In the Interest of J.A., Minor Child

• Court: Court of Appeals of Iowa
• Decided: April 14, 2021
• Docket: 21-0157
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0157 Filed April 14, 2021

IN THE INTEREST OF J.A., Minor Child,

A.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Scott Strait,

District Associate Judge.

A mother appeals the district court order terminating her parental rights.

AFFIRMED.

Amanda Heims, Council Bluffs, for appellant mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Roberta Megel, Council Bluffs, attorney and guardian ad litem for minor

child.

Considered by May, P.J., and Greer and Schumacher, JJ. 2

SCHUMACHER, Judge.

A mother appeals the district court order terminating her parental rights. We

find the termination of the mother’s parental rights is supported by the evidence,

the State engaged in reasonable efforts to reunite the mother and child, termination

is in the child’s best interests, and an exception to termination is not warranted in

this case. We affirm the district court.

I. Background Facts & Proceedings

A.C. is the mother of J.A., who was born in 2019.1 The mother has a history

of substance abuse and homelessness. The child was removed from the mother’s

custody shortly after birth because the mother admitted using methamphetamine

while pregnant, and she tested positive for amphetamines at the time of delivery.

J.A. also tested positive for methamphetamine and amphetamines at his birth. J.A.

was formally removed from his mother’s custody on August 21, 2019, and placed

in foster care.

The child was adjudicated to be in need of assistance (CINA), pursuant to

Iowa Code section 232.2(6)(c)(2), (n), and (o) (2019). The mother was

inconsistent in attending visitation, appearing at only about one-half of the

available visits. She was also inconsistent in providing drug tests. The Iowa

Department of Human Services (DHS) made twenty-five requests for drug tests,

and the mother complied on only four occasions.2 The mother remained homeless

1 The parental rights of the child’s putative father, J.P.A., were terminated. He has not appealed. 2 The mother’s drug testing number expired for the month of October 2020. DHS

attempted to provide a hair screen to make up for any missed tests for October, but the mother failed to participate in that test. 3

throughout the CINA proceedings and did not have transportation. She was

incarcerated on four separate occasions since the initiation of the underlying CINA

case.

On October 22, 2020, the State filed a petition seeking termination of the

mother’s parental rights. At the time of the termination hearing on December 7,

the mother had been attending outpatient substance-abuse and mental-health

treatment for a mere two months.3 The mother tested positive for

methamphetamine approximately one week before the termination hearing. She

had not located safe, stable housing.

The district court terminated the mother’s parental rights under section

232.116(1)(e), (h), and (l) (2020) and found reasonable efforts had been provided

to the mother. The court determined termination of the mother’s parental rights

was in the child’s best interests and none of the exceptions to termination found in

section 232.116(3) should be applied. The mother now appeals the termination of

her parental rights.

II. Standard of Review

Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d

764, 773 (Iowa 2012). The State must prove its allegations for termination by clear

and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear

and convincing evidence’ means there are no serious or substantial doubts as to

the correctness [of] conclusions of law drawn from the evidence.” Id. (citation

3The mother met the criteria for residential treatment based on the most recent evaluation and collateral information provided. 4

omitted). Our primary concern is the best interests of the children. In re J.S., 846

N.W.2d 36, 40 (Iowa 2014).

III. Sufficiency of the Evidence

The mother claims there is not sufficient evidence in the record to support

termination of her parental rights. “We will uphold an order terminating parental

rights where there is clear and convincing evidence of the statutory grounds for

termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App. 2015). “When the

juvenile court orders termination of parental rights on more than one statutory

ground, we need only find grounds to terminate on one of the sections to affirm.”

Id. at 435. We focus on the termination of the mother’s parental rights under

section 232.116(1)(h).4

The evidence shows J.A. was born in 2019, so he was younger than three

at the time of the termination hearing in late 2020. See Iowa Code

§ 232.116(1)(h)(1). There was a CINA adjudication for the child. See id.

§ 232.116(1)(h)(2). The child had been out of the mother’s care for about fifteen

months at the time of the termination hearing, from August 2019 until December

2020. See id. § 232.116(1)(h)(3). Also, there is clear and convincing evidence the

4 Section 232.116(1)(h) allows for termination of parental rights if the following elements are met: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. 5

child could not be safely returned to the mother at the time of the termination

hearing. See id. § 232.116(1)(h)(4). The mother had not successfully addressed

her substance-abuse and mental-health problems. The mother initially agreed to

admit herself to inpatient treatment and was transported by a worker to the intake.

However, the mother became verbally aggressive after being told to put out her

cigarette and left the facility. Three months later, after expressing a willingness to

complete a substance-abuse evaluation with transportation provided by DHS, the

mother sent a text message to the DHS worker the following morning, indicating

she had a work emergency. She failed to contact the worker after that text

message and did not complete the evaluation until October 21, 2020, despite being

ordered to do so since December 18, 2019.

The mother was without safe housing for J.A. The mother testified that she

remained homeless at the time of termination. While the mother did gain some

temporary housing during the case with the assistance of DHS, the mother was

required to leave this housing when she got into an argument with another

resident. At the termination hearing, the mother testified she did not know where

she was going to stay that night and had stayed at a truck stop the night before

the hearing.

We acknowledge well-established case law that a parent’s impoverished

condition should not be the sole basis of a termination decision. See In re Z.T.D.,

478 N.W.2d 426, 428 (Iowa Ct. App.1991). That said, a parent must be able to

provide children with the basic necessities of life, including a roof over their heads

and food on the table. See In re P.L., 778 N.W.2d 33, 39 (2010) (citing Iowa Code

section 232.116(2), and stating that the court considers “the physical, mental, and 6

emotional condition and needs of the child” when determining whether to terminate

parental rights).

The record supports a finding the child could not be returned to his mother’s

custody at the time of the termination hearing. She has failed to meaningfully

address her substance-abuse and mental-health issues since the child’s removal.

The district court did not base the termination solely on the mother’s impoverished

condition. We conclude the juvenile court properly applied section 232.116(1)(h).

IV. Reasonable Efforts

As part of her argument concerning the sufficiency of the evidence, the

mother asserts the State did not engage in reasonable efforts to reunite her with

the child. During the termination hearing, the mother claimed DHS should have

done more to assist her with housing and transportation.

“The State must show reasonable efforts as a part of its ultimate proof the

child cannot be safely returned to the care of a parent.” C.B., 611 N.W.2d at 493;

see also Iowa Code § 232.102(7). “In general, if a parent fails to request other

services at the proper time, the parent waives the issue and may not later

challenge it at the termination proceeding.” In re C.H., 652 N.W.2d 144, 148 (Iowa

2002).

During the termination hearing, the DHS caseworker testified that she

offered to transport the mother to drug screens. The mother was given an Uber

voucher. However, the month she was provided the Uber voucher, she exercised

no visits with her child. There were also efforts to provide a gas card if she could

find an individual to assist with transportation. She was offered bus passes.

Another social worker worked on finding housing and transportation for the mother. 7

The mother testified that the current social worker was “very helpful” in looking for

housing. While the mother also alleges her lack of transportation attributed to

missed visitation, the family support worker testified that she transported the child

to visitation and was able to bring the child to any neutral location to meet the

mother. The majority of the missed visits were due to the mother’s failure to

confirm the visit or confirming a visit and then cancelling. We conclude the

evidence shows the State engaged in reasonable efforts to reunite the mother and

V. Best Interests

The mother claims termination of her parental rights is not in the child’s best

interests. In considering a child’s best interests, 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 needs of the child

under section 232.116(2).” P.L., 778 N.W.2d at 41. “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.” Id.

As part of her best-interests argument, the mother asks for additional time

to work on reunification with the child. The juvenile court may decide to not

terminate parental rights if it finds there is clear and convincing evidence that CINA

proceedings should continue and enters an order to extend the time for

reunification in accordance with section 232.104(2)(b). Iowa Code § 232.117(5).

The court may continue the proceedings for an additional six months if the court 8

finds “the need for removal . . . will no longer exist at the end of the additional six-

month period.” Id. § 232.104(2)(b).

Although the child was removed in August 2019, the mother did not start

treatment for her substance-abuse and mental-health problems until October

2020. There was evidence that the mother continued to use methamphetamine,

testing positive shortly before the termination hearing. In addition, the mother was

inconsistent in attending visitation, attending approximately half of the offered

visits. We find, as did the district court, there is not clear and convincing evidence

to show the need for removal would no longer exist in six months.5 It is not in the

child’s best interests to further extend this case. We conclude termination of the

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

VI. Exception to Termination

The mother states that she has a close bond with the child. She claims

termination of her rights is detrimental to the child based on the closeness of the

parent-child relationship. See id. § 232.116(3)(c).

“The factors weighing against termination in section 232.116(3) are

permissive, not mandatory.” In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019)

(quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “The court

may exercise its discretion in deciding whether to apply the factors in section

232.116(3) to save the parent-child relationship based on the unique

circumstances of each case and the best interests of the children.” Id. (citing In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014)).

5The mother’s parental rights have been terminated to two other children due to her methamphetamine use. 9

The DHS caseworker and the family support worker testified the mother had

a bond with the child during visits. The mother also testified that she was bonded

with the child. We note, however, the child has never lived with the mother, and

their bond arose during supervised visitation, which the mother did not always

attend. The district court noted that the child was bonded with the foster parents.

Even considering the bond between the mother and child, we find that the evidence

does not show termination of the mother’s parental rights would be detrimental to

the child. See Iowa Code § 232.116(3)(c) (requiring that “[t]here 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.”). We conclude the

exception to termination found in section 232.116(3)(c) should not be applied in

this case.

We affirm the district court’s decision terminating the mother’s parental

rights.