IN THE COURT OF APPEALS OF IOWA
No. 15-1523 Filed March 23, 2016
IN THE INTEREST OF L.T., Minor Child,
T.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Nicholas J. Einwalter, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
John P. Jellineck, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
MULLINS, Judge.
A mother appeals from the juvenile court’s order terminating her parental
rights. She argues termination was not in the child’s best interests and the court
should have applied the statutory exceptions to find termination would be
detrimental due to her bond with the child and because the child is placed with a
maternal aunt. She appeals the juvenile court’s denial of her request for an
additional six months to address her needs and pending criminal matters or, in
the alternative, for a guardianship to be established with the maternal aunt.
I. Background Facts and Proceedings
L.T. was born in August 2013. The family came to the attention of the
Iowa Department of Human Services (DHS) in June 2014, following allegations
of domestic violence between the parents. In October 2014, L.T.’s five-year-old
sibling died of a morphine overdose in the mother’s house. At that time, there
was a no-contact order between L.T.’s parents as a result of domestic abuse, but
both parents were violating the order as the father was in the home. During the
death investigation, L.T. tested positive for cocaine. L.T. was removed by
temporary order on October 15, 2014, and has never been returned to either
parent. L.T. was ultimately placed with a maternal aunt, where L.T. continues to
reside.
The mother was subsequently arrested and charged due to the drug
activity taking place in her home, the death of L.T.’s sibling, and the neglect of
L.T. Additionally, a no-contact order was also put in place between the mother
and L.T. As a result of these charges, the mother was incarcerated from
November 2014 to April 2015, at which time she posted bond. While the mother 3
denied drug use, numerous controlled substances were found in the home. The
State filed a petition to terminate parental rights in May 2015. The case came on
for hearing in June 2015.
At the hearing, the evidence showed that from October 2014 through the
date of the termination hearing, the mother attended individual therapy six times
and also attended a four-week class related to domestic assault. The mother
indicated she did not believe any further services were needed to address the
domestic violence. The mother was directed to attend parenting classes but
missed her first session. The classes were rescheduled to mid-June, which she
was in the process of attending at the time of the hearing. The assigned DHS
worker testified that although the mother had participated in the majority of
services available, including a substance abuse evaluation and a family team
meeting, she lacked insight into the reasons L.T. was removed. The DHS worker
opined a guardianship was not an appropriate recommendation based on,
amongst other things, L.T.’s age, the potential term of incarceration the mother
was facing, the serious circumstances that warranted L.T.’s removal from the
parents’ custody, and the mother’s failure to adequately address the issues that
resulted in L.T.’s removal. The guardian ad litem and the State similarly
recommended termination. The mother testified at the hearing that she had been
offered a plea deal to include forty years, although she did not know the extent to
which prison time was required.
The father took no position on the petition and does not appeal the
termination of his parental rights. The court terminated the mother’s parental 4
rights under Iowa Code section 232.116(1)(d), (h), and (i) (2015). The mother
appeals.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but we are not
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interests of the child. Id. at 776.
III. Analysis
To review a decision terminating parental rights, we conduct a three-step
analysis. First, we must determine whether the State established statutory
grounds for termination by clear and convincing evidence. See Iowa Code
§ 232.116(1); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Second, if the State
established statutory grounds for termination, we consider whether termination is
in the child’s best interests under section 232.116(2). See In re P.L., 778 N.W.2d
at 40. Finally, we consider whether any exceptions under section 232.116(3)
weigh against termination. See id. at 41. The mother does not appeal the
statutory grounds for termination. Thus, we consider only the final two steps in
this analysis
A. Best Interests
The mother argues it is not in the child’s best interests to terminate her
parental rights. Under Iowa Code section 232.116(2), in considering whether to
terminate parental rights, we “give primary consideration to the child’s safety, to
the best placement for furthering the long-term nurturing and growth of the child, 5
and to the physical, mental, and emotional condition and needs of the child.”
“Insight for the determination of the child’s long-range best interests can be
gleaned from ‘evidence of the parent’s past performance for that performance
may be indicative of the quality of the future care that parent is capable of
providing.’” In re A.B., 815 N.W.2d at 778 (citation omitted).
The juvenile court found the safety concerns leading to removal persisted;
the mother had failed to acknowledge her role in L.T.’s removal and the death of
L.T.’s sibling; and the mother failed to fully utilize, or even recognize a need to
utilize, the services made available to her. At the time of the termination hearing,
the mother was unable to see L.T. as a result of a criminal no-contact order. The
mother also faced numerous criminal charges and a significant prison sentence
as a result of those charges. “It is well-settled law that we cannot deprive a child
of permanency after the State has proved a ground for termination under section
232.116(1) by hoping someday a parent will learn to be a parent and be able to
provide a stable home for the child.” In re P.L., 778 N.W.2d at 41. This is
particularly true here, as the mother may well be incarcerated until after L.T.
reaches the age of majority.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1523 Filed March 23, 2016
IN THE INTEREST OF L.T., Minor Child,
T.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Nicholas J. Einwalter, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
John P. Jellineck, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
MULLINS, Judge.
A mother appeals from the juvenile court’s order terminating her parental
rights. She argues termination was not in the child’s best interests and the court
should have applied the statutory exceptions to find termination would be
detrimental due to her bond with the child and because the child is placed with a
maternal aunt. She appeals the juvenile court’s denial of her request for an
additional six months to address her needs and pending criminal matters or, in
the alternative, for a guardianship to be established with the maternal aunt.
I. Background Facts and Proceedings
L.T. was born in August 2013. The family came to the attention of the
Iowa Department of Human Services (DHS) in June 2014, following allegations
of domestic violence between the parents. In October 2014, L.T.’s five-year-old
sibling died of a morphine overdose in the mother’s house. At that time, there
was a no-contact order between L.T.’s parents as a result of domestic abuse, but
both parents were violating the order as the father was in the home. During the
death investigation, L.T. tested positive for cocaine. L.T. was removed by
temporary order on October 15, 2014, and has never been returned to either
parent. L.T. was ultimately placed with a maternal aunt, where L.T. continues to
reside.
The mother was subsequently arrested and charged due to the drug
activity taking place in her home, the death of L.T.’s sibling, and the neglect of
L.T. Additionally, a no-contact order was also put in place between the mother
and L.T. As a result of these charges, the mother was incarcerated from
November 2014 to April 2015, at which time she posted bond. While the mother 3
denied drug use, numerous controlled substances were found in the home. The
State filed a petition to terminate parental rights in May 2015. The case came on
for hearing in June 2015.
At the hearing, the evidence showed that from October 2014 through the
date of the termination hearing, the mother attended individual therapy six times
and also attended a four-week class related to domestic assault. The mother
indicated she did not believe any further services were needed to address the
domestic violence. The mother was directed to attend parenting classes but
missed her first session. The classes were rescheduled to mid-June, which she
was in the process of attending at the time of the hearing. The assigned DHS
worker testified that although the mother had participated in the majority of
services available, including a substance abuse evaluation and a family team
meeting, she lacked insight into the reasons L.T. was removed. The DHS worker
opined a guardianship was not an appropriate recommendation based on,
amongst other things, L.T.’s age, the potential term of incarceration the mother
was facing, the serious circumstances that warranted L.T.’s removal from the
parents’ custody, and the mother’s failure to adequately address the issues that
resulted in L.T.’s removal. The guardian ad litem and the State similarly
recommended termination. The mother testified at the hearing that she had been
offered a plea deal to include forty years, although she did not know the extent to
which prison time was required.
The father took no position on the petition and does not appeal the
termination of his parental rights. The court terminated the mother’s parental 4
rights under Iowa Code section 232.116(1)(d), (h), and (i) (2015). The mother
appeals.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but we are not
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interests of the child. Id. at 776.
III. Analysis
To review a decision terminating parental rights, we conduct a three-step
analysis. First, we must determine whether the State established statutory
grounds for termination by clear and convincing evidence. See Iowa Code
§ 232.116(1); In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Second, if the State
established statutory grounds for termination, we consider whether termination is
in the child’s best interests under section 232.116(2). See In re P.L., 778 N.W.2d
at 40. Finally, we consider whether any exceptions under section 232.116(3)
weigh against termination. See id. at 41. The mother does not appeal the
statutory grounds for termination. Thus, we consider only the final two steps in
this analysis
A. Best Interests
The mother argues it is not in the child’s best interests to terminate her
parental rights. Under Iowa Code section 232.116(2), in considering whether to
terminate parental rights, we “give primary consideration to the child’s safety, to
the best placement for furthering the long-term nurturing and growth of the child, 5
and to the physical, mental, and emotional condition and needs of the child.”
“Insight for the determination of the child’s long-range best interests can be
gleaned from ‘evidence of the parent’s past performance for that performance
may be indicative of the quality of the future care that parent is capable of
providing.’” In re A.B., 815 N.W.2d at 778 (citation omitted).
The juvenile court found the safety concerns leading to removal persisted;
the mother had failed to acknowledge her role in L.T.’s removal and the death of
L.T.’s sibling; and the mother failed to fully utilize, or even recognize a need to
utilize, the services made available to her. At the time of the termination hearing,
the mother was unable to see L.T. as a result of a criminal no-contact order. The
mother also faced numerous criminal charges and a significant prison sentence
as a result of those charges. “It is well-settled law that we cannot deprive a child
of permanency after the State has proved a ground for termination under section
232.116(1) by hoping someday a parent will learn to be a parent and be able to
provide a stable home for the child.” In re P.L., 778 N.W.2d at 41. This is
particularly true here, as the mother may well be incarcerated until after L.T.
reaches the age of majority.
Moreover, “[o]ur statutory termination provisions are preventative as well
as remedial. Their goal is to prevent probable harm to the child; they do not
require delay until after the harm has happened.” In re T.A.L., 505 N.W.2d 480,
483 (Iowa 1993) (citation omitted). We need not wait for L.T. to suffer the same
harm suffered by L.T.’s sibling. On our de novo review, we agree with the
juvenile court that termination is in L.T.’s best interests. 6
B. Exceptions
The juvenile court need not terminate parental rights if it finds any of the
statutory exceptions under section 232.116(3) apply. See In re P.L., 778 N.W.2d
at 39. The factors weighing against termination are permissive, not mandatory.
In re A.M., 843 N.W.2d at 113. “The court has 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.” In re D.S., 806
N.W.2d 458, 475 (Iowa Ct. App. 2011).
Iowa Code section 232.116(3)(c) provides the juvenile court need not
terminate the parental relationship if it finds by clear and convincing evidence
that the termination would be detrimental to the child due to the closeness of the
parent-child relationship. The mother contends that because she shares a bond
with the child, the juvenile court should not have terminated her parental rights.
However, at the time of the termination hearing, the mother admitted she did not
think her bond with the child still existed because she had not seen L.T. since
she was incarcerated in November of 2014—when L.T. was just over a year
old—because of a criminal no-contact order. The juvenile court properly
exercised its discretion when it considered the facts of this case and found the
bond between the mother and her child did not weigh against termination of the
mother’s parental rights and specifically found termination is in the child’s best
interests.
Iowa Code section 232.116(3)(a) provides the juvenile court need not
terminate the parental relationship if it finds a relative has legal custody of the
child. The mother argues that because L.T. is in the care of a maternal aunt, the 7
court should have established a guardianship instead of terminating her parental
rights. In determining section 232.116(3)(a) did not apply, the juvenile court
considered:
[T]he child’s very young age, the significant trauma this child has suffered due to [the child’s] parents’ criminal activity, [L.T.’s] need for permanency, and the diminished attachment given the parents’ lack of consistent contact[ and] the significant criminal charges faced by both parents that will likely result in them being sentenced to prison.
Where, as here, statutory grounds for termination have been proven to
exist, the needs of the child are promoted by termination. See In re L.M.F., 490
N.W.2d 66, 68 (Iowa Ct. App. 1992). “The crucial days of childhood cannot be
suspended” while the mother serves her prison term, and L.T. “should not be
made to suffer indefinitely in parentless limbo.” In re K.C., 660 N.W.2d 29, 35
(Iowa 2003) (citation omitted). The maternal aunt is now providing the stability
and certainty this child needs. Thus, we agree with the juvenile court that no
statutory exception applies to prevent termination.
C. Additional Six Months
The mother also argues the juvenile court should have given her an
additional six months to address her needs and resolve the outstanding criminal
charges against her. In order to extend a child’s placement for an additional six
months, the juvenile court must find the need for removal will no longer exist at
the end of six months. See Iowa Code § 232.104(2)(b). There is nothing in the
record to indicate the mother—given, amongst other things, the existing criminal
no-contact order and serious criminal charges pending against her and potential 8
resulting prison time—would be able to resume care of L.T. in six months or any
time thereafter. Accordingly, we affirm the juvenile court’s decision.