IN THE COURT OF APPEALS OF IOWA
No. 18-1017 Filed August 1, 2018
IN THE INTEREST OF L.B., B.B., J.A., and A.E., Minor Children,
A.E., Mother, Appellant,
A.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,
District Associate Judge.
Mother and father appeal from an order terminating their rights in their
children pursuant to Iowa Code chapter 232 (2018). AFFIRMED ON BOTH
APPEALS.
Kelsey Bauerly Langel of Trotzig & Bauerly, PLC, Le Mars, for appellant
mother.
Robert B. Brock II of Law Office of Robert B. Brock II, P.C., Le Mars, for
appellant father.
Thomas J. Miller, Attorney General, and John B. McCormally, Assistant
Attorney General, for appellee State.
Meret Thali of Juvenile Law Center, Sioux City, guardian ad litem for minor
children. 2
Considered by Potterfield, P.J., and Bower and McDonald, JJ. 3
MCDONALD, Judge.
This case arises out of a chapter 232 proceeding to terminate the parental
rights of Alicia and Andrew. Alicia is the mother of J.A., A.E., L.B., and B.B.
Andrew is the father of L.B. and B.B. The juvenile court terminated Alicia’s rights
in her children pursuant to Iowa Code section 232.116(1)(f) (2018). The juvenile
court terminated Andrew’s parental rights in his children pursuant to Iowa Code
section 232.116(1)(f) and (l). The juvenile court also terminated the parental rights
of the fathers of J.A. and A.E. Those fathers do not appeal.
This court reviews termination proceedings de novo. See In re A.M., 843
N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination
of a parent-child relationship is well established. See In re A.S., 906 N.W.2d 467,
472–73 (Iowa 2018) (setting forth the statutory framework). The burden is on the
State to prove by clear and convincing evidence (1) the statutory ground or
grounds authorizing the termination of parental rights and (2) termination of
parental rights is in the best interest of the child. See In re E.H., No. 17-0615, 2017
WL 2684420, at *1 (Iowa Ct. App. June 21, 2017). Even where the State proves
its case, the juvenile court has the discretion to preserve the parent-child
relationship where the parent proves by clear and convincing evidence a statutory
factor allowing preservation of the parent-child relationship. See Iowa Code
§ 232.116(3) (setting forth permissive factors to avoid the termination of parental
rights); In re A.S., 906 N.W.2d at 476 (stating it is the parent’s burden to prove an
exception to termination).
We first address the sufficiency of the evidence supporting the termination
of Alicia and Andrew’s parental rights. Where “the juvenile court terminates 4
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.” In re A.B., 815
N.W.2d 764, 774 (Iowa 2012). We focus our attention on the statutory ground set
forth in section 232.116(1)(f). As relevant here, this provision requires “clear and
convincing evidence the children would be exposed to an appreciable risk of
adjudicatory harm if returned to the parent’s custody at the time of the termination
hearing.” In re E.H., 2017 WL 2684420, at *1. In assessing the sufficiency of the
evidence regarding the best interest of the children, we “give primary consideration
to the children’s safety, to the best placement for furthering the long-term nurturing
and growth of the children, and to the physical, mental, and emotional condition
and needs of the children.” In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (quoting
Iowa Code § 232.116(2)) (altered for readability).
On de novo review, we conclude the State proved by clear and convincing
evidence this statutory ground authorizing the termination of Alicia’s rights and
termination of Alicia’s rights is in the best interest of the children. Alicia has a long
history of involvement with the Iowa Department of Human Services (IDHS) due
to her substance abuse, among other things. Most recently, IDHS became
involved with this family in December 2014. Since that time, Alicia has continued
to use controlled substances, including methamphetamine, and has not
demonstrated the ability to maintain sobriety for any appreciable time outside a
custodial setting. Her continued use of methamphetamine creates an appreciable
risk of adjudicatory harm to the children and supports the termination of her
parental rights. See, e.g., In re A.B., 815 N.W.2d at 776 (noting drug addiction can
render a parent unable to care for children); In re K.C., No. 18-0581, 2018 WL 5
3057888, at *2 (Iowa Ct. App. June 20, 2018) (affirming termination where mother
had long history of substance abuse); In re L.S., No. 17-1824, 2018 WL 540968,
at *1 (Iowa Ct. App. Jan. 24, 2018) (providing untreated substance abuse can
create a risk of harm to the children); In re B.C., No. 17-0933, 2017 WL 4050975,
at *1 (Iowa Ct. App. Sept. 13, 2017) (affirming termination where mother had
history of drug abuse and limited success with treatment and other services); In re
R.P., No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016)
(affirming termination of parental rights of parent with history of drug abuse); In re
K.F., No. 14-0892, 2014 WL 4635463, at *3 (Iowa Ct. App. Sept. 17, 2014) (finding
termination appropriate, where, as here, “[a]lthough [the mother] has been involved
with services concerning her children at least three times, she does not obtain any
lasting benefit from those services”); In re H.L., No. 14-0708, 2014 WL 3513262,
at *3 (Iowa Ct. App. July 16, 2014) (affirming termination of parental rights when
parent had history of substance abuse). In addition, Alicia has a history of unstable
employment and housing and was essentially homeless at the time of the
termination hearing. Alicia’s economic instability and concomitant inability to meet
the most basic needs of her children create an appreciable risk of harm to the
children and supports the termination of her parental rights. See, e.g., In re J.M.,
No. 18-0163, 2018 WL 1631391, at *2 (Iowa Ct. App. Apr. 4, 2018) (affirming
termination where father was unable to meet the basic needs of the children due
to “inability to maintain employment and obtain stable housing”); In re D.M., No. 18-
0086, 2018 WL 1433104, at *2 (Iowa Ct. App. Mar. 21, 2018) (holding financial
instability and homelessness showed mother would not be able to provide care for
the children without creating an appreciable risk of adjudicatory harm); In re J.C., 6
No. 17-0750, 2017 WL 3283395, at *3 (Iowa Ct. App. Aug. 2, 2017) (affirming
termination of parental rights where mother was unemployed and essentially
homeless); In re E.R., No. 14-1816, 2015 WL 162177, at *3 (Iowa Ct. App. Jan.
14, 2015) (discussing mother’s financial instability and inability to meet the child’s
basic needs as one basis for termination); In re J.A., No. 13-0735, 2013 WL
4012434, at *2 (Iowa Ct. App. Aug. 7, 2013) (noting mother’s financial instability
as significant factor in termination); In re K.K., No. 02-0350, 2002 WL 987376, at
*1 (Iowa Ct. App.
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IN THE COURT OF APPEALS OF IOWA
No. 18-1017 Filed August 1, 2018
IN THE INTEREST OF L.B., B.B., J.A., and A.E., Minor Children,
A.E., Mother, Appellant,
A.B., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,
District Associate Judge.
Mother and father appeal from an order terminating their rights in their
children pursuant to Iowa Code chapter 232 (2018). AFFIRMED ON BOTH
APPEALS.
Kelsey Bauerly Langel of Trotzig & Bauerly, PLC, Le Mars, for appellant
mother.
Robert B. Brock II of Law Office of Robert B. Brock II, P.C., Le Mars, for
appellant father.
Thomas J. Miller, Attorney General, and John B. McCormally, Assistant
Attorney General, for appellee State.
Meret Thali of Juvenile Law Center, Sioux City, guardian ad litem for minor
children. 2
Considered by Potterfield, P.J., and Bower and McDonald, JJ. 3
MCDONALD, Judge.
This case arises out of a chapter 232 proceeding to terminate the parental
rights of Alicia and Andrew. Alicia is the mother of J.A., A.E., L.B., and B.B.
Andrew is the father of L.B. and B.B. The juvenile court terminated Alicia’s rights
in her children pursuant to Iowa Code section 232.116(1)(f) (2018). The juvenile
court terminated Andrew’s parental rights in his children pursuant to Iowa Code
section 232.116(1)(f) and (l). The juvenile court also terminated the parental rights
of the fathers of J.A. and A.E. Those fathers do not appeal.
This court reviews termination proceedings de novo. See In re A.M., 843
N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination
of a parent-child relationship is well established. See In re A.S., 906 N.W.2d 467,
472–73 (Iowa 2018) (setting forth the statutory framework). The burden is on the
State to prove by clear and convincing evidence (1) the statutory ground or
grounds authorizing the termination of parental rights and (2) termination of
parental rights is in the best interest of the child. See In re E.H., No. 17-0615, 2017
WL 2684420, at *1 (Iowa Ct. App. June 21, 2017). Even where the State proves
its case, the juvenile court has the discretion to preserve the parent-child
relationship where the parent proves by clear and convincing evidence a statutory
factor allowing preservation of the parent-child relationship. See Iowa Code
§ 232.116(3) (setting forth permissive factors to avoid the termination of parental
rights); In re A.S., 906 N.W.2d at 476 (stating it is the parent’s burden to prove an
exception to termination).
We first address the sufficiency of the evidence supporting the termination
of Alicia and Andrew’s parental rights. Where “the juvenile court terminates 4
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.” In re A.B., 815
N.W.2d 764, 774 (Iowa 2012). We focus our attention on the statutory ground set
forth in section 232.116(1)(f). As relevant here, this provision requires “clear and
convincing evidence the children would be exposed to an appreciable risk of
adjudicatory harm if returned to the parent’s custody at the time of the termination
hearing.” In re E.H., 2017 WL 2684420, at *1. In assessing the sufficiency of the
evidence regarding the best interest of the children, we “give primary consideration
to the children’s safety, to the best placement for furthering the long-term nurturing
and growth of the children, and to the physical, mental, and emotional condition
and needs of the children.” In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (quoting
Iowa Code § 232.116(2)) (altered for readability).
On de novo review, we conclude the State proved by clear and convincing
evidence this statutory ground authorizing the termination of Alicia’s rights and
termination of Alicia’s rights is in the best interest of the children. Alicia has a long
history of involvement with the Iowa Department of Human Services (IDHS) due
to her substance abuse, among other things. Most recently, IDHS became
involved with this family in December 2014. Since that time, Alicia has continued
to use controlled substances, including methamphetamine, and has not
demonstrated the ability to maintain sobriety for any appreciable time outside a
custodial setting. Her continued use of methamphetamine creates an appreciable
risk of adjudicatory harm to the children and supports the termination of her
parental rights. See, e.g., In re A.B., 815 N.W.2d at 776 (noting drug addiction can
render a parent unable to care for children); In re K.C., No. 18-0581, 2018 WL 5
3057888, at *2 (Iowa Ct. App. June 20, 2018) (affirming termination where mother
had long history of substance abuse); In re L.S., No. 17-1824, 2018 WL 540968,
at *1 (Iowa Ct. App. Jan. 24, 2018) (providing untreated substance abuse can
create a risk of harm to the children); In re B.C., No. 17-0933, 2017 WL 4050975,
at *1 (Iowa Ct. App. Sept. 13, 2017) (affirming termination where mother had
history of drug abuse and limited success with treatment and other services); In re
R.P., No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016)
(affirming termination of parental rights of parent with history of drug abuse); In re
K.F., No. 14-0892, 2014 WL 4635463, at *3 (Iowa Ct. App. Sept. 17, 2014) (finding
termination appropriate, where, as here, “[a]lthough [the mother] has been involved
with services concerning her children at least three times, she does not obtain any
lasting benefit from those services”); In re H.L., No. 14-0708, 2014 WL 3513262,
at *3 (Iowa Ct. App. July 16, 2014) (affirming termination of parental rights when
parent had history of substance abuse). In addition, Alicia has a history of unstable
employment and housing and was essentially homeless at the time of the
termination hearing. Alicia’s economic instability and concomitant inability to meet
the most basic needs of her children create an appreciable risk of harm to the
children and supports the termination of her parental rights. See, e.g., In re J.M.,
No. 18-0163, 2018 WL 1631391, at *2 (Iowa Ct. App. Apr. 4, 2018) (affirming
termination where father was unable to meet the basic needs of the children due
to “inability to maintain employment and obtain stable housing”); In re D.M., No. 18-
0086, 2018 WL 1433104, at *2 (Iowa Ct. App. Mar. 21, 2018) (holding financial
instability and homelessness showed mother would not be able to provide care for
the children without creating an appreciable risk of adjudicatory harm); In re J.C., 6
No. 17-0750, 2017 WL 3283395, at *3 (Iowa Ct. App. Aug. 2, 2017) (affirming
termination of parental rights where mother was unemployed and essentially
homeless); In re E.R., No. 14-1816, 2015 WL 162177, at *3 (Iowa Ct. App. Jan.
14, 2015) (discussing mother’s financial instability and inability to meet the child’s
basic needs as one basis for termination); In re J.A., No. 13-0735, 2013 WL
4012434, at *2 (Iowa Ct. App. Aug. 7, 2013) (noting mother’s financial instability
as significant factor in termination); In re K.K., No. 02-0350, 2002 WL 987376, at
*1 (Iowa Ct. App. May 15, 2002) (same); In re K.H., No. 03-0671, 2003 WL
21459582, at *2 (Iowa Ct. App. June 25, 2003) (concluding the children would be
at a continued risk for harm when the father did not have stable employment or
housing).
On de novo review, we also conclude the State proved by clear and
convincing evidence the statutory ground authorizing the termination of Andrew’s
parental rights and termination of his rights is in the best interest of his children.
Like Alicia, Andrew has a long history of substance abuse that precluded him from
providing adequate care for the children. In addition, Andrew has a long history of
criminal behavior resulting in his incarceration. Andrew was incarcerated for most
of this case and remained incarcerated at the time of the termination hearing.
Andrew’s long history of substance abuse, criminal behavior, and incarceration
precludes the return of the children to his care and supports the termination of his
parental rights. See, e.g., In re J.M., 2018 WL 1631391 at *1 (affirming termination
pursuant to section 232.116(1)(f) and (h) where father was incarcerated at the time
of the termination hearing); In re A.P., No. 17-1830, 2018 WL 540985, at *3 (Iowa
Ct. App. Jan. 24, 2018) (finding incarceration at the time of the termination hearing 7
satisfies the requirements of section 232.116(1)(f) and (h)); In re D.S., No. 16-
1149, 2016 WL 5408175, at *1 (Iowa Ct. App. Sept. 28, 2016) (finding sufficient
grounds for termination where “[t]he father admitted at the combined permanency
review and termination-of-parental-rights hearing that he could not care for his
child at that time due to his incarceration”).
Alicia contends this court should exercise its discretion and not terminate
her parental rights due to the strength of the bond between her and her children.
Section 232.116(3)(c) provides the court may avoid termination if “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.” The existence of a
bond between the mother and the children is a factor that can weigh against
termination, but the court may use its discretion in deciding whether to apply the
factor to continue the parent-child relationship. See In re A.M., 843 N.W.2d at 113.
In exercising the discretion to preserve the relationship, our consideration is not
merely whether there is a bond, “our consideration must center on whether the
child[ren] will be disadvantaged by termination, and whether the disadvantage
overcomes” Alicia’s inability to provide for the needs of the children. See In re
D.W., 791 N.W.2d at 709; see also Iowa Code § 232.116(2) (setting forth the
factors in determining the child’s best interests).
We decline to preserve the parent-child relationship pursuant to section
232.116(3)(c). The record reflects Alicia has a bond with her children. There is
not clear and convincing evidence, however, any disadvantage caused by
termination of her parental rights is more significant than the benefit to the children.
To this point in time, Alicia’s life is a story of substance abuse and instability 8
punctuated by brief interludes of compelled sobriety. What is past is prologue.
See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (noting a parent’s past
performance is indicative of the quality of care the parent may provide going
forward); In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[I]n considering
the impact of drug addiction, we must consider the treatment history of the parent
to gauge the likelihood that the parent will be in a position to parent the child in the
foreseeable future. Where the parent has been unable to rise above the addiction
and experience sustained sobriety in a noncustodial setting, and establish the
essential support system to maintain sobriety, there is little hope of success in
parenting.” (citation omitted)). In contrast, the children have the opportunity to
obtain necessary stability and care in her absence. On de novo review, we
conclude the discretionary exception should not serve to preclude the termination
of Alicia’s parental rights.
Finally, Alicia contends the juvenile court should have granted her an
additional six months’ time to reunite with the children. To defer permanency for
six months, the juvenile court was required to “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that the need for removal of the child[ren] from the child[ren]’s home
will no longer exist at the end of the additional six-month period.” Iowa Code
§ 232.104(2)(b). Here, there is no reason to believe an additional six months’ time
would have resolved the conditions necessitating removal of the children from
Alicia’s care. This case has been pending since February 2015. Alicia has
received numerous services to address her substance abuse and lack of
employment and housing but to no avail. Alicia’s caseworker testified Alicia tested 9
positive for methamphetamine almost every month for the year prior to the
termination hearing—even while she was attending outpatient substance-abuse
treatment. Termination of Alicia’s rights is appropriate under the circumstances.
See, e.g., In re C.M., No. 14-1140, 2015 WL 408187, at *4-5 (Iowa Ct. App. Jan.
28, 2015) (affirming termination of parental rights where the parents sought more
time but evidence established they were unlikely to resolve their substance abuse
problems); In re H.L., No. 14-0708, 2014 WL 3513262, at *3-4 (Iowa Ct. App. July
16, 2014) (affirming termination of parental rights where the father had history of
substance abuse and declining to grant father an additional six months); In re J.L.,
No. 02-1968, 2003 WL 21544226, at *3 (Iowa Ct. App. July 10, 2003) (concluding
that relapse of parent despite offer of services supported termination of parental
rights and refusing request for additional time for reunification).
For these reasons, we affirm the juvenile court’s order terminating the
parental rights of Alicia and Andrew.
AFFIRMED ON BOTH APPEALS.