IN THE COURT OF APPEALS OF IOWA
No. 18-1552 Filed January 9, 2019
IN THE INTEREST OF D.H., Minor Child,
R.D., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William Owens,
Associate Juvenile Judge.
A mother appeals from an order terminating her parental rights in her child
pursuant to Iowa Code chapter 232 (2018). AFFIRMED.
Robert F. Bozwell, Jr., Centerville, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Sarah L. Wenke, Ottumwa, guardian ad litem for minor child.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
McDONALD, Judge.
The juvenile court terminated Rachell’s rights in her child, D.H., pursuant to
Iowa Code section 232.116(1)(f) (2018). In this appeal, Rachell claims there is
insufficient evidence supporting the statutory ground authorizing the termination of
her parental rights and termination of her parental rights is not in the best interest
of the child.
We review termination-of-parental-rights proceedings de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014); In re D.W., 791 N.W.2d 703, 706 (Iowa
2010). However, “[w]e give weight to the findings of the juvenile court, particularly
with respect to the credibility of witnesses.” In re B.N., No. 00-0220, 2001 WL
57987, at *1 (Iowa Ct. App. Jan 24, 2001); accord D.W., 791 N.W.2d at 706. The
statutory framework authorizing the termination of a parent-child relationship is well
established. See In re A.S., 906 N.W.2d 467, 472-73 (Iowa 2018) (setting forth
the statutory framework). The burden is on the State to prove by clear and
convincing evidence (1) the statutory ground or grounds authorizing the
termination of parental rights and (2) “termination of parental rights is in the best
interest[] of the child[].” See In re E.H., No. 17-0615, 2017 WL 2684420, at *1
(Iowa Ct. App. June 21, 2017).
We first address Rachell’s challenge to the sufficiency of the evidence. The
juvenile court terminated Rachell’s parental rights pursuant to Iowa Code section
232.116(1)(f). Under that section, as relevant here, the State was required to
prove by “clear and convincing evidence that at the present time the child cannot
be returned to the custody of the child’s parents as provided in section 232.102.”
Iowa Code § 232.116(1)(f)(4). “At the present time” means at the time of the 3
termination hearing. See A.M., 843 N.W.2d at 111. We have interpreted this
statutory provision to mean the State is required to prove the child cannot be
returned to the parent without creating “an appreciable risk of adjudicatory harm”
to the child. See E.H., 2017 WL 2684420, at *1.
The record supports the termination of Rachell’s parental rights. Rachell
cannot meet the basic needs of the child. Rachell does not have stable housing.
She has lived in eight different locations over the last two years. During the
pendency of this case, she has lived in a homeless shelter for a period of time and
in her truck. At the time of the termination hearing, Rachell lived with a friend and
his mother. She had lived there only for one month, and she admitted the housing
is likely temporary. She has not discussed with her friend whether he and his
mother would allow D.H. to live in the house. The house has only two bedrooms,
both of which are occupied. Rachell’s unstable housing militates in favor of
termination. See In re K.H., No. 16-0113, 2016 WL 1703095, at *2 (Iowa Ct. App.
Apr. 27, 2016) (affirming termination where “the father was unable [to] maintain
safe and stable housing”); In re J.T., No. 14-0967, 2014 WL 4635527, at *2 (Iowa
Ct. App. Sept. 17, 2014) (affirming termination where “[a]t the time of the
termination hearing, the mother did not have stable housing”); In re C.N.G., No.
03-1717, 2003 WL 22900901, at *3 (Iowa Ct. App. Dec. 10, 2003) (finding “the
parents’ continued inability to find suitable, safe housing” created risk for the child);
In re K.H., No. 03-0671, 2003 WL 21459582, at *2 (Iowa Ct. App. June 25, 2003)
(“[P]lacing K.H. with [the father] would result in an ongoing risk of harm to K.H.
because of [the father’s] lack of stable . . . housing.”). 4
Rachell also has a number of health conditions, including traumatic brain
injury, post-traumatic stress disorder, panic disorder, agoraphobia, depression,
bipolar disorder, borderline personality disorder, and anxiety. Rachell testified that
her conditions prevent her from doing everyday tasks, like maintaining
employment. The incident giving rise to D.H.’s removal is probative of how
Rachell’s mental health negatively affects her ability to parent. At the time of
removal, Rachell was living with her boyfriend, Lee. Lee and Rachell got into an
argument. In response, Rachell fled into a cornfield with a pair of scissors and
threatened to harm herself. Lee was left to care for D.H. He was unable to locate
Rachell and contacted the Iowa Department of Human Services (“IDHS”).
We recognize “mental disability of a parent is not a sufficient reason alone
for the termination of parental rights.” In re A.M.S., 419 N.W.2d 723, 733 (Iowa
1988); accord In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). However, a parent’s
mental health is a factor that should be considered when evaluating that parent’s
ability to care for his or her child. See A.M.S., 419 N.W.2d at 733-34. Here, despite
having a slew of mental-health conditions for over a decade, Rachell failed to
meaningfully address the conditions during the pendency of the case. She
admitted her conditions impair her ability to provide adequate care for the child.
Rachell’s failure to seek treatment for her mental-health conditions supports
termination of her parental rights. See In re A.Z., No. 18-1420, 2018 WL 4909831,
at *2 (Iowa Ct. App. Oct. 10, 2018) (affirming termination when the mother “was
diagnosed with bipolar disorder, major depressive disorder, and anxiety disorder
among other things, but she did not engage in mental-health treatment”); In re A.S.,
No. 17-1810, 2018 WL 542646, at *1 (Iowa Ct. App. Jan. 24, 2018) (“Both parents 5
have significant untreated mental-health conditions, which has also prevented
them from providing appropriate care for the child.”); In re T.H., No. 17-1558, 2017
WL 6520731, at *2 (Iowa Ct. App. Dec. 20, 2017) (terminating parental rights when
mother “did not address her mental-health conditions”); In re S.C., No. 15-0262,
2015 WL 2089743, at *3 (Iowa Ct. App. May 6, 2015) (“We . . . conclude that
Kristin’s untreated mental health conditions create a risk of harm to the child and
support the termination of her rights.”).
Rachell’s history of substance abuse, including the use of
methamphetamine and marijuana, supports the termination of her parental rights
in D.H.
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IN THE COURT OF APPEALS OF IOWA
No. 18-1552 Filed January 9, 2019
IN THE INTEREST OF D.H., Minor Child,
R.D., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William Owens,
Associate Juvenile Judge.
A mother appeals from an order terminating her parental rights in her child
pursuant to Iowa Code chapter 232 (2018). AFFIRMED.
Robert F. Bozwell, Jr., Centerville, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Sarah L. Wenke, Ottumwa, guardian ad litem for minor child.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. 2
McDONALD, Judge.
The juvenile court terminated Rachell’s rights in her child, D.H., pursuant to
Iowa Code section 232.116(1)(f) (2018). In this appeal, Rachell claims there is
insufficient evidence supporting the statutory ground authorizing the termination of
her parental rights and termination of her parental rights is not in the best interest
of the child.
We review termination-of-parental-rights proceedings de novo. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014); In re D.W., 791 N.W.2d 703, 706 (Iowa
2010). However, “[w]e give weight to the findings of the juvenile court, particularly
with respect to the credibility of witnesses.” In re B.N., No. 00-0220, 2001 WL
57987, at *1 (Iowa Ct. App. Jan 24, 2001); accord D.W., 791 N.W.2d at 706. The
statutory framework authorizing the termination of a parent-child relationship is well
established. See In re A.S., 906 N.W.2d 467, 472-73 (Iowa 2018) (setting forth
the statutory framework). The burden is on the State to prove by clear and
convincing evidence (1) the statutory ground or grounds authorizing the
termination of parental rights and (2) “termination of parental rights is in the best
interest[] of the child[].” See In re E.H., No. 17-0615, 2017 WL 2684420, at *1
(Iowa Ct. App. June 21, 2017).
We first address Rachell’s challenge to the sufficiency of the evidence. The
juvenile court terminated Rachell’s parental rights pursuant to Iowa Code section
232.116(1)(f). Under that section, as relevant here, the State was required to
prove by “clear and convincing evidence that at the present time the child cannot
be returned to the custody of the child’s parents as provided in section 232.102.”
Iowa Code § 232.116(1)(f)(4). “At the present time” means at the time of the 3
termination hearing. See A.M., 843 N.W.2d at 111. We have interpreted this
statutory provision to mean the State is required to prove the child cannot be
returned to the parent without creating “an appreciable risk of adjudicatory harm”
to the child. See E.H., 2017 WL 2684420, at *1.
The record supports the termination of Rachell’s parental rights. Rachell
cannot meet the basic needs of the child. Rachell does not have stable housing.
She has lived in eight different locations over the last two years. During the
pendency of this case, she has lived in a homeless shelter for a period of time and
in her truck. At the time of the termination hearing, Rachell lived with a friend and
his mother. She had lived there only for one month, and she admitted the housing
is likely temporary. She has not discussed with her friend whether he and his
mother would allow D.H. to live in the house. The house has only two bedrooms,
both of which are occupied. Rachell’s unstable housing militates in favor of
termination. See In re K.H., No. 16-0113, 2016 WL 1703095, at *2 (Iowa Ct. App.
Apr. 27, 2016) (affirming termination where “the father was unable [to] maintain
safe and stable housing”); In re J.T., No. 14-0967, 2014 WL 4635527, at *2 (Iowa
Ct. App. Sept. 17, 2014) (affirming termination where “[a]t the time of the
termination hearing, the mother did not have stable housing”); In re C.N.G., No.
03-1717, 2003 WL 22900901, at *3 (Iowa Ct. App. Dec. 10, 2003) (finding “the
parents’ continued inability to find suitable, safe housing” created risk for the child);
In re K.H., No. 03-0671, 2003 WL 21459582, at *2 (Iowa Ct. App. June 25, 2003)
(“[P]lacing K.H. with [the father] would result in an ongoing risk of harm to K.H.
because of [the father’s] lack of stable . . . housing.”). 4
Rachell also has a number of health conditions, including traumatic brain
injury, post-traumatic stress disorder, panic disorder, agoraphobia, depression,
bipolar disorder, borderline personality disorder, and anxiety. Rachell testified that
her conditions prevent her from doing everyday tasks, like maintaining
employment. The incident giving rise to D.H.’s removal is probative of how
Rachell’s mental health negatively affects her ability to parent. At the time of
removal, Rachell was living with her boyfriend, Lee. Lee and Rachell got into an
argument. In response, Rachell fled into a cornfield with a pair of scissors and
threatened to harm herself. Lee was left to care for D.H. He was unable to locate
Rachell and contacted the Iowa Department of Human Services (“IDHS”).
We recognize “mental disability of a parent is not a sufficient reason alone
for the termination of parental rights.” In re A.M.S., 419 N.W.2d 723, 733 (Iowa
1988); accord In re K.F., 437 N.W.2d 559, 560 (Iowa 1989). However, a parent’s
mental health is a factor that should be considered when evaluating that parent’s
ability to care for his or her child. See A.M.S., 419 N.W.2d at 733-34. Here, despite
having a slew of mental-health conditions for over a decade, Rachell failed to
meaningfully address the conditions during the pendency of the case. She
admitted her conditions impair her ability to provide adequate care for the child.
Rachell’s failure to seek treatment for her mental-health conditions supports
termination of her parental rights. See In re A.Z., No. 18-1420, 2018 WL 4909831,
at *2 (Iowa Ct. App. Oct. 10, 2018) (affirming termination when the mother “was
diagnosed with bipolar disorder, major depressive disorder, and anxiety disorder
among other things, but she did not engage in mental-health treatment”); In re A.S.,
No. 17-1810, 2018 WL 542646, at *1 (Iowa Ct. App. Jan. 24, 2018) (“Both parents 5
have significant untreated mental-health conditions, which has also prevented
them from providing appropriate care for the child.”); In re T.H., No. 17-1558, 2017
WL 6520731, at *2 (Iowa Ct. App. Dec. 20, 2017) (terminating parental rights when
mother “did not address her mental-health conditions”); In re S.C., No. 15-0262,
2015 WL 2089743, at *3 (Iowa Ct. App. May 6, 2015) (“We . . . conclude that
Kristin’s untreated mental health conditions create a risk of harm to the child and
support the termination of her rights.”).
Rachell’s history of substance abuse, including the use of
methamphetamine and marijuana, supports the termination of her parental rights
in D.H. Rachell underwent a substance-abuse evaluation in May 2017. However,
she failed to maintain contact with her substance-abuse counselor and was
discharged from treatment. Rachell has not sought treatment since that time. She
admitted to using methamphetamine as recently as June 2018. She admitted to
“falsely passing” drug tests. Untreated substance-abuse disorders create a risk of
harm for the child and support termination of parental rights. See A.Z., 2018 WL
4909831, at *1-2 (finding unsuccessful treatment of substance abuse militates in
favor of termination); A.S., 2018 WL 542646, at *1 (collecting cases); In re M.A.,
No. 07-0907, 2007 WL 2119246, at *2 (Iowa Ct. App. July 25, 2007) (affirming
termination when “[a]t the time of the termination of parental rights hearing [the
mother] had unresolved substance abuse issues”).
In sum, the State proved by clear and convincing evidence the statutory
ground authorizing the termination of Rachell’s parental rights. Rachell does not
contest the sufficiency of the evidence supporting the first three elements pursuant
to section 232.116(1)(f). With respect to the final element, there is clear and 6
convincing evidence the child could not be returned to the mother’s custody at the
time of the termination hearing without being exposed to an appreciable risk of
adjudicatory harm.
Rachell contends the juvenile court should have given her additional time
to show she could provide adequate care for D.H. The juvenile court may defer
termination for six months if the court “determin[es] that the need for removal of
the child from the child’s home will no longer exist at the end of [an] additional six-
month period.” Iowa Code § 232.104(2)(b); accord In re A.A.G., 708 N.W.2d 85,
92 (Iowa Ct. App. 2005). In support of her request for additional time, Rachell
notes she had housing at the time of the termination hearing. She also notes
having stable housing will allow her to attend mental-health and substance-abuse
treatment.
Rachell’s contention that she had housing at the time of the termination
hearing is not supported by the evidence. By her own admission, her living
arrangements are temporary. She has not inquired of the owner whether D.H.
would be allowed to live there. Rachell remains unemployed and unable to obtain
her own housing going forward. See In re N.A.S., No. 13-0074, 2013 WL 988895,
at *2 (Iowa Ct. Ap. Mar. 13, 2013) (affirming termination when “the father was
unemployed and lacked stable housing”); In re J.W., 528 N.W.2d 657, 662 (Iowa
1995) (finding mother’s unemployment supported termination of parental rights).
Further, Rachell’s “past performance is indicative of the quality of care [s]he
is capable of providing in the future.” N.A.S., 2013 WL 988895, at *2; accord In re
C.W., 554 N.W.2d 279, 283 (Iowa Ct. App. 1996). “A parent cannot wait until the
eve of termination . . . to begin to express an interest in parenting.” In re C.B., 611 7
N.W.2d 489, 495 (Iowa 2000). Here, IDHS became involved with this family in
2014 due to Rachell’s substance abuse, but the case was closed on the
understanding D.H. would move out of Iowa to live with his grandmother. That did
not happen, and the family again came to the attention of the department in 2016.
In the last four years, Rachell failed to meaningfully address and resolve the
conditions giving rise to the State’s intervention in the family. She only undertook
some effort at the end of the case, which is not enough. We affirm the juvenile
court’s determination that D.H. could not be returned to Rachell within an additional
six months.
We next address Rachell’s argument that termination of her parental rights
is not in the best interest of the child. In determining the best interest of the child,
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).
“In determining the best interests of a child, the court looks to the child’s long-range
and immediate interests.” In re C.D., No. 01-0472, 2001 WL 1205364, at *2 (Iowa
Ct. App. Oct. 12, 2001); accord In re J.M., No. 16-0276, 2016 WL 2744793, at *1
(Iowa Ct. App. May 11, 2016).
Rachell argues that D.H. has a close bond with her and that it is not in the
child’s best interest to sever that bond. There is little dispute Rachell has a close
bond with D.H. However, there is also little dispute that Rachell is unable to
provide adequate care for D.H. at this time. Rachell has not had a stable home in
over two years. She has a number of untreated mental-health conditions. These
mental-health conditions pose a risk of harm to the child. Rachell has untreated 8
substance-abuse conditions. Rachell’s cluster of conditions prevents her from
meeting the child’s physical, mental, and emotional needs. This is particularly true
here because D.H. also has mental-health conditions that require heightened
attention. Cf. In re K.M., No. 17-0498, 2017 WL 2461905, at *3 (Iowa Ct. App.
June 7, 2017) (considering mother’s inability to address children’s medical needs
as a factor weighing in favor of termination). It is not in D.H.’s best interests to
return to Rachell’s care. See In re A.G., No. 18-1161, 2018 WL 6131920, at *3
(Iowa Ct. App. Nov. 21, 2018) (finding termination was in the child’s best interest
when the father “refused to acknowledge or address the concerns giving rise to
removal of the child”).
For these reasons, we affirm the judgment of the juvenile court.
AFFIRMED.