IN THE COURT OF APPEALS OF IOWA
No. 20-0781 Filed August 19, 2020
IN THE INTEREST OF C.M., J.M., and B.M., Minor Children,
J.M., Mother, Appellant,
T.M., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cass County, Jennifer A. Benson,
District Associate Judge.
A mother and father separately appeal the juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
Donna Bothwell of Bothwell Law Office, Logan, for appellant mother.
William T. Early, Harlan, for appellant father.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
Karen Mailander of Mailander Law, PLC, Anita, attorney and guardian ad
litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ. 2
TABOR, Judge.
Jessica and Tony are the parents of three children under the age of five.
The juvenile court terminated their parental rights to those children, and they filed
separate petitions on appeal. Tony only challenges the denial of his motion to
continue the termination trial. Jessica contends (1) the State did not prove grounds
for termination, (2) the Iowa Department of Human Services (DHS) did not make
reasonable efforts to reunify their family, and (3) more time for reunification would
be in the children’s best interests. Finding no merit in these four claims, we affirm
on both appeals.
I. Facts and Prior Proceedings
The children at issue are J.M., who was born in September 2015; C.M., who
was born in December 2016; and B.M., who was born in January 2019.1 The DHS
first intervened in March 2016 when J.M. was just an infant, citing the parents for
a lack of supervision. That was the first of four founded child abuse assessments
against the parents. The ongoing concerns were substance abuse by both
parents, domestic violence perpetrated by Tony, and Jessica’s mental-health
impairments.
The juvenile court removed J.M. and C.M. from their home in April 2018 and
adjudicated them as children in need of assistance (CINA) two months later. They
have bounced around ever since, experiencing ten different placements through
the duration of the CINA case. A couple of those placements were back with
1Tony is the biological father of J.M. and B.M., and the legal father to C.M. Paternity for C.M. was uncertain. 3
Jessica when she made strides in substance-abuse treatment. But those spells of
success were soon followed by setbacks, leaving the children in precarious
situations.
When B.M. was born in early 2019, his siblings were in relative placement.
Jessica resumed care of all three children that spring. But within a month she was
hospitalized in a mental-health emergency. And the DHS learned that she and
Tony were using methamphetamine while caring for the children. The DHS again
removed the children, placing the older children in foster care in late May 2019.
The baby’s whereabouts were unknown until early June when authorities found
him in Tony’s apartment. B.M. had scratches on his forehead and a painful case
of diaper rash.
Through the summer and fall of 2019, both parents continued to struggle
with drug and alcohol abuse. The most glaring incident occurred in mid-October
when emergency responders found Jessica unresponsive in a friend’s backyard.
Upon arrival at the hospital, she tested positive for methamphetamine and
benzodiazepines and had a blood alcohol level of .275. She spent several days in
intensive care. A few weeks later, she returned to the emergency room after again
consuming methamphetamine and alcohol as well as injecting the opioid, Dilaudid.
During those months, the parents attended supervised visits with the
children. But the interactions were not always positive. The children would act
out, and the parents had a hard time controlling or consoling them. By October,
the parents’ attendance at visits waned. In November 2019, neither Jessica nor
Tony participated in visits with the children. They attended only two visits in 4
December. Also that month, Jessica continued to abuse illegal drugs and suffer
mental-health crises, resulting in three more trips to the emergency room.
In January 2020, the State filed a petition to terminate parental rights. As
the juvenile court found, “At the beginning of March 2020, Jessica’s already serious
substance abuse and mental health issues escalated.” On March 6, the court
approved an application for involuntary hospitalization of Jessica as a chronic
substance abuser after holding a hearing under Iowa Code section 125.82 (2020).
That same day, the juvenile court heard testimony on the termination petition. The
court terminated parental rights in a May order. Both parents appeal.
II. Scope and Standards of Review
We review termination-of-parental-rights proceedings de novo. In re M.D.,
921 N.W.2d 229, 232 (Iowa 2018). We are not bound by the juvenile court’s
findings of fact. Id. But we give them weight, especially in assessing witness
credibility. Id. Despite the overarching de novo review for termination cases, we
review the denial of Tony’s motion to continue for an abuse of discretion. Id. An
abuse occurs when the court grounds its decision on reasons that are clearly
untenable. In re A.M., 856 N.W.2d 365, 370 (Iowa 2014). Fundamental to all
levels of review is our foremost attention to the children’s best interests. In re J.C.,
857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis
A. Motion to Continue
We start with Tony’s argument that the juvenile court abused its discretion
in denying his motion to continue. At the start of the termination hearing, Tony’s
counsel moved for a continuance. Counsel asserted: “I haven’t had a chance to 5
talk with my client really for several months, and I met with him just briefly this
morning but really haven’t had an opportunity to adequately prepare.” Jessica’s
attorney joined in the request for a continuance.
From the bench, the juvenile court ruled: “Based on the history of the case
and the fact that the children have been removed from their parents’ home in this
case since June of 2019, I am going to deny the motion to continue as further
delays of permanency are not warranted.” In its written ruling, the court expanded
on its rationale, blaming Tony’s lack of involvement in the CINA case for the
inability of his attorney to fully prepare for the termination trial. The court also noted
the attorneys, who were experienced in juvenile court and familiar with this case,
had ample time “to prepare a defense as to the statutory grounds for termination.”
Finally, the court reasoned it was not in the children’s best interests to delay
permanency.
Like the juvenile court, we find a delay would have been detrimental to the
best interests of J.M., C.M., and B.M. See M.D., 921 N.W.2d at 233. The court
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IN THE COURT OF APPEALS OF IOWA
No. 20-0781 Filed August 19, 2020
IN THE INTEREST OF C.M., J.M., and B.M., Minor Children,
J.M., Mother, Appellant,
T.M., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cass County, Jennifer A. Benson,
District Associate Judge.
A mother and father separately appeal the juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
Donna Bothwell of Bothwell Law Office, Logan, for appellant mother.
William T. Early, Harlan, for appellant father.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
Karen Mailander of Mailander Law, PLC, Anita, attorney and guardian ad
litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ. 2
TABOR, Judge.
Jessica and Tony are the parents of three children under the age of five.
The juvenile court terminated their parental rights to those children, and they filed
separate petitions on appeal. Tony only challenges the denial of his motion to
continue the termination trial. Jessica contends (1) the State did not prove grounds
for termination, (2) the Iowa Department of Human Services (DHS) did not make
reasonable efforts to reunify their family, and (3) more time for reunification would
be in the children’s best interests. Finding no merit in these four claims, we affirm
on both appeals.
I. Facts and Prior Proceedings
The children at issue are J.M., who was born in September 2015; C.M., who
was born in December 2016; and B.M., who was born in January 2019.1 The DHS
first intervened in March 2016 when J.M. was just an infant, citing the parents for
a lack of supervision. That was the first of four founded child abuse assessments
against the parents. The ongoing concerns were substance abuse by both
parents, domestic violence perpetrated by Tony, and Jessica’s mental-health
impairments.
The juvenile court removed J.M. and C.M. from their home in April 2018 and
adjudicated them as children in need of assistance (CINA) two months later. They
have bounced around ever since, experiencing ten different placements through
the duration of the CINA case. A couple of those placements were back with
1Tony is the biological father of J.M. and B.M., and the legal father to C.M. Paternity for C.M. was uncertain. 3
Jessica when she made strides in substance-abuse treatment. But those spells of
success were soon followed by setbacks, leaving the children in precarious
situations.
When B.M. was born in early 2019, his siblings were in relative placement.
Jessica resumed care of all three children that spring. But within a month she was
hospitalized in a mental-health emergency. And the DHS learned that she and
Tony were using methamphetamine while caring for the children. The DHS again
removed the children, placing the older children in foster care in late May 2019.
The baby’s whereabouts were unknown until early June when authorities found
him in Tony’s apartment. B.M. had scratches on his forehead and a painful case
of diaper rash.
Through the summer and fall of 2019, both parents continued to struggle
with drug and alcohol abuse. The most glaring incident occurred in mid-October
when emergency responders found Jessica unresponsive in a friend’s backyard.
Upon arrival at the hospital, she tested positive for methamphetamine and
benzodiazepines and had a blood alcohol level of .275. She spent several days in
intensive care. A few weeks later, she returned to the emergency room after again
consuming methamphetamine and alcohol as well as injecting the opioid, Dilaudid.
During those months, the parents attended supervised visits with the
children. But the interactions were not always positive. The children would act
out, and the parents had a hard time controlling or consoling them. By October,
the parents’ attendance at visits waned. In November 2019, neither Jessica nor
Tony participated in visits with the children. They attended only two visits in 4
December. Also that month, Jessica continued to abuse illegal drugs and suffer
mental-health crises, resulting in three more trips to the emergency room.
In January 2020, the State filed a petition to terminate parental rights. As
the juvenile court found, “At the beginning of March 2020, Jessica’s already serious
substance abuse and mental health issues escalated.” On March 6, the court
approved an application for involuntary hospitalization of Jessica as a chronic
substance abuser after holding a hearing under Iowa Code section 125.82 (2020).
That same day, the juvenile court heard testimony on the termination petition. The
court terminated parental rights in a May order. Both parents appeal.
II. Scope and Standards of Review
We review termination-of-parental-rights proceedings de novo. In re M.D.,
921 N.W.2d 229, 232 (Iowa 2018). We are not bound by the juvenile court’s
findings of fact. Id. But we give them weight, especially in assessing witness
credibility. Id. Despite the overarching de novo review for termination cases, we
review the denial of Tony’s motion to continue for an abuse of discretion. Id. An
abuse occurs when the court grounds its decision on reasons that are clearly
untenable. In re A.M., 856 N.W.2d 365, 370 (Iowa 2014). Fundamental to all
levels of review is our foremost attention to the children’s best interests. In re J.C.,
857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis
A. Motion to Continue
We start with Tony’s argument that the juvenile court abused its discretion
in denying his motion to continue. At the start of the termination hearing, Tony’s
counsel moved for a continuance. Counsel asserted: “I haven’t had a chance to 5
talk with my client really for several months, and I met with him just briefly this
morning but really haven’t had an opportunity to adequately prepare.” Jessica’s
attorney joined in the request for a continuance.
From the bench, the juvenile court ruled: “Based on the history of the case
and the fact that the children have been removed from their parents’ home in this
case since June of 2019, I am going to deny the motion to continue as further
delays of permanency are not warranted.” In its written ruling, the court expanded
on its rationale, blaming Tony’s lack of involvement in the CINA case for the
inability of his attorney to fully prepare for the termination trial. The court also noted
the attorneys, who were experienced in juvenile court and familiar with this case,
had ample time “to prepare a defense as to the statutory grounds for termination.”
Finally, the court reasoned it was not in the children’s best interests to delay
permanency.
Like the juvenile court, we find a delay would have been detrimental to the
best interests of J.M., C.M., and B.M. See M.D., 921 N.W.2d at 233. The court
did not abuse its discretion in denying a continuance. Tony had an opportunity to
be heard at the termination hearing. See Iowa Code § 232.112. But he chose to
present no evidence. We find the juvenile court properly exercised its discretion
in denying Tony’s motion to continue.
B. Statutory Basis for Termination
We next turn to Jessica’s argument that the State did not present clear and
convincing evidence to support the grounds for termination under Iowa Code
section 232.116(1). The juvenile court terminated Jessica’s rights under 6
paragraphs (e) and (l) as to all of the children, paragraph (f) as to J.M., and
paragraph (h) as to B.M.
When the juvenile court terminates based on several grounds, we may
affirm the order on any ground supported by the record. In re A.B., 815 N.W.2d
764, 774 (Iowa 2012). We find termination was proper under section 232.116(1)(l).
That paragraph applies if the evidence shows:
(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 herself or others as evidenced by her 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 her custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.
Iowa Code § 232.116(l).
The second element requires proof of “a severe substance-related
disorder.” Id. § 232.116(1)(l)(2). The legislature defined that term as “a
diagnosable substance abuse disorder of sufficient duration to meet diagnostic
criteria specified within the most current diagnostic and statistical manual of mental
disorders published by the American psychiatric association that results in
functional impairment.” See id. § 125.2(15).
At trial, the juvenile court granted the State’s request to take judicial notice
of the court order affirming Jessica’s March 2020 commitment under chapter 125
(dealing with substance-abuse related disorders). In that order, the court found
Jessica had been diagnosed at the Audubon County Hospital with “amphetamine
use disorder, severe.” The order noted health professionals recommended she be 7
committed to inpatient treatment because of her suicidal ideations, hallucinations,
and inability to make treatment decisions.2
On appeal, Jessica contends the State did not offer clear and convincing
evidence that she “continues to present a danger to herself and others.” She
insists any danger subsided following her inpatient commitment. She also points
out that during the CINA case she had some treatment successes and “long bouts
of sobriety.”
In our de novo review, we find the State offered clear and convincing
evidence that, as shown by her prior acts, Jessica presented an ongoing danger
to herself and her children because of her severe substance-abuse related
disorder. The record contains no evidence that her involuntary hospitalization,
which coincided with the time of the termination hearing, would resolve her
persistent and long-standing substance-abuse disorder. In fact, judging from her
past efforts at treatment, she likely continued to present a danger. For example,
her inpatient treatment at Heart of Iowa in the summer of 2018 did not result in
reunification with the children. And she continued to use methamphetamine
despite her outpatient treatment at Zion Recovery in the spring of 2019. Later that
summer, she left inpatient treatment at Heartland Family Services against medical
advice. Her hospitalizations precipitated by drug and alcohol abuse repeated
through the fall and winter of 2019. In early January 2020, she began outpatient
2 Jessica complains on appeal that “no evidence regarding the statements made in the committal hearing was admitted in the termination case, including any statements from health professionals.” Yet at trial, Jessica’s counsel objected to the court taking judicial notice of those “sealed court filings.” The juvenile court took judicial notice of the court order in the substance-abuse commitment case, citing In re T.C., 492 N.W.2d 425, 429 (Iowa 1992). 8
treatment at Lydia House, only to quit after two days. At a visit with the children
on January 12, Jessica exhibited paranoid delusions. Six days later, she arrived
at the emergency room admitting to methamphetamine use.
This pattern of fits and starts with treatment bodes poorly for reunification.
At the time of the termination hearing, Jessica’s severe substance-abuse disorder
impaired her ability to make sound treatment decisions and posed a serious risk
to her own well-being and that of the children. We find clear and convincing
evidence in the record that, given her prognosis, Jessica was unable to resume
custody of the children within a reasonable time considering their young ages and
their need for a permanent home. We affirm termination under paragraph (l).
C. Reasonable Efforts
Jessica next argues the DHS did not make adequate efforts toward
reunification. She contends that when the court adjudicated the youngest child,
B.M., as a CINA, it did not hold an initial dispositional hearing as required by Iowa
Code section 232.102(9)(a). Jessica also complains she was only offered three
months of services to reunify with B.M.
In response, the State notes the family had already been involved with
juvenile court services for J.M. and C.M. when B.M. was born in January 2019.
The following June, the DHS removed all three children from Jessica’s care
because of her continued substance abuse and erratic behavior. In July 2019, all
parties agreed to a joint CINA adjudication and dispositional hearing. Jessica is
not entitled to relief on this procedural issue.
The DHS must “make every reasonable effort” to return children to their
home as quickly as possible consistent with their best interests. See In re C.B., 9
611 N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code section 232.102(7)). “The
State must show reasonable efforts as a part of its ultimate proof the child cannot
be safely returned to the care of a parent.” Id. Our focus is on the parent’s
response to the services provided. Id. at 494. The State met its burden here. The
DHS offered services to Jessica consistent with the best interests of all three
children. But she was unable to overcome her parenting deficiencies, largely due
to her severe substance-abuse disorder. She is not entitled to relief on this issue.
D. Best Interests and Delay of Permanency
Jessica also argues giving her more time to reunify would be in the best
interests of the children. We disagree. We determine best interests under the
framework in Iowa Code section 232.116(2). That provision focuses on the
children’s safety, as well as the best placement for furthering their “long-term
nurturing and growth” and their “physical, mental, and emotional condition and
needs.” See Iowa Code § 232.116(2). Delaying permanency would not serve the
children’s best interests. The record shows the children suffer behavioral and
emotional setbacks after interactions with Jessica. The juvenile court believed
waiting to terminate parental rights “would be traumatic and detrimental to the
children’s futures.” In our de novo review, we agree with that assessment.
AFFIRMED ON BOTH APPEALS.