In the Interest of N.P., Minor Child, D.S., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0591 Filed September 17, 2014

IN THE INTEREST OF N.P., Minor Child,

D.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Mills County, Craig M. Dreismeier,

District Associate Judge.

The mother appeals the termination of her parental rights to her son, N.P.

AFFIRMED.

Mandy L. Whiddon, Council Bluffs, for appellant mother.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney

General, Eric Hansen, County Attorney, and Patricia McSorley, Assistant County

Attorney, for appellee State.

Kathrine Murphy, Glenwood, attorney and guardian ad litem for minor

child.

Considered by Danilson, C.J., and Vogel and Bower, JJ. 2

VOGEL, J.

The mother appeals the termination of her parental rights to her son, N.P.

She asserts the State failed to prove by clear and convincing evidence her rights

should be terminated under Iowa Code section 232.116(1)(f) and (g) (2013), and

termination is not in N.P.’s best interest due to the parent-child bond. Because

we conclude the juvenile court properly terminated the mother’s parental rights

under paragraph (g), and termination is in the child’s best interest despite the

bond between him and the mother, we affirm.1

N.P., born November 2008, first came to the attention of the Department

of Human Services (DHS) on January 10, 2012, due to the mother driving while

intoxicated with N.P. in the car. Because it was determined that N.P. and the

mother were living out of the car, N.P. was removed from the mother’s care and

placed with a foster family.2 He was adjudicated a child in need of assistance

(CINA) on June 7, 2012. He was returned twice to the mother’s care during the

pendency of the proceedings, once from May 30, 2012, until August 1, 2012, and

again from April 18, 2013, to May 24, 2013. At the time of the termination

hearing, N.P. had been out of the mother’s care for twenty-two of the previous

twenty-five months.

While removed from her care, the mother had trouble attending scheduled

visits with N.P. Out of 210 visits provided to her, she attended 180. She stated

transportation was an issue as she no longer had a car, and initially she refused

to use public transportation. She eventually began to ride the bus, and even

1 The father’s rights were also terminated. He does not appeal. 2 Each time N.P. was removed from the mother’s care, he was placed with the same foster family, where he resided at the time of the termination hearing. 3

though vouchers were provided for her and other transportation services offered,

she still had trouble consistently attending visits. However, at the visits, it was

clear to the DHS worker the mother and N.P. shared a bond. For the most part

the mother interacted well with N.P., but this positive interaction was dependent

upon her mood. When she was upset or agitated, she would focus on the

perceived conspiracies against her or her other various problems, rather than

focusing on N.P., who would then hide from the mother. Phone calls were also

scheduled while N.P. was at the foster home, but again, the mother often did not

take advantage of these opportunities and attempt to call.

The mother has several mental health issues. According to the decision

approving her social security disability benefits, she suffers from major

depressive disorder; bipolar affective disorder; mood disorder; idiopathic

hypersomnia; chronic fatigue syndrome; anxiety not otherwise specified; panic

disorder; posttraumatic stress disorder; psychotic disorder; schizophrenia;

attention deficit hyperactivity disorder; and a personality disorder with antisocial,

borderline, histrionic, dependent, and schizoid features. At the termination

hearing she testified that many of these diagnoses are not accurate, and that she

only suffers from depression, posttraumatic stress disorder, anxiety, and chronic

fatigue, as had been diagnosed by her psychiatrist at Mercy Hospital. However,

she was reluctant to sign releases regarding her mental health situation, either

signing limited releases or quickly revoking them. This is in part due to the fact

she believes there is a conspiracy, with DHS workers, the courts, and other 4

people in authority positions aligned against her.3 Additionally, she does not

consistently take her medications, ostensibly due to the fact she cannot afford

them.4

The mother underwent a substance abuse and mental health evaluation at

Heartland Family Services, and while she completed the substance abuse

treatment,5 she failed to complete the mental health component. She was

ordered to attend Dialectical Behavior Therapy, but did not complete it as she

either failed to appear or arrived one and one-half hours late. Her attendance at

therapy has also been sporadic. She testified at the termination hearing that she

had not seen a therapist from May 2013 until January 2014.

In May 2013, Heartland Family Services reported that:

[The mother] is making more frequent statements of elopement with her son . . . . Additionally, [the mother] is demonstrating increasing disorganized and irrational thinking, due to increased stress, that lead us to have concern for her ability to most effectively care for herself. As stated, because we do not work with [N.P.] together with [the mother], we cannot speak to her ability to parent or care for [N.P.]. However, we wanted to emphasize our concern for [the mother’s] ability to most effectively care for herself.

Shortly thereafter, on May 23, 2013, the mother informed N.P.’s daycare

worker that she was not sure where they would be sleeping that night.

3 For example, the mother researches various people, such as the foster family, and hypothesizes that, because the foster father and the DHS worker’s husband share the same first name, they are conspiring against her. She also believes people are tapping her phone, that the foster mother is not real, and that the foster father is a federal agent. At one point she informed DHS workers that there was a gentleman who was making a documentary regarding corruption in the child welfare industry, focusing on judges, CPS, DHS, and visitation workers. She stated the documentary would name everyone involved in her case, and that “If I don’t get my kid back by Friday, shit is going to hit the fan. That’s all I know.” 4 The mother has been prescribed Ritalin, Buspirone, Prozac, Xanax, Trazodone, and Imipramine. 5 The DHS worker testified the mother was compliant with drug screens and never tested positive for illegal substances. 5

Consequently, the DHS worker obtained an ex parte removal order, and informed

the mother N.P. would be removed from her care and a hearing held the

following week. The mother hung up the phone, and the DHS worker then

received a call from N.P.’s daycare stating the mother had absconded with N.P.,

using him as a shield and a battering ram to remove him from the daycare. The

two were apprehended in Omaha, Nebraska on May 26.

The mother’s housing situation has been a significant issue throughout the

proceedings. She was homeless several times in the past two years, only

obtaining housing for five months from December 2012 to May 2013, and then

again shortly before the termination hearing. Her Southern Iowa Regional

Housing Authority (SIRHA) voucher expired due to lack of use, primarily because

she insisted on looking at large houses that would accommodate all of the

children to whom her rights had been terminated. Moreover, she has failed to

obtain any type of employment, despite a job offer. She was, however, awarded

Social Security Disability benefits shortly before the termination hearing, and

although she was unsure of the amount of assistance, she testified she believed

it would be between $600 and $900 each month.

Due to the mother’s inability to show she could care for N.P., the State

petitioned to terminate her parental rights on December 17, 2013. A contested

hearing was held on February 11 and 12, 2014, in which the mother and several

DHS workers testified. On March 25, the juvenile court terminated the mother’s

parental rights under Iowa Code section 232.116(1)(f) and (g). The mother

appeals. 6

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the juvenile court terminates parental rights on more than one statutory

ground, we only need find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id. To terminate parental rights under Iowa Code

section 232.116(1)(g), the State must prove by clear and convincing evidence the

child has been adjudicated CINA, the parent’s rights to another child were

terminated, the parent does not respond to services, and it is clear that an

additional period of time would not correct the situation.6

The mother does not dispute she has had her rights terminated to five

other children, see In re Courtney S., No. 07-1295, 2008 WL 2469885 (Neb. Ct.

App. June 17, 2008) (affirming juvenile court’s termination of parental rights), and

that N.P. was adjudicated CINA. She does, however, contest the finding that she

did not respond to services, asserting she complied with the mental health

requirements and she remained drug-free. She therefore contends N.P. can be

returned to her care. However, it is clear from the history of the case and the

mother’s involvement with both the Iowa and Nebraska Departments of Human

Services that she has failed to adequately take advantage of the many services

offered to her. She has not demonstrated she can maintain housing, maintain a

6 To terminate under Iowa Code section 232.116(1)(f), the State must prove by clear and convincing evidence the child is four years of age or older, has been adjudicated CINA, removed from home for twelve of last the last eighteen months, and cannot be returned home. 7

reliable source of income that will support her and N.P., or consistently address

her serious mental health needs.7

The juvenile court accurately summed up the mother’s situation when it

stated:

During this twenty-five month period, [the mother] has not had a permanent residence, usually living with friends, in a shelter, or in a vehicle. She maintained her own home on two separate occasions, which includes her current residence. The other occasion was for a period of five to six months. Although it is not possible to determine if she will maintain this current residence, if history is a predictor of the future, she will not. The termination of her five children in Nebraska was in part based upon an inability to maintain housing and because of her inability to address her mental health issues. During this case, she has had resources available to her yet she has failed to take advantage of the same. She did obtain disability, however, given the anticipated amount, she is going to continue to struggle financially to support herself let alone both she and [N.P.]. It is clear she suffers from a multitude of mental health issues which she has allowed to go untreated and un-medicated for periods of time throughout this matter. [The mother] disputes suffering from several of the diagnoses relied upon by the social security administration in awarding her disability benefits. It is clear she is not even aware of the extent of her mental health issues . . . . [N.P.] needs stability in his life. [The mother] is not capable of providing this stability at this time or anytime in the near future. She has not been able to adequately care for herself throughout this case.

The record fully supports this assessment.

Furthermore, termination is in N.P.’s best interest. See Iowa Code

§ 232.116(2). Iowa DHS has been involved with the mother and N.P. for two

years, and she received services through the Nebraska DHS system from 2004

to 2007. However, despite the lengthy receipt of services, the mother has failed

7 As to her housing, the mother states in her appellate brief dated April 21, 2014, that she “is still residing there today,” and “has managed to maintain [the housing] to this day.” These assertions are outside the closed record, and therefore we cannot consider them on appeal. See State v. Weiland, 202 N.W.2d 67, 69 (Iowa 1972) (noting appellate courts cannot consider facts that are outside of the record). 8

to maintain suitable housing, seek a steady income or employment, consistently

address her mental health needs, and comply with other court-ordered services,

such as therapy. In determining the future actions of the parent, her past

conduct is instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). It is evident

from the mother’s conduct that she is unable to provide an acceptable level of

care to N.P, and, regardless of how many services she receives, will be unable to

do so in the foreseeable future.

It is also clear that more time would not correct the situation, and that it is

important for N.P.’s well-being and security that the mother’s rights be

terminated. “We have repeatedly followed the principle that the statutory time

line must be followed and children should not be forced to wait for their parent to

grow up.” In re N.F., 579, N.W.2d 338, 341 (Iowa Ct. App. 1998); see also Iowa

Code § 232.116(2). While it is clear the mother and N.P. share a bond, this

consideration does not prevent termination. See Iowa Code § 232.116(3)(c).

The mother has failed to show much—if any—progress in being able to safely

parent N.P. in all the years in which she has been receiving services. It is

fortunate that N.P. has found stability in his pre-adoptive home. Consequently,

we conclude the juvenile court properly terminated the mother’s parental rights,

and we affirm the court’s termination order.