In the Interest of L.C., Minor Child, C.C., Mother, D.M., Father, K.M., Grandmother, Intervenor-Appellant.

• Court: Court of Appeals of Iowa
• Decided: December 9, 2015
• Docket: 15-1510
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1510 Filed December 9, 2015

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

C.C., Mother, Appellant,

D.M., Father, Appellant,

K.M., Grandmother, Intervenor-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Appanoose County, William S.

Owens, Associate Juvenile Judge.

A mother, father, and grandmother-intervenor appeal termination of the

parents’ parental rights. AFFIRMED ON ALL APPEALS.

Amy S. Montgomery of Craver & Goethe, LLP, Centerville, for appellant

mother.

Robert F. Bozwell, Jr., Centerville, for appellant father.

Julie De Vries, De Vries Law Office, PLC, Centerville, for intervenor-

appellant grandmother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Debra A. George of Griffing & George Law Firm, PLC, Centerville,

attorney and guardian ad litem for minor child.

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

DOYLE, Judge.

L.C., born in September 2014, tested positive for methamphetamine and

alcohol at birth. When the child was one day old, the Iowa Department of Human

Services (Department) filed a Child in Need of Assistance (CINA) petition and an

application requesting the child be removed from his parents’ care. L.C. was

subsequently placed in the Department’s legal custody, and the child was placed

in foster care, where the child has since remained. Almost a year after his birth,

a termination-of-parental-rights hearing was held concerning L.C. Thereafter, the

juvenile court entered its order terminating the parents’ parental rights. The

court, employing the proper three-step analysis, see In re P.L., 778 N.W.2d 33,

40 (Iowa 2010), found the State proved grounds for termination as to each parent

under Iowa Code section 232.116(1)(h) (2015), termination of each parent’s

parental rights was in the child’s best interests, and none of the exceptions set

forth in section 232.116(3) applied. Specifically, the court concluded:

[The mother] has been offered numerous opportunities to participate in substance abuse treatment including opportunities to participate in residential treatment that would have allowed her an opportunity to have [the child] placed with her. [The mother] entered a residential program for a brief period, but later left against the advice of her treatment provider. [The mother] was given an opportunity to return to the program but refused. [The father] tested positive for methamphetamine use during the time the CINA case was pending, and while he has participated in some outpatient treatment sessions, he has also never successfully completed treatment. In light of this record, it is clear [the child] cannot be returned to the custody of his parents today. The child has been removed since the time of his birth and has never returned to the custody of a parent since that date. As heretofore stated, the parents have been offered a number of services to address the concerns that gave rise to the [Department’s] involvement, but the parents have not progressed in services and are no closer to [the child] being returned today than they were when he was first removed. 3

The court also found placing the child in a guardianship “would clearly not be

appropriate.”

The parents now appeal, separately. Additionally, the child’s maternal

grandmother, who intervened in the case, appeals. Our review is de novo. See

In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).

REASONABLE EFFORTS. The mother first argues the State failed to

provide to her reasonable reunification services. Although the State has an

obligation to provide reasonable services, the parent has an obligation to

demand different or additional services the parent may require prior to the

termination hearing. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999). If

a parent does not request additional services at the appropriate time, the

argument that the Department did not make reasonable efforts is waived, and the

parent may not later challenge it in the termination proceeding. In re C.H., 652

N.W.2d 144, 148 (Iowa 2002). The mother does not identify on appeal what

additional or alternative services would have increased her parenting skills.

Furthermore, nothing in the record shows the mother requested other, different,

or additional services prior to the termination hearing. Therefore, “the issue of

whether services were adequate has not been preserved for appellate review.”

See S.R., 600 N.W.2d at 65.

Even so, the record evidences the mother was offered and received

numerous services since, and even prior to, the date of the child’s removal from

her care, including substance-abuse treatment. That the mother failed to avail

herself to the services does not mean the State failed to provide the services.

Rather, it is clear the mother chose to ignore her addictions and mental-health 4

issues throughout the case despite the services the State provided to her to

overcome these issues. The State met its burden of providing reasonable

services to the mother.

GROUNDS FOR TERMINATION. The father argues the State failed to

prove the ground for termination found by the court under Iowa Code section

232.116(1)(h). Specifically, he argues he testified he was ready, willing, and able

to have the child returned to his care at the time of the termination hearing,

challenging only the fourth element of the ground. See Iowa Code

§ 232.116(1)(h)(4). However, the father actually testified, in response to the

question of whether he could care for the child on his own, that “it’s been a long

time since I took care of a baby, but I’m willing to try, you know what I mean.”

That he was willing to try does not evidence that he was able to care safely for

the child at the time of the termination hearing.

The father testified he last used drugs in September 2014, and had

participated in substance-abuse treatment. Nonetheless, he testified he intended

to continue his relationship with the mother, as well as living with her. He

admitted she needed help with her mental health and alcohol issues, and he

testified he missed visits with the child because he was helping take care of the

mother. While it is commendable that he wants to help the mother, the focus

here is the child. Because the mother did not address her issues during the

case, and because the father continues to live with the mother, there is no

question the child could not be placed safely in the father’s care at the time of the

termination hearing. 5

FACTORS IN TERMINATION. Both parents assert the termination of

their parental rights was not in the child’s best interests. In determining “whether

to terminate parental rights based on a particular ground, we must give primary

consideration to ‘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.’” See In re D.W., 791 N.W.2d 703,

707 (Iowa 2010) (quoting Iowa Code § 232.116(2)). We simply cannot deprive a

child of permanency after the State has proved a ground for termination because

we hope “someday a parent will learn to be a parent and be able to provide a

stable home for the child.” In re A.M., 843 N.W.2d 100, 112 (Iowa 2014).

Rather, “[t]he legislature has established time frames to balance the need to

provide parents with a reasonable opportunity to resume care of their [child] and

the [child’s] long term best interests.” Id. at 109.

Here, the mother admits she and the father “have struggled with stability

of housing, transportation, telephone service, employment, and substance abuse

treatment.” Though we believe both parents love the child, the father intended to

continue his relationship with the mother, and she chose not to address her

substance abuse or mental health issues within the allotted statutory time frame.

The public policy of the state having been legislatively set, we are obligated to

heed the statutory time periods for reunification. Considering the relevant factors

noted above, we agree with the juvenile court that termination of each parent’s

parental rights was in the child’s best interests.

EXCEPTIONS TO TERMINATION. The mother asserts termination of her

parental rights would be detrimental to the child, and we should apply the 6

exception set forth in section 232.116(3)(c) and find termination unnecessary.

See D.W., 791 N.W.2d at 709. “The factors weighing against termination in

section 232.116(3) are permissive, not mandatory, and the court may use its

discretion, based on the unique circumstances of each case and the best

interests of the child, whether to apply the factors in this section to save the

parent-child relationship.” A.M., 843 N.W.2d at 113 (citation and internal

quotation marks omitted). Here, there appeared to be a minimal bond between

the child and the mother. Even so, the mother chose not to address her issues

that would allow the child to return safely to her care. We do not find that

termination would be detrimental to the child based solely on the closeness of the

parent-child relationship. Consequently, we agree with the juvenile court that

clear and convincing evidence supports the termination of the mother’s parental

rights.

INTERVENOR. Finally, the child’s maternal grandmother, who intervened

in the case, also appeals the termination of the parents’ parental rights, arguing

the court should have established a guardianship with her rather than terminate

the parents’ parental rights. However, we question whether she has standing

here to make such a challenge, given that the child was not in her care, nor was

she standing in the parents’ place. See J.C., 857 N.W.2d at 505 (discussing

“standing in the place of the parents of the child” and section 232.111(4)(b)(6));

see also Citizens for Responsible Choices v. City of Shenandoah, 686 N.W.2d

470, 475 (Iowa 2004) (noting that to have standing, “a complaining party must

(1) have a specific personal or legal interest in the litigation and (2) be injuriously 7

affected”). In any event, we agree with the child’s guardian ad litem and the

State that a guardianship was not in the child’s best interests.

Here, the evidence shows the intervenor withdrew her request for a home

study when she learned it would not be approved. The child’s older siblings were

removed from her care thereafter. Even assuming the grandmother had standing

to appeal the termination of the parents’ parental rights, we do not find a

guardianship in the child’s best interests, given that the home study was not

completed because the grandmother believed it would not be approved.

We also note the court ordered the child be placed in the legal custody of

the Department for placement in an appropriate foster or pre-adoptive home,

which can include a relative. See, e.g., Iowa Code § 232.117(3)(c) (providing

that a relative may be considered for guardianship and custody if the court

terminates the parental rights of the child’s parents). The court did not preclude

the Department from considering placement with the grandmother as a guardian

in the future. In fact, the court specifically noted that pursuant to Iowa Code

section 232.118, an interested party can pursue a judicial review of the

guardianship order as set forth within that section.

Because we agree with the juvenile court that the State proved the ground

for termination under section 232.116(1)(h), termination of the parents’ parental

rights was in the child’s best interests, and no exception to termination applied

under the facts of this case, we affirm the juvenile court’s order terminating the

parents’ parental rights in all respects.

AFFIRMED ON ALL APPEALS.