In the Interest of L.N. and L.S., Minor Children

• Court: Court of Appeals of Iowa
• Decided: August 31, 2022
• Docket: 22-0702
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0702 Filed August 31, 2022

IN THE INTEREST OF L.N. and L.S., Minor Children

C.B., Mother, Appellant,

D.S., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III,

District Associate Judge.

Parents appeal the termination of their parental rights. AFFIRMED ON

BOTH APPEALS.

Joseph W. Kertels of the Juvenile Law Center, Sioux City, for appellant

mother.

Teresa A. O’Brien, Sioux City, for appellant father.

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

Attorney General, for appellee State.

Molly Vakulskas Joly, Sioux City, attorney and guardian ad litem for minor

children.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ. 2

AHLERS, Presiding Judge.

This case involves the termination of parental rights of parents of three-

year-old and two-year-old children. The juvenile court terminated the rights of the

mother of both children and the father of the younger child.1 Both the mother and

father appeal.

I. Background

The family came to the attention of the Iowa Department of Human Services

(DHS) in 2019 (before the younger child was born) following reports that the

mother used methamphetamine while caring for the older child. The child was

removed from the mother’s custody and was adjudicated a child in need of

assistance (CINA) later that year. At the time of disposition, custody remained with

the DHS for placement with a relative, which could include the mother. The mother

struggled, including testing positive for methamphetamine, but she was permitted

to remain a placement option while DHS retained custody of the child.

The father was convicted of and incarcerated for possession of

methamphetamine while the mother was pregnant with the younger child. Shortly

after the younger child was born in early 2020, the child was adjudicated a CINA,

but remained in the mother’s custody. In May, at the time of disposition in the

younger child’s case, custody of the younger child remained with the mother and

custody of the older child was returned to the mother.

1 The parental rights of the father of the older child were terminated by separate order of the juvenile court in this proceeding. The father of the older child is not a party to this appeal. So all future references to “father” in this opinion refer to the father of the younger child. 3

Custody with the mother did not last. Later in 2020, during two separate

traffic stops, law enforcement found marijuana and methamphetamine in the same

vehicle as the mother. Following those stops, the DHS conducted drug testing on

the mother and both children. All three came back positive for methamphetamine.

As a result, in September, custody of both children was changed from the mother

to the DHS.

Thereafter, the mother remained generally unemployed, failed to attend

many of her group treatments, and regularly refused to participate in drug testing.

She continued to socialize with known drug users and relapsed on both marijuana

and methamphetamine. She had two mental-health hospitalizations in the six-

month period before the termination hearing.

The State filed a petition to terminate parental rights in June 2021. The

hearing on the petition was held on two dates in August. The father participated

in the hearing by phone from prison.

Shortly after the hearing, but before the court ruled, the father was released

from prison. He moved to a town one and one-half hours away from where the

child was living. The mother joined him. The parents’ decision to reside so far

away from the child impeded their contact with the child.

The juvenile court issued a ruling in November. Rather than terminating

parental rights, the court gave the parents an additional six months to work toward

reunification pursuant to Iowa Code section 232.104(2)(b) (2021). In the order

granting additional time, the court set a joint hearing for a CINA dispositional review

and on the petition for termination of parental rights for February 2022. The

hearing was later continued to March. The hearing was held as scheduled, and 4

the juvenile court terminated the parents’ rights to the children. Both parents

appeal.

II. Issues Presented

On appeal, both parents challenge the statutory grounds authorizing

termination. They also object to the fact that the second termination hearing took

place less than six months after the juvenile court’s ordering granting them an

additional six months to work toward reunification. The mother raises two

additional issues, namely that termination was not in the children’s best interests

and a permissive exception should be applied to avoid termination.

III. Standard of Review

Appellate review of orders terminating parental rights is de novo. In re Z.K.,

973 N.W.2d 27, 32 (Iowa 2022). This permits us to review the facts as well as the

law to adjudicate the dispute anew. Id. In doing so, we give weight to the juvenile

court’s fact findings, especially as to witness credibility, but we are not bound by

them. Id.

IV. Discussion

Review of orders terminating parental rights follows a three-step process.

In re A.B., 957 N.W.2d 280, 294 (Iowa 2021). First, we determine whether a

statutory ground for termination under Iowa Code section 232.116(1) has been

established. Id. If it has, we determine whether termination is in the children’s

best interests, applying the principles spelled out in section 232.116(2). Id. If the

first two steps are satisfied, we decide whether any exception in section 232.116(3)

should be applied to preclude termination. Id. Then we address any additional

claims raised by the parents. In re K.M., No. 19-1637, 2020 WL 110408, at *1 5

(Iowa Ct. App. Jan. 9, 2020). However, if a parent does not challenge a step, we

do not address that step. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). As the mother

has challenged all three steps, we will address them all with respect to her. As to

the father, we will only address the step he challenged—the first step. Then we

will address their remaining claim regarding their reduced additional time to work

toward reunification.

A. Statutory Grounds

The juvenile court terminated the mother’s rights under

section 232.116(1)(h), (i), and (l), and the father’s rights under

section 232.116(1)(h) and (i). Both parents challenge termination on all grounds,

but when the juvenile court terminates on more than one ground, we are not

required to assess all grounds, as we may affirm on any ground supported by the

record. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Consistent with that

principle, we choose to limit our discussion to section 232.116(1)(h).

Termination under section 232.116(1)(h) requires proof that (1) the child is

three years of age or younger; (2) the child has been adjudicated a CINA; (3) the

child has been removed from the physical custody of the child’s parents for at least

six of the last twelve months; and (4) the child cannot be safely returned to the

custody of the child’s parents at the time of the termination hearing. In re A.S.,

906 N.W.2d 467, 473 (Iowa 2018) (interpreting section 232.116(1)(h)(4)’s use of

the phrase “at the present time” to mean at the time of the termination hearing).

The first three elements have been established by clear and convincing evidence,

and the parents raise no challenge to them. Their challenge is to the proof of the

fourth element. Both claim the child could have been returned to their custody. 6

The mother contends that she maintains housing, is enrolled in a high-school

equivalency program, regularly participates in therapy, and has remained sober.

The father argues he has complied with everything the DHS and service providers

have asked of him.

While the parents have made some progress to better themselves and

began following the directions of service providers, by the time of the second

termination hearing they did not have a consistent track record that would suggest

either can provide a stable home for these children. In the months leading up to

the second termination hearing, the mother was generally unemployed, relapsed

on both marijuana and methamphetamine, and was hospitalized twice for mental-

health issues. Though the father appears to be working hard at his new job, he

also relapsed on methamphetamine only three months before the termination

hearing. And, it is important to note that both parents relapsed after the juvenile

court gave them an additional six months to work toward reunification. Continued

drug use after being offered services is evidence that parents are unable to provide

“a safe and nurturing home.” In re D.M.J., 780 N.W.2d 243, 246 (Iowa Ct. App.

2010); cf. In re J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9,

2020) (recognizing a parent’s methamphetamine use creates a dangerous

environment for children). We find that the children cannot be returned to either

parent’s custody, so the statutory grounds for termination are satisfied under Iowa

Code section 232.116(1)(h) as to both parents.

B. Best Interests

The mother also argues termination is not in the best interests of the

children. “Even after we have determined that statutory grounds for termination 7

exist, we must still determine whether termination is in the children’s best

interests.” A.B., 815 N.W.2d at 776. “[W]e ‘give primary consideration to the child’s

safety, to the best placement for furthering the long-term nurturing and growth of

the child, and to the physical, mental, and emotional condition and needs of the

child.’” In re Z.P., 948 N.W.2d 518, 525 (Iowa 2020) (quoting P.L., 778 N.W.2d at

39).

These children were two and three years old at the time of the second

termination hearing, and, by the time of that hearing, they had been removed from

their mother’s custody for eighteen consecutive months. The mother has had

multiple relapses with drug use. She has been unable to maintain gainful or regular

employment, and, in the six-month period leading up to the termination hearing,

she had two hospitalizations for mental-health issues. She is unable to provide a

stable and nurturing home for her children. As the juvenile court accurately

described it, the mother has been on a “merry-go-round” of dysfunction, with the

mother only making “eleventh hour” efforts at participating in substance-abuse and

mental-health treatment. See In re D.M., 516 N.W.2d 888, 891 (Iowa 1994)

(finding efforts “of very recent origin” to be an unpersuasive “eleventh hour attempt

to prevent termination”); In re K.A., No. 20-0979, 2020 WL 5946114, at *2 (Iowa

Ct. App. Oct. 7, 2020) (“[E]leventh hour attempts do not warrant an extension of

time or prevent termination of [parental] rights.”).

In contrast, the children are doing well in their foster home and are having

all of their developmental needs met. Following our review, we agree termination

of the mother’s parental rights is in the children’s best interests. 8

C. Permissive Exception Based on Parent-Child Bond

The mother contends the children’s bond with her is so great that it is

detrimental to them to terminate her rights. Iowa Code section 232.116(3)(c)

permits the court not to terminate parental rights if “[t]here 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.” But, the exceptions in

section 232.116(3) are permissive, not mandatory, and the burden to prove the

exception is on the parent challenging termination. See A.S., 906 N.W.2d at 475–

76. Here, the evidence confirms that the mother has a bond with the children, but

the mere “existence of a bond is not enough.” See In re A.B., 956 N.W.2d 162,

169 (Iowa 2021). It must be a closeness that, if severed, would be detrimental to

the child. Id. There is no persuasive evidence that severing the relationship would

be detrimental to the children. Given the young ages of the children, the length of

time they have been outside the mother’s custody, and the other circumstances,

we decline to apply section 232.116(3)(c) to block termination. See In re M.W.,

876 N.W.2d 212, 225 (Iowa 2016) (declining to apply section 232.116(3)(c) where

a parent-children bond existed but the children were young and out of the care of

their mother for nearly two years).

D. Timing of Second Hearing in Relation to Six-Month Extension

As previously noted, after the termination hearing held in August 2021, the

juvenile court issued its ruling in November 2021. In that ruling, the court declined

to terminate parental rights, gave the parents an additional six months to work

toward reunification pursuant to Iowa Code section 232.104(2)(b), and set a

second termination hearing for February 2022 (later continued to March). Both 9

parents contend that it was improper for the court to hold the second hearing and

terminate their rights before receiving the full benefit of the six-month extension

granted by the November 2021 order.

We reject the parents’ challenges. First, we note that “the court has

jurisdiction to consider a petition to terminate parental rights during the six-month

review period.” In re R.C., 523 N.W.2d 757, 760 (Iowa Ct. App. 1994). The six-

month period provided by section 232.104(2)(b) is not “a minimum period which

must run before review or modification.” Id. If the court could not terminate before

the end of the six-month period, it would lead to “absurd results” by depriving “the

court of jurisdiction to protect the best interests of the child, which is our primary

concern.” Id. Second, because of the delay between the first termination hearing

in August 2021 and the ruling issued in November, the parents had over six months

between the time of the first and second hearings to demonstrate their ability to

provide a safe home. The parents squandered that opportunity by relapsing on

methamphetamine and generally continuing their same pattern of conduct with

only minimal improvement. Under these circumstances, the juvenile court acted

properly in holding the second termination hearing before the end of the six-month

period.

V. Conclusion

Finding the juvenile court acted appropriately in terminating both parents’

rights, we affirm as to both parents.

AFFIRMED ON BOTH APPEALS.