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

• Court: Court of Appeals of Iowa
• Decided: November 9, 2016
• Docket: 16-1226
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1226 Filed November 9, 2016

IN THE INTEREST OF C.N.C. and C.N.C., Minor children,

S.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Alan D. Allbee,

Associate Juvenile Judge.

A mother appeals the district court’s permanency order, placing her

children under the guardianship of their paternal grandmother. AFFIRMED.

Sarah Dooley Rothman of Rothman Law Office, Independence, for

appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Patrick Ritter of Elwood, O’Donohue, Braun & White L.L.P., West Union,

guardian ad litem for minor children.

Considered by Vogel, P.J., and Tabor and Mullins, JJ. 2

VOGEL, Presiding Judge.

A mother appeals1 from the district court’s permanency order in a child-in

need-of-assistance (CINA) proceeding, placing her two children under the

guardianship of their paternal grandmother. The mother asserts on appeal: (1)

she should have been given an additional six months to work towards

reunification, (2) the department of human services (DHS) did not provide her

with reasonable services, and (3) her attorney was ineffective. We conclude

additional time would not have impacted the mother’s ability to safely care for the

children, reasonable services were offered to the mother, and she cannot show

her counsel’s performance prejudiced her such that the outcome of this CINA

case would have been different. We affirm the district court’s order.

We review CINA permanency orders de novo, giving deference to, but not

being bound by, the district court’s findings. In re K.N., 625 N.W.2d 731, 733

(Iowa 2001).

The children in this case, born in 2003 and 2004, have been adjudicated

CINA on four separate occasions within the past six years, with each case

involving the parents’ use of methamphetamine while the children were in their

care. Most recently, the children were adjudicated CINA and removed from the

home after the mother, while under the influence of methamphetamine,

physically assaulted the older child by tackling him to the ground, causing injury.

The mother was arrested, and a no contact order was issued between the

mother and this child. The children were placed in the care of their paternal

1 The children’s father does not appeal from the permanency order. 3

grandmother, a licensed foster parent, where they had been placed for a

combined total of more than three of the past six years.

While the mother asserts she should be given an additional six months to

work towards reunification, her past behavior lends no credence to her assertion

that things will be different in the near future. Under Iowa Code section

232.104(2)(b) (2015), a court may authorize a six-month extension of time if it

determines “the need for removal of the child from the child’s home will no longer

exist at the end of the additional six-month period.” The mother either refuses to

be tested for drug use or, when she does submit to testing, continues to test

positive for methamphetamine and amphetamines. Moreover, at the time of the

permanency hearing the mother was facing drug-related criminal charges. The

district court found, and we agree, the facts do not establish that sufficient

progress would be made by the mother such that it would be reasonably likely

that the children could be safely returned to her care if given an additional six

months before the entry of a permanency order.

Her next claim, that she was not provided adequate services, is also

belied by the record. A host of services were offered to her, including mental

health counseling, family therapy, and visitation. Her claim on appeal is that the

older child was not forced to participate in family therapy. However, the record

discloses the child had become so disappointed in the mother’s behavior and her

lack of progress in achieving stability that it was counterproductive to force such

family therapy upon that child. The mother’s own conduct set the tone for the

older child’s lack of trust in his mother. As to the visitation offered, the mother did

participate in the once-a-week visits but refused to take advantage of the 4

additional visitation offered, which was to be supervised by the paternal

grandmother. The mother testified her relationship with the grandmother was

“good. It’s good. It’s—it’s good. I feel it’s been a little strained lately, and I’m not

exactly for sure why; but it’s—it’s normally a good relationship.” Again, the

mother’s complaints of lack of visitation fall on her own shoulders, not on the

efforts of DHS to assist in arranging more visits.

Finally, the mother asserts her attorney was ineffective in a number of

ways, including: not adequately preparing for trial, not ensuring the mother was

aware of the requirements in the case plan for reunification, not ensuring the

mother attended mental health and substance abuse treatments, not advocating

for additional services, and not challenging the positive drug test results.

To review the effectiveness of counsel, we apply the same standard for a

CINA permanency hearing as we do for criminal cases. See In re T.P., 757

N.W.2d 267, 274 (Iowa Ct. App. 2008) (noting we apply the same standard to

evaluate ineffective-assistance claims in termination proceedings as we use in

criminal proceedings). A parent claiming ineffective assistance of counsel “must

prove both a deficiency in counsel’s performance and actual prejudice.” Id. “We

presume that counsel’s conduct falls within the range of reasonable professional

competency.” In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992).

Even if we were to find counsel breached an essential duty in any of the

ways the mother summarily asserts on appeal, we find no prejudice. This fourth

CINA case was opened in April 2015, after the children had again been

subjected to dangerous situations due to the mother’s continued

methamphetamine use, coupled with her unresolved mental health issues. At 5

trial she testified she did not “trust DHS” and shifted the blame for her children’s

removal unto others. The same is true in her claim against her counsel. Her

assertions that trial counsel should have done more to push her to comply with

the case plan, prepared more to defend her even though she failed to comply

with services, challenged the repeated positive drug screens in the face of her

failure to comply with drug testing, and advocated for more visits when she

refused the additional visits offered, are simply more attempts to shift the

mother’s own responsibilities onto someone else. Upon our de novo review of

the record, including all the reports, exhibits, and trial testimony, it is apparent the

mother’s bald assertions—even if true—would not affect the outcome of the

permanency hearing.

We affirm the permanency order of the district court.

AFFIRMED.