IN THE COURT OF APPEALS OF IOWA
No. 14-1694 Filed November 26, 2014
IN THE INTEREST OF L.P., Minor Child,
K.P., Father, Appellant,
S.J., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Clarke, Judge.
A mother and father separately appeal the termination of their parental
rights to their son, who was removed from their care at birth. AFFIRMED ON
BOTH APPEALS.
Theodore R. Stone, Cedar Falls, for appellant-father.
Brett Schilling of Schilling Law Office, P.C., Waterloo, for appellant-
mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Kathleen A. Hahn,
Assistant County Attorney, for appellee.
Timothy M. Baldwin of Juvenile Public Defender Officer, Waterloo,
attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Doyle and Tabor, JJ. 2
TABOR, J.
L.P. has never lived with his biological parents. Removed from their
custody shortly after his birth in January 2014, L.P. has remained in family foster
care his whole life. The parents have not visited L.P. since April 2014 because of
unresolved substance abuse and mental health issues. In September 2014, the
juvenile court terminated the parental rights of both the father and mother, finding
“anything short of adoption would be contrary to the best interests of the child.”
The father and mother filed separate petitions to appeal the termination
order. The father contends the Iowa Department of Human Services (DHS) has
not made reasonable efforts to reunite him with his son. Specifically, he argues
the DHS had an obligation to seek an involuntary substance abuse commitment
to address his methamphetamine addiction. The father also asserts the DHS
decision to suspend visitations violated his right to due process. The mother
challenges the statutory grounds and argues termination was not in L.P.’s best
interest. As a back-up argument, she contends deferral of his permanent
placement is preferable to termination of her parental rights.
In a thorough and well-written termination order, the juvenile court
concluded: “these parents do not have the skill or ability to provide safely for this
child. They have no concept of the care and nurturing a child needs. They
cannot care for themselves, nor have they expended any effort to change.”
Because our review of the record leads us to the same conclusion and we find no 3
merit to the parents’ claims on appeal, we affirm the termination order as to both
the father and the mother.
I. Background facts and proceedings
L.P.’s parents did not interact well with their newborn son, prompting
hospital staff to contact the DHS. Nurses noted the parents participated in only
two of the infant’s first twelve feedings. The hospital staff also expressed
concern about the parents’ untreated mental health needs, as well as their
substance abuse history. The mother reported using methamphetamine and
marijuana four months into her pregnancy. The father had a criminal history and
stayed in a residential facility until 2010. The parents were homeless until shortly
before L.P.’s birth when they moved into a house shared by eight adults and two
pit bulls.
On January 24, 2014, the court confirmed L.P.’s removal, stating: “These
young parents are in need of many services. Those services include but are not
limited to updated mental health evaluations, updated substance abuse
evaluations, couple’s counseling and parent education.” The mother
acknowledged committing assaults the previous summer when she was not
taking her psychotropic medications. The father had a prior conviction for
domestic abuse, and his behavior at the hospital was described as “erratic,
belligerent and paranoid.”
The juvenile court adjudicated L.P. as a child in need of assistance (CINA)
on February 18, 2014. The court directed the parents to obtain updated mental
health and substance abuse evaluations, and to participate in FSRP (family 4
safety, risk, and permanency) services, as well as any other services deemed
helpful to achieve reunification with their son.
The parents made little progress over the next few months. They missed
many visits scheduled with L.P. When they did attend visits, the mother was
unsure how to handle the infant, while the father was more comfortable with the
interactions. Parenting skills education was an expectation set by the court soon
after L.P.’s removal, but the parents had only attended a single class by the time
of the termination hearing in August 2014.
The parents also failed to regularly attend L.P.’s medical appointments
when he was being treated for RSV bronchiolitis in February and March. In
March, the foster parents observed L.P. having tremors, which doctors attributed
to his exposure to methamphetamine in utero. The parents did not attend the
doctor’s appointment assessing the infant’s neurological damage because they
were “coming down from meth.”
Drug abuse continued to hamper the parents’ efforts at reunifying with L.P.
The father tested positive for methamphetamine on February 7, 2014. The
mother tested positive for methamphetamine on March 14 and March 25. Both
parents completed substance abuse evaluations on March 20, 2014, but did not
follow through with recommended treatment. Neither has participated in drug
testing since April 2, 2014.
The DHS temporarily suspended the parents’ visits with L.P. on April 25,
2014, because their continuing drug use appeared to be triggering a physical
reaction in their son. L.P. was extremely fussy during visits with his parents. The 5
foster parents told the case worker L.P. continued to cry after visits, until he was
bathed and dressed in clean clothes. The case worker testified: “it was our
impression that he was having a physical reaction to the parents coming to the
visits either under the influence of substances or not appropriately showering or
getting it out of their system and so that skin-to-skin contact was having a
physical impact on [L.P.].” The case worker told the parents if they complied with
drug testing and demonstrated that they were “clean,” the visits would be
reinitiated.
In addition to their methamphetamine addictions, both parents struggled
with other mental illnesses. The mother and father participated in psychological
evaluations in April 2014. The mother’s diagnoses included methamphetamine
abuse; schizophrenia disorder, paranoid type; unspecified mood disorder;
attention deficit/hyperactivity disorder; negativistic, codependent personality traits
and neglect of child. The mother testified she agreed with some of the mental
health diagnoses, but disagreed with the majority of them. She also testified the
doctor prescribed medications for her mental health conditions, but she was not
taking them because her Medicaid was “deactivated.”
The father’s diagnoses included methamphetamine use; negativistic, self-
defeating and depressive personality traits; generalized anxiety disorder; major
depressive disorder, moderate, recurrent; unspecified psychotic disorder;
attention deficit/hyperactivity disorder; neglect of child; and partner relational
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IN THE COURT OF APPEALS OF IOWA
No. 14-1694 Filed November 26, 2014
IN THE INTEREST OF L.P., Minor Child,
K.P., Father, Appellant,
S.J., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Clarke, Judge.
A mother and father separately appeal the termination of their parental
rights to their son, who was removed from their care at birth. AFFIRMED ON
BOTH APPEALS.
Theodore R. Stone, Cedar Falls, for appellant-father.
Brett Schilling of Schilling Law Office, P.C., Waterloo, for appellant-
mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Kathleen A. Hahn,
Assistant County Attorney, for appellee.
Timothy M. Baldwin of Juvenile Public Defender Officer, Waterloo,
attorney and guardian ad litem for minor child.
Considered by Danilson, C.J., and Doyle and Tabor, JJ. 2
TABOR, J.
L.P. has never lived with his biological parents. Removed from their
custody shortly after his birth in January 2014, L.P. has remained in family foster
care his whole life. The parents have not visited L.P. since April 2014 because of
unresolved substance abuse and mental health issues. In September 2014, the
juvenile court terminated the parental rights of both the father and mother, finding
“anything short of adoption would be contrary to the best interests of the child.”
The father and mother filed separate petitions to appeal the termination
order. The father contends the Iowa Department of Human Services (DHS) has
not made reasonable efforts to reunite him with his son. Specifically, he argues
the DHS had an obligation to seek an involuntary substance abuse commitment
to address his methamphetamine addiction. The father also asserts the DHS
decision to suspend visitations violated his right to due process. The mother
challenges the statutory grounds and argues termination was not in L.P.’s best
interest. As a back-up argument, she contends deferral of his permanent
placement is preferable to termination of her parental rights.
In a thorough and well-written termination order, the juvenile court
concluded: “these parents do not have the skill or ability to provide safely for this
child. They have no concept of the care and nurturing a child needs. They
cannot care for themselves, nor have they expended any effort to change.”
Because our review of the record leads us to the same conclusion and we find no 3
merit to the parents’ claims on appeal, we affirm the termination order as to both
the father and the mother.
I. Background facts and proceedings
L.P.’s parents did not interact well with their newborn son, prompting
hospital staff to contact the DHS. Nurses noted the parents participated in only
two of the infant’s first twelve feedings. The hospital staff also expressed
concern about the parents’ untreated mental health needs, as well as their
substance abuse history. The mother reported using methamphetamine and
marijuana four months into her pregnancy. The father had a criminal history and
stayed in a residential facility until 2010. The parents were homeless until shortly
before L.P.’s birth when they moved into a house shared by eight adults and two
pit bulls.
On January 24, 2014, the court confirmed L.P.’s removal, stating: “These
young parents are in need of many services. Those services include but are not
limited to updated mental health evaluations, updated substance abuse
evaluations, couple’s counseling and parent education.” The mother
acknowledged committing assaults the previous summer when she was not
taking her psychotropic medications. The father had a prior conviction for
domestic abuse, and his behavior at the hospital was described as “erratic,
belligerent and paranoid.”
The juvenile court adjudicated L.P. as a child in need of assistance (CINA)
on February 18, 2014. The court directed the parents to obtain updated mental
health and substance abuse evaluations, and to participate in FSRP (family 4
safety, risk, and permanency) services, as well as any other services deemed
helpful to achieve reunification with their son.
The parents made little progress over the next few months. They missed
many visits scheduled with L.P. When they did attend visits, the mother was
unsure how to handle the infant, while the father was more comfortable with the
interactions. Parenting skills education was an expectation set by the court soon
after L.P.’s removal, but the parents had only attended a single class by the time
of the termination hearing in August 2014.
The parents also failed to regularly attend L.P.’s medical appointments
when he was being treated for RSV bronchiolitis in February and March. In
March, the foster parents observed L.P. having tremors, which doctors attributed
to his exposure to methamphetamine in utero. The parents did not attend the
doctor’s appointment assessing the infant’s neurological damage because they
were “coming down from meth.”
Drug abuse continued to hamper the parents’ efforts at reunifying with L.P.
The father tested positive for methamphetamine on February 7, 2014. The
mother tested positive for methamphetamine on March 14 and March 25. Both
parents completed substance abuse evaluations on March 20, 2014, but did not
follow through with recommended treatment. Neither has participated in drug
testing since April 2, 2014.
The DHS temporarily suspended the parents’ visits with L.P. on April 25,
2014, because their continuing drug use appeared to be triggering a physical
reaction in their son. L.P. was extremely fussy during visits with his parents. The 5
foster parents told the case worker L.P. continued to cry after visits, until he was
bathed and dressed in clean clothes. The case worker testified: “it was our
impression that he was having a physical reaction to the parents coming to the
visits either under the influence of substances or not appropriately showering or
getting it out of their system and so that skin-to-skin contact was having a
physical impact on [L.P.].” The case worker told the parents if they complied with
drug testing and demonstrated that they were “clean,” the visits would be
reinitiated.
In addition to their methamphetamine addictions, both parents struggled
with other mental illnesses. The mother and father participated in psychological
evaluations in April 2014. The mother’s diagnoses included methamphetamine
abuse; schizophrenia disorder, paranoid type; unspecified mood disorder;
attention deficit/hyperactivity disorder; negativistic, codependent personality traits
and neglect of child. The mother testified she agreed with some of the mental
health diagnoses, but disagreed with the majority of them. She also testified the
doctor prescribed medications for her mental health conditions, but she was not
taking them because her Medicaid was “deactivated.”
The father’s diagnoses included methamphetamine use; negativistic, self-
defeating and depressive personality traits; generalized anxiety disorder; major
depressive disorder, moderate, recurrent; unspecified psychotic disorder;
attention deficit/hyperactivity disorder; neglect of child; and partner relational
problems. The father testified the psychological evaluation was “a joke” and he
disagreed with the diagnoses. The father admitted being addicted to 6
methamphetamine, but he did not believe the addiction affected his personality,
saying he was just “really, really irritated” because he did not like having his son
“taken away.”
The State filed petitions to terminate parental rights on July 31, 2014,
alleging grounds existed under Iowa Code sections 232.116(1)(e), (h), (k), and (l)
(2013). At a termination hearing on August 28, 2014, the court heard testimony
from the DHS case worker, the FSRP worker, the mother, and the father. At the
end of the hearing, the attorneys for both parents asked the court to defer
permanency for L.P. while each parent worked to “get their life on track.”
On September 24, 2014, the juvenile court rejected the parents’ requests
for more time and granted the State’s petitions to terminate parental rights,
relying on sections 232.116(1)(e),1 (h)2 and (l).3 The parents now appeal.
1 Under this paragraph, the court may order termination if: (1) the child has been adjudicated CINA, (2) the child has been removed from the physical custody of the child’s parents for a period of at least six consecutive months, and (3) there is clear and convincing evidence that the parents have not maintained significant and meaningful contact with the child during the previous six consecutive months and have made no reasonable efforts to resume care of the child despite being given the opportunity to do so. 2 Under this paragraph, the court may order termination if: (1) the child is three years of age or younger, (2) the child has been adjudicated CINA under 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; and (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. 3 Under this paragraph, the court may order termination if: (1) the child has been adjudicated a CINA pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102; (2) the parent has a severe substance-related disorder and presents a danger to self or others as evidenced by prior acts; and (3) there is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home. 7
II. Legal analysis
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110–111 (Iowa 2014). We give weight to the juvenile court’s
fact findings and credibility assessments, but they are not binding on our
decision. Id. We may uphold a termination order if the State has offered clear
and convincing evidence supporting a ground for termination under Iowa Code
section 232.116. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence
qualifies as “clear and convincing” if no serious or substantial doubts exist as to
the conclusions of law or the correctness of the conclusions drawn from it. Id.
In terminating parental rights, Iowa courts follow a three-step analysis. In
re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First, the court must determine if the
State has established a ground for termination under section 232.116(1). Id.
Second, if the evidence satisfies the statutory elements, the court must apply the
best-interest framework set out in section 232.116(2). Third, if the statutory best-
interest framework supports termination, the court must consider if any factors in
section 232.116(3) serve to preclude termination of parental rights. Id.
A. Termination of the mother’s relationship with L.P.
The mother challenges the first and second steps of the juvenile court’s
analysis. She contends the State did not meet its burden to prove all elements
under paragraphs (e), (h) or (l). She also argues termination was not in L.P.’s
best interest because she has bonded with the child. If we reject those claims, in
the alternative, she asks for additional time for reunification. 8
We turn first to the statutory grounds for termination. When the juvenile
court terminates parental rights based on several subdivisions of section
232.116(1), we may affirm the order on any ground we find supported by the
record. D.W., 791 N.W.2d at 707. In this case, we find the juvenile court
properly based its termination on paragraph (h). The mother does not dispute
L.P is younger than three, has been adjudicated CINA under section 232.96, and
has been out of her custody for six consecutive months. Instead she focuses on
the fourth element, that L.P. cannot be returned to her custody as provided in
section 232.102 at the present time. Iowa Code § 232.116(1)(h). The mother
asserts on appeal that she and the father have a “living arrangement available to
them” and claims her parenting skills have improved recently because she has
had a “babysitter-type role” with another child in the household.
We are not persuaded by the mother’s argument. The living arrangement
she refers to is a spare room in the home of the father’s ex-partner and that
partner’s new husband and her children. Even if the mother is gaining skills in
child care, she has not demonstrated those with her own son because she has
not taken the initiative to undergo drug testing since April. The mother’s
argument does not address the fundamental impediments to reunification, which
are the unresolved drug addictions and mental health challenges faced by both
her and L.P.’s father. A child cannot be safely placed in the home of a
methamphetamine addict who is actively using. See In re A.B., 815 N.W.2d 764,
776 (Iowa 2012). 9
L.P. has been away from his parents since he was born. The record
shows he could not be returned to the care of his parents at the time of the
hearing. We find clear and convincing evidence the State established grounds
for termination of the mother’s parental rights under Iowa Code section
232.116(1)(h).
After we decide a statutory ground for termination exists, we still must
determine if termination is in the child’s best interests. Iowa Code § 232.116(2);
see P.L., 778 N.W.2d at 39. In evaluating this issue, we first consider the child’s
safety, and then assess what would be “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.” P.L., 778 N.W.2d at 39 (quoting
Iowa Code § 232.116(2)). The mother argues termination of her parental rights
was not in L.P.’s best interests because they “have bonded with one another.”
At the time of the August 2014 hearing, the mother had not had a visit with
L.P. for four months because the mother had not complied with the DHS
requirement for drug testing. It is hard to assess whether the mother continued
to have a bond with L.P. after such a gap in contact. But bond or not, the child’s
safety is our primary consideration when evaluating best interests. The record
shows the mother is not a safe custodian for L.P. As the juvenile court observed:
“The child has been placed in a concurrent home where he is loved, nurtured,
and his safety is not in question.” On these facts, we find termination of the
mother’s parental rights was in L.P.’s best interests. 10
Finally, as an alternative, the mother asks that she and the father “be
given additional time to work on the requests of the Department of Human
Services through a deferral of permanency in this matter.” Iowa Code section
232.104(2)(b) sets forth the option of continuing placement after a permanency
hearing, allowing the juvenile court to
[e]nter an order pursuant to section 232.102 to continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order. An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that 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.
To continue placement for six months, the statute requires the court to determine
the need for removal will no longer exist at the end of the extension. In re
A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). The juvenile court could not
make such a determination on this record. Neither parent has embraced any
behavioral changes that would promote stability in their general mental health
conditions, or specifically as to their drug addictions. Six more months would not
put them in the position to be safe parents. Accordingly, we affirm the
termination of the mother’s parental rights.
B. Termination of the father’s relationship with L.P.
The father argues the DHS fell short of its obligation to make reasonable
efforts to unify the family in two ways. First, the father contends the DHS should
have pursued an involuntary substance abuse commitment against him.
Second, he claims the DHS did not make reasonable efforts in ensuring ongoing
visitations between the parents and L.P. We will address each claim in turn. 11
The DHS is required to “make every reasonable effort to return the child to
the child’s home as quickly as possible consistent with the best interests of the
child.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).
The reasonable-efforts concept focuses on services to improve parenting. C.B.,
611 N.W.2d at 493. But it also includes visitation designed to facilitate family
reunification while protecting the child from harm. Id. Our supreme court does
not interpret the reasonable-efforts mandate as a strict substantive requirement
that must be satisfied before a parent’s rights may be terminated. See id.
Instead, the State must show reasonable efforts by the DHS as a part of its
ultimate proof the child cannot be safely returned to the care of a parent. Id.
We turn first to the father’s argument concerning an involuntary
commitment. The father testified he was a methamphetamine addict. When
asked what it would take for him to “get off meth,” he responded: “It would
probably take finding a job and getting the hell out of this town.” The juvenile
court noted in its termination decision that the father was “emaciated and fidgety”
during his testimony. The DHS case worker testified she encouraged the father
to pursue in-patient drug treatment, but he resisted, saying “he already knew
what he needed to do” which was to get a job and then he would stop using. The
worker did not believe reasonable efforts encompassed pursuing a substance
abuse commitment against a parent, and testified that DHS supervisors have
advised: “that’s not our position to commit individuals to treatment.” On appeal,
the father asserts “it is unreasonable to expect a drug addict to seek help on his
or her own.” 12
We decline to hold the DHS had an obligation to commence proceedings
for involuntary commitment or treatment under Iowa Code section 125.75 for the
parent of a child adjudicated CINA as part of its reasonable-efforts requirement.
Our court has previously, in an unpublished opinion, rejected a similar claim that
the DHS should have pursued a substance abuse commitment because it was
unreasonable to expect an addicted parent to seek help on his or her own. See
In re T.F., No. 03–0500, 2003 WL 21076398, at *1–2 (Iowa Ct. App. 2003).
While the State is required to provide reasonable reunification services,
parents have an obligation “to demand other, different or additional services prior
to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999).
In this case, the DHS offered reasonable services aimed at helping the parents
confront and overcome their addictions, including random drug testing,
substance abuse evaluations, and treatment options. The father submitted to
drug testing only three of nineteen possible times. The father refused to
participate in in-patient treatment and attended only a couple of sessions of
extended outpatient treatment. His appellate argument that the DHS should
have pursued involuntary commitment does not square with the settled principle
that parents must demand the services they believe will help eliminate the need
for removal of their child. Accordingly, we decline to grant the father relief on this
argument.
We turn next to his argument that reasonable efforts were not made to
ensure visitation between parent and child. The father claims he was denied due
process by the DHS decision to curtail visitation based on “unsupported” 13
allegations L.P. suffered a physical reaction to methamphetamine on the parents’
clothing or skin during visits. The father does not cite any cases or provide any
analysis to support his due process claim, nor does he explain how he preserved
error on that constitutional issue. “Constitutional questions must be preserved by
raising them at the earliest opportunity after the grounds for objection become
apparent.” In re C.M., 652 N.W.2d 204, 207 (Iowa 2002). The father did not
preserve error on his due process claim and we do not consider it.
On the statutory claim that the DHS breached the reasonable-effort
requirement by suspending visitation, we reject the father’s position. The parents
continued to use methamphetamine after the removal of their child. An addiction
to methamphetamine is antithetical to safe parenting. See In re J.S., 846 N.W.2d
36, 42 (Iowa 2014) (explaining a juvenile court could reasonably determine
parent’s active addiction to methamphetamine was “imminently likely” to result in
harmful effects to the physical wellbeing of the child in the parent’s care). The
foster parents and FSRP worker noted L.P. was unusually fussy during some
visits with the parents, cried uncontrollably after those visits, and only obtained
relief after being bathed and dressed in clean clothes. This evidence supported
the DHS decision to suspend visits until the parents could show they were not
exposing their child to second-hand methamphetamine residue. The DHS
advised the parents that if they provided clean drug screens, they could resume
visits with their son. The parents had refused to submit to drug testing since
April, knowing their refusal would mean not seeing L.P. The father is
complaining of a self-inflicted wound. 14
For the reasons detailed above, we affirm the juvenile court’s decision
terminating the parent-child relationship between L.P. and his mother and father.
AFFIRMED.