In the Interest of D.R., D.R., D.R., D.R., and M.W., Minor Children, M.R., Mother

• Court: Court of Appeals of Iowa
• Decided: May 6, 2015
• Docket: 15-0123
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0123 Filed May 6, 2015

IN THE INTEREST OF D.R., D.R., D.R., D.R., and M.W., Minor Children,

M.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Annette

Boehlje, District Associate Judge.

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

Jesse M. Marzen of Marzen Law Office, Waverly, for appellant.

Thomas J. Miller, Attorney General, Diane M. Stahle, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Nichole Benes, Assistant

County Attorney, for appellee.

Richard Tompkins of Tompkins Law Office, Mason City, for father.

Crystal Ely of Young Law Office, Mason City, attorney and guardian ad

litem for minor children.

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

MULLINS, J.

A mother appeals from orders terminating her parental rights to five

children, D.R., D.R., D.R., D.R., and M.W. She argues the evidence does not

support termination pursuant to Iowa Code section 232.116(1)(f) (2013);

termination was not in the children’s best interests; and the court should have

applied a statutory exception to prevent termination. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

The children have three different fathers. D.A. is the father of the three

middle children, D.R., D.R., and D.R. W.R. is the father of the oldest child, D.R.

J.W. is the father of M.W.1 At the time of the initial removal, the mother was

living with J.W. The children were removed when the mother and J.W. were

using illegal drugs in front of the children and there were incidents of domestic

violence between them and in front of the children. There was drug

paraphernalia within sight and reach of the children. The children described the

parents using drugs in the home.

In July 2013, the children were adjudicated in need of assistance pursuant

to Iowa Code section 232.2(6)(c)(2). The court ordered the children to remain

with the mother. J.W. left the home at that time. The children were removed

from the mother’s care in September 2013 when the mother invited J.W. to have

unsupervised contact with the children, contrary to the court’s adjudication order.

They have been out of the mother’s care since September 2013. The three

middle children, D.R., D.R., and D.R., were placed with their father, D.A. The

1 The court also terminated the parental rights of W.R. to the oldest child, D.R., and those of J.W. to M.W. Those terminations are not the subject of this appeal. 3

oldest child, D.R., also was placed with D.A. M.W. was placed with his paternal

aunt.

The court ordered the mother to participate in services including

substance abuse treatment, random drug testing, individual therapy, parenting

classes, and couples’ counselling with J.W. The mother completed a parenting

class. She and J.W. never attended couples’ counselling. After a substance

abuse evaluation, counselors recommended the mother be in substance abuse

treatment for up to one year with random drug testing. The mother never

completed substance abuse treatment. She planned to enter one outpatient

program but was unsuccessfully discharged due to missed sessions. She then

agreed to begin a different intensive outpatient program, but just before it started,

she wrote a note to her counselor stating she did not need substance abuse

treatment and she did not have a drug problem. She was admitted to a third

program but discharged unsuccessfully again after missing a drug check. Of

fifty-four random and scheduled drug tests, the mother missed twelve and tested

positive in twenty-nine for various substances, including alcohol, THC, opiates,

and benzodiazepine. The mother was unsuccessfully discharged from family

treatment court because of her failure to follow through with treatment

requirements. The mother has attended individual therapy inconsistently. She

attended five out of nine individual therapy sessions before quitting and, after

unsuccessful discharge from the last substance abuse program, she attended

three of four scheduled sessions. 4

The mother was consistent in attending visitation. However, her

visitations with all five children were unstructured and chaotic. The mother was

unable to handle their behavioral problems. She had a very difficult time seeing

to all their needs at once. She frequently relied on her parents to assist her with

the children during visitations. At the termination hearing, the social worker

testified the visitations never progressed beyond fully-supervised. She also

stated the mother would not be able to manage the children even for a brief

period on her own, and the worker would not be comfortable allowing the mother

to have unsupervised visitation.

After the final removal in September 2013, the mother continued to live in

her apartment. J.W. moved into the apartment at that time, but then moved out

around January 2014. J.W. and the mother remained in an on-again, off-again

intimate relationship until around April 2014. In May 2014, the mother moved out

of her apartment and into her parents’ two-bedroom house. She continued to live

there at the time of the termination hearing. She admitted the home had no room

for the children. She claimed she was eligible for housing assistance but failed to

follow through in obtaining housing appropriate for the children.

The children have been doing well in their placements. D.A. has been

providing a stable home with rules and a structured routine that the children know

and follow. The children are all generally healthy, although some have special

needs. The four children placed with D.A. each require and are receiving some

additional assistance and tutoring at school. D.A. and M.W.’s paternal aunt is

seeing to their medical and mental health needs. The children participate in 5

individual therapy. M.W. has interactions with his other siblings on a regular

basis. M.W. appears to be comfortable in his paternal aunt’s home and has a

strong connection with her. He appears to be adjusting well to his placement and

is developmentally on target.

In September 2014, a year after the removal, the juvenile court ordered

the State to file a petition for termination of parental rights. At the termination

hearing, the social worker testified that, although any child going through a

termination of parental rights will experience some difficulty, the children here are

comfortable and established in their placements and they would continue to do

well in their placements after termination of parental rights. The juvenile court

terminated the mother’s parental rights pursuant to Iowa Code section

232.116(1)(f). The mother appeals, contending the evidence does not support

termination, termination was not in the children’s best interests, and the court

should have applied a statutory exception to prevent termination.

II. STANDARD OF REVIEW.

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interest of the child. Id. at 776. 6

III. ANALYSIS.

A. Statutory Grounds For Termination.

We will uphold termination of parental rights where there is clear and

convincing evidence of the statutory grounds for termination. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). Evidence is clear and convincing when there are

no serious or substantial doubts as to the correctness of conclusions of law

drawn from the evidence. Id. We need only find termination proper under one

ground to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

To terminate parental rights under section 232.116(1)(f), the State must

show by clear and convincing evidence the child is four years of age or older; has

been adjudicated in need of assistance; has been removed from the physical

custody of the parents for at least twelve of the last eighteen months, or the last

twelve consecutive months; and there is clear and convincing evidence that at

the time of the termination hearing the child could not be returned to the parent’s

custody as provided in section 232.102. The mother argues the State failed to

establish that the children cannot be returned to the mother because doing so

would subject the child to adjudicatory harm. The fourth element of the

termination ground set out in section 232.116(1)(f) is met when the child cannot

be returned to the parental home because the definitional grounds of a child in

need of assistance exist. In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App.

1995). If any one of the grounds listed in section 232.2(6) can be proved by clear

and convincing evidence, there is sufficient basis to satisfy the fourth element of

section 232.116(1)(f) for termination. Id. 7

The juvenile court adjudicated the children in need of assistance under

Iowa Code section 232.2(6)(c)(2). A child in need of assistance under section

232.2(6)(c)(2) is one “[w]ho has suffered or is imminently likely to suffer harmful

effects as a result of . . . [t]he failure of the child’s parent . . . to exercise a

reasonable degree of care in supervising the child.” The court found the mother

was using drugs in the home regularly at night, and the older children described

acts of domestic violence in the home. Since the adjudication, little has changed

with respect to the risk posed to the children by the mother’s drug use. The

mother insists the evidence does not show any instance during the visitations

where the children were harmed or imminently likely to be harmed. However, the

State need not show such an instance existed during the visitations. The mother

has not made serious efforts to complete the services the court ordered her to

complete. The mother has not, over the life of this case, successfully completed

a drug treatment problem, despite multiple attempts. She has not, until recently,

recognized that she needs substance abuse treatment. She began but was

unsuccessful in three different programs. She was discharged from drug

treatment court. She repeatedly tested positive for drugs in drug tests or just did

not take them. In fact, negative tests were the exception, not the rule, in this

case. The mother’s drug use remains a barrier to her being able to exercise a

reasonable degree of care in supervising the children, particularly given the

difficulty she already experiences in handling them during her visitations.

Because her drug issues are unresolved, there continues to be an imminent

likelihood that the children would suffer harmful effects if returned to her care. 8

For that reason, we find the evidence is clear and convincing that the children

cannot be returned to her care at this time. Accordingly, we find the evidence

supports termination under section 232.116(1)(f).2

B. Best Interests under Iowa Code Section 232.116(2).

The mother next argues the court erred in finding it was in the children’s

best interests to terminate parental rights. Under Iowa Code section 232.116(2),

in considering whether to terminate parental rights, 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.” “Insight for the determination of the child’s

long-range best interests can be gleaned from evidence of the parent’s past

performance for that performance may be indicative of the quality of the future

care that parent is capable of providing.” A.B., 815 N.W.2d at 778 (internal

quotations and citations omitted). A parent does not have unlimited time to

correct his or her deficiencies. In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct.

App. 1997). Given the mother’s substance abuse issues, her inability or

unwillingness to participate in services to correct them, and her long string of

positive drug tests over the life of this case, we find the risk of harm to the

2 The mother also claims termination is inappropriate because the State failed to prove returning the children to the mother would result in the children not receiving adequate care due to the mother’s mental capacity or condition, imprisonment, or drug or alcohol abuse, pursuant to Iowa Code section 232.2(6)(n). Because we find termination was appropriate due to the risk of adjudicatory harm under 232.2(6)(c)(2), we need not address this argument, however, we note that the juvenile court did not adjudicate the children in need of assistance under Iowa Code section 232.(6)(n). 9

children, their long-term interests, and their special needs all indicate termination

of the mother’s parental rights is in their best interests.

C. Application of Statutory Exception under Iowa Code Section

232.116(3).

The juvenile court need not terminate parental rights if it finds any of the

statutory exceptions under section 232.116(3) apply. In re P.L., 778 N.W.2d 33,

39 (Iowa 2010). The factors weighing against termination are permissive, not

mandatory. A.M., 843 N.W.2d at 113. “The court has discretion . . . whether to

apply the factors in this section to save the parent-child relationship.” In re D.S.,

806 N.W.2d 458, 475 (Iowa Ct. App. 2011). Under Iowa Code section

232.116(3)(c), the court may avoid termination if it finds there is “clear and

convincing evidence that the termination would be detrimental to the child at the

time due to the closeness of the parent-child relationship.” (Emphasis added).

The mother argues termination of parental rights would be detrimental to

the children but makes no argument that the parent-child relationship is close,

nor does she cite to any such evidence in the record. She cites the social

worker’s testimony that the termination would be harmful, but the social worker

further testified that although termination of parental rights is difficult for any child,

these children were comfortable and established in their placements and would

continue to do well after termination of the mother’s parental rights. Nonetheless,

we find the issue was not preserved for our review.3

3 As a general rule, “we will not speculate on the arguments [appellant] might have made and then search for legal authority and comb the record for facts to support such arguments.” Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996). In most cases, 10

IV. CONCLUSION.

Finding clear and convincing evidence that termination is necessary under

Iowa Code section 232.116(1)(f) and that termination is in the children’s best

interests, we affirm the juvenile court’s orders terminating the mother’s parental

rights to all five children.

AFFIRMED.

appellant’s “random mention of an issue, without analysis, argument or supporting authority, is insufficient to raise issue for appellate court’s consideration.” State v. Mann, 602 N.W.2d 785, 788 n.1 (Iowa 1999) (citing Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689 (Iowa 1994)).