In the Interest of K.R., D.R., K.R., and P.R., Minor Children, L.R., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0244 Filed April 16, 2014

IN THE INTEREST OF K.R., D.R., K.R., and P.R., Minor Children,

L.R., Mother, Appellant. ________________________________________________________________

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

District Associate Judge.

A mother appeals the order terminating her parental rights. AFFIRMED.

Michael B. Oliver of Oliver Law Firm, P.C., Windsor Heights, for appellant

mother.

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

Attorney General, John P. Sarcone, County Attorney, and Kevin Patrick,

Assistant County Attorney, for appellee State.

Kimberly Ayotte of the Youth Law Center, Des Moines, attorney and

guardian ad litem for minor children.

Considered by Potterfield, P.J., and Doyle and Bower, JJ. 2

DOYLE, J.

A mother appeals from the juvenile court’s order terminating her parental

rights to her four children.1 We affirm.

I. Background Facts and Proceedings

This family came to the attention of the Iowa Department of Human

Services (DHS) in December 2012 following reports of ongoing and escalating

domestic violence between the mother and father. There were also concerns

about the parents’ substance abuse and unaddressed mental health issues. The

juvenile court entered an ex parte removal order for the parents’ four children

(ages five, five, three, and two years old) in December 2012. The children were

adjudicated to be in need of assistance in January 2013. There have been no

trial returns to the home. The mother has not progressed to unsupervised

visitations.

DHS initiated reunification services. The mother acknowledged the

parents’ domestic abuse history, described the relationship as “toxic,” and

admitted the children were removed because the home was not safe. However,

after the children were removed, the mother continued her relationship with the

father, ignored no contact orders, denied the truthfulness of her previous

statements to police, and did not follow through with services to address the

issues causing the domestic violence. The mother candidly testified, “I chose my

husband over my kids.”

The mother also denied having a substance abuse problem. She missed

drug screens and declined treatment. Later, at the termination hearing, the

1 The father of the children is deceased. 3

mother described her lengthy history of drug use, including first using

methamphetamine at age thirteen, and times, such as after the birth of her first

child (not a child involved in these proceedings2), when she used “pretty bad.”

The mother also stated she has used numerous prescription drugs for ten years,

but only recently developed an addiction. She focused on the father being the

one who had a “problem” with taking prescription drugs, but agreed she supplied

the drugs to him. The mother testified in June 2013, she began abusing the

drugs by “shooting them up.”

The father passed away during these proceedings. After his death, the

mother pled guilty to shoplifting; as a result her probation for a prior shoplifting

offense was revoked. In September 2013, the mother began serving a 120-day

jail sentence in the Polk County Jail.

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

The termination hearing was held in December 2013. The record before the

juvenile court indicated the mother had a lengthy history of substance abuse, a

violence-infused relationship ending only upon the death of the father, and a

failure to assume any sort of parental responsibilities over her children. The

court observed the mother had not addressed these concerns in any meaningful

or sustained manner. The mother expected to be released from jail in January

2014. She admitted the children could not be returned to her care at that time

and acknowledged she would need to complete drug treatment and demonstrate

sobriety and stability in the community for a period of time before they could be

2 The mother’s first child was born in 2001. The mother stated she was using methamphetamine at that time and placed the child with her parents, the child’s maternal grandparents. 4

returned to her. By the time of the termination hearing, the children had been

placed in the home of the mother’s sister and her spouse for one year, and they

expressed a willingness to adopt the children. The mother acknowledged the

children were thriving and in a safe and appropriate home with her sister.

Following the termination hearing, the court entered its order terminating

the mother’s parental rights pursuant to Iowa Code sections 232.116(1)(b), (d),

(e), (h), (i) and (l) (2013). The mother appeals.

II. Scope and Standard of Review

We review proceedings to terminate parental rights de novo. In re A.B.,

815 N.W.2d 764, 773 (Iowa 2012). We give weight to the juvenile court’s factual

findings, especially when considering the credibility of witnesses, but we are not

bound by them. Id. We will uphold an order terminating parental rights if there is

clear and convincing evidence of grounds for termination under Iowa Code

section 232.116. 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.

III. Discussion

A. Grounds for Termination

We must first determine whether a ground for termination under section

232.116(1) is established. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). Here, the

mother does not dispute the statutory grounds under sections 232.116(1)(b), (d),

(e), (h), (i) and (l) have been proved by clear and convincing evidence. 5

B. Factors in Termination

Even if a statutory ground for termination is met, a decision to terminate

must still be in the best interests of a child after a review of section 232.116(2).

P.L., 778 N.W.2d at 37. In determining the best interests, this court’s primary

considerations are “the child’s safety, the best placement for furthering the long-

term nurturing and growth of the child, and the physical, mental, and emotional

condition and needs of the child.” Id.

The mother contends termination of her parental rights was not in the best

interests of the children. She claims that although she was unable to meet the

needs of the children on the date of the termination hearing, at no time during

these proceedings did her bond with the children waiver. The mother states she

“received a large dose of reality” following the death of the father and during her

time in jail. She claims the classes she was taking in jail were the “first time” she

gained insight and realization concerning the impact her actions have on herself

and her children. The mother claims despite her “setbacks,” the children “still

need their mother and that it is her number one goal in life to get better, learn

from her mistakes, and be there for her children when she is released.”

On our de novo review, we agree with the juvenile court’s finding that

termination of the mother’s parental rights is in the best interests of the children

and would best provide for the children’s long-term nurturing and growth. As the

court observed:

The children’s safety is the Court’s primary consideration. There are ongoing safety concerns about the safety of the children if returned to the care and custody of their mother. The children need a long-term commitment by an adult who can be appropriately nurturing, supportive of their growth and development, and who can 6

appropriately meet their physical, mental, and emotional needs. The children are currently placed in a family that meets such criteria. The children’s best interests require that the parental rights of [] their mother[] be terminated.

An array of services has been offered to the mother to eliminate the need

for DHS involvement. Unfortunately, the mother “wasted a lot of time denying

substance abuse,” “did not participate in any of the services in any meaningful

way,” and “ha[d] yet to demonstrate a sustained parental interest in the children.”

We acknowledge the mother’s testimony that her jail sentence was “probably the

best thing for [her] because it let [her] wake up and see what [she] had, what

[she] was losing.” However, we agree with the juvenile court that overall, the

mother has not supported the children in any way.

“It is well-settled law that we cannot deprive a child of permanency after

the State has proved a ground for termination under section 232.116(1) by

hoping someday a parent will learn to be a parent and be able to provide a stable

home for the child.” Id. at 41; see A.B., 815 N.W.2d at 778 (Iowa 2012) (noting

the parent’s past conduct is instructive in determining his future behavior); In re

C.K., 558 N.W.2d 170, 172 (Iowa 1997) (finding that when considering what the

future holds if the child is returned to the parent, we must look to a parent’s past

behavior because it may be indicative of the quality of care the parent is capable

of providing in the future). Here, the mother is unable to assume custody of the

children now or at any time in the foreseeable future. Children are not equipped

with pause buttons. “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). 7

C. Factors Against Termination

Finally, we give consideration to whether any exception or factor in section

232.116(3) applies to make termination unnecessary. The mother claims the

juvenile court erred in terminating her parental rights due to her close bond with

the children. She also claims the court should have considered a relative

guardianship rather than termination of parental rights.3 Iowa Code section

232.116(3) provides:

The court need not terminate the relationship between the parent and child if the court finds any of the following: a. A relative has legal custody of the child. .... c. There 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.

This section is permissive rather than mandatory, that is, it is within the

juvenile court’s discretion to decline to terminate parental rights if any of the

factors in subsection three are present. See P.L., 778 N.W.2d at 41. Based on

the unique circumstances of each case and the best interests of the children, we

must decide whether to apply the factors in this section to save the parent-child

relationships. In re C.L.H., 500 N.W.2d 449, 454 (Iowa Ct. App. 1993).

Although the mother clearly loves the children, there is no evidence the

mother’s relationships with the children are so close it would be detrimental to the

children if termination occurred. The mother has been nearly nonexistent from

3 The State claims the mother failed to preserve error on these claims because they were not raised and decided by the juvenile court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (observing that an issue is preserved for review if it has been raised and decided by the district court). On our de novo review, we elect to bypass this error preservation concern and proceed to the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing error preservation problem and proceeding to the merits of the appeal). 8

the children’s lives for the past year, and she acknowledges cannot assume

parenting responsibilities now. The children have been in a safe and stable

home with the mother’s sister for the past year. Their behaviors are improving,

they are doing better in school, and they are bonded to their caretakers.

We further conclude that considering the children’s young age and need

for permanency, a guardianship is not in their best interests. Permanency cannot

be established by a guardianship. The “determination to terminate a parent-child

relationship is not to be countermanded by the ability and willingness of a family

member to take the child.” C.K., 558 N.W.2d at 174. The children continue to

suffer from the disruption their mother’s actions have caused them, and they

should not have to wait in limbo while their mother attempts to put her life in

order. No exception or factor contained in section 232.116(3) applies to make

termination of the mother’s parental rights unnecessary in this case.

IV. Conclusion

There is clear and convincing evidence that grounds for termination exist,

termination of parental rights is in the children’s best interests, and no

consequential factor weighing against termination requires a different conclusion.

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

AFFIRMED.