IN THE COURT OF APPEALS OF IOWA
No. 15-1172 Filed March 9, 2016
IN THE INTEREST OF L.W. AND B.W., Minor Children,
C.W., Mother, Appellant,
B.W., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Thomas W. Mott,
Judge.
The mother appeals the order terminating her parental rights.
AFFIRMED.
William E. Sales III of Sales Law Firm, P.C., Des Moines, for appellant
mother.
Jacob L. Mason of J.L. Mason Law, P.L.L.C., Ankeny, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Kimberly S. Ayotte of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
The juvenile court terminated Blake and Catherine’s rights in their
children, L.W. and B.W. The parents each timely filed their respective notices of
appeal, but the supreme court dismissed Blake’s appeal for failure to timely file
his petition on appeal. See Iowa R. App. P. 6.201(2). Thus, we consider only
the mother’s appeal. On appeal, the mother contends that the State failed to
prove the statutory grounds authorizing the termination of her parental rights and
that termination of her parental rights was in the best interests of the children.
She also contends termination was unnecessary because the child was placed
with a relative.
We review de novo proceedings terminating parental rights. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,
and we adjudicate anew those issues properly preserved and presented. See In
re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will uphold an order
terminating parental rights only if there is clear and convincing evidence
establishing the statutory grounds for termination of the parent’s rights. See In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”
when there is no serious or substantial doubt as to the correctness of the
conclusions of law drawn from the evidence. Id.
Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) (2015)
has been established. See id. at 40. Second, if a ground for termination is
established, the court must apply the framework set out in section 232.116(2) to 3
decide if proceeding with termination is in the best interests of the child. See id.
Third, if the statutory best-interests framework supports termination of parental
rights, the court must consider if any statutory exceptions set forth in section
232.116(3) should serve to preclude termination. See id. at 41.
In November 2013, the parents consented to the removal of L.W. after
both parents tested positive for methamphetamine. The child was placed with
the maternal grandmother. In January 2014, the child was adjudicated in need of
assistance. The mother was provided with a variety of services and
demonstrated a period of sobriety and an ability to provide appropriate care for
and supervision of L.W. By August of 2014, a trial home placement was
attempted. B.W. was born in September 2014 during the trial home placement
period. On September 26, 2014, the children were removed from the mother
after the children were exposed to domestic violence in the home. The children
were placed with the maternal grandmother. B.W. was adjudicated in need of
assistance. The mother was provided with additional services, but she never
demonstrated the ability to care for the children. Ultimately, the juvenile court
terminated her parental rights pursuant to Iowa Code section 232.116(1)(h) and
(l).
The mother first contends there was not clear and convincing evidence
supporting the statutory grounds authorizing termination. “When the juvenile
court terminates parental rights on more than one statutory ground, we need only
find grounds to terminate under one of the sections cited by the juvenile court to
affirm.” In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). We turn our
attention to section 232.116(1)(h). Under this section, the State was required to 4
prove, as relevant here, “[t]here 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.” Iowa Code § 232.116(1)(h)(4). A child cannot be
returned to a parent's care if the child would remain a CINA or would be at risk of
adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995);
see also In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “The threat of probable
harm will justify termination, and the perceived harm need not be the one that
supported the child's initial removal from the home.” M.M., 483 N.W.2d at 814;
see In re C.M.T., 433 N.W.2d 55, 56 (Iowa Ct. App. 1988).
There is clear and convincing evidence the children could not be returned
to the mother’s care at the time of the termination hearing without being at risk of
harm. Catherine, age 25 at the time of the hearing, has a history of substance
use commencing more than a decade ago when she was a young teenager. She
has used alcohol, marijuana, cocaine, LSD, heroin, and methamphetamine. By
her own admission, she has completed substance treatment and relapsed on
numerous occasions over the years, failing to maintain sobriety for any material
period of time outside prison or other supervised/clinical settings. By the fall of
2014, Catherine was using methamphetamine, heroin, and cocaine. She
participated in several treatment programs and was successfully discharged from
one in March 2015. Almost immediately, she relapsed. She started associating
with known users. By the end of April, Catherine had relapsed on
methamphetamine and was admitted to the hospital due to suicidal ideations.
On another occasion, shortly prior to the termination hearing, a friend found
Catherine passed out in her residence due to using. When the department of 5
human services requested Catherine provide a drug screen, she refused to do
so. She then sent inappropriate messages to her FSRP worker. Catherine’s
long history of substance abuse, repeated relapses, and demonstrated inability to
maintain sobriety outside a supervised setting demonstrates the children could
not have been returned to her care at the time of the termination hearing. See In
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IN THE COURT OF APPEALS OF IOWA
No. 15-1172 Filed March 9, 2016
IN THE INTEREST OF L.W. AND B.W., Minor Children,
C.W., Mother, Appellant,
B.W., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Thomas W. Mott,
Judge.
The mother appeals the order terminating her parental rights.
AFFIRMED.
William E. Sales III of Sales Law Firm, P.C., Des Moines, for appellant
mother.
Jacob L. Mason of J.L. Mason Law, P.L.L.C., Ankeny, for appellant father.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Kimberly S. Ayotte of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor children.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
MCDONALD, Judge.
The juvenile court terminated Blake and Catherine’s rights in their
children, L.W. and B.W. The parents each timely filed their respective notices of
appeal, but the supreme court dismissed Blake’s appeal for failure to timely file
his petition on appeal. See Iowa R. App. P. 6.201(2). Thus, we consider only
the mother’s appeal. On appeal, the mother contends that the State failed to
prove the statutory grounds authorizing the termination of her parental rights and
that termination of her parental rights was in the best interests of the children.
She also contends termination was unnecessary because the child was placed
with a relative.
We review de novo proceedings terminating parental rights. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,
and we adjudicate anew those issues properly preserved and presented. See In
re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will uphold an order
terminating parental rights only if there is clear and convincing evidence
establishing the statutory grounds for termination of the parent’s rights. See In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”
when there is no serious or substantial doubt as to the correctness of the
conclusions of law drawn from the evidence. Id.
Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) (2015)
has been established. See id. at 40. Second, if a ground for termination is
established, the court must apply the framework set out in section 232.116(2) to 3
decide if proceeding with termination is in the best interests of the child. See id.
Third, if the statutory best-interests framework supports termination of parental
rights, the court must consider if any statutory exceptions set forth in section
232.116(3) should serve to preclude termination. See id. at 41.
In November 2013, the parents consented to the removal of L.W. after
both parents tested positive for methamphetamine. The child was placed with
the maternal grandmother. In January 2014, the child was adjudicated in need of
assistance. The mother was provided with a variety of services and
demonstrated a period of sobriety and an ability to provide appropriate care for
and supervision of L.W. By August of 2014, a trial home placement was
attempted. B.W. was born in September 2014 during the trial home placement
period. On September 26, 2014, the children were removed from the mother
after the children were exposed to domestic violence in the home. The children
were placed with the maternal grandmother. B.W. was adjudicated in need of
assistance. The mother was provided with additional services, but she never
demonstrated the ability to care for the children. Ultimately, the juvenile court
terminated her parental rights pursuant to Iowa Code section 232.116(1)(h) and
(l).
The mother first contends there was not clear and convincing evidence
supporting the statutory grounds authorizing termination. “When the juvenile
court terminates parental rights on more than one statutory ground, we need only
find grounds to terminate under one of the sections cited by the juvenile court to
affirm.” In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999). We turn our
attention to section 232.116(1)(h). Under this section, the State was required to 4
prove, as relevant here, “[t]here 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.” Iowa Code § 232.116(1)(h)(4). A child cannot be
returned to a parent's care if the child would remain a CINA or would be at risk of
adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995);
see also In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “The threat of probable
harm will justify termination, and the perceived harm need not be the one that
supported the child's initial removal from the home.” M.M., 483 N.W.2d at 814;
see In re C.M.T., 433 N.W.2d 55, 56 (Iowa Ct. App. 1988).
There is clear and convincing evidence the children could not be returned
to the mother’s care at the time of the termination hearing without being at risk of
harm. Catherine, age 25 at the time of the hearing, has a history of substance
use commencing more than a decade ago when she was a young teenager. She
has used alcohol, marijuana, cocaine, LSD, heroin, and methamphetamine. By
her own admission, she has completed substance treatment and relapsed on
numerous occasions over the years, failing to maintain sobriety for any material
period of time outside prison or other supervised/clinical settings. By the fall of
2014, Catherine was using methamphetamine, heroin, and cocaine. She
participated in several treatment programs and was successfully discharged from
one in March 2015. Almost immediately, she relapsed. She started associating
with known users. By the end of April, Catherine had relapsed on
methamphetamine and was admitted to the hospital due to suicidal ideations.
On another occasion, shortly prior to the termination hearing, a friend found
Catherine passed out in her residence due to using. When the department of 5
human services requested Catherine provide a drug screen, she refused to do
so. She then sent inappropriate messages to her FSRP worker. Catherine’s
long history of substance abuse, repeated relapses, and demonstrated inability to
maintain sobriety outside a supervised setting demonstrates the children could
not have been returned to her care at the time of the termination hearing. See In
re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“Where the parent has been
unable to rise above the addiction and experience sustained sobriety in a
noncustodial setting, and establish the essential support system to maintain
sobriety, there is little hope of success in parenting.”).
We next address whether the termination of Catherine’s parental rights
was in the children’s best interest. When considering the best interest of the
child, we “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.” Iowa Code
§ 232.116(2). We consider both the long-term and immediate interests of the
child. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Insight into what the
future likely holds for a child if returned to a parent is gained from evidence of the
parent's past performance; it may be indicative of the quality of future care the
parent is capable of providing. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012);
J.E., 723 N.W.2d at 798. We give substantial weight to case history records in
assessing a parent's ability to provide care in the future. See In re S.N., 500
N.W.2d 32, 34 (Iowa 1993).
The termination of Catherine’s parental rights was in the children’s best
interest. While Catherine has demonstrated an ability to provide appropriate care 6
for the children for short periods of time, clear and convincing evidence
establishes she cannot do so for any great length of time. She has exposed the
children to domestic violence in the home. She associates with known
substance abusers. Her long-term substance abuse renders her unavailable to
meet the physical, mental, and emotional needs of the children. 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.” P.L., 778 N.W.2d at
41; see also A.B., 815 N.W.2d at 778 (noting a parent's past conduct is
instructive in determining the parent's future behavior); In re C.K., 558 N.W.2d
170, 172 (Iowa 1997) (stating that when considering what the future holds if a
child is returned to the parent, we must look to the parent's past behavior
because it may be indicative of “the quality of care the parent is capable of
providing in the future”).
Catherine argues that the juvenile court should not have terminated her
parental rights because the children were placed with the maternal grandmother.
See Iowa Code § 232.116(3)(a) (“The court need not terminate the relationship
between the parent and child if the court finds . . . [a] relative has legal custody of
the child.”). The exception set forth in section 232.116(3)(a) is permissive and
not mandatory. See C.K., 558 N.W.2d at 174 (“An appropriate determination to
terminate a parent-child relationship is not to be countermanded by the ability
and willingness of a family relative to take the child.”); In re D.S., 806 N.W.2d
458, 474–75 (Iowa Ct. App. 2011) (stating this provision is permissive and not
mandatory). Thus, even where custody of the child is with a relative, the juvenile 7
court may proceed with termination of the parent-child relationship where there is
clear and convincing evidence establishing a ground for termination and
termination is in the best interest of the child. See C.K., 558 N.W.2d at 174 (“The
child's best interests always remain the first consideration.”). Regardless,
Catherine’s reliance on this exception is misplaced. The exception applies only
where a relative has custody of the children. Here, the termination order
provides the Iowa Department of Human Services shall continue to have custody
of the children. Thus, the exception is inapplicable. See A.M., 843 N.W.2d at
113; In re I.V., No. 15-0608, 2015 WL 4486237, at *3 (Iowa Ct. App. July 22,
2015) (holding section 232.116(3)(a) is inapplicable where the department of
human services had custody of child placed with relative).
For the foregoing reasons, the order of the juvenile court is affirmed.