In the Interest of J.R. and N.B., Minor Children, L.C., Mother, J.R., Father

• Court: Court of Appeals of Iowa
• Decided: September 10, 2015
• Docket: 15-1096
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1096 Filed September 10, 2015

IN THE INTEREST OF J.R. and N.B., Minor Children,

L.C., Mother, Appellant,

J.R., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise Jacobs,

District Associate Judge.

A mother and father appeal separately from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Lynn C.H, Poschner of Borseth Law Office, Altoona, for appellant mother. Steven L. Cooper of Cooper, Goedicke, Reimer & Reese Law Firm, P.C., West Des Moines, for appellant father of J.R. Jason Rieper, Des Moines, for father of N.B. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Kathryn K. Lang, Assistant Attorney General, John P. Sarcone, County Attorney, and Kevin Patrick and Stephanie Brown, Assistant County Attorneys, for appellee State. Erin Mayfield of the Youth Law Center, Des Moines, for minor children.

Considered by Danilson, C.J., and Vogel and Tabor, JJ. 2

PER CURIAM

The mother of J.R. and N.B. and the father of J.R. appeal separately from

the juvenile court order terminating their parental rights.1 The mother maintains

that both children could have been returned to her care at the time of the

termination hearing, termination is not in the best interests of the children, and

termination is not necessary because both children are in the legal custody of

family members. The father maintains he should receive an extension of time for

reunification, termination is not in J.R.’s best interests, the State failed to make

reasonable efforts, and termination is not necessary because J.R. is in the legal

custody of a family member.

The mother has failed to take any steps to address her use of

methamphetamine, and the children have been out of her custody for over two

years. In regard to the mother, we conclude the children could not be returned to

her care at the time of the termination hearing, termination was in the children’s

best interests, and no factor weighs against termination. The father refused to

cooperate with DHS after making threats of violence towards others involved in

the case and speaking of harming himself. Thus, an extension of time was not

warranted, termination is in J.R.’s best interests, and no factor weighs against

termination. We affirm the juvenile court’s order terminating the rights of both

parents.

I. Background Facts and Proceedings.

The family first came to the attention of the Iowa Department of Human

Services (DHS) in 2011 when the mother was stopped by police and found to

1 The parental rights of N.B.’s father have not been terminated. 3

have methamphetamine and prescription medications in her possession. At the

time, N.B. was also in the vehicle and J.R. was not yet born. The mother was

criminally charged and ultimately placed on probation. As part of the terms of her

probation, the mother was required to submit to drug testing as ordered.

Approximately two years later, in July 2013, the mother tested positive for

methamphetamine. When asked, the mother admitted she was using several

times per week. N.B. and J.R. (born in April 2012) were removed from the

mother’s care. Both were placed with their respective fathers.

On September 3, 2013, both children were adjudicated to be children in

need of assistance. The court noted the mother had ongoing issues with

depression and the use of methamphetamine.

Between September 3 and October 15, 2013, the mother tested positive

for methamphetamine twice.

J.R.’s father did not cooperate with the interaction and visitation schedule

set up by DHS for J.R. and the mother. At the dispositional hearing on

October 15, 2013, the court specifically informed the father that he was required

to cooperate. DHS expressed frustration in its efforts to reunify the mother with

J.R. due to the father’s interference with visitation and his attempt to exercise

control over whether visitation should occur.

The father’s interference with visits escalated following the dispositional

hearing. On December 2, 2013, the father would not answer phone calls from

the family support worker who was trying to set up a visit.

On December 12, 2013, the State filed a motion asking the court to hold

the father in contempt for interfering with the mother’s visitation. 4

The father allowed a visit on December 18, 2013, but at the visit the

mother reported that she had received more than 1800 texts from the father and

some of them were threatening towards her and DHS. She reported that some

messages included references to “dead people” and the father “killing himself.”

She received those messages after the father showed up unexpectedly at her

residence and she refused to allow him inside.

On January 3, 2014, the State filed a motion to modify disposition.

Because of the “disturbing messages and/or threats of violence by [the father]

towards himself and/or others,” the State asked the court to order the immediate

removal of J.R. from the father’s care and place him in the custody of DHS for

the purpose of foster care placement. The same day, the juvenile court granted

the motion. When the family support worker went to J.R.’s daycare to pick him

up, the father’s mother was present and told the worker to leave immediately

“because [the father] was on his way, and she was afraid of what he would do

when he arrived.” The worker left, and no immediate interaction with the father

occurred. However, the same day J.R. was removed, the father sent Jonah

Parks, the current DHS caseworker an email stating, “Mr. [P]arks you are a dead

man. Return my son now and you live.” The father also called and texted the

family support worker “repeatedly” and “only stopped when the police arrived at

her home to take her statement.” The father was arrested on first-degree

harassment charges. He ultimately pled guilty to the charges, and no-contact 5

orders were put in place requiring new caseworkers and family support workers

to become involved with the case.2

As a result of his actions, DHS required the father to obtain a mental

health evaluation and to follow all recommendations. All visits were suspended

until he complied with the requirement.

The mother tested positive for methamphetamine in April 2014. She then

failed to show up for drug testing fourteen times between April 22 and July 7,

2014. The mother admits she stopped seeing her drug counselor in May 2014

and has not seen one since. She also admits that she “relapsed” sometime

between April and July 2014. The last drug screen she provided was the positive

test in April 2014. She never provided a negative drug screen throughout these

proceedings.

The father did not comply with the requirement of obtaining a mental

health evaluation until the fall of 2014. After he completed the evaluation, the

father initially provided a release for DHS, and a discussion with the evaluator

was planned. However, before the discussion took place, the father revoked the

release. After the evaluator learned the father had withheld information

regarding the harassment charges and the contact he had initiated with DHS, the

therapist recommended the father obtain a psychiatric evaluation. The father

refused to comply with the recommendation and stated he was finished working

with DHS.

2 The father continued to send communications with derogatory language, threats, and various demands throughout the pendency of the case. He offered to “settle now for [his] son back, $15 million and all cases dropped!” He also sent the caseworker supervisor an email stating, “F*ck you c*nt. F*ck you. Return my son.” Other times, he sent emails ordering DHS not to allow J.R. to have visits with the mother. 6

The State filed the petition to terminate both the mother’s and father’s

parental rights on November 25, 2014.

At the termination hearing, held on January 30, 2015, the mother

maintained that she had completed substance abuse treatment, but she could

not provide information of when she had done so or proof she had completed it.

She stated she had not complied with any drug testing due to transportation

issues.

At the termination hearing, the father reaffirmed that he did not intend to

obtain a psychiatric evaluation even though he was required to do so for

visitation by DHS and as a requirement of his probation. The father had only one

visit with J.R. after he was removed in January 2013.3

On June 19, 2015, the juvenile court filed the order terminating the

mother’s parental rights to N.B. pursuant to Iowa Code section 232.116(1)(d), (e),

and (f) (2015) and to J.R. pursuant to section 232.116(1)(d), (e), and (h). The

father’s parental rights to J.R. were terminated pursuant to section 232.116(1)(e)

and (h).

The mother and father appeal separately.

II. Standard of Review.

We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We give weight to the juvenile court’s

findings, especially assessing witness credibility, although we are not bound by

them. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). An order terminating

3 The visit occurred after the father obtained the mental health evaluation before he revoked his release. 7

parental rights will be upheld if there is clear and convincing evidence of grounds

for termination under Iowa Code section 232.116. Id. Evidence is “clear and

convincing” when there are no serious or substantial doubts as to the correctness

of the conclusions of law drawn from the evidence. Id.

III. Discussion.

Termination of parental rights under chapter 232 follows a three-step

analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the court must

determine if a ground for termination under section 232.116(1) has been

established. See id. Second, if a ground for termination is established, the court

must apply the framework set out in section 232.116(2) to decide if proceeding

with termination is in the best interests of the child. See id. Third, if the statutory

best-interests framework supports termination of parental rights, the court must

consider if any statutory exceptions set forth in section 232.116(3) should serve

to preclude the termination of parental rights. See id.

A. Mother’s Appeal.

1. Statutory grounds. When the juvenile court terminates parental rights

on more than one statutory ground, we may affirm the order on any ground we

find supported in the record. D.W., 791 N.W.2d at 707.

Iowa Code section 232.116(1)(f) provides that termination may be ordered

when there is clear and convincing evidence the child is four years of age or

older, had been adjudicated a CINA, has been removed from the parent’s

custody for at least twelve of the last eighteen months, and cannot be returned to

the parent’s custody at the time of the termination hearing. Section

232.116(1)(h) provides that termination may be ordered when there is clear and 8

convincing evidence the child is three years of age or younger, had been

adjudicated a CINA, has been removed from the parent’s custody for at least six

of the last twelve months, and cannot be returned to the parent’s custody at the

time of the termination hearing

Here, the mother disputes that the State proved by clear and convincing

evidence that the children could not be returned to her care at the time of the

termination hearing. The mother maintains that because she had a residence

with enough bedrooms and toys for the children and had consistently attended

the visits offered to her, the children could be returned to her care.

Although the mother was living in a three-bedroom home at the time of the

termination hearing, there were ongoing concerns about the mother’s residence.

When a support worker visited the residence to approve it for visits, the mother

refused to let the worker into her bedroom and the basement of the home. The

worker believed the mother was hiding something in those rooms—possibly

items belonging to a roommate or paramour that she had not disclosed to DHS.

As a result, the home was not approved by DHS. Based on his observations, the

worker also believed the mother was still using methamphetamine. Although the

mother testified she had not used methamphetamine since June or July 2014,

the mother had not provided a single drug test since April 2014 and had stopped

seeing her drug counselor at approximately the same time. The last test she

provided was positive for methamphetamine. Because of the mother’s failure to

follow through with DHS requirements regarding drug counseling and testing,

visits with the children never progressed to unsupervised visits or overnight visits. 9

The State proved by clear and convincing evidence the children could not be

returned to the mother’s care at the time of the termination hearing.

2. Best interests of the children. The mother maintains termination of

her parental rights is not in the best interests of J.R. and N.B. She maintains that

the children are bonded with her and will be negatively impacted.

Daniel McClung, one of the family’s service providers, testified about the

bond between the mother and the children. He testified that both children are

happy to see their mother at visits and seem to look forward to the visits. The

mother is appropriate at visits and has never needed to be redirected. McClung

testified “it might be traumatic” for J.R. if the mother’s rights are terminated. The

mother discontinued her counseling and had the opportunity to undergo drug

testing to prove she is not an active user of methamphetamine but did not. “[A]

child’s safety and his or her need for a permanent home” are “the defining

elements in a child’s best interests.” In re J.E., 723 N.W.2d 793, 802 (Iowa 2006)

(Cady, J., concurring specially)). We observe that J.R. was under three years of

age at the time of the termination proceeding and had been out of the mother’s

care for approximately eighteen months. During those eighteen months, the

mother failed to establish she can safely parent the children. “The crucial days of

childhood cannot be suspended while parents experiment with ways to face up to

their own problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). J.R. was

“very happy” in the home of his paternal uncle and “continued to do well.” The

family expressed they were “willing and committed to [J.R.]” and wanted to adopt

him if the parental rights were terminated. We believe the need to preserve the 10

mother-child bond is outweighed by the children’s needs for safety and a

permanent home. Thus, we find termination is in the children’s best interests.

3. Permissive factors. The mother maintains termination was not

necessary because N.B. is in the legal custody of his father and J.R. is in the

legal custody of his paternal uncle.

Upon our de novo review, we agree with and adopt the district court’s

conclusions concerning the permissive factors:

It is important that the custodians of the children be able to have every tool to control the interjection of either [the mother] or [the father] into the lives of the children until they address the issues of concern presented; they have made so little progress. [The mother’s] and [the father’s] challenges include aspects of unreasonable control, interference into the role of custodians, and a history of disregarding boundaries. Because the children are placed with another parent (as to [N.B.]) and with an uncle (as to [J.R.]), it gives [the mother] and [father] the opportunity for children to still have connection with their biological families. However, at this time, the safety and best interest of the children requires termination of the parental rights of [the mother] and [father], without application of any exceptions.

We agree that no permissive factor weighs against the termination of the

mother’s parental rights to N.B. and J.R.

B. Father’s Appeal.

1. Reasonable efforts. The father claims the State failed to make

reasonable efforts for reunification. When a child is removed from the parents’

care, the State is responsible for making “every reasonable effort to return the

child to the child’s home as quickly as possible consistent with the best interest of

the child.” Iowa Code § 232.102(7). “Reasonable efforts” means those efforts

that “make it possible for the child to safely return to the family’s home.” Id.

§ 232.102(10)(a). The State must exert reasonable efforts to reunite parent and 11

child before parental rights are terminated. In re A.B., 554 N.W.2d 291, 294

(Iowa Ct. App. 1996). What constitutes reasonable efforts to provide services

varies, depending on the requirements of each case. In re C.H., 652 N.W.2d

144, 147 (Iowa 2002) (noting focus is generally on services to improve

parenting). “The concept of reasonable efforts broadly includes a visitation

agreement designed to facilitate reunification while protecting the child from the

harm responsible for the removal.” Id. (internal quotation marks omitted).

The father maintains he was not given “sufficient opportunity to

demonstrate his parenting ability” because the State failed to provide visits to the

father after J.R. was removed from his care. Here, the question was not whether

the father had the necessary parenting skills because the father created his own

problems due to his threats of violence towards others and statement about

harming himself. It was reasonable for DHS to limit the father’s interactions with

J.R. until it was determined whether he was a threat to J.R.’s or the workers’

physical safety. The father also refused to complete the evaluations or sign

releases to allow DHS to review the information. The State did not fail to make

reasonable efforts.

2. Statutory grounds. The father does not dispute that the statutory

grounds pursuant to Iowa Code section 232.116(1)(h) have been met for the

termination of his parental rights to J.R. Nonetheless, the father maintains he

should receive a six-month extension to work towards reunification. An

extension is only appropriate when “the need for removal of the child from the

child’s home will no longer exist at the end of the additional six months.” See

Iowa Code § 232.104(2)(b). Here, the main concern was the uncertainty 12

regarding the father’s mental health and the possibility of a violent outburst.

Although he was ordered to complete a psychiatric evaluation as part of the case

plan and as part of his probation for the harassment conviction, the father

refused to do so. At the termination hearing, he reaffirmed that he had no

intention to follow through with the requirement. We cannot say that an

additional six months would put the father in the position to reunify with J.R.

3. Best interests of the child. The father maintains it is not in J.R.’s best

interests to terminate the father’s parental rights. At the time of the termination

hearing, J.R. was approximately two and a half years of age. He had been

removed from his father’s custody for over one year. During that period, the

father had only one visit with J.R. because of the father’s refusal to obtain the

evaluation and the resulting ongoing safety concerns. “Once the [statutory]

period lapses, termination proceedings must be viewed with a sense of urgency.”

In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). Termination is in J.R.’s best

interests because it will allow him to achieve permanency. See J.E., 723 N.W.2d

at 802.

4. Permissive Factors. The father maintains termination was not

necessary because J.R. is placed with his paternal uncle and because of the

strong bond between J.R. and his father. See Iowa Code § 232.116(3)(a), (c).

The father upset J.R.’s placement with the paternal uncle in October 2014

by threatening to come get J.R. from the home without DHS’s permission. The

uncle was concerned about being in violation of the court’s order and possible

ramifications for his family, so he asked DHS to remove J.R. from the family’s

home. After speaking with DHS further and talking to an attorney, the uncle 13

contacted DHS about the family’s willingness to be a placement for J.R. again.

The family also expressed their willingness to adopt J.R. if the need arose. For

these reasons and the aforementioned reasons provided by the juvenile court,

the permissive factors do not weigh against the termination of the father’s

parental rights to J.R.

IV. Conclusion.

The mother has failed to take any steps to address her use of

methamphetamine, and the children have been out of her custody for over two

years. The children could not be returned to her care at the time of the

termination hearing, termination was in the children’s best interests, and no factor

weighs against termination. The father refused to cooperate with DHS after

making threats of violence towards others and a statement about harming

himself. Thus, an extension of time was not warranted, termination is in J.R.’s

best interests, and no factor weighs against termination. We affirm the juvenile

court’s order terminating the rights of both parents.

AFFIRMED ON BOTH APPEALS.