In the Interest of K.S., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 7, 2018
• Docket: 18-1515
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1515 Filed November 7, 2018

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

W.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clarke, Judge.

The mother appeals the termination of her parental rights. AFFIRMED.

Nina Forcier of Forcier Law Office, PLLC, Waterloo, for appellant mother.

Thomas J. Miller, Attorney General, and John McCormally, Assistant

Attorney General, for appellee State.

Timothy M. Baldwin, Waterloo, guardian ad litem for minor child.

Considered by Danilson, C.J., and Potterfield and Doyle, JJ. 2

POTTERFIELD, Judge.

The mother appeals the termination of her parental rights to her child, K.S.,

born in 2017. The juvenile court terminated the mother’s parental rights pursuant

to Iowa Code section 232.116(1)(g), (h), and (l) (2018). On appeal, the mother

claims there is not clear and convincing evidence to support the statutory grounds

for termination, she should be given an additional six months to work toward

reunification, termination is not in the child’s best interests, and the parent-child

bond weighs against termination.1

In considering the mother’s claims, we review the termination proceedings

de novo. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012).

We begin by considering the statutory grounds. “When the juvenile court

terminates parental rights on more than one statutory ground, we may affirm the

juvenile court’s order on any ground we find supported by the record.” Id. at 774.

We consider the grounds of section 232.116(1)(h), which allows the court to

terminate parental rights if all of the following are met:

(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 only challenges the fourth element—whether K.S. could be returned

to her care at the time of the termination hearing. See In re D.W., 791 N.W.2d

1 No father appeals. 3

703, 707 (Iowa 2010) (interpreting the term “at the present time” to mean to mean

“at the time of the termination hearing”).

K.S. was born in November 2017 and tested positive for amphetamines and

THC at birth. The mother also tested positive for the substances and admitted

using methamphetamine, marijuana, and un-prescribed Adderall during her

pregnancy. The Iowa Department of Human Services (DHS) became involved,

and K.S. was removed from the mother’s custody before he was discharged from

the hospital. The mother continued to use illegal substances during the pendency

of the case; she had at least one positive test for amphetamines,

methamphetamine, and THC. She also self-reported on a number of occasions

that she would test positive if drug tested, including as late as July 31—less than

ten days before the termination hearing—when she admitted recent use of

methamphetamine and marijuana to her probation officer. The mother did not

complete any drug-treatment programs during the approximately ten-month

pendency of proceedings. Additionally, according to the testimony of the DHS

social worker assigned to the family, the probation officer made the decision to

place the mother in a “locked facility” after she admitted on July 31 that she could

not otherwise abstain from using illegal drugs. It is unclear from the record before

us what type of facility the mother was in at the time of the termination hearing.

However, even if the facility would allow the mother to have the child with her, we

agree with the juvenile court that K.S. could not be returned to the mother’s care

at the time, as she continues to struggle with the same issues that caused DHS to

become involved. See In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016) (“[A]

child cannot be returned to the custody of the child’s parent under section 232.102 4

if by doing so the child would be exposed to any harm amounting to a new child in

need of assistance adjudication.” (alteration in original) (citation omitted)).

The mother maintains that even if the child could not be returned to her at

the time of the hearing, she should be given an additional six months to work

toward reunification. Iowa Code section 232.104(2)(b) allows the juvenile court to

delay permanency when “the need for removal of the child from the child’s home

will no longer exist at the end of the additional six-month period.” The juvenile

court denied this request, stating:

[The mother] has had services from [DHS] for almost five consecutive years. During that time she has had other children removed and either placed in the sole custody of their fathers or had [her] parental rights terminated. During the last nine months, she has had intensive services available and has been unable to respond appropriately to them on a consistent basis. . . . [A] further period of services will not correct the many personal problems that [the mother] continues to have.

In our de novo review of the record, we agree with the juvenile court. As recently

as June 2018, the mother was discharged from a treatment program, in part, “for

lack of readiness to resolve her problems.” Nothing in the record leads us to

conclude the mother was more ready to address the issue by the time of the

termination hearing, and recovery from long-term drug addiction is a lengthy

process. We cannot say the mother would be in a place to care for K.S. six months

after the termination hearing.

The mother combines her argument regarding the best interests of K.S.,

see Iowa Code § 232.116(2), and the permissive factors weighing against

termination, see id. § 232.116(3). She maintains that because she shares a bond

with the child and loves the child, her rights should not be terminated. We 5

acknowledge the social worker’s testimony that the mother is bonded to K.S. But

we cannot say the record supports a finding that K.S. is so bonded to the mother

that termination of her rights would be detrimental to him. See Iowa Code

§ 232.116(3)(c). The mother has never had custody of K.S., as he was removed

from her care before being discharged from the hospital. And while the mother

has been able to, as she argues in her appellate brief, attend to the child’s needs

during visits by feeding him, diapering him, holding him, and showing affection, we

cannot say her ability to provide appropriate care for K.S. for limited periods of time

in a supervised setting makes it in K.S.’s best interests for the mother to maintain

her parental rights. K.S. needs and deserves more. We affirm.

AFFIRMED.