IN THE COURT OF APPEALS OF IOWA
No. 14-1146 Filed September 17, 2014
IN THE INTEREST OF J.S., Minor Child,
M.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant
County Attorney, for appellee.
Erin Mayfield of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
MULLINS, J.
A mother appeals the termination of her parental rights to her child, J.S.1
She asserts the juvenile court erred in terminating her rights because the State
failed to prove by clear and convincing evidence the statutory grounds for
termination under Iowa Code section 232.116(1)(d), (e), (g), and (h) (2013). She
also claims it is in the child’s best interest that her rights not be terminated and
that the child has a bond with her, establishing an exception to termination. For
the reasons stated, we affirm the termination order of the juvenile court.
I. Background Facts and Proceedings.
J.S., born in May 2013, came to the attention of the department of human
services (DHS) after mother left him with friends for several days without
checking in on the child or providing basic necessities. DHS determined the
friends were inappropriate caretakers and obtained a temporary removal order to
place J.S. in foster care. The mother, at that time, was in jail on theft charges.
The mother’s parental rights to her two older children had previously been
terminated by the State of Minnesota in 2010 and 20132 due to medical neglect
and failure to maintain contact. At the subsequent removal hearing, the mother
did not appear, though she had been released from jail. The mother did appear
1 The parental rights of the unknown putative father were also terminated as part of this proceeding. Paternity testing of two individuals during the course of this case established the two men the mother named as the father were not related to the child. As a result, the identity of the father is unknown at this time, and no appeal has been filed on behalf of any putative father. 2 J.S. was born just days before the mother’s parental rights were terminated to her second child. 3
at the adjudicatory hearing in August 2013, though she was at that time back in
jail on a new theft charge and a probation violation.
Once the mother was released from jail, having resolved her criminal
matters, services were provided, including: parenting classes; drug screens; child
protective assessment services; foster care; individual therapy; NA/AA meetings;
sponsor; domestic abuse classes; visitation; family safety, risk, and permanency
services; pre-removal conference; family team meetings; substance abuse
evaluations; substance abuse treatment; paternity testing; attachment
assessment; early access services; regional child protection center; probation
supervision; and housing referrals.
The mother failed to provide a drug screen when requested and failed a
second drug screen, which came back positive for THC and cocaine. By the first
day of the termination hearing, the mother had attended only twenty-one of fifty-
nine scheduled supervised visits. The visits were offered three times a week.
She was provided transportation assistance, and the visits were moved to a
location that was within walking distance for her, but she still failed to attend
consistently the visitation. Between the first and second day of the termination
hearing,3 the mother attended only two of eight scheduled visitations. She had
not progressed to unsupervised or overnight visits during this case.
At the time of the termination hearing, she had only recently moved out of
the home of the friend whom DHS had determined was inappropriate to be
around J.S. The mother admitted at the termination trial that her prior home was
3 The termination hearing took place over two days on March 7 and April 3, 2014. 4
not a safe place for J.S. She had not sought DHS approval for visitations to take
place in her new home. She was employed for only about two months during the
pendency of the case and was unemployed at the time of the termination
hearing. Despite her admitted use of marijuana, she failed to obtain a substance
abuse evaluation. She also failed to obtain a mental health evaluation or attend
therapy as requested, asserting instead that she did not believe she needed
therapy.
The court issued its termination order on June 30, 2014, finding the State
had proved the grounds to terminate the mother’s rights under Iowa Code section
232.116(1)(d), (e), (g), and (h). It concluded the best interests of J.S. would be
served by terminating the mother’s parental rights and no exception applied to
prevent termination. The mother now appeals.
II. Scope and Standard of Review.
Our review of an action to terminate a party’s parental rights is de novo.
In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual
findings of the juvenile court, especially its determinations of credibility, but we
are not bound by them. Id. Our primary consideration is the best interests of the
child. In re A.B., 615 N.W.2d 764, 776 (Iowa 2012).
III. Statutory Grounds for Termination.
The mother first challenges the statutory grounds used by the juvenile
court to terminate her parental rights. Where there is clear and convincing
evidence of the statutory grounds for termination, we will uphold the juvenile
court’s decision. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is 5
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. When the
juvenile court terminates parental rights on more than one statutory ground, we
need only find grounds to terminate on one of the paragraphs to affirm. In re
J.A.D.-F., 776 N.W.2d 879, 884 (Iowa Ct. App. 2009). Here, we focus on the
evidence supporting the court’s termination of the mother’s parental rights under
Iowa Code section 232.116(1)(h).
To terminate parental rights under Iowa Code section 232.116(1)(h), the
State must show by clear and convincing evidence:
(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.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 14-1146 Filed September 17, 2014
IN THE INTEREST OF J.S., Minor Child,
M.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, John P. Sarcone, County Attorney, and Christina Gonzalez, Assistant
County Attorney, for appellee.
Erin Mayfield of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
MULLINS, J.
A mother appeals the termination of her parental rights to her child, J.S.1
She asserts the juvenile court erred in terminating her rights because the State
failed to prove by clear and convincing evidence the statutory grounds for
termination under Iowa Code section 232.116(1)(d), (e), (g), and (h) (2013). She
also claims it is in the child’s best interest that her rights not be terminated and
that the child has a bond with her, establishing an exception to termination. For
the reasons stated, we affirm the termination order of the juvenile court.
I. Background Facts and Proceedings.
J.S., born in May 2013, came to the attention of the department of human
services (DHS) after mother left him with friends for several days without
checking in on the child or providing basic necessities. DHS determined the
friends were inappropriate caretakers and obtained a temporary removal order to
place J.S. in foster care. The mother, at that time, was in jail on theft charges.
The mother’s parental rights to her two older children had previously been
terminated by the State of Minnesota in 2010 and 20132 due to medical neglect
and failure to maintain contact. At the subsequent removal hearing, the mother
did not appear, though she had been released from jail. The mother did appear
1 The parental rights of the unknown putative father were also terminated as part of this proceeding. Paternity testing of two individuals during the course of this case established the two men the mother named as the father were not related to the child. As a result, the identity of the father is unknown at this time, and no appeal has been filed on behalf of any putative father. 2 J.S. was born just days before the mother’s parental rights were terminated to her second child. 3
at the adjudicatory hearing in August 2013, though she was at that time back in
jail on a new theft charge and a probation violation.
Once the mother was released from jail, having resolved her criminal
matters, services were provided, including: parenting classes; drug screens; child
protective assessment services; foster care; individual therapy; NA/AA meetings;
sponsor; domestic abuse classes; visitation; family safety, risk, and permanency
services; pre-removal conference; family team meetings; substance abuse
evaluations; substance abuse treatment; paternity testing; attachment
assessment; early access services; regional child protection center; probation
supervision; and housing referrals.
The mother failed to provide a drug screen when requested and failed a
second drug screen, which came back positive for THC and cocaine. By the first
day of the termination hearing, the mother had attended only twenty-one of fifty-
nine scheduled supervised visits. The visits were offered three times a week.
She was provided transportation assistance, and the visits were moved to a
location that was within walking distance for her, but she still failed to attend
consistently the visitation. Between the first and second day of the termination
hearing,3 the mother attended only two of eight scheduled visitations. She had
not progressed to unsupervised or overnight visits during this case.
At the time of the termination hearing, she had only recently moved out of
the home of the friend whom DHS had determined was inappropriate to be
around J.S. The mother admitted at the termination trial that her prior home was
3 The termination hearing took place over two days on March 7 and April 3, 2014. 4
not a safe place for J.S. She had not sought DHS approval for visitations to take
place in her new home. She was employed for only about two months during the
pendency of the case and was unemployed at the time of the termination
hearing. Despite her admitted use of marijuana, she failed to obtain a substance
abuse evaluation. She also failed to obtain a mental health evaluation or attend
therapy as requested, asserting instead that she did not believe she needed
therapy.
The court issued its termination order on June 30, 2014, finding the State
had proved the grounds to terminate the mother’s rights under Iowa Code section
232.116(1)(d), (e), (g), and (h). It concluded the best interests of J.S. would be
served by terminating the mother’s parental rights and no exception applied to
prevent termination. The mother now appeals.
II. Scope and Standard of Review.
Our review of an action to terminate a party’s parental rights is de novo.
In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual
findings of the juvenile court, especially its determinations of credibility, but we
are not bound by them. Id. Our primary consideration is the best interests of the
child. In re A.B., 615 N.W.2d 764, 776 (Iowa 2012).
III. Statutory Grounds for Termination.
The mother first challenges the statutory grounds used by the juvenile
court to terminate her parental rights. Where there is clear and convincing
evidence of the statutory grounds for termination, we will uphold the juvenile
court’s decision. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is 5
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. When the
juvenile court terminates parental rights on more than one statutory ground, we
need only find grounds to terminate on one of the paragraphs to affirm. In re
J.A.D.-F., 776 N.W.2d 879, 884 (Iowa Ct. App. 2009). Here, we focus on the
evidence supporting the court’s termination of the mother’s parental rights under
Iowa Code section 232.116(1)(h).
To terminate parental rights under Iowa Code section 232.116(1)(h), the
State must show by clear and convincing evidence:
(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.
The mother concedes that the State proved subparagraphs (1), (2), and (3).
However, she contends the State failed to meet its burden to prove J.S. cannot
be returned to her custody.
The evidence at trial established the mother had failed to attend more than
half of the scheduled supervised visits with J.S. since his removal. Due to the
infrequency of the visits, the mother had not been able to progress to
unsupervised or overnight visits. For the majority of the proceedings, she lived in
a home that even she admitted was not safe for J.S. She only recently moved to
a different home, though she failed to ask DHS to determine whether the new 6
home was safe for J.S. She was unemployed, not paying rent at her new home,
and continued to associate with individuals DHS had determined were
inappropriate for J.S. She had failed to seek a substance abuse or mental health
evaluation and failed to attend individual therapy. We conclude the State
established by clear and convincing evidence that J.S. could not be returned to
his mother’s custody at the time of the termination hearing.
IV. Best Interests and Exception.
Next, the mother contends it was not in J.S.’s best interest for her rights to
be terminated under section 232.116(2) and that J.S. has a bond with her that
provides an exception to the termination under section 232.116(3)(c). In
evaluating J.S.’s best interest, we consider the child’s safety, the placement that
will best further his long-term nurturing and growth, and the physical, mental, and
emotional condition and needs of the child. Iowa Code § 232.116(2). The child’s
safety at this time mandates that he remain in the foster family as the mother is
not capable of safely caring for J.S. While she has moved out of the unsafe
home, she has failed to request DHS evaluate her current home to ensure it is
appropriate for J.S. She has failed to attend the required substance abuse and
mental health evaluations and has failed to attend consistently the supervised
visits she has been afforded.
We also consider whether the child has been integrated into the foster
family, whether he identifies with the foster family, and whether the foster family
is willing to integrate permanently the child into their family. Iowa Code
§ 232.116(2)(b). J.S. has thrived in the foster family and is meeting all 7
developmental milestones. He identifies the foster mother as his mother and
seeks her out for comfort and to satisfy his needs. The foster family is willing to
adopt J.S. We conclude it is in J.S.’s best interests to terminate the mother’s
parental rights. At his young age, he deserves permanency and stability.
In support of her claim that the parent-child bond should prevent
termination, the mother points to her ability to provide care for J.S., such as
feeding and diaper changing, during her supervised visits and that J.S. smiles at
her now when she sees him at the visits. This evidence falls short of showing the
termination would be detrimental to J.S. due to the closeness of the parent-child
relationship. See Iowa Code § 232.116(3). We find, as did the juvenile court,
that no legal exception applies that would argue against termination.
We therefore affirm the termination of the mother’s parental rights with
respect to J.S.