In the Interest of J.L., B.L., and K.L., Minor Children

• Court: Court of Appeals of Iowa
• Decided: April 14, 2021
• Docket: 21-0023
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0023 Filed April 14, 2021

IN THE INTEREST OF J.L., B.L., P.L., and K.L., Minor Children,

J.L., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Rose Anne

Mefford, District Associate Judge.

A mother appeals the termination of her parental rights to four children.

AFFIRMED.

Michael S. Fisher of Fisher Law Office, Oskaloosa, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Eric J. Palmer, Oskaloosa, attorney and guardian ad litem for minor

children.

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

TABOR, Judge.

The mother, Jessica, appeals the termination of her parental rights to four

children. She contends the State did not prove the statutory grounds for

termination; the juvenile court should have given her additional time; and it was not

in the children’s best interests to end her parental relationship. Jessica naturally

highlights her recent success in completing a first step in substance-abuse

treatment. But unfortunately the record reveals a pattern of her seeking treatment

without follow up. Concerned that she would repeat the pattern, the juvenile court

decided she had not been substance-free long enough to resume custody. Jessica

admits as much and asks for a delay in permanency. We cannot sanction that

delay when her treatment history provides little reassurance that the need for

removal will be resolved in short order. Finally, we agree with the juvenile court

that terminating Jessica’s parental rights serves the children’s best interests. So

we affirm.

I. Facts and Prior Proceedings

In June 2018, the Iowa Department of Human Services (DHS) became

involved with this family after a domestic-violence incident. The perpetrator was

Jessica’s husband and the children’s father, Jacob.1 An investigation revealed the

parents’ methamphetamine addictions. The juvenile court removed the children

from Jessica and adjudicated them as children in need of assistance

(CINA). Because Jessica is a member of the Osage Nation, the State notified the

relevant tribe of the proceedings under the Iowa Indian Child Welfare Act

1Jacob was charged with domestic abuse assault. Later, he and Jessica were both convicted of violating a no-contact order. 3

(ICWA). See Iowa Code § 232.7; ch. 232B (2018). Osage Nation Social Services

determined the children were members of the tribe and intervened as a party in

the proceedings.2

The court placed the children with Jacob. It ordered both parents to obtain

substance-abuse and mental-health treatment and consent to drug testing. In

October 2018, the DHS removed the children from Jacob and placed them with

their paternal grandparents. That move came because Jacob continued to use

methamphetamine and allowed the children contact with Jessica, who also

continued using drugs. After Jacob completed inpatient substance-abuse

treatment the following spring, the DHS restored his custody.

For her part, Jessica obtained substance-abuse evaluations but did not

engage in treatment. Then in the spring of 2019, Jessica entered inpatient

treatment at Clearview Recovery Center. She discharged successfully in

June. She moved back in with Jacob and the children, and the court transferred

custody back to them in August. The family reunion was short-lived. By

September, Jacob and Jessica were using methamphetamine again. Both parents

and then-twenty-month-old J.L. tested positive for the drug. The DHS removed

the children and placed them in the custody of their maternal grandparents in

October.3

2 In her appeal, Jessica does not raise any ground for reversal that involves the additional protections for Indian children in child-welfare proceedings. See Iowa Code ch. 232B. So we decline to address those requirements. 3 We will refer to Jessica’s father and his wife (the children’s step-grandmother) as

the grandparents. 4

Over the next year, the parents struggled with sobriety and becoming safe

caregivers. Jessica moved in and out of a home she shared with Jacob. They

remained married but expressed a desire to divorce. Jessica spent most nights at

the home of her paramour, Jamie. The DHS was concerned about this

relationship. In December 2019, Jessica candidly told DHS she was using again

and not attending treatment. The next month, she reported she was moving to

Oklahoma to live with her sister’s family. Jessica believed she had a better shot

at staying sober if she left Iowa. The DHS provided her with treatment resources

in Oklahoma. But only days later, Jacob drove to Oklahoma and brought Jessica

back to Iowa. She then went back to staying with Jamie.

At a March 2020 meeting, Jessica admitted she was still using

methamphetamine. She reported using once a day, a large decrease from her

previous practice. That month, she returned to Oklahoma, where her family had

arranged for substance-abuse treatment. Jessica and Jacob said they intended

to go together and eventually bring the children to Oklahoma to live with

them. Also at the March meeting, the DHS worker encouraged Jessica to get in

touch with Osage Nation Social Services for help setting up services in Oklahoma.

Jessica soon left Oklahoma. She had little contact with DHS until that June,

when she called her social worker to report entering inpatient treatment at

Clearview again. But Jessica left Clearview three days later. She explained it was

because she ran out of her pain medications. She returned to treatment in July

and successfully completed the program in September. While there, she also

started therapy. 5

Meanwhile, the State petitioned to terminate parental rights for both Jacob

and Jessica in August 2020. At the termination hearing, Jessica testified to her

progress. First, she had successfully discharged from Clearview the week

before. She reported maintaining her sobriety for ninety-one days, her longest

stretch since the case opened. Her first outpatient appointment was scheduled for

the next week. She also planned to continue with therapy. Second, she had made

inquiries about two jobs but had not secured one yet. And third, Jessica was

working on finding her own apartment. But upon discharge from Clearview, she

went to live with Jamie again. Jessica was aware of DHS concerns about their

relationship. But she chose to return to Jamie’s place “[b]ecause he said he was

going to get sober while [she] was in treatment.” She admitted Jamie had been a

daily intravenous methamphetamine user and had received no treatment in the

last two years. She testified her children could be in Jamie’s house “as long as he

was sober.” She asked the juvenile court for an “additional thirty days” to set up

her living situation.

The DHS social worker testified to the depth of Jessica’s addiction. She

believed Jessica had used methamphetamine daily throughout the CINA

case. Most of Jessica’s random drug tests were positive for

methamphetamine. And she was charged with possession of methamphetamine

and non-prescribed narcotics while being booked into jail for other charges. A

report from her inpatient treatment said Jessica admitted using methamphetamine

“more than three times daily, IV injection.”

The social worker also testified about the children. P.L. and B.L., fourteen-

and ten-year-old boys, understand that their parents struggle with addictions. They 6

want to remain with their grandparents. They both feel safe and nurtured in the

grandparents’ home. Indeed, both boys are physically healthy and meeting

developmental milestones. B.L. often expresses frustration and anxiety about his

parents making failed promises to bring them home. The girls, two-year-old J.L.

and three-year-old K.L., are also in good health and developmentally

normal. According to the social worker, they appear comfortable and happy with

the grandparents. The grandmother testified the children are doing well. If the

parents’ rights were terminated, the grandparents intended to adopt all four

The juvenile court considered the opinion of Jerod Applegate, an Indian

Child Welfare specialist for the Osage Nation Social Services. Based on his

testimony, the court found “a vigorous and concerted level of casework beyond

what typically constitutes reasonable efforts.” Yet those active efforts to reunite

Jessica with her children did not succeed. The court noted: “With over two years

of involvement, Applegate has witnessed the substance abuse cycle of the

parents. The parents’ continued inability to address their addictions is detrimental

to the long term permanency of the children, causing them to be unsure of their

future.” With that in mind, the court terminated the parental rights of both Jessica

and Jacob.4

Jessica appeals.5

4 Jacob is not participating in this appeal. 5 “We review child-welfare proceedings de novo.” In re A.H., 950 N.W.2d 27, 33 (Iowa Ct. App. 2020). “The juvenile court’s fact findings do not bind us, but we give them weight, particularly with regard to credibility.” Id. Our primary concern is the best interests of the children. Id. 7

II. Analysis

A. Statutory Grounds for Termination

Jessica first contends the State failed to prove the grounds for terminating

her parental rights under Iowa Code section 232.116(1) (2020). “There must be

clear and convincing evidence of the grounds for termination of parental rights.” In

re Z.P., 948 N.W.2d 518, 523 (Iowa 2020) (citation omitted). The juvenile court

found sufficient evidence to terminate Jessica’s rights for all the children under

section 232.116(1), paragraph (l),6 for the three older children (P.L, B.L., and K.L.)

under paragraph (f),7 and for the youngest child, J.L., under paragraph (h).8 We

6 Iowa Code section 232.116(1), paragraph (l) requires proof of the following: (1) The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102. (2) The parent has a severe substance-related disorder and presents a danger to self or others as evidenced by prior acts. (3) There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home. 7 Iowa Code section 232.116(1), paragraph (f) requires proof of the following:

(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is 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. 8 Iowa Code section 232.116(1), paragraph (h) requires proof of the following:

(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, 8

may affirm if clear and convincing evidence supports any of the alternatives. In re

J.A.D.-F., 776 N.W.2d 879, 884 (Iowa Ct. App. 2009). A common element among

the three paragraphs is proof that the child cannot be returned to the parent. Under

paragraphs (f) and (h), the State need only prove that the child cannot be returned

“at the present time.” Iowa Code § 232.116(1)(f)(4), (h)(4); see In re A.M., 843

N.W.2d 100, 111 (Iowa 2014) (defining “at the present time” as the time of the

termination hearing).

Jessica believes she could have resumed care of the children at the time of

the hearing. She argues she completed inpatient substance-abuse treatment and

“was maintaining a substance free lifestyle.” She claims to have engaged in

mental-health treatment and “addressed and continue[s] to participate in services,

to alleviate any concerns that the [DHS] had throughout the case.” She asserts

the State “minimized” her progress and failed to carry its burden.

Starting there, we commend Jessica for her progress. But we disagree that

the State mischaracterized it. Her substance-abuse progress was recent

vintage—she completed the inpatient program just days before the termination

hearing. And it was her third effort. Her first attempt was also successful, but she

soon lapsed into old patterns. The second inpatient stay ended after only a few

days, a month before the successful third try. It is also admirable that she had

maintained over ninety days of sobriety. But for most of the CINA case, Jessica

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. 9

did not engage in treatment and failed to maintain sobriety. In fact, the record

showed that she used methamphetamine daily, sometimes more than once a day.

To be fair, her counselors believed that she was taking this attempt at

treatment more seriously. But the professionals recognized Jessica’s pattern of

failing to follow recommendations for ongoing care. And circumstances after she

completed treatment were not promising. She had no job and no independent

housing. Instead, she returned to living with Jamie, a known methamphetamine

user. Jessica’s testimony that her children could join her at his home reveals a

lack of insight into risky situations. Even so, Jessica recognized she was unready

to resume care at the termination hearing. As child-welfare specialist Applegate

testified, “[W]e haven’t really achieved the level of sobriety and life change that is

going to sustain and keep the children safe and send them home.” We agree with

this characterization.

We cannot return children to their parent’s custody “if by doing so [they]

would be exposed to any harm amounting to a new child in need of assistance

adjudication.” In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). Jessica’s unresolved

addiction risks that exposure. Her recent progress is not stable enough to

conclude the children would no longer be in need of assistance. See In re J.S.,

846 N.W.2d 36, 42 (Iowa 2014) (“[A] juvenile court could reasonably determine

that a parent’s active addiction to methamphetamine is ‘imminently likely’ to result

in harmful effects to the physical, mental, or social wellbeing of the children in the

parent’s care.” (citation omitted)). Clear and convincing evidence supports the

conclusion that Jessica could not resume custody of the children at the time of the

termination hearing. 10

B. Additional Time

Next, Jessica asserts she made “significant strides” in the months before

the termination hearing. So the juvenile court should have given her additional

time “to build on her progress.” The court may delay permanency for six months

under Iowa Code section 232.104(2)(b), if the need for removal would no longer

exist after that time. Iowa Code § 232.117(5); In re A.A.G., 708 N.W.2d 85, 89

(Iowa Ct. App. 2005). The best predictor of Jessica’s future performance is her

past performance. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012). And her

past performance is troubling. Jessica’s history of instability weighs against

granting an extension, and we are unable to enumerate factors, conditions or

behavioral changes that will alleviate the need for removal after six months. We

decline the mother’s request for an extension.

C. Best Interests

Finally, Jessica contends it was not in the children’s best interests to

terminate her parental rights.9 She argues, “Permanently extinguishing the

relationship a mother has with her children after significant progress has been

made based on lingering concerns was not in the children’s long-term best

interests.” To call her progress “significant” may be premature. To cast the

concerns as “lingering” minimizes her substance-abuse history.

The record reveals ongoing, serious doubts about Jessica’s ability to

maintain her sobriety—from her choice of paramour to her living situation and poor

9 Jessica’s petition on appeal cites Iowa Code section 232.116(1)–(3) but presents argument only on the children’s “best interests.” Subsection (2) deals with “best interests,” so we use that statutory language to guide this analysis. 11

insights. When we consider the children’s best interests, we give primary

consideration to their safety; the best placement for furthering their long-term

nurturing and growth; as well as their physical, mental, and emotional condition

and needs. Iowa Code § 232.116(2); see In re P.L., 778 N.W.2d 33, 37 (Iowa

2010). Safety and the need for a permanent home mark the “defining elements”

of their best interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,

concurring specially). Jessica has been unable for almost two years to

demonstrate a durable commitment to sobriety. She has not shown she can

provide a safe and stable space for the children to grow. So the children’s best

interests compel terminating her rights and allowing the grandparents to adopt

them.