Interests

The mother argues it is not in the children’s best interests to terminate her

parental rights. Under Iowa Code section 232.116(2), in considering whether to

terminate parental rights, we “give primary consideration to the child[ren’s] safety,

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

child[ren], and to the physical, mental, and emotional condition and needs of the

child[ren].” “Insight for the determination of the child[ren’s] long-range best 5

interests can be gleaned from ‘evidence of the parent’s past performance for that

performance may be indicative of the quality of the future care that parent is

capable of providing.’” In re A.B., 815 N.W.2d at 778 (citation omitted).

The mother’s rights were terminated previously as to three other children

based, in part, upon her substance abuse and mental health issues. She

continues to struggle with her cocaine and alcohol addictions and has failed to

address her mental health concerns. She has not been forthcoming with DHS

about her substance abuse struggles and has even taken measures—once

cutting the children’s hair—to prevent the children from being tested. In the past,

both children had tested positive for cocaine.

The case manager testified at trial that while the mother initially engaged

in services, there was a marked decline in her involvement and ability to care for

herself in the last six months. Further, the record reflects the mother has

repeatedly relapsed when the children were returned to her custody. In fact, it is

when the children are returned to the mother that she disengages with the

services that help her address her substance abuse and mental health issues

and is even unwilling to engage in services for the children.

While we recognize these children have a bond with their mother and with

their extended family—including the maternal grandparents and maternal aunt—

it is clear the children are thriving with their foster family, which is ready and able

to adopt these children. “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 T.J.O., 527 N.W.2d 417, 422 (Iowa Ct. App.

1994) (citation omitted); see also In re D.A., 506 N.W.2d 478, 479 (Iowa Ct. App. 6

1993) (“The crucial days of childhood cannot be suspended while parents

experiment with ways to face up to their own problems.” (citation omitted)). We

affirm the juvenile court’s finding termination was in the best interests of the

B. Exceptions

The juvenile court need not terminate parental rights if it finds any of the

statutory exceptions under section 232.116(3) apply. See In re P.L., 778 N.W.2d

at 39. The factors weighing against termination are permissive, not mandatory.

In re A.M., 843 N.W.2d at 113. “The court has discretion, based on the unique

circumstances of each case and the best interests of the child[ren], whether to

apply the factors in this section to save the parent-child relationship[s].” In re

D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).

Iowa Code section 232.116(3)(c) provides the juvenile court need not

terminate the parental relationship if it finds by clear and convincing evidence

that the termination would be detrimental to the child due to the closeness of the

parent-child relationship. The mother contends that because she shares a bond

with the child, the juvenile court should not have terminated her parental rights.

The record clearly reflects the mother has a bond with her children. At

trial, the case manager testified both children had a bond with the mother and the

elder child was very close to his mother and had a positive relationship with her.

The case worker’s report indicates the elder child “remembers [his mother] well,”

and “prefer[s] his mom over others.” But the report also indicates “[t]he children

do not demonstrate behavior that indicates any concerns relating to not seeing

their mother.” 7

At trial, the case manager testified the children were “doing quite well,

more so than when they were with their mother or when they were placed with

their maternal aunt in the past.” The children “seek out the foster mom and dad

for affection, attention, and any needs that they may have.” The case manager

described the elder boy as more chatty, more open, and more relaxed and both

boys as well-adjusted, settled, and integrated with the foster family.

Moreover, despite this bond, the mother has failed to exercise the

visitations made available to her. In an approximate five-month period, the

mother visited her children only three times. The case manager testified the

mother had not made genuine efforts to maintain communication with her

children while they were in foster care, and since the children had entered foster

care, the mother had failed to establish or maintain a place of importance in the

children’s lives. Considering both the immediate and long-term interests of these

young children—who need and deserve permanency—the detrimental effects of

continued parental rights outweigh the effects of termination. See In re N.F., 579

N.W.2d 338, 341-42 (Iowa Ct. App. 1998) (finding, where there was testimony

from the foster mom that the children’s relationship with their mother was

diminishing, the bond between the mother and the children was not enough to

forestall termination, especially when the mother was unable to meet the

children’s needs and they were adoptable).

C. Additional Six Months

The mother also argues she should have received additional time to work

toward reunification with her children. Iowa Code section 232.104(2)(b) provides

a court may grant an additional six months where the need for removal will no 8

longer exist at that time. At the termination hearing, the case manager testified

the mother’s prognosis for addressing her substance abuse issues was low. The

case manager further testified she was afraid the mother was at risk for harming

herself health-wise. While acknowledging the mother’s early efforts to correct

her issues, the case manager noted that, in the six months prior to the

termination hearing, the mother’s involvement in services and her ability to take

care of herself and her needs had deteriorated. The mother did not respond to

these assertions, as she failed to attend the hearing.

The record reflects the mother has repeatedly relapsed and failed to

maintain involvement in the services offered. There is nothing that reasonably

suggests the mother will overcome her addiction and be able to care for her

children if termination is delayed. See In re N.F., 579 N.W.2d at 341. “It is well-

settled law that we cannot deprive a child of permanency after the State has

proved a ground for termination under section 232.116(1) by hoping someday a

parent will learn to be a parent and be able to provide a stable home for the

child.” In re P.L., 778 N.W.2d at 41. Accordingly, we affirm the juvenile court’s

decision.