In the Interest of M.M. and C.M., Minor Children

• Court: Court of Appeals of Iowa
• Decided: November 6, 2019
• Docket: 19-1293
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1293 Filed November 6, 2019

IN THE INTEREST OF M.M. and C.M., Minor Children,

I.M., Mother, Appellant,

C.M., Father of M.M., Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko,

Associate Juvenile Judge.

The mother and father separately appeal the termination of their parental

rights to their respective children. REVERSED ON BOTH APPEALS AND

REMANDED.

Lori J. Kolpin of Kolpin Law Firm, P.C., Aurelia, for appellant mother.

T. Cody Farrens of Fankhauser, Farrens & Rachel, P.C., Sioux City, for

appellant father.

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

Attorney General, for appellee State.

Lisa K. Mazurek of Miller, Miller, Miller, P.C., Cherokee, attorney and

guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

BLANE, Senior Judge.

The mother of C.M. and M.M. and the father of M.M. separately appeal the

termination of their parental rights to their respective children.1 The mother

challenges the statutory grounds relied upon by the juvenile court for termination,

argues the State failed to make reasonable efforts to reunify her and the children,

and maintains we should forgo termination because of the closeness of the parent-

child bond. The father challenges the statutory grounds relied upon by the juvenile

court and maintains termination of his rights is not in M.M.’s best interests. In the

alternative, both parents request additional time to work toward reunification with

their respective children.

Because of our ruling on de novo review, laid out below, we find it necessary

to address only the final issue. See In re K.R., No. 19-0090, 2019 WL 1486612,

at *1 (Iowa Ct. App. Apr. 3, 2019) (declining to consider the three-step analysis of

Iowa Code section 232.116 for termination of parental rights when the court

deemed an extension of time was appropriate).

I. Background Facts and Proceedings.

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

(DHS) in August 2018 after the mother, while at the hospital giving birth to M.M.,

admitted using methamphetamine within the previous twenty-four hours. DHS

learned the mother had also tested positive for methamphetamine at a prenatal

visit in March 2018 and that the father has a history of drug-related criminal

convictions. The mother had been living with the maternal grandparents off and

1 The identity of C.M.’s biological father is unknown, but the parental rights of any putative fathers were terminated. No father of C.M. appeals. 3

on, while C.M. had generally lived with them since her birth in early 2016. The

grandparents were able and willing to begin caring for M.M. as well, and both

children were placed in their care.

About a week later, the father was arrested and charged with domestic

abuse assault. It was alleged he spit at and struck the mother in the face. A no-

contact order was entered, and the mother moved into a shelter for those escaping

domestic violence. The parents’ separation was short-lived. Each was charged

with violating the no-contact order before mid-September, when the mother sent a

letter to the court asking that both the no-contact order and the domestic abuse

assault charge be dismissed.

Meanwhile, the father was arrested and charged with operating while

intoxicated (OWI) on September 2 and again on October 14.

The mother entered inpatient residential treatment for substance abuse on

October 18. She admitted to service providers that she used cocaine,

methamphetamine, marijuana, and alcohol between the time the children were

removed from her care and when she entered the treatment facility.

The mother completed the entire twenty-eight-day program. Upon her

discharge in mid-November, she was allowed to move into the home of the

maternal grandparents and live with her children.

The father avoided all contact with DHS from October 8 until November 23.

When the father completed a substance-abuse evaluation in late November, he

was diagnosed with alcohol use disorder (moderate). It was reported the father

had lost control over the amount of alcohol he drank and the duration of his use. 4

The father was told to participate in outpatient services for his substance abuse

and to work on his anger-management skills.

From late November until late March, the mother participated in both

substance-abuse and mental-health treatment in the community. She also

obtained employment, working at a local grocery store approximately thirty hours

per week. The father began seeing a dual-diagnosis counselor for both issues

with anger and substance abuse, and he attended substance-abuse meetings

locally. The father was hired for a full-time job, which he continued to hold through

the time of the termination hearing, and both parents worked toward paying down

their fines for their various criminal charges.

Then in March 2019, after several months of sobriety, the mother relapsed

on methamphetamine. When she was asked to drug test on March 20, she

reported it would be positive for alcohol and methamphetamine. The next day, the

mother was arrested for OWI; she admitted to the arresting officer that she was

eight or nine weeks pregnant.

Almost immediately after, the mother voluntarily entered long-term

residential inpatient treatment. The mother remained in this treatment at the time

of the termination hearing, which took place on June 5 and 24. She testified her

tentative discharge date was August 1 but believed she might remain in treatment

until October, noting she was only in the first of four phases of treatment, in order

to achieve long-term sobriety. At the termination hearing, the mother was able to

verbalize what she had learned and how her thought process was changing. She

also testified that the treatment center would allow her children to come stay with

her and had moved her into a larger room for that purpose. In the meantime, she 5

had been helping to provide childcare to other women’s children in the facility, and

there was no indication of any concerns with the care she provided.

As he had repeatedly reported, the father testified his sobriety date was

October 15, 2018. Although the father missed some drug and substance tests

after that date, he did not have any positive tests after it. The father was continuing

to see his counselor for help with his substance-abuse and anger issues. The

father admitted he showed some reticence in discussing domestic violence with

the counselor, but he signed up for a domestic-violence class in between the two

days of the termination hearing and was set to begin it in late June. The father

had maintained his full-time employment, and a letter admitted into evidence from

his employer praised the father’s “great attitude” and noted the father did not have

any issues with attendance or readiness to work.

Despite the prior history of domestic abuse in their relationship, both the

mother and father were working on this issue, continuing their relationship, and

planning to marry.

The juvenile court terminated the mother’s parental rights to C.M. and M.M.

pursuant to Iowa Code section 232.116(1)(d), (h), (i) and (l) (2019). The court

terminated the father’s parental rights to M.M. under section 232.116(1)(d), (h),

and (i). Both parents appeal.

II. Standard of Review.

We review termination proceedings de novo. In re H.S., 805 N.W.2d 737,

745 (Iowa 2011). As always, in child-welfare cases, our paramount concern is the

best interests of the children. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App.

2011). 6

III. Discussion.

Both parents dispute that termination of their parental rights was proper

under the framework of Iowa Code section 232.116. In the alternative, they both

contend they should have been given more time to reunify with their respective

children pursuant to section 232.104(2)(b).

We agree with the juvenile court that it would have been premature to return

the children to the parents’ full-time care at the time of the termination hearing.

The father was just getting ready to start his course on domestic violence, and the

mother, though in a secured facility and with a number of months of sobriety, had

never parented the two children full-time before. But these parents made strides

in the year DHS was involved with their lives. The father had achieved eight

months of sobriety from alcohol, was working full-time—and by all accounts was

an excellent employee, and was continuing to see his counselor for help with

issues involving substance abuse and anger. His issues were not completely

resolved, and we understand the concern that he was abstaining from alcohol

rather than recovering from his addiction, but six more months will give the father

time to establish that he has made serious, substantial changes in his life. See

Iowa Code § 232.104(2)(b) (allowing the court to delay permanency for six months

when the court can name “specific factors, conditions, or expected behavioral

changes” that establish “the need for removal of the child from the child’s home

will no longer exist” at the end of the extension).

Similarly, the mother has voluntarily maintained her place in a treatment

facility for a number of months. She recognized the need for additional treatment

and remained committed to completing it, even when DHS refused to allow the 7

children to spend overnights with the mother. The treatment facility has taken

steps for the mother to care for her children while in treatment and supports the

children spending time in the facility with the mother. There have been no

concerns with the care the mother has provided for the children of other mothers

in treatment. Based on a letter the mother admitted into evidence, the mother will

be able to regain employment at the grocery store after she completes her

treatment. See In re R.M., No. 12-1886, 2013 WL 264326, at *2 (Iowa Ct. App.

Jan. 24, 2013) (granting mother’s request for six-month extension where there

were no safety concerns regarding the mother’s parenting and the mother had

established sobriety and obtained employment). Additionally, the maternal

grandparents remain supportive of the mother, and, based on their ongoing

support and their past behavior, it seems she would be welcome in their home after

she leaves treatment if she is not immediately able to maintain her own home. Six

additional months will give the mother time to complete her treatment and show

she can maintain her sobriety outside of an institutional setting. See id.

“While time is of the essence in achieving permanency for children,” “we

cannot lose sight of the competing principle that ‘termination is an outcome of last

resort.’” In re B.M., No. 13-1704, 2013 WL 6700309, at *4 (Iowa Ct. App. Dec. 18,

2013) (quoting In re B.F., 526 N.W.2d 352, 356 (Iowa Ct. App. 1994)). Because

we believe six additional months will give these parents the time they need to show

they can maintain their individual sobriety safely and safely parent these children, 8

we reverse the termination of the mother’s and the father’s parental rights. We

remand to the juvenile court for the implementation of a six-month extension.2

REVERSED ON BOTH APPEALS AND REMANDED.

Greer, J., concurs; Vaitheswaran, P.J., dissents.

2 We leave it to the juvenile court to determine the date from which the six-month extension should commence under Iowa Code section 232.104(2)(b). 9

VAITHESWARAN, Presiding Judge (dissenting).

I respectfully dissent. In denying the parents’ request for additional time,

the juvenile court stated:

The court cannot find that in six months the need for removal will no longer exist. [The mother] needs to demonstrate the ability to remain clean and sober following treatment. She was not able to do so after her initial placement in inpatient care. She must also be able to protect herself from further domestic violence in whatever form. [The father] still needs to take the first step of acknowledgement. Six more months will not be long enough. Too many unanswered questions remain and [the father and mother] often refuse to answer them. At many times, if they do provide an answer, it is often a lie.

In my view, the record supports the court’s conclusion.

The mother admitted using methamphetamine while she was pregnant with

her second child. She successfully completed a twenty-eight day inpatient drug

treatment program and maintained her sobriety for approximately five months.

However, she relapsed on methamphetamine and alcohol less than three months

before the termination hearing. At the time, she knew she was pregnant with her

third child. She entered another inpatient drug treatment program and had yet to

complete the program at the time of the termination hearing. Following her

expected release in two to four months, she planned to reunite with the father of

the children, a man against whom a no-contact order was entered for assaulting

the mother. See In re M.F., No. 10-1344, 2010 WL 3894639, at *2 (Iowa Ct. App.

Oct. 6, 2010) (affirming denial of six-month extension where mother tested positive

for drugs four months before the termination hearing and chose “to move back in”

with a drug user). 10

Notably, the father testified he did not “focus on” domestic violence with his

therapist even though the therapist “brought it up.” Although he stated he was

willing to attend “domestic classes,” he acknowledged he had not done so. The

father also did not consistently appear for drug testing. He was scheduled for a

drug test less than three months before the termination hearing but did not go in,

and he also failed to appear for a drug test the following month. In addition, the

father was reported to have missed supervised visits with the children and did not

attend sessions with his substance-abuse counselor as scheduled.

I would affirm the juvenile court’s denial of six additional months to work

toward reunification and the termination of parental rights to the children.