In the Interest of C.R. and G.R., Minor Children

• Court: Court of Appeals of Iowa
• Decided: September 1, 2021
• Docket: 21-0810
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0810 Filed September 1, 2021

IN THE INTEREST OF C.R. and G.R., Minor Children,

J.G., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,

District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Nancy L. Pietz, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Barbara Durden Davis of Barbara Durden Davis, P.C., West Des Moines,

guardian ad litem for minor children.

Cathleen Siebrecht of Siebrecht Law Firm, Des Moines, attorney for minor

child G.R.

Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des Moines, attorney

for minor child C.R.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2

BOWER, Chief Judge.

A mother appeals the termination of her parental rights. We find the

grounds for termination have been established, an extension is not warranted,

termination is in the best interests of the children, and the exceptions to termination

do not apply. We affirm.

I. Background Facts & Proceedings.

J.G. is the mother of C.R. and G.R., who were born in 2010. D.R. is the

biological father of the children.1

In June 2019, the department of human services (DHS) investigated the

mother following allegations of her methamphetamine use and domestic abuse

between the mother and her significant other, L.R., in front of the children. The

State filed child-in-need-of-assistance (CINA) petitions for C.R. and G.R., who

were adjudicated as CINA on August 5 but remained in the mother’s custody under

supervision by DHS.

C.R. and G.R. were removed from the mother’s custody in October and

were eventually placed in the custody of the father’s paternal aunt. The children

both communicated with the court they are happy in their placement.

The children recently learned their “father” L.R. is actually their grandfather.

In June, the mother had a temporary protective order issued against L.R. alleging

domestic violence; on June 24, the trial court found insufficient evidence of an

assault and denied a permanent protective order. On July 17, the juvenile court

issued a protective order barring L.R. from the children’s home and presence. The

1 The court terminated D.R.’s parental rights; he has not appealed. 3

mother then married L.R. in late July. In September, L.R. forced the mother into a

car accident, resulting in a protective order to keep L.R. away from the mother.

The mother claims she is in the process of divorcing L.R.

Starting in August 2019, the mother was ordered to participate in drug

testing. In September, the mother was found in contempt of court for failing to

appear for drug testing.2 A sweat-patch test later that month was positive for

amphetamines and methamphetamine. Later tests came back negative

(December), and then positive again (March 2020). The mother refused to

complete drug tests in May, August, and October 2020, claiming the lab mixed up

tests. She has not completed any substance-abuse treatment throughout the

proceedings and insists she has not used illegal substances.

In November 2019, the mother completed a domestic-violence awareness

class. In December, the mother completed a mental-health evaluation, and the

evaluator recommended regular therapy sessions. The mother engaged in

treatment but, in spring 2020, the mother stopped her in-person therapy and did

not engage in treatment via telehealth. Her reasons for not attending therapy were

health concerns for in-person therapy during the COVID-19 pandemic, her lack of

transportation to get to appointments, and her lack of comfort with any of the

therapists she had met. The mother claims she does not need therapy despite her

mental-health diagnoses and history of traumatic domestic violence but says she

uses daily prayer as her mental-health treatment.

2 The evidence shows the August 2019 drug test was ordered under the mother’s maiden name, J.F. The mother attempted to test, but the name on her driver’s license was J.G. and she was not allowed to participate. 4

The mother was not consistent with in-person visitation attendance, often

due to transportation issues. She called and video chatted with the children on a

regular basis. Many of the in-person and video chats were also attended by the

mother’s adult children. The mother was an attentive and capable parent during

visits.

The mother has not cooperated with DHS or the court throughout the

proceedings. She told the court she did not trust DHS, and she displayed a

combative attitude toward DHS workers and service providers, at times sending

high-emotion and accusatory messages to workers. At one point, she filed a notice

with the court threatening legal action against the court system and DHS if her

children were not returned to her care. The mother prolonged the legal

proceedings of this case by filing for multiple continuances, filing pro se

interlocutory appeals and ex parte letters to the court, and changing counsel

several times.

The mother experienced significant housing insecurity during the CINA

case, including evictions from the family home rented under L.R.’s name and from

another rental when it was sold. At times, she would “refuse to tell anybody” where

she lived because she wanted to be left alone, mentioning L.R.’s presence near

her homes. The mother did not have a home at the time of the termination hearing.

The mother was not employed at any point during the CINA proceedings. She

failed to share how she might provide for the children if they were returned to her

care. 5

After a termination hearing on April 1 and 2, 2021, the court terminated the

mother’s parental rights under Iowa Code section 232.116(1)(f) (2021). She

appeals.

II. Standard of Review.

“We review proceedings terminating parental rights de novo. We are not

bound by the juvenile court’s findings of fact, but we do give them weight,

especially in assessing the credibility of witnesses.” In re Z.P., 948 N.W.2d 518,

522–23 (Iowa 2020) (citations omitted).

III. Analysis.

On appeal, the mother claims the State failed to prove by clear and

convincing evidence the children could not be returned to her care, the court

should have granted her an extension under Iowa Code section 232.104(2)(b), the

court should have applied an exception to termination because the children are in

a relative’s custody and they have close parent-child bonds, and termination is not

in the best interests of the children.

A. Ground for termination. The court terminated the mother’s rights under

Iowa Code section 232.116(1)(f). Pursuant to that provision, the State had to prove

the children were four years of age or older, had been adjudicated CINA, had been

out of the mother’s custody for at least twelve of the last eighteen months, and

there was clear and convincing evidence the children could not be returned to the

mother’s custody at the time of the termination hearing. Iowa Code

§ 232.116(1)(f). The mother only contests the final element—that the children

could not be returned to her care “at the present time” without suffering further 6

adjudicatory harm. Id. § 232.116(1)(f)(4). “[A]t the present time” refers to the time

of the termination hearing. In re A.M., 843 N.W.2d 100, 111 (Iowa 2014).

At the time of the termination hearing, the mother did not have housing for

herself or the children. She had no employment and refused to discuss her plan

of how she would provide for herself and the children. It is unclear where the

mother planned for the children to attend school. She was not in any mental-health

treatment despite emotional outbursts as evidenced in her self-represented filings.

The mother had refused to participate in drug testing or treatment for over a year

after a positive test for methamphetamine. We conclude the children could not

returned to the mother’s custody at the time of the termination hearing.

B. Six-month extension. The court determined it could not grant a six-month

extension under section 232.104(2)(b) because it could not enumerate factors,

conditions, or behavioral changes that would form a basis to find removal would

no longer be necessary. After noting the case had been open for eighteen months,

the court stated, “As of the hearing in April of 2021 on this petition nothing has

changed since removal, and the problems remain unsolved, with little prospect of

them being resolved in the next six months.”

The legislature has established a limited time frame in termination

proceedings for a parent to demonstrate their ability to be a parent, “stem[ming] in

large part from mandates in federal law.” In re A.B., 956 N.W.2d 162, 169 (Iowa

2021) (citation omitted). Once that time frame has passed, “termination

proceedings must be viewed with a sense of urgency.” Id. (citation omitted).

The mother had already been granted a six-month extension in October

2020 to allow her to comply with substance-abuse and mental-health services; 7

unfortunately, she made no progress. The only factor the mother cites as likely to

change in the next six months is a divorce from L.R. While a good step, this would

not address the mother’s refusal to seek substance-abuse and mental-health

treatment, or establish employment or a home. An extension is not warranted in

this case.

C. Best interests. The mother claims it is not in the children’s best interests

to terminate her parental rights.

In considering the best interests of the children, 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].” Iowa Code § 232.116(2). “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 33, 41 (Iowa 2010).

The children are in a safe, stable home with a relative placement who meets

their physical, mental, and emotional needs, ensures they receive therapy as

needed, and nurtures their relationships with family members. The mother is not

in a stable situation and has refused to tell DHS or the court how she plans to

provide for the children’s short- and long-term care. We find termination of the

mother’s parental rights is in the children’s best interests.

D. Exceptions to termination. The mother asserts the court should have

applied two of the permissive exceptions under section 232.116(3) to not terminate 8

her rights: (a) a relative has legal custody of the children and (c) termination would

be detrimental to the children due to the closeness of the parent-child relationships.

The exceptions to termination are permissive, not mandatory. In re A.S.,

906 N.W.2d 467, 475 (Iowa 2018). “[O]nce the State has proven a ground for

termination, the parent resisting termination bears the burden to establish an

exception to termination.” Id. at 476.

The willingness of a relative to take custody of the children does not

countermand a determination that termination of a parent’s rights is in the

children’s best interests. See id. at 475. Nor is this an instance where a

guardianship would be an appropriate alternative. See In re W.M., 957 N.W.2d

305, 315 (Iowa 2021) (noting a possible example where guardianship might be

appropriate but a long-term guardianship would deny the parent of additional

services and the parent could challenge the guardianship later). Nothing in the

record indicates the paternal aunt would agree to a guardianship. Rather, the

record reflects she is prepared to adopt the children, which would provide them

with permanency. The mother has not carried her burden to establish the

applicability of this exception.

It is clear from the record the mother has a close bond with her children.

However, our supreme court has observed, “Yet the existence of a bond is not

enough.” A.B., 956 N.W.2d at 169. The parent has to prove the bond is so strong

that it clearly outweighs the child’s need for permanency. W.M., 957 N.W.2d at

315. The juvenile court found termination “would be less detrimental than the harm

that would be caused by continuing the parent-child relationships.” The mother 9

has not proved the parent-child bond here is so strong as to clearly outweigh the

children’s need for permanency. See id.

We conclude termination is in the children’s best interests and affirm.

AFFIRMED.