In the Interest of K.M. and J.M. Jr., Minor Children, A.M., Mother, J.M. Sr., Father

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0753 Filed July 16, 2014

IN THE INTEREST OF K.M. and J.M. JR., Minor Children,

A.M., Mother, Appellant,

J.M. SR., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Angela L. Doyle,

District Associate Judge.

A mother and father appeal from termination of their parental rights.

AFFIRMED.

Darren D. Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane &

Driscoll, P.L.C., Fort Dodge, for appellant-mother.

Douglas Cook, Jewell, for appellant-father.

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

Attorney General, Cori Kuhn-Coleman, County Attorney, and Ryan D. Baldridge,

Assistant County Attorney, for appellee.

Christopher O’Brien, Fort Dodge, attorney and guardian ad litem for minor

children.

Considered by Vogel, P.J., and Doyle and Mullins, JJ. 2

MULLINS, J.

A mother and father appeal from the juvenile court order terminating their

parental rights to two children. The mother’s rights were terminated pursuant to

Iowa Code sections 232.116(1)(h) and (l) (2013). The father’s parental rights

were terminated pursuant to Iowa Code sections (b), (e) and (h). The mother

argues there was insufficient evidence to satisfy the statutory grounds for

termination. The mother and father both argue termination was not in the

children’s best interest.

I. BACKGROUND FACTS AND PROCEEDINGS.

The family has been under the supervision of Iowa Department of Human

Services (DHS) since fall 2010, when K.M. was born testing positive for

methamphetamine. The mother also tested positive for methamphetamine. DHS

has been offering substance abuse services to the parents since that time.

Both parents have extensive substance abuse issues. The mother served

time in prison on drug manufacturing charges. During this time, she lost parental

rights to an older child who is now in the maternal grandmother’s custody. After

the initial removal, the court returned K.M. to the parents in early 2011. In spring

2011, the mother tested positive in several drug tests for her probation officer.

She tested positive in March, April, and June 2011. When DHS became aware

of these tests, they removed K.M. from the parental home again.

In August 2011, the mother entered Jackson Recovery for substance

abuse treatment. Upon entering, the mother tested positive for

methamphetamine. She admitted she had used methamphetamine that very day 3

and stated she had been using methamphetamine daily. The mother also

admitted she and the father had used drugs together in March 2011. In October,

after an out-of-facility visit, the mother returned testing positive for ethanol. She

also brought a prohibited cellular phone into the facility.

J.M. was born in fall 2011, while the mother was in drug treatment. She

successfully completed the Jackson Recovery treatment program in November

2011 and entered the YWCA program, where K.M. and J.M. could reside with

her. In December, the DHS worker received a phone call from the mother

indicating she was upset with the YWCA counselors and other residents. On the

same day, the DHS worker spoke with the YWCA substance abuse counselor,

who told her the mother had left the building. The DHS worker spoke with the

mother, who indicated she was in Webster City and had spent the night with a

man there. The mother had left the children at the YWCA. The DHS worker

instructed the mother to return to the YWCA and the mother complied. However,

in January 2012, due to her complaints about the YWCA, DHS agreed to allow

the mother to return to the family home with the children, so long as the father left

it.

In September 2012, the mother tested positive for methamphetamine, as

did both children. The court removed the children by ex parte order and placed

them in foster care. DHS did not consider placement with the father an option

because of his substance abuse history and lack of cooperation with testing and

treatment. In September, the mother completed a substance abuse evaluation

with the YWCA, which recommended intensive outpatient treatment. However, 4

she attended only one or two meetings, and the YWCA discharged her without

successful completion. The mother relapsed in December, using drugs with the

father. She planned to attend treatment at Prairie Ridge in Algona in February

2013; however the substance abuse counselor there indicated the mother had

not been attending meetings, and discharged her without successful completion

in March. Also in February 2013, the mother tested positive for

methamphetamine and amphetamine.

In April 2013, the mother entered into a plan with DHS to set up a new

substance abuse evaluation and begin treatment within thirty days. The YWCA

had accepted the mother for treatment, but the mother failed to appear for her

scheduled evaluations, and the YWCA withdrew the offer. In May, the mother

tested positive for methamphetamine and amphetamine and admitted to using

drugs with the father. Also in May, the mother and father together saw the

children at visitation at the Families First office. They began fighting, and DHS

removed the children from the room and ended the visitation. At that time, the

mother had no permanent home.

In October 2013, the mother signed a “contract of expectations” with DHS

that required her to begin substance abuse treatment. The mother completed a

substance abuse evaluation with Community and Family Resources in

December; but in January, the resources center indicated the mother performed

the evaluation but never returned to begin the recommended treatment. 5

Throughout this case, the court has ordered the father to obtain substance

abuse treatment. His only attempt at treatment occurred in September 2011

when he completed an evaluation with Community and Family Resources.

Although he attended some treatment, he refused to give urine samples on

multiple occasions. In October 2011, he tested positive for methamphetamine,

amphetamine, and marijuana. In November, he refused to give a sample, but

admitted he would test positive for marijuana. Shortly thereafter, he was

unsuccessfully discharged from treatment. Throughout the case, the father has

visited infrequently with the children. He was not present for J.M.’s birth. He did

not see the children at all between September and December 2013. The DHS

worker testified the father does not understand child development and has

unrealistic expectations for the children’s abilities relative to their ages. Because

of this, their behaviors easily frustrate him. The DHS worker noted he did not

interact with the children during visitation and displayed no attachment to them.

In December 2013, the State filed a petition to terminate parental rights,

consistent with DHS’s recommendation. The hearing on the petition was set for

February 5, 2014. On the morning of the hearing, the court was informed the

mother’s counsel had a conflict of interest and would need to withdraw. The

court granted the motion to withdraw and continued the trial to March 26, 2014.

At the termination hearing, the mother reported she had been attending

Narcotics Anonymous meetings for about one month. She testified the last time

she used drugs was December 2013. In March, she moved into her own

apartment and obtained a part-time job. Also in March, the mother and father 6

visited with the children in the mother’s home. DHS had to end the visit and

remove the children because the mother and father were fighting. At the time,

the father reported he was not seeking substance abuse treatment and was not

employed.

The children have been in the same foster home since September 2013.

DHS notes they have been thriving in this placement, and the foster parents are

providing needed stability, discipline, and love. The foster mother notes the

children “are able to express their needs and wants” and “verbalize love and

affection towards [the foster parents] and each other.” The children have made

friends at daycare and with the foster parents’ nieces and nephews. The DHS

worker testified the children are safe and happy in their placement. The foster

parents have indicated they want to adopt the children. Both the DHS worker

and foster parents note the children exhibit aggressive behaviors, such as hitting

and biting, after visitation with the mother and father.

Following the hearing on the petition to terminate parental rights, the

juvenile court terminated the mother’s parental rights under Iowa Code sections

232.116(1)(h) and (l). The court terminated the father’s parental rights under

Iowa Code section 232.116(1)(b), (e), and (h). The mother and father appeal

separately.

II. STANDARD OF REVIEW.

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

615 N.W.2d 764, 773 (Iowa 2012). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not 7

bound by them. Id. Our primary consideration is the best interest of the child.

Id. at 776.

III. ANALYSIS.

In determining whether to terminate parental rights, the juvenile court

follows a three-step analysis. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First,

the court must determine if a statutory ground for termination exists under Iowa

Code section 232.116(1). Id. Second, the court must give consideration to the

child’s best interests. See Iowa Code § 232.116(2); P.L., 778 N.W.2d at 39.

Finally, the court need not terminate parental rights if it finds any of the statutory

exceptions under Iowa Code section 232.116(3) apply. P.L., 778 N.W.2d at 39.

A. Mother.

The mother argues there was insufficient evidence to terminate under the

statutory grounds alleged. We will uphold the termination of parental rights

where there is clear and convincing evidence of the statutory grounds for

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

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

correctness of 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 8

evidence supporting the court’s termination of the mother’s parental rights under

Iowa Code section 232.116(1)(h).1

The mother argues there was not clear and convincing evidence the

children could not be returned to her custody. The mother has a serious

substance abuse problem, including a long history of repeated relapses, and has

been unable or unwilling to remain sober for any extended period of time. She

repeatedly tested positive for drugs throughout this case, even while in treatment

programs, and has exposed the children to drugs as well. This is the case

despite DHS being involved and offering her services since 2010, and despite

the mother previously losing custody of another child for the same reasons. Her

eleventh-hour attempts at seeking treatment are insufficient, particularly in light of

her long history of relapses. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000);

In re D.M., 516 N.W.2d 888, 891 (Iowa 1994). We are reinforced in this view by

the fact that she did not begin attending NA, or obtain an apartment, or obtain a

job until after the original termination hearing was continued. At the time of the

termination hearing, the children had been out of her care for about eighteen

months—nearly half K.M.’s life and most of J.M.’s life. Yet, the mother has made

little progress toward resolving the issues that led DHS to remove the children

from her care. The children would not be safe in her care. We find, therefore,

1 To terminate parental rights under Iowa Code section 232.116(1)(h), the State must show by clear and convincing evidence the child is three years old or younger, has been adjudicated a child in need of assistance, has been removed from the parent’s care for at least the last six consecutive months or at least six of the last twelve months, and cannot be returned to the parent’s custody at the time of the termination hearing. 9

that the evidence is clear and convincing that the children cannot be returned to

her.

The mother further argues it would not be in the children’s best interest to

terminate her parental rights. In considering their best interests we weigh the

children’s safety; the best placement for furthering their long-term nurturing and

growth; and their physical, mental, and emotional needs. See Iowa Code

§ 232.116(2). In light of the risks posed by the mother’s substance abuse issues,

the length of time they have been out of the mother’s care, and the mother’s

inability or unwillingness to put their needs above hers, the children’s best

interests weigh in favor of termination. Accordingly, we affirm termination of the

mother’s parental rights.

B. Father.

The father does not dispute any of the statutory grounds for termination of

his parental rights. His sole argument is that termination was not in the children’s

best interest. He argues the juvenile court should not have terminated the

mother’s parental rights and should have allowed him to remain a “non-custodial

parent.” He “believes the children belong with their mother” and are bonded with

the mother. He argues he is “not a problem” as a “non-custodial parent.”

There is no question of the father remaining a “non-custodial parent”; Iowa

law does not provide for such a status in the context of termination of parental

rights. The father presents no argument for why it is not in the children’s best

interests to terminate his parental rights and he has no standing to argue in favor

of the mother’s parental rights. He does not claim to have any bond with the 10

children himself, and the evidence does not support the existence of one.

Accordingly, we affirm termination of the father’s parental rights.

IV. CONCLUSION.

We affirm termination of the mother’s parental rights under Iowa Code

section 232.116(1)(h), and determine it is in the children’s best interests to

terminate the parental rights of both parents.