In the Interest of K.L., Minor Child, D.F., Mother

• Court: Court of Appeals of Iowa
• Decided: July 22, 2015
• Docket: 15-0444
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0444 Filed July 22, 2015

IN THE INTEREST OF K.L., Minor Child,

D.F., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael Seymour,

District Associate Judge.

A mother appeals the termination of her parental rights to her seven-year-

old son. AFFIRMED.

Judy Johnson of Borseth Law Office, Altoona, for appellant.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, John P. Sarcone, County Attorney, and Amanda Johnson,

Assistant County Attorney, for appellee.

Alexandra Nelissen of Nelissen Law Firm, Des Moines, for father.

Nicole Nolan of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor child.

Considered by Tabor, P.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2

TABOR, P.J.

Although Dawn asserts she is “comfortable in her sobriety,” she has been

unwilling to end her relationship with a paramour who continues to use

methamphetamine. The juvenile court concluded Dawn’s dishonesty about her

continuing intimacy with that drug user posed a risk to her seven-year-old son

K.L. and, therefore, terminated the parent-child relationship.

Dawn challenges the juvenile court’s decision, claiming the State did not

offer clear and convincing evidence of the grounds for termination. See Iowa

Code § 232.116(1)(d), (f) (2013). Dawn also contends termination is not in her

son’s best interests because of the closeness of their relationship. See Iowa

Code § 232.116(2), (3)(c). After a de novo review of the record, but with due

deference to the juvenile court’s credibility determinations, we affirm the

termination of Dawn’s parental rights.

Authorities took notice of Dawn’s family in May 2012. Law enforcement

executed a search warrant at the house where Dawn and her son were living

with her mother and brother. Officers found various drugs and drug

paraphernalia in the home. Dawn and K.L. both tested positive for

methamphetamine. Dawn also tested positive for marijuana and amphetamines.

The Iowa Department of Human Services (DHS) removed K.L. from his mother’s

custody on May 14, 2012, and placed him with his paternal aunt. On June 5,

2012, the juvenile court adjudicated K.L. as a child in need of assistance (CINA)

under Iowa Code section 232.2(6)(b), (c)(2), (n), and (o) (2011). 3

Dawn entered treatment at the House of Mercy and made significant

improvements regarding her addiction. But counselors expressed concerns

Dawn did not fully grasp certain insights needed to maintain sobriety; she was

discharged from substance abuse treatment for lack of behavioral changes.

Dawn did not attend meetings for Alcoholics Anonymous or Narcotics

Anonymous (AA/NA) and did not line up a sponsor to help her deal with

substance abuse issues. But the biggest concern was Dawn’s inability to

recognize the danger of continuing her long-term relationship with Marshall, who

still used drugs, including methamphetamine. Dawn had associated with

Marshall for fifteen years, though Marshall was not K.L.’s father. Despite

advising her case workers that she did not have an ongoing intimate relationship

with Marshall, the two had a child together during the course of the CINA

proceedings involving K.L.1

The State filed a petition to terminate her parental rights in August 2013.

But the petition was dismissed when the State agreed that Dawn had improved in

obtaining stability and addressing her substance abuse issues. This

improvement continued to the point that K.L. was returned to Dawn’s care on

February 4, 2014. But later that spring, the State learned that Marshall had

relapsed into drug use and Dawn continued her interaction with him. In May

2014, the State sought to again remove K.L. from Dawn’s care because she was

not being honest with the DHS and service providers regarding the safety plan,

which prohibited contact between K.L. and Marshall.

1 Dawn had custody of that child until the second day of the termination hearing when the State asked for the child to be removed. The juvenile court signed a removal order. 4

The juvenile court determined Dawn allowed Marshall to have contact with

K.L. on at least three occasions, even after she reported Marshall had relapsed

into drug use. At the removal hearing, the court warned Dawn that contact with

Marshall would be an impediment to reunification with K.L., and Dawn said she

understood. The court removed K.L. from Dawn’s care and required supervised

visitation.

The State filed the second petition to terminate parental rights on

September 12, 2014. The juvenile court held a hearing on the termination

petition on December 16 and 17, 2014. The bulk of the testimony concerned

Dawn’s association with Marshall. Dawn gave inconsistent responses regarding

the status of their relationship. Eventually, she testified: “My relationship with

Marshall right now is confusing. Right now it’s not an intimate committed

relationship. It still remains an on-the-table relationship. I don’t know what’s

going to happen with it.” Dawn also insisted her “grown-up relationship with

Marshall, whatever it may be, does not reflect on the care or the love or the

relationship or bond I have with my child.” The Family Safety, Risk and

Permanancy (FSRP) worker, who initially was supportive of reunification,

changed her opinion when informed of the ongoing relationship.

In its ruling terminating parental rights, the juvenile court viewed Dawn’s

testimony as lacking insight regarding “how her relationships with others impact

her children.” The court faulted Dawn for turning a blind eye to the severity of

Marshall’s relapse into methamphetamine use and minimizing his impact on her

own recovery and parenting abilities. The court’s March 1, 2015, order 5

terminated Dawn’s parental rights under Iowa Code sections 232.116(1)(d) and

(f) (2013).2 Dawn now appeals.

We review termination of parental rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We defer to the district court’s factual

findings, especially when determining the credibility of witnesses, but are not

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). The child’s best

interest is the paramount concern. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).

I. Statutory Grounds

Clear and convincing evidence of the statutory grounds is required for

termination. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is clear

and convincing when there is no serious or substantial doubt as to the

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

juvenile court orders termination of parental rights on more than one statutory

ground, we need only find support for one ground to affirm. In re J.B.L., 844

N.W.2d 703, 704 (Iowa Ct. App. 2014). We conclude the State proved by clear

and convincing evidence that termination was appropriate under section

232.116(1)(f).

To terminate under paragraph (f), the State must prove the child is four

years old or older, has been adjudicated CINA, has been removed from the

home for the required period of time, and the court could not return the child to

the parent’s custody at the present time pursuant to section 232.102. Iowa Code

2 The father’s parental rights were also terminated, but he is not a party to this appeal. 6

§ 232.116(1)(f)(1)–(4). Only the fourth element is at issue: could K.L. be safely

returned home?

“At the present time” refers to the point of the termination hearing. See

A.M., 843 N.W.2d at 111. A child cannot be returned to the custody of a parent

under section 232.102 if by doing so the child would be exposed to any harm

amounting to a new CINA adjudication or that the child is imminently likely to

suffer that harm if returned. In re A.M.S., 419 N.W.2d 723 725 (Iowa 1988); see

also In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (explaining the threat of

probable harm will justify termination).

Dawn argues on appeal that the evidence did not show K.L. was

“imminently likely to suffer an adjudicatory harm” if he was returned to her care.

She contends Marshall’s “incidental contact with the minor child and the general

statements by Dawn that [he] may have relapsed at some unknown point in time,

do not rise to the level of clear and convincing evidence.”

It is true that the focus of these termination proceedings was not on

Dawn’s own substance abuse, but her unwillingness to end a fifteen-year

relationship with Marshall despite knowing his drug problems were not resolved.

Dawn testified she was “comfortable in her sobriety” and was seeing a therapist

to address the challenges of staying off drugs. But the case workers were

concerned about her disinclination to participate in NA/AA meetings and lack of a

sponsor, believing those circumstances would make relapse more likely. And

they were very worried about her close association with Marshall. 7

Marshall has a long history of drug abuse and controlled substance

convictions. When K.L. was returned to Dawn’s care in February 2014, Marshall

was providing clean drug screens and complying with DHS recommendations.

But in May 2014, Marshall stopped attending services and even Dawn suspected

he had begun to use drugs again. At the June 2014 removal hearing, months

prior to termination, the court warned Dawn about interacting with Marshall:

The Court: [Dawn] under no circumstance while you are having contact with the child should Marshall be near the child, period. This court does not care if it’s for five minutes or five seconds. If that was not clear by the [DHS] or the FSRP worker, this court is making it part of the order of this court that Marshall not be around the child of interest. Do you understand? Dawn: Yes, Your Honor.

In October 2014, Marshall was arrested and pleaded guilty to possession

of drug paraphernalia. He admitted using methamphetamine. Nevertheless,

Dawn continued to maintain a romantic relationship with him and allowed him to

have at least some level of contact with K.L. Dawn allowed K.L. to be considered

an inaccurate reporter when the child told social workers about his interactions

with Marshall.

During the course of the proceedings, Dawn has been untruthful with

service providers and the juvenile court. The court noted her dishonesty in the

termination order, and found it unlikely Dawn would truly end the relationship with

Marshall, regardless of the cost to K.L. We give deference to the juvenile court’s

credibility determinations, especially given the court’s opportunity to observe this

family over the three-year course of the CINA proceedings. 8

We acknowledge the significant progress that Dawn has made during the

course of this case. The FSRP worker described Dawn’s parenting style as

“warm” and “affectionate.” Dawn was playful with K.L. and found creative ways

to interact with him during visits. Dawn has maintained steady part-time

employment and suitable housing, though the record suggested that she may

have been relying on financial support from Marshall to make ends meet.

But in the end, we share the district court’s concern that Dawn’s blind spot

for the danger posed by her paramour’s use of methamphetamine cannot be

overlooked. Our supreme court has recognized the hazards of unaddressed

methamphetamine addictions. In re A.B., 815 N.W.2d at 776. Dawn’s continued

association with a drug user, despite knowing it could result in the termination of

the parental rights of her child, shows K.L. could not be returned to her care at

the time of the hearing.

II. Best Interests

Even if the statutory grounds are met, termination must be in the child’s

best interest. We determine a child’s best interests by giving “‘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, 39 (Iowa 2010)

(quoting Iowa Code § 232.116(2)). Dawn argues termination was not in the best

interests of K.L. because she was prepared to meet his physical, mental, and

emotional needs. 9

While Dawn has made progress in achieving stability, the record shows

she is unwilling to place her child’s long-term needs ahead of her own

complicated relationship with a drug user. In a telling passage from her

testimony at the termination hearing, Dawn acknowledged that if she were not

maintaining contact with Marshall, she could be reunited with K.L., but

expressed: “They’re both important [to me].”

The record reflects K.L. is doing well in his current placement. Meanwhile,

given the reasons stated above, K.L.’s safety would remain a concern if he were

to be returned to Dawn’s care. K.L.’s needs must take priority over Dawn’s

confusion about her romantic relationship. See In re C.S., 776 N.W.2d 297, 299

(Iowa Ct. App. 2009). Termination is in K.L.’s best interests.

III. Factors Allowing Court to Forgo Termination

Finally, Dawn argues the juvenile court should have applied section

232.116(3)(c) to save the parent-child relationship. The court need not terminate

if “[t]here is clear and convincing evidence that the termination would be

detrimental to the child at the time due to the closeness of the parent-child

relationship.” Iowa Code § 232.116(3)(c). This factor is permissive and the court

has the discretion to weigh the strength of the bond against the child’s welfare.

See A.M., 843 N.W.2d at 113; P.L., 778 N.W.2d at 39.

We have no doubt that Dawn and K.L. love each other, but we do not find

clear and convincing evidence in the record that termination would be detrimental

to K.L. because of the closeness of their relationship.

AFFIRMED.