In the Interest of K.B. and K.B., Minor Children, T.B., Father, B.B., Mother

• Court: Court of Appeals of Iowa
• Decided: March 22, 2017
• Docket: 16-2001
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-2001 Filed March 22, 2017

IN THE INTEREST OF K.B. and K.B., Minor Children,

T.B., Father, Appellant,

B.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,

Associate Juvenile Judge.

A father and mother separately appeal from the order terminating their

parental rights. AFFIRMED ON BOTH APPEALS.

Charles F. Elles, Bettendorf, for appellant father.

Matthew A. Quinn of the Law Office of Matthew Quinn, Bettendorf, for

appellant mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd (until

withdrawal) and Kristi Ann Traynor, Assistant Attorneys General, for appellee

State.

Taryn Rena Purcell of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for minor children.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Tabor,

J., takes no part. 2

BOWER, Judge.

A mother and father separately appeal the juvenile court decision

terminating their parental rights. They claim (1) the evidence was insufficient to

support termination; (2) the children had not been removed from the parents for

six months; and (3) termination is not in the children’s best interest. We find the

evidence is sufficient to terminate, the juvenile court properly determined the

children had been removed for six months, and termination is in the children’s

best interest. Accordingly, we affirm.

I. Background Facts and Proceedings

The children, K.B. (born in 2013) and K.B. (born in 2014), came to the

attention of the Iowa Department of Human Services (DHS) after it was alleged

the mother was under the influence of controlled substances, the children lacked

adequate supervision, both parents failed to obtain recommended medical

treatment, the older child had a large unexplained burn which neither parent

knew the cause of, the children were not being properly bathed, and marijuana

was being used in the home while the children were present. Both parents

tested positive for marijuana, though they denied using it in the presence of the

children. The mother has been diagnosed with a mild intellectual disability and

generalized anxiety disorder. The father was also diagnosed with a generalized

anxiety disorder and bipolar II disorder.

The parents agreed to a voluntary relative placement with a maternal aunt

of the children on April 15, 2016. Approximately a month later, the maternal aunt

asked for the children to be removed as she was experiencing difficulty with her

pregnancy. The parents then agreed to a voluntary foster care placement on 3

May 27, and the juvenile court placed the children in the custody of DHS on

May 31.

The parents were offered visitation but neither parent attended even half

of the allotted times. Both parents gave a variety of excuses, including work, lack

of transportation, and illness. However, the provider testified a “good portion” of

the visits were missed because of the parents’ failure to confirm them.

Further, although substance abuse was a concern for both parents,

neither attended substance-abuse treatment nor underwent a substance abuse

evaluation. Both parents were, at best, sporadic in their compliance with mental

health recommendations. The mother’s medical benefits lapsed several times

during the pendency of the case and she was unable to find coverage for

services required under the parenting plan. The father’s medical benefits also

lapsed during the pendency of the trial, for which he had not reapplied. The

parents had also not complied with the parenting sessions. The parenting

sessions were scheduled to be held during visits, but because so many were

missed, few parenting sessions were completed.

The termination hearing was held on November 8, 2016, and an order

terminating parental rights was entered the same day. The mother and father

now appeal.

II. Standard of Review

The scope of review is de novo in termination cases. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to

establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa

2006). Where there is clear and convincing evidence, there is no serious or 4

substantial doubt about the correctness of the conclusion drawn from the

evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the

juvenile court’s findings of fact but are not bound by them. In re C.B., 611

N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is

the best interests of the children. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).

Both parents’ rights were terminated pursuant to Iowa Code section

232.116(1)(d), (e), and (h) (2016). “On appeal, we may affirm the juvenile court’s

termination order on any ground that we find supported by clear and convincing

evidence.” D.W., 791 N.W.2d at 707. Both parents claim there was insufficient

evidence to terminate their parental rights. In order to terminate parental rights

under section 232.116(1)(h), (1) the child must be three years old or younger, (2)

the child must have been adjudicated in need of assistance, (3) the child must

have been removed from the home for at least six of the last twelve months, or

for the last six consecutive months with any period at home being less than thirty

days, and (4) the child cannot be returned to the home as provided in section

232.102.

III. Sufficiency of the Evidence

Both parents claim the children could have been returned to them at the

time of the termination hearing. However, at the time of the termination hearing

neither parent had addressed their substance abuse issues, had reliably

participated in mental health treatment, nor effectively participated in parenting

classes. While they provide excuses for their failures, it is clear the children

cannot be returned to parents still struggling with substance abuse, mental-health 5

issues, and a lack of parenting skills. We find there is sufficient evidence to

terminate under section 232.116(1)(h).

IV. Date of Removal

Both the mother and father claim the children were not removed from their

physical custody for the last six consecutive months as required by Iowa Code

section 232.116(1)(h)(3). The children were voluntarily placed with a relative

April 15 and were voluntarily placed in foster care May 27. On May 31, the

juvenile court entered an order placing temporary custody of the children with

DHS.

The parents claim the children were not removed from their physical

custody until the juvenile court order on May 31. Our supreme court has recently

addressed the issue of removal and held the purpose of removal is to ensure

“that before termination occurs under these subsections, a parent has had a

chance at physical custody in the past that has been unsuccessful.” In re C.F.-

H., 889 N.W.2d 201, 207 (Iowa 2016), reh'g denied (Feb. 10, 2017). Terminating

parental rights when a parent has never had the opportunity to demonstrate their

fitness as a parent should be avoided. Id. Our supreme court also examined the

legislative history of the removal statutes and found the purpose of the

amendment “was merely to speed up the time frame for calculation . . . . No

other substantive change is mentioned.” Id at 208. The legislative history noted

“[t]he 6 month time period would start from the time the child is removed from the

physical custody of the parents, not when legal custody is transferred.” H.F.

2452, 74th G.A., 2d Sess. fiscal note (Iowa 1992). The focus of the statute is on

the transfer of physical custody, and that focus is to ensure parents are given a 6

chance to show their fitness as parents. Id. Finally, our supreme court

expressed concern that a loose interpretation of the term removal could result in

unjust termination of parental rights of those parents who had never had physical

care of the child. See id.

The framework established by C.F.-H. suggests a careful examination of

the opportunity afforded parents to demonstrate their fitness to parent before

termination. The removal of the children should serve as the focal point of the

examination. The mother and father in this case had the opportunity to

demonstrate their fitness as parents. They failed, and the children were

adjudicated in need of assistance. After the children were determined to be in

need of assistance a safety plan was established. The parents again failed to

show they were fit, and the children were removed from their physical care and

placed with the maternal aunt. Physical custody was transferred to the aunt April

15. Under the Iowa Code, as evaluated by our supreme court, the six month

period of removal began when the children were physically removed from their

parents.

V. Best Interests

The parents both claim termination is not in the best interests of the

children. After finding a ground for termination exists, we are to “consider the

factors under section 232.116(2). Section 232.116(2) requires us to ‘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 P.L., 778 N.W.2d 33, 40 (Iowa

2010) (citations omitted). 7

The parents have consistently demonstrated an inability and unwillingness

to properly parent these children. Neither parent has exerted significant effort to

address the underlying causes of the termination. The parents failed to

consistently visit the children, engage with the resources and programs offered

by DHS, or even accept responsibility. While these parents may have enough

interest in their children to appeal the termination, they have not had enough

interest in the children to address their substance abuse issues, mental health

issues, or lack of parenting skills. Returning the children to their parents would

make them unsafe and hinder their long-term physical, mental, and emotional

growth and stability. Termination is clearly in the best interests of the children.

Therefore, we find the juvenile court properly terminated the mother and father’s

parental rights.

AFFIRMED ON BOTH APPEALS.