IN THE COURT OF APPEALS OF IOWA
No. 17-0750 Filed August 2, 2017
IN THE INTEREST OF J.C. and J.S., Minor Children,
J.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
Mother appeals from an order terminating her parental rights issued
pursuant to Iowa Code chapter 232 (2016). AFFIRMED.
Magdalena Reese of Cooper, Goedicke, Reimer, & Reese, P.C., West
Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
General, for appellee State.
Erin M. Hardisty of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Vogel, P.J., and Doyle and McDonald, JJ. 2
MCDONALD, Judge.
The juvenile court terminated Julie’s parental rights in her two children
pursuant to Iowa Code section 232.116(1)(h) (2016). In this appeal, Julie
challenges the sufficiency of the evidence supporting the termination of her
parental rights, contends she should be given more time to reunify with her
children, challenges whether termination of her parental rights was in the best
interest of the children, and contends permissive considerations should preclude
the termination of her parental rights.
I.
Termination-of-parental-rights proceedings are reviewed de novo. In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The statutory framework is well
established. Pursuant to section 232.116(1), the State must prove a statutory
ground authorizing the termination of a parent’s rights. See In re P.L., 778
N.W.2d 33, 39 (Iowa 2010). Second, pursuant to section 232.116(2), the State
must prove termination of parental rights is in the best interest of the child. See
id. Third, if the State has proved both the existence of statutory harm and
termination of a parent’s rights is in the best interest of the child, the juvenile
court must consider whether any countervailing considerations set forth in
section 232.116(3) should nonetheless preclude termination of parental rights.
See id. These countervailing considerations are permissive, not mandatory. See
A.M., 843 N.W.2d at 113. “The court has 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.” In re D.S., 806 3
N.W.2d 458, 475 (Iowa Ct. App. 2011) (citing In re C.L.H., 500 N.W.2d 449, 454
(Iowa Ct. App. 1993)).
II.
A.
Julie challenges the sufficiency of the evidence supporting the termination
of her parental rights pursuant to section 232.116(1)(h). Under this provision, the
State must prove by clear and convincing evidence for each child:
(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. Iowa Code § 232.116(1)(h). The first three elements are not disputed here.
Under the fourth element, a child cannot be returned to a parent if the
child would remain a child in need of assistance or would be exposed to harm
amounting to a new child-in-need-of-assistance adjudication. See In re M.M.,
483 N.W.2d 812, 814 (Iowa 1992). “We have interpreted this to require clear and
convincing evidence the children would be exposed to an appreciable risk of
adjudicatory harm if returned to the parent’s custody at the time of the
termination hearing.” In re E.H., No. 17-0615, 2017 WL 2684420, at *1 (Iowa Ct.
App. June 21, 2017).
The record establishes the following. Julie is the mother of J.C. and J.S.
The family initially came to the attention of the Iowa Department of Human 4
Services (IDHS) when then two-year-old J.C. was found wandering outside of the
family’s apartment building without supervision. At that time, Julie and J.C. were
living with J.C.’s father. J.S. had not yet been born. In addition to concerns
regarding supervision, IDHS also had concerns regarding domestic violence in
the home. Near the time of IDHS’s intervention with this family, J.C.’s father was
arrested for domestic abuse against Julie arising out of an incident in which he
struck Julie with a sawed-off shotgun, pointed the shotgun at Julie, and
threatened to kill her. J.C. was present during this incident. Julie admitted this
was not an isolated incident. IDHS also had concerns regarding substance
abuse in the home. IDHS decided to remove J.C. from the home. When J.C.
was removed from the home he tested positive for methamphetamine and
ecstasy. IDHS placed J.C. with his paternal aunt and uncle.
At the time of removal, it was apparent J.C. had suffered significant
neglect and trauma. J.C. was nonverbal and demonstrated no language
development, communicating by grunting. J.C. demonstrated aggression and
violence. J.C. also engaged in odd behaviors. J.C. made cat-like noises, such
as hissing and purring, to communicate with others. He also would only sleep on
the arm of the sofa and eat from a bowl on the floor.
Julie became pregnant with J.S. around September 2015. Julie tested
positive for methamphetamine in March 2016. She claimed the test reflected
secondary contact with methamphetamine because she was living with an active
methamphetamine user. Julie gave birth to J.S. in May 2016, and he was
immediately removed from her care. The father of J.S. is unknown. Julie could 5
not remember enough information regarding the potential father for him to be
identified.
In August 2016, Julie entered Clearview, a residential treatment facility.
Up to this point in time, Julie had denied any mental-health concerns and denied
her substance abuse despite testing positive for methamphetamine. As a
consequence, prior to entering the facility, Julie had done very little to address
the issues giving rise to the removal of her children from her care despite the fact
her case had been open for a year. The primary unaddressed issues were
Julie’s lack of employment, lack of stable housing, mental-health concerns,
substance-abuse concerns, and continued romantic involvement with criminals
and substance abusers. While at Clearview, Julie received substance-abuse
treatment and counseling to address her emotional health.
In December 2016, the matter came on for a termination hearing. Julie
testified to her progress in the facility and her impending successful discharge
from the facility. The State requested the termination proceedings be delayed to
afford Julie the opportunity to discharge and demonstrate an ability to resume
care of her children. The termination hearing was continued to March 2017.
By the time of the termination hearing, Julie had not made the expected
progress. She had not found (or really searched) for employment. She had not
found stable housing for her and the children but was instead living in a
transitional housing facility for the homeless. She had not found a recovery
sponsor. She had not found a therapist. She also had continued or resumed a
relationship with an inappropriate paramour who was a known criminal and
substance abuser. Indeed, in June 2016, Julie was arrested for theft with the 6
paramour. When confronted with evidence that she had resumed this
relationship, Julie initially denied the relationship, then attempted to minimize the
contact, and then attempted to justify the contact by contending she should be
able to be involved with anyone she pleases. She is incorrect. Sometimes
parents are forced to choose between paramours and their children. Julie chose
her paramour. See In re I.M., No. 16-0685, 2016 WL 4036256, at *1 (Iowa Ct.
App. July 27, 2016) (collecting cases considering a parent’s continued
relationship with an inappropriate paramour when terminating parental rights).
We conclude there was sufficient evidence supporting termination of
Julie’s parental rights pursuant to section 232.166(1)(h). First, Julie failed to take
any meaningful action to address the causes of removal for almost one year. “[A]
parent’s last-minute rush to address longstanding-unaddressed concerns is
insufficient to preclude the termination of parental rights.” In re K.G., No. 17-
0347, 2017 WL 2189768, at *3 (Iowa Ct. App. May 17, 2017); see In re A.E., No.
16-0510, 2016 WL 3271887, at *3 (Iowa Ct. App. June 15, 2016) (“After
sleepwalking through the first three quarters of this case, Maranda’s furious
fourth-quarter rally falls short.”); In re D.R., No. 15-1968, 2016 WL 1129385, at *4
(Iowa Ct. App. Mar. 23, 2016) (affirming termination where “mother’s late
progress in the case did not begin until after the State filed its petition seeking
termination of parental rights”); In re A.D., No. 15-1508, 2016 WL 902953, at *2
(Iowa Ct. App. Mar. 9, 2016) (“Iowa courts look skeptically at ‘last-minute’
attempts to address longstanding issues, finding them inadequate to preclude
termination of parental rights.”); In re I.V., No. 15-0608, 2015 WL 4486237, at *2–
3 (Iowa Ct. App. July 22, 2015) (holding “last-minute” use of services for litigation 7
purposes was insufficient to demonstrate the child could be returned to the
mother’s care). It is well-established that “[a] parent cannot wait until the eve of
termination . . . to begin to express an interest in parenting.” In re C.B., 611
N.W.2d 489, 495 (Iowa 2000).
Second, Julie’s late attempts to address her substance abuse fall short.
While Julie did complete treatment at the substance-abuse facility, her conduct
after discharge demonstrated she is unable to implement the strategies and life
skills taught at Clearview. See In re A.B., 815 N.W.2d 764, 776 (Iowa 2012)
(noting drug addiction can render a parent unable to care for children); In re R.P.,
No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016) (affirming
termination of parental rights of parent with history of drug abuse); In re H.L., No.
14-0708, 2014 WL 3513262, at *4 (Iowa Ct. App. July 16, 2014) (affirming
termination of parental rights when parent had history of substance abuse). Most
concerning, Julie has repeatedly attempted to evade accountability for her drug
abuse and its impact on the children. See In re M.W., 876 N.W.2d 212, 223
(Iowa 2016) (considering inability to accept responsibility for circumstances
relating to removal of children when determining if children can be returned to
parent’s care).
Julie continued her relationship with her paramour contrary to IDHS’s
instructions. Julie’s continued relationship with her paramour creates an
appreciable risk of harm to the children in two respects. First, the paramour is a
known substance abuser. Continued association with him increases the chances
the children will be exposed to controlled substances and increases the chances
Julie will relapse. Second, the paramour creates a risk of exposure to violence 8
and criminal activity. Julie’s continued involvement in this relationship
demonstrates her inability to avoid perilous situations and protect her children.
See In re K.C., No. 10-1522, 2010 WL 5050710, at *5 (Iowa Ct. App. Dec. 8,
2010) (“The dangers and risks to children as a result of being around drugs and
drug users can hardly be understated.”); In re S.T., No. 07-2130, 2008 WL
375424, at *1 (Iowa Ct. App. Feb. 13, 2008) (noting mother’s continued
association with “violent, drug abusing people” would put child at risk if returned
to mother’s care); In re M.R.H., No. 07-0031, 2007 WL 601843, at *2 (Iowa Ct.
App. Feb. 28, 2007) (considering mother’s continued choice to associate with
drug abusers and her dishonesty regarding her relationships with them).
Julie cannot provide for the basic physical needs of her children. At the
time of the termination hearing, she lacked employment and stable housing. See
In re M.T., No. 03-1417, 2003 WL 22346539, at *2 (Iowa Ct. App. Oct. 15, 2003)
(considering mother’s inability to find employment or stable housing when
determining children could not be returned to her care); In re K.H., No. 03-0671,
2003 WL 21459582, at *2 (Iowa Ct. App. June 25, 2003) (concluding the children
would be at a continued risk for harm when the father did not have stable
employment or housing).; In re B.T., No. 01-0920, 2002 WL 985533, at *1 (Iowa
Ct. App. May 15, 2002) (noting mother only secured stable housing shortly
before termination hearing and only had a job for three months prior).
Finally, Julie has not demonstrated an ability to provide for the mental and
emotional needs of her children. While J.C. was in her care, he had not obtained
basic language skills, and he demonstrated inappropriate behaviors. Throughout 9
the life of the case, Julie has not demonstrated any appreciation for the needs of
her children as compared to her own wants and desires.
It is clear the children could not be returned to Julie’s care at the time of
the termination hearing. We reject Julie’s challenge to the sufficiency of the
evidence supporting the statutory ground authorizing the termination of her
parental rights.
B.
Julie argues IDHS failed to make reasonable efforts to reunify her with the
children. She contends IDHS failed to provide an adequate number of visitation
sessions, failed to provide timely semi-supervised and unsupervised contact, and
failed to provide transportation assistance. As part of its ultimate proof, the State
must establish it made reasonable efforts to return the child to the child's home.
See Iowa Code § 232.102(9) (providing department of human services must
make “every reasonable effort to return the child to the child’s home as quickly as
possible consistent with the best interests of the child”). “[T]he reasonable efforts
requirement is not viewed as a strict substantive requirement of termination.
Instead, the scope of the efforts by the [department of human services] to reunify
parent and child after removal impacts the burden of proving those elements of
termination which require reunification efforts.” C.B., 611 N.W.2d at 493. The
core of the mandate is the child welfare agency must make reasonable efforts to
“facilitate reunification while protecting the child from the harm responsible for the
removal.” See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). The
nature of the reasonable efforts mandate is determined by the circumstances of
each case. See C.B., 611 N.W.2d at 493. 10
On de novo review, we conclude the State made reasonable efforts to
reunify the family under the circumstances. When Julie entered the residential
treatment facility, the department did decrease the number of visits with J.C. and
changed the visits from semi-supervised to supervised. The change in visitation
was a reasonable response to the change in location and to J.C.’s regressive
behaviors. Specifically, J.C. began to demonstrate negative behaviors when
visitation was held at the facility. The juvenile court took note of this and directed
visitation be increased as J.C. became accustomed to the new visitation
schedule and stopped demonstrating inappropriate behaviors. This eventually
occurred. The adjustment to Julie’s visitation schedule in response to her
changed circumstances does not establish the State failed to make reasonable
efforts. In addition to appropriate visitation, IDHS offered Julie a variety of other
services, including: a CINA assessment; IDHS case management services;
visitation; Family Safety, Risk, and Permanency services; family team meetings;
family peer support; child-parent psychotherapy; relative placement; drug testing;
substance-abuse treatment; mental-health therapy; domestic violence services;
gas cards; gift cards; bus passes; and housing assistance. The State made
reasonable efforts to reunify the family.
C.
Julie posits the children could have been returned to her care had the
juvenile court granted her a six-month extension of time as permitted by Iowa
Code section 232.104(2)(b). Under Iowa Code section 232.104(2)(b), the court
may enter an order continuing placement of the children upon a finding the need
for the children’s removal will no longer exist at the end of the additional six- 11
month period. The court must “enumerate the specific factors, conditions, or
expected behavioral changes which comprise the basis for the determination” the
need for removal will no longer exist at the end the extension. Iowa Code
§ 232.104(2)(b). Like the district court, we cannot conclude the need for removal
would have abated if Julie would have had an additional six months’ time. Julie
has a history of methamphetamine abuse and involvement with criminals,
substance abusers, and domestic abusers. Rather than taking action to
meaningfully address the causes of removal, Julie has denied, deflected, and
attempted to justify her conduct. In addition, the juvenile court already granted
Julie a three-month reprieve in these proceedings to allow Julie more time to
demonstrate progress in addressing the issues giving rise to removal. She failed
to do so. “What’s past is prologue.” In re K.F., No. 14-0892, 2014 WL 4635463,
at *4 (Iowa Ct. App. Sept. 17, 2014).
D.
Julie challenges the juvenile court’s determination termination of her
parental rights is in the children’s best interest. She cites her strong bond with
the children and testimony from IDHS workers about her improved interactions
with the children. “When considering a child’s best interest[ ], 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.’” In re M.T., No. 14-2133, 2015 WL 1055518, at
*2 (Iowa Ct. App. Mar. 11, 2015). When determining best interest, it is important
to consider both long-term and short-term interest. See In re J.E., 723 N.W.2d 12
793, 798 (Iowa 2008). To gain insight on what the future may bring, the parent’s
past actions may be reviewed. See id.
We conclude the State proved by clear and convincing evidence that
termination of Julie’s parental rights is in the best interest of the children. First,
Julie overstates the strength of her bond with the children. J.C. was removed
from Julie’s care while a toddler and J.S. was removed at the time of birth. She
thus had little time to build any significant bond with the children. In addition,
while J.C. was in her care, Julie failed to provide adequate care to the child. She
had difficulty meeting the child’s most basic needs, and she exposed the child to
domestic violence and drugs. The child suffered while in her care. As noted
above, at the time of removal, the child had not developed basic language skills
and demonstrated odd behaviors. In contrast, the children are thriving in their
current placements. J.C.’s aunt and uncle have been able to address his unique
emotional and developmental challenges. J.S. is also progressing well in his
current foster care placement. J.C. and J.S. deserve permanency with parents
that are able to meet their needs. See In re D.W., 791 N.W.2d 703, 707 (Iowa
2010) (“We do not ‘gamble with the children’s future’ by asking them to
continuously wait for a stable biological parent, particularly at such tender ages.”
(quoting In re D.W., 385 N.W.2d 570, 578, (Iowa 1986))). Termination of Julie’s
parental rights is in the children’s best interest.
E.
Julie argues statutory exceptions in Iowa Code section 232.116(3) are
applicable and the court need not terminate her rights. She notes J.C. is in the
custody of his paternal aunt, making Iowa Code section 232.116(3)(a) applicable 13
to J.C. She also argues termination would be detrimental to the children due to
the closeness of her relationship with them, making Iowa Code section
232.116(3)(c) applicable to both children. These provisions are permissive and
not mandatory. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997),
overruled on other grounds by P.L., 778 N.W.2d at 39–40.
Under the circumstances, we see no benefit to maintaining the parent-
child relationship that would warrant exercising the permissive exceptions to
termination of Julie’s parental rights. Julie lacks a significant parental bond with
the children. She cannot provide for their basic needs. She cannot keep them
safe. They are thriving in their present placements. There is no evidence the
children would suffer by having no further contact with their mother.
III.
We affirm the termination of Julie’s parental rights in J.C. and J.S.
AFFIRMED.