In the Interest of L.T. and L.T., Minor Children

• Court: Court of Appeals of Iowa
• Decided: April 26, 2023
• Docket: 23-0154
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0154 Filed April 26, 2023

IN THE INTEREST OF L.T. and L.T., Minor Children,

K.C., Mother, Appellant,

K.T., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, District

Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Lisa K. Pendroy, Des Moines, for appellant mother.

Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for

appellant father.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Richelle M. Mahaffey, Des Moines, attorney and guardian ad litem for minor

children.

Considered by Chicchelly, P.J., Buller, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

VOGEL, Senior Judge

A mother and father separately appeal the termination of their parental

rights to La.T. and Li.T., born in 2012 and 2014 respectively. The mother argues

the State did not prove the statutory ground for termination, termination is not in

the children’s best interests, and the court should provide her with additional time

for reunification. The father argues the court should grant him additional time for

reunification or establish a guardianship in lieu of termination. Due to the parents’

limited progress and the children’s behavioral and mental-health concerns, we

reject the parents’ arguments and affirm the juvenile court.

I. Background Facts and Proceedings

The Iowa Department of Health and Human Services (DHHS) has

repeatedly been involved with this family since 2018 due to concerns over

supervision, domestic violence, physical abuse, and substance abuse. Most

recently, in January 2021, DHHS investigated reports the parents and a family

friend were using methamphetamine while caring for the children. The children

subsequently tested positive for amphetamine and methamphetamine exposure.

DHHS reported the mother largely refused to cooperate with their investigation,

but the father admitted he and the mother were active methamphetamine users

and recently used while caring for the children. The children were removed from

the parents in February, and adjudicated as being in need of assistance in March.

The father has an extensive criminal history with several convictions for

drug-related charges and violent conduct. Shortly before removal, he was arrested

and jailed for threatening family members and destroying property. He has been

incarcerated for most of these proceedings and continuously since December 1, 3

2021. He admittedly was not fully engaged with services even when not

incarcerated.

Both children have shown behavioral and mental-health concerns

throughout these proceedings. After removal, both children were placed with the

maternal grandfather until April 2021. At that time, Li.T. moved to a foster family,

while La.T. was placed with the mother as she was engaged with services and

beginning therapy. However, the mother missed drug tests and various services,

so La.T. was again removed from her care less than three months later. The

children have continued living in separate residences due to their behaviors since

leaving the grandfather’s home. Li.T. has resided with his current foster family

since May 2022. La.T. has had multiple placements throughout these

proceedings, including time at a Psychiatric Medical Institution for Children, and

he has resided with his current foster family since October 2022.

In July 2022, the juvenile court found the mother was again largely

complying with services. At this time, the court granted an additional three months

for reunification with the expectation the mother would “continue to work with her

[mental-health] therapist and substance abuse treatment providers to maintain

sobriety and wellness,” “continue to provide negative drug screens,” and

“demonstrate the ability to manage the children’s basic and special needs.”

With a lack of progress by either parent in the services offered, the State

filed the petition to terminate parental rights in October 2022. The matter

proceeded to a hearing in December. At the hearing, the mother acknowledged

she largely failed to comply with the juvenile court’s expectations for granting the

prior extension: she last provided a sample for drug testing in April, she was 4

unsuccessfully discharged from substance-abuse treatment in June, and she did

not meet with her therapist between July and November. The father, serving a

five-year prison sentence, testified he hoped to be paroled in January 2023. Upon

consideration of the testimony and exhibits, the court issued an order terminating

both parents’ rights. Both parents appeal.

II. Standard of Review

“We review proceedings to terminate parental rights de novo.” In re Z.K.,

973 N.W.2d 27, 32 (Iowa 2022). We may review the facts as well as the law and

adjudicate the parents’ rights anew. Id. “We are not bound by the juvenile court’s

findings of fact, but we do give them weight, especially in assessing the credibility

of witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).

III. Analysis

“We generally apply a three-step analysis to review termination of parental

rights.” In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). “First, we consider whether

there are statutory grounds for termination.” Id. “Second, we determine whether

termination is in the best interest of the child.” Id. “Third, we consider whether we

should exercise any of the permissive exceptions for termination.” Id. We need

not discuss any step that neither parent raises. In re P.L., 778 N.W.2d 33, 40 (Iowa

2010).

A. Statutory Ground for Termination

The mother argues the State failed to prove a statutory ground for

termination. The juvenile court terminated the mother’s parental rights under Iowa

Code section 232.116(1)(f) (2022), which allows the court to terminate parental

rights if the State proves all of the following: 5

(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.

The mother challenges the fourth element, that the children could not be

returned to her custody at the time of the termination hearing. See D.W., 791

N.W.2d 707 (finding the statutory language “at the present time” means “at the

time of the termination hearing”). She asserts the children could be returned to

her custody, as shown by her claim of maintaining sobriety and consistently

attending visitation.

The children were removed from the mother’s custody due to her

methamphetamine use. She provided several positive drug tests during this

proceeding—most recently in January 2022. Her April drug test was negative, but

she has refused to submit to drug testing since that time, making it impossible to

verify her claims of recent sobriety. She was unsuccessfully discharged from

substance-abuse treatment in June 2022, and her claim that she voluntarily left

treatment one week before completion also lacks any verification. She failed to

meet with her mental-health therapist for approximately four months leading up to

the termination hearing, and her explanation that she needed to focus on caring

for the children is unpersuasive considering her visitation remained fully

supervised. While the mother recently resumed meeting with her therapist and

attending substance-abuse treatment, her efforts are too little too late. See In re 6

C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“A parent cannot wait until the eve of

termination, after the statutory time periods for reunification have expired, to begin

to express an interest in parenting.”). The two children have serious behavioral

and mental-health concerns that require stable placements in separate foster

homes. The State proved neither child—much less both children—can be safely

returned to the mother at the time of the hearing, thus satisfying the statutory

ground.

B. Best Interests

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

children. In evaluating the best interests of the children, we “give primary

consideration to the child[ren]’s safety, to the best placement for furthering the

long-term nurturing and growth of the child[ren], and to the physical, mental, and

emotional condition and needs of the child[ren].” Iowa Code § 232.116(2).

The mother asserts the children are not yet integrated into their foster

families after being placed with them for only a few months. See id.

§ 232.116(2)(b) (considering “whether the child has become integrated into the

foster family to the extent that the child’s familiar identity is with the foster family”).

Despite their short time with their foster families, the record shows both children

are thriving in their current placements. This is especially encouraging in light of

their behavioral and mental-health concerns. The mother notes the children have

expressed a desire to return to her care. See id. § 232.116(2)(b)(2) (directing the

court to consider “[t]he reasonable preference of the child, if the court determines

that the child has sufficient capacity to express a reasonable preference”).

However, the record shows the children truly crave stability. As explained above, 7

the mother’s unaddressed mental-health and substance-abuse issues prevent her

from providing this stability.

The mother also asserts that separating the children into different foster

homes is not in their best interests. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa

Ct. App. 1994 (“[W]herever possible brothers and sisters should be kept

together.”). While not ideal in many cases, the State showed separation is in these

children’s best interests to address their behavioral and mental-health concerns.

Again, the children are thriving in separate foster homes. Furthermore, both foster

families have facilitated contact between the children as well as the grandparents

and expressed a willingness in the future to facilitate contact between the children

and the mother and father, if they are sober. Considering the mother’s continuing

inability to safely care for the children and their growth in separate foster families,

we agree termination is in the children’s best interests.

C. Additional Time for Reunification

Both parents request additional time for reunification.1 See Iowa Code

§ 232.104(2)(b) (allowing the juvenile court “to continue placement of the child for

an additional six months”). To grant an extension, the juvenile court must

“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

1 We note the termination order only addresses the father’s request for additional time. The juvenile court ordinarily must consider and rule upon a parent’s argument to preserve the issue for our review. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Despite our concerns with error preservation, we choose to address the mother’s request for additional time alongside the father’s request. 8

the child’s home will no longer exist at the end of the additional six-month period.”

Id.

The children had been removed from the parents’ custody for over twenty-

two months at the time of the termination hearing. Importantly, the juvenile court

already granted one extension of time during these proceedings. The DHHS

worker testified the uncertainty around permanency is contributing to the children’s

already significant behavioral and mental-health concerns.

Specific to the mother, the prior extension required her to engage with

substance-abuse treatment and testing, attend mental-health therapy, and show

an ability to care for the children’s needs. As explained above, she failed to meet

these expectations as she did not complete treatment or testing, meet with her

therapist, or progress beyond fully supervised visitation. Due to her failure to

comply with the prior expectations, we cannot conclude she would address these

expectations with another extension.

Specific to the father, he testified he has engaged with substance-abuse

and mental-health treatment while incarcerated. However, nothing in the record

verifies his hope that he would be paroled soon after the termination hearing. Even

if we accept that he would be paroled into a setting where he could take custody

of the children before the end of a six-month extension, he has shown no ability to

remain sober and engage with treatment outside of incarceration.

“We will not gamble with [children’s] future by asking [them] to continuously

wait for a stable biological parent, particularly at such a tender age.” In re D.S.,

806 N.W.2d 458, 474 (Iowa Ct. App. 2011). Considering the length of these 9

proceedings, the children’s special need for permanency, and the parents’ limited

history of progress, another extension of time for reunification is not appropriate.

D. Guardianship

The father asks that we place the children in a guardianship in lieu of

termination. Again, the children’s uncertainty about their future is already

contributing to their behavioral and mental-health issues, and a guardianship

would continue this uncertainty. Furthermore, “a guardianship is not a legally

preferable alternative to adoption.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App.

2017). The juvenile court found that “guardianship would continue the limbo the

children have experienced in recent months.” We agree and reject the father’s

request for a guardianship.

IV. Conclusion

The State proved the statutory ground for termination, and termination of

parental rights is in the children’s best interests. Moreover, additional time for

reunification with either parent is not appropriate, and we reject the request for a

guardianship in lieu of termination.

AFFIRMED ON BOTH APPEALS.