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

• Court: Court of Appeals of Iowa
• Decided: January 27, 2022
• Docket: 21-1494
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1494 Filed January 27, 2022

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

D.H.-B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,

Associate Juvenile Judge.

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

AFFIRMED.

Christina M. Shriver, Waterloo, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Tammy L. Banning of Office of State Public Defender, Waterloo, attorney

and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and May, JJ. 2

TABOR, Judge.

A mother appeals the termination of her parental rights to three children, a

four year old and five-year-old twins. She contends the State did not prove the

statutory grounds for termination and the court should have given her another six

months to work toward reunification.1 After reviewing the record, we reach the

same conclusions as the juvenile court and affirm.2

The mother, Destiny, began interacting with the Iowa Department of Human

Services (DHS) in 2014 and has been receiving voluntary services since before

these children were born. Her two older children now live with their father. The

concerns throughout the last six years have included Destiny’s substance abuse,

involvement with violent paramours, founded child-abuse assessments for twice

failing to provide adequate supervision, and one founded child-abuse assessment

for failure to provide adequate medical care.

In April 2020, the family came to DHS attention when Destiny was arrested

for driving drunk with the children in the car. She came away from that incident

with charges for second-offense operating while intoxicated, child endangerment,

interference with official acts, driving while suspended, and failure to maintain

control of a vehicle. At the time, Destiny was on probation for forgery and theft.

The DHS removed the children from Destiny’s custody and placed them in

foster care. They have remained there throughout the case and are doing well.

The foster family is interested in adopting.

1 The children’s father is deceased. 2 Our review is de novo. In re A.B., 957 N.W.2d 280, 293 (Iowa 2021). We give the juvenile court’s fact findings “respectful consideration,” but are not bound by them. Id. 3

The children have been out of Destiny’s care for fifteenth months. And in

that time, Destiny has not succeeded in her reunification goals. For instance, when

opening the child-in-need-of-assistance (CINA) case, the juvenile court ordered

Destiny to comply with substance-abuse and mental-health programming. She

underwent a substance-abuse evaluation in May 2020, receiving a diagnosis of

severe alcohol abuse disorder. But she did not complete the recommended

outpatient treatment. In a discussion with Destiny’s therapist, the DHS worker

learned that Destiny was not candid about the circumstances of her children’s

removal. To monitor her progress, the DHS requested that Destiny participate in

random drug testing. She failed to provide samples about half of the time and

tested positive for alcohol in December 2020. That test coincided with allegations

that she tried to physically attack an ex-paramour’s new girlfriend.

That was not the first time Destiny acted with aggression. The DHS was

concerned about Destiny’s history of domestic violence and asked her to complete

a mental-health evaluation. Destiny never obtained that evaluation. At the time of

the termination hearing, Destiny had a probation-revocation trial pending and faced

several years imprisonment. And during the CINA case, Destiny married Robert.

The record shows that Destiny and Robert have a history of assaulting each other.

Robert also has a long criminal history and three pending operating-while-

intoxicated charges of his own.3

That volatile relationship has increased the DHS concerns about Destiny’s

ability to supervise children. Her visitations have always been supervised.

3The State presented evidence that Robert continued to drink alcohol to excess while the termination petition was pending. 4

Unknown to the DHS caseworker, the mother told the family-centered services

worker who supervised visits that Robert was approved to be present, which was

untrue.

After a hearing, the juvenile court terminated Destiny’s rights under Iowa

Code section 232.116(1), paragraphs (e), (f), and (l) (2021). Destiny appeals.

Destiny first argues the State did not prove the grounds for termination. On

that issue, we look for clear and convincing evidence from the State. In re M.W.,

876 N.W.2d 212, 219 (Iowa 2016). To satisfy that standard, the State’s proof must

leave us with no “serious or substantial doubts” about the correctness of the

juvenile court’s conclusions of law. Id. When, as here, the court rests its decision

on more than one paragraph under section 232.116(1), we may affirm on any

supported ground. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We focus on

paragraph (f).

Destiny challenges only the fourth element—proof that the children could

not be returned to her care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(f)(4); see also M.W., 876 N.W.2d at 223–24. She argues she was

bonded to the children and maintained an appropriate residence throughout the

CINA proceedings.4

4 The State argues the mother did not preserve error because at trial, she requested more time rather than the immediate return of the children. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). At the contested termination trial, the mother testified she disagreed with the petition to terminate her rights, so we find error was preserved. 5

But the home Destiny proposes is not safe for the children, in large part,

because it includes Robert. When asked what she would do if the children were

returned to her, she testified she needed a bigger place but affirmed that Robert

would continue to live with her and the children. She did not agree that his drinking

posed a risk to her sobriety or to her children. Robert also testified he has a

drinking problem but was not engaged in substance-abuse treatment.

And Destiny continues to lack insight into her own substance abuse. When

questioned about testing positive for alcohol in December, Destiny testified, “No, I

was not drinking. I had some wine, but I don’t know that that [is] consider[ed]

alcohol.”

The record is replete with evidence that Destiny cannot safely parent the

children. In short, she does not recognize the dangers posed by her substance

abuse, her involvement with Robert, his substance abuse, or their violent

behaviors. We find the State proved the statutory ground for termination.

Finally, Destiny argues the court should have deferred permanency for six

months to allow her to work toward reunification. Under section 232.117(5), the

juvenile court may order an extension of permanency for up to six months under

section 232.104(2)(b) as an alternative to terminating parental rights. See In re

N.J., No. 19-1999, 2020 WL 2988237, at *3 (Iowa Ct. App. June 3, 2020). Such

an extension is appropriate if the juvenile court can point to “specific factors,

conditions, or expected behavioral changes” that justify believing the need for

removal from parental care would no longer exist after that time. Iowa Code

§ 232.104(2)(b). No such factors exist here. Despite six years of voluntary

services and fifteen months out of the home, Destiny offers no realistic prospect 6

that the children could be safely returned to her care in six months. In fact, it is

possible if Destiny’s probation is revoked, she will be facing a prison sentence.

Finding no merit in Destiny’s contentions, we affirm the termination of her

rights to these three children.