In the Interest of M.M. and M.M., Minor Children, B.R., Mother

• Court: Court of Appeals of Iowa
• Decided: May 25, 2016
• Docket: 16-0457
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0457 Filed May 25, 2016

IN THE INTEREST OF M.M. AND M.M., Minor children,

B.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A mother appeals the termination of her parental rights to her children.

AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant

mother.

Thomas J. Miller, Attorney General, and Kristi A. Traynor, Assistant

Attorney General, for appellee State.

M. Kathryn Miller of the Juvenile Public Defender, for minor children.

Considered by Vogel, P.J., and Doyle and Bower, JJ. 2

VOGEL, Presiding Judge.

The mother appeals the termination of her parental rights to her two

children. She asserts the court improperly concluded the State established

grounds to terminate her rights and the court should have granted her additional

time to work towards reunification. With little progress having been made over

the course of nearly two years of services, we conclude the district court properly

denied the mother’s request for additional time. Further, because of the mother’s

longstanding substance abuse and mental health problems, the district court

properly terminated her parental rights pursuant to Iowa Code section

232.116(1)(f) and (h) (2015). Therefore, we affirm the order of the district court.1

I. Background Facts and Procedural History.

In February 2014, the children, M.M.-1 (born 2008) and M.M.-2 (born

2014), were exposed to a violent domestic dispute between their parents. The

mother attempted to retrieve drugs from the family’s vehicle by smashing in a

window, spraying glass on the younger child. Due to the parents using

methamphetamine and marijuana in the home, both children tested positive for

the same. Criminal charges were filed. The Iowa Department of Human

Services (DHS) was soon involved, and the children were removed from the

home and eventually placed with the maternal grandmother, where the children

have spent the majority of the time during these proceedings. In April 2014, the

parents stipulated to the entry of an order adjudicating the children in need of

assistance.

1 The father’s parental rights were terminated on September 30, 2015, and he did not appeal that order. 3

The record is replete with services offered to, and received by, the mother,

but there has been limited success in both attendance and compliance. While

the mother did make sufficient progress with drug treatment such that the

children were returned to her care for nearly four months—from March to June

2015—it soon became apparent the children were not safe residing with her

because she was continuing to expose the children to the father, who was still

actively using illegal drugs. By October, the mother had failed a drug screen and

was not compliant with the requirements of her terms of probation.

A petition to terminate the mother’s parental rights came on for hearing on

December 17, 2015, and the court ordered the termination by a ruling dated

February 28, 2016. The mother appeals.

II. Standard of Review.

Our review of termination-of-parental-rights proceedings is de novo. In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010). 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. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). We will uphold an

order terminating parental rights if there is clear and convincing evidence of

grounds for termination under Iowa Code section 232.116. Id. Our primary

consideration is the best interests of the children. In re A.B., 815 N.W.2d 764,

776 (Iowa 2012).

III. Grounds for Termination.

As to M.M.-1, termination of parental rights under paragraph (f) requires

the court to find the State proved by clear and convincing evidence: (1) the child

is four years of age or older; (2) the child has been adjudicated in need of 4

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; and (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. Iowa Code § 232.116(1)(f)(1)–(4).

Similar to paragraph (f), to terminate the mother’s rights to M.M.-2, under

Iowa Code section 232.116(1)(h), the State must establish the child: (1) is three

years old or younger, (2) has been adjudicated a child in need of assistance,

(3) has been removed from the home for six of the last twelve months, and

(4) cannot be returned to the parent’s custody as provided in section 232.102 at

the present time. Iowa Code § 232.116(1)(h)(1)–(4).

The first three elements of paragraphs (f) and (h) are not in dispute;

rather, the mother only maintains the State did not prove the fourth element of

each paragraph by clear and convincing evidence. To satisfy its burden of proof

under the fourth element, the State must establish “[t]he child cannot be

protected from some harm which would justify the adjudication of the child as a

child in need of assistance.” See Iowa Code § 232.102(5)(a)(2); see also In re

A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). The threat of probable harm will

justify termination of parental rights, and the perceived harm need not be the one

that supported the child’s initial removal from the home. See In re M.M., 483

N.W.2d 812, 814 (Iowa 1992).

The district court found: 5

At the present time the child[ren] cannot be returned to Mother’s custody as provided in Iowa Code Section 232.102 because [they] would be subjected to further adjudicatory harm as Mother has failed to reengage in substance abuse treatment since her relapse, has failed to attend mental health services to address her mental health and relationship issues, has not seen the kids in the last three weeks, and failed to provide the last requested drug screen . . . which is considered positive, does not have stable housing or employment to provide for the children’s basic needs, and continues to associate with unsafe persons. Further, the Court finds Mother generally lacks credibility regarding her testimony she can provide a safe and stable environment for these children. Mother’s testimony was inconsistent on several occasions.

The record supports these findings. The Family Safety, Risk, and

Permanency worker testified the mother had not been complying with mental

health or substance abuse treatment, had recently tested positive for illegal

substances, and had missed several visits with the children in the prior few

months. In addition, the worker opined the mother was not able to provide

“stability and consistency” for the children. The mother admitted to years of

methamphetamine use, failed a drug test in late September 2015, used

marijuana and methamphetamine as recently as October 2015, attempted to

manipulate a recent drug screening, and failed to comply with wearing a drug

sweat patch in early December 2015.

The DHS worker testified that after nearly two years of services, the

mother had not made progress such that the children would be able to avoid an

adjudicatory harm if returned to her care. The same problems existed in

December 2015 as they did in February 2013. While the district court did not

specifically rule on the mother’s request for additional time to work towards

reunification, it did find it was not in the children’s best interest “to suspend the

crucial days of childhood while the [mother] experiments with ways to face up to 6

[her] own problems,” citing In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We

agree.

Therefore, we conclude the grounds for termination were proved by clear

and convincing evidence and affirm the order of the district court.