IN THE COURT OF APPEALS OF IOWA
No. 14-0966 Filed September 17, 2014
IN THE INTEREST OF D.D., Minor Child,
T.W., Mother, Appellant,
D.D., Father, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Constance C. Cohen,
Associate Juvenile Judge.
Parents appeal separately the termination of their parent rights.
AFFIRMED.
Jamie Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant mother.
Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant
father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin J. Brownell,
Assistant County Attorney, for appellee State.
Brent Pattison of the Drake Legal Clinic, Des Moines, attorney, and Brio
Porter, law student, guardians ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ. 2
DOYLE, J.
A mother and father separately appeal the termination of their parental
rights to their child D.D., born in September 2012. We review their claims de
novo. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).
Our de novo review of the record reveals the following facts. The mother
has a history of methamphetamine use. The child involved in this appeal came
to the attention of the Iowa Department of Human Services in September 2013,
after it was reported the mother had been using methamphetamine and was in
jail for a probation violation. The father was incarcerated at that time, having
violated the terms of his own probation imposed following his 2011 conviction for
possession with the intent to deliver marijuana. The mother consented to
removal of the child from her care, and the child was placed in the care of his
paternal great-grandparents, where he has since remained.
Services were offered to the mother, including substance abuse and
mental health treatment, but the mother continued using methamphetamine. At
the time of the permanency hearing on March 4, 2014, the mother still had not
participated in the intensive outpatient treatment program recommended after her
October 2013 substance abuse evaluation. The court reported the mother saw
the child twice in December 2013, twice in January 2014, and she had not
availed herself of opportunities to interact with the child since. The court then
directed the State to institute proceedings for termination of the parents’ parental
rights, and the State subsequently filed its petition on March 12, 2014.
On March 22, 2014, after accidentally using bath salts instead of
methamphetamine, the mother overdosed. The mother started a thirty-day 3
inpatient substance abuse treatment program on March 24, and she has not
used methamphetamine since. However, she did not begin participating in
outpatient treatment until May 2014.
A hearing on the State’s petition was held in May 2014. There, the mother
testified she had been in treatment for twelve days, but she admitted she had
used methamphetamine on and off for ten years. The mother testified she still
had not completed a mental health evaluation, though she acknowledged she
“most definitely” had some unresolved mental health issues. She explained she
was “just not ready to address it yet.”
The father also testified. He explained he began serving his prison
sentence in June 2012, before the child was born, and his tentative discharge
date is July 2015. He admitted that because of his incarceration, he had not
been able to provide any type of care for the child. He also admitted he had only
seen the child in person once, but he testified he tried to call once a week to stay
in regular contact. He was hopeful he would be paroled in the near future, but he
admitted nothing had been approved.
Following the hearing, the district court entered its order terminating both
parents’ parental rights pursuant to Iowa Code section 232.116(1) paragraphs
(d) and (h) (2013), as well as finding paragraph (e) in the father’s case. The
mother and father now appeal, separately. Each parent contends (1) the State
failed to prove the statutory grounds for termination; (2) termination was not in
the child’s best interests; and (3) the exceptions found in Iowa Code section
232.116(3) apply in this case and should preclude termination of their parental
rights. See A.M., 843 N.W.2d at 113. 4
In determining whether parental rights should be terminated under chapter
232, the juvenile court “follows a three-step analysis.” In re D.W., 791 N.W.2d
703, 706 (Iowa 2010). Step one requires the court to “determine if a ground for
termination under section 232.116(1) has been established” by the State. Id. On
our review, we need only find termination proper under one of those grounds to
affirm. Id. at 707; see also In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App.
1995). If the juvenile court finds grounds for termination, the court moves to the
second step of the analysis: deciding if the grounds for termination should result
in a termination of parental rights under the best-interest framework set out in
section 232.116(2). D.W., 791 N.W.2d at 706-07. Even if the juvenile court finds
“the statutory best-interest framework supports termination of parental rights,” the
court must proceed to the third and final step: considering “if any statutory
exceptions set out in section 232.116(3) should serve to preclude termination of
parental rights.” Id. at 707.
Under Iowa Code section 232.116(1) paragraph (h), parental rights may
be terminated if the court finds by clear and convincing evidence that (1) the child
is three years of age or younger, (2) has been adjudicated a child in need of
assistance (CINA), (3) has been removed from the physical custody of her
parents for at least six months of the last twelve months, and (4) there is clear
and convincing evidence that the child cannot be returned to the custody of the
child’s parents at the present time.1 Here, there is no question the first three
1 We note that the father did not even challenge this ground on appeal, thus waiving error on the ground. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (stating “our review is confined to those propositions relied upon by the appellant for 5
elements were established: the child was born in 2012, was adjudicated a CINA
in November 2013, and had been removed from the parents’ physical custody
since September 2013. The only debatable issue is the fourth element, and,
upon our de novo review, we find the State has met its burden on this element as
to both parents.
While the law requires a “full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,” this patience has been built into
the statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000). Our supreme court has stated that “the legislature, in cases meeting the
conditions of [the Iowa Code], has made a categorical determination that the
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IN THE COURT OF APPEALS OF IOWA
No. 14-0966 Filed September 17, 2014
IN THE INTEREST OF D.D., Minor Child,
T.W., Mother, Appellant,
D.D., Father, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Constance C. Cohen,
Associate Juvenile Judge.
Parents appeal separately the termination of their parent rights.
AFFIRMED.
Jamie Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant mother.
Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant
father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin J. Brownell,
Assistant County Attorney, for appellee State.
Brent Pattison of the Drake Legal Clinic, Des Moines, attorney, and Brio
Porter, law student, guardians ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ. 2
DOYLE, J.
A mother and father separately appeal the termination of their parental
rights to their child D.D., born in September 2012. We review their claims de
novo. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).
Our de novo review of the record reveals the following facts. The mother
has a history of methamphetamine use. The child involved in this appeal came
to the attention of the Iowa Department of Human Services in September 2013,
after it was reported the mother had been using methamphetamine and was in
jail for a probation violation. The father was incarcerated at that time, having
violated the terms of his own probation imposed following his 2011 conviction for
possession with the intent to deliver marijuana. The mother consented to
removal of the child from her care, and the child was placed in the care of his
paternal great-grandparents, where he has since remained.
Services were offered to the mother, including substance abuse and
mental health treatment, but the mother continued using methamphetamine. At
the time of the permanency hearing on March 4, 2014, the mother still had not
participated in the intensive outpatient treatment program recommended after her
October 2013 substance abuse evaluation. The court reported the mother saw
the child twice in December 2013, twice in January 2014, and she had not
availed herself of opportunities to interact with the child since. The court then
directed the State to institute proceedings for termination of the parents’ parental
rights, and the State subsequently filed its petition on March 12, 2014.
On March 22, 2014, after accidentally using bath salts instead of
methamphetamine, the mother overdosed. The mother started a thirty-day 3
inpatient substance abuse treatment program on March 24, and she has not
used methamphetamine since. However, she did not begin participating in
outpatient treatment until May 2014.
A hearing on the State’s petition was held in May 2014. There, the mother
testified she had been in treatment for twelve days, but she admitted she had
used methamphetamine on and off for ten years. The mother testified she still
had not completed a mental health evaluation, though she acknowledged she
“most definitely” had some unresolved mental health issues. She explained she
was “just not ready to address it yet.”
The father also testified. He explained he began serving his prison
sentence in June 2012, before the child was born, and his tentative discharge
date is July 2015. He admitted that because of his incarceration, he had not
been able to provide any type of care for the child. He also admitted he had only
seen the child in person once, but he testified he tried to call once a week to stay
in regular contact. He was hopeful he would be paroled in the near future, but he
admitted nothing had been approved.
Following the hearing, the district court entered its order terminating both
parents’ parental rights pursuant to Iowa Code section 232.116(1) paragraphs
(d) and (h) (2013), as well as finding paragraph (e) in the father’s case. The
mother and father now appeal, separately. Each parent contends (1) the State
failed to prove the statutory grounds for termination; (2) termination was not in
the child’s best interests; and (3) the exceptions found in Iowa Code section
232.116(3) apply in this case and should preclude termination of their parental
rights. See A.M., 843 N.W.2d at 113. 4
In determining whether parental rights should be terminated under chapter
232, the juvenile court “follows a three-step analysis.” In re D.W., 791 N.W.2d
703, 706 (Iowa 2010). Step one requires the court to “determine if a ground for
termination under section 232.116(1) has been established” by the State. Id. On
our review, we need only find termination proper under one of those grounds to
affirm. Id. at 707; see also In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App.
1995). If the juvenile court finds grounds for termination, the court moves to the
second step of the analysis: deciding if the grounds for termination should result
in a termination of parental rights under the best-interest framework set out in
section 232.116(2). D.W., 791 N.W.2d at 706-07. Even if the juvenile court finds
“the statutory best-interest framework supports termination of parental rights,” the
court must proceed to the third and final step: considering “if any statutory
exceptions set out in section 232.116(3) should serve to preclude termination of
parental rights.” Id. at 707.
Under Iowa Code section 232.116(1) paragraph (h), parental rights may
be terminated if the court finds by clear and convincing evidence that (1) the child
is three years of age or younger, (2) has been adjudicated a child in need of
assistance (CINA), (3) has been removed from the physical custody of her
parents for at least six months of the last twelve months, and (4) there is clear
and convincing evidence that the child cannot be returned to the custody of the
child’s parents at the present time.1 Here, there is no question the first three
1 We note that the father did not even challenge this ground on appeal, thus waiving error on the ground. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996) (stating “our review is confined to those propositions relied upon by the appellant for 5
elements were established: the child was born in 2012, was adjudicated a CINA
in November 2013, and had been removed from the parents’ physical custody
since September 2013. The only debatable issue is the fourth element, and,
upon our de novo review, we find the State has met its burden on this element as
to both parents.
While the law requires a “full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,” this patience has been built into
the statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000). Our supreme court has stated that “the legislature, in cases meeting the
conditions of [the Iowa Code], has made a categorical determination that the
needs of a child are promoted by termination of parental rights.” In re M.W., 458
N.W.2d 847, 850 (Iowa 1990) (discussing Iowa Code section 232.116(1)(e)).
The public policy of the state having been legislatively set, we are obligated to
heed the statutory time periods for reunification.
At the time of the termination hearing, the father was incarcerated and not
set to be discharged until 2015. Clearly the child could not be returned to his
custody.
As to the mother, at the time of the termination hearing, she had only been
in her substance-abuse-treatment program for twelve days. She had been
battling with her addiction for at least ten years. While we hope the mother is
dedicated to seeing substance abuse treatment through this time, her latest
reversal on appeal”); Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver of that issue.”). Nevertheless, because the State clearly met its burden in establishing the ground set forth in Iowa Code section 232.116(1)(h) as to the father, we briefly address that ground. 6
assurance that she is now interested in substance-abuse treatment is simply too
little, too late for us to have any confidence in her commitment to sobriety at this
time or for the foreseeable future. “A parent cannot wait until the eve of
termination, after the statutory time periods for reunification have expired, to
begin to express an interest in parenting.” C.B., 611 N.W.2d at 494. Moreover,
she had not even begun to tackle her outstanding mental health issues.
Because children are not equipped with pause buttons, “[t]he crucial days of
childhood cannot be suspended while parents experiment with ways to face up to
their own problems. Children simply cannot wait for responsible parenting.” In re
C.H., 652 N.W.2d 144, 151 (Iowa 2002) (internal quotation marks and citations
omitted). Under the circumstances presented, we find the State proved by clear
and convincing evidence the child could not be safely returned to either parent’s
care at the time of the termination hearing. We therefore agree with the juvenile
court that termination of each parent’s parental rights was proper under Iowa
Code section 232.116(1)(h).
Although each parent maintains termination of his or her parental rights is
not in the child’s best interests, we conclude the record clearly demonstrates
otherwise. In making this determination, we “give primary consideration to the
child’s safety, to the best placement for furthering the long-term nurturing and
growth of the child, and to the physical, mental, and emotional condition and
needs of the child.” Iowa Code § 232.116(2). Additionally, “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.” A.M., 843 N.W.2d at 113. 7
Here, the child has only met the father once, and the child is not likely to
see him again until 2015. The mother has only begun to start working toward
sobriety, let alone address her mental health issues. The child is doing well in
the care of the paternal great-grandparents, where the child has been for almost
a year, and all evidence suggests the child will continue to thrive in the great-
grandparents’ care. They are willing to adopt the child and assure that the child
can maintain a safe relationship in the future with his biological parents, so long
as they are appropriate. Taking into account the relevant factors, we conclude
termination is in the child’s best interests.
Finally, both parents assert subsections of Iowa Code section 232.116(3)
apply to make termination of each parent’s parental rights unnecessary.
Because “[t]he factors weighing against termination in section 232.116(3) are
permissive, not mandatory,” “the court may use its discretion, based on the
unique circumstances of each case and the best interests of the child, whether to
apply the factors in this section to save the parent-child relationship.” A.M., 843
N.W.2d at 113.
The juvenile court found none of the exceptions to termination outweighed
termination of the parents’ parental rights being in the child’s best interest, and
we agree. Although it is clear that each parent loves the child, it is clear neither
parent can care for the child given the mother’s unalleviated substance abuse
and mental health problems and the father’s incarceration. Moreover, the child
was well-integrated into the family of his paternal great-grandparents, and they
were willing to adopt him. Permanency for this child can only be achieved by
terminating each parent’s parental rights. See In re J.E., 723 N.W.2d 793, 802 8
(Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in a
child’s best interest” are the child’s safety and “need for a permanent home”).
We conclude the considerations under Iowa Code section 232.116(3) do not
impede termination. Consequently, we affirm the order of the juvenile court
terminating the mother and the father’s parental rights.