In the Interest of N.S. and M.S., Minor Children

• Court: Court of Appeals of Iowa
• Decided: June 5, 2019
• Docket: 19-0533
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0533 Filed June 5, 2019

IN THE INTEREST OF N.S. and M.S., Minor Children,

M.S., Father, Appellant,

P.A., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.

A mother appeals the termination of her parental rights to two children, and

a father appeals the termination of his parental rights to the older child. AFFIRMED

ON BOTH APPEALS.

Blake D. Lubinus of Lubinus Law Firm, Des Moines, for appellant father.

Heidi Young of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann, LLP, Des Moines, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Yvonne C. Naanep, Des Moines, attorney for minor children.

Teresa Pope of Branstad Law, PLLC, Des Moines, guardian ad litem for

minor children.

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

VAITHESWARAN, Presiding Judge.

This appeal involves two children, born in 2009 and 2010. The juvenile

court terminated the mother’s parental rights to both children and the father’s

parental rights to the older child. On appeal, both parents contend the State failed

to prove the grounds for termination cited by the court and termination is not in the

children’s best interests.

I. Mother

The juvenile court terminated the mother’s parental rights under four

statutory provisions. We may affirm if we find clear and convincing evidence to

support any of the grounds. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).

On our de novo review, we focus on Iowa Code section 232.116(1)(f) (2019), which

requires proof of several elements, including proof the child cannot be returned to

the parent’s custody.

The family came to the attention of the department of human services in

2016 after the mother gave birth to a child with opiates in her system. That child

is not a subject of this appeal. Nor is the third of the mother’s four children. This

appeal involves the first two children.

The children were temporarily removed from the mother’s custody with her

consent. The juvenile court later adjudicated them in need of assistance. Although

the mother obtained a substance-abuse evaluation and completed an extended

outpatient drug-treatment program, she was unsuccessfully discharged from

another treatment program, and the department reported that she “appear[ed] in

denial regarding her substance abuse.” Nonetheless, reunification remained the

goal. 3

At the end of 2016, the mother tested positive for cocaine and, in February

2017, she failed three drug tests. Later that year, the district court placed the two

children with their maternal grandmother.

The placement did not go well. According to the State, the grandmother

was unable to set appropriate boundaries with the mother, who appeared to be

using drugs and was unengaged in services. The younger child was transferred

to his father in South Dakota for a trial home visit. The older child was returned to

foster care, where she remained through the termination hearing.

After several months, the department discovered that the father had moved

from South Dakota to Minnesota “without notifying anyone.” The younger child

was removed from his care and was returned to Iowa, where the court ordered him

placed with his mother for a thirty-day trial home stay.

The mother failed to get the child to school on time, missed a therapy

appointment and, according to the department social worker overseeing the case,

“was using drugs at that time.” The juvenile court returned the younger child to

foster care.

The State petitioned to terminate parental rights. At an evidentiary hearing,

the department social worker testified the mother “never really truly felt that she

needed treatment.” When asked if substance-abuse concerns were resolved, the

worker stated, “No, not at all.” She also testified to the absence of regular contact

between the mother and children for four months.

The mother also testified. When asked whether she consented to

termination of her parental rights to the children, she responded, “I agree in a sense

of a way there’s no way that I can get them. So I agree.” Later, she stated it would 4

not be appropriate to return the children to her custody “[c]onsidering where” she

lived. Her concessions confirm the children could not be returned to her custody,

as set forth in section 232.116(1)(f)(4).

We turn to the mother’s argument that termination is not in the children’s

best interests. See Iowa Code § 232.116(2). The case was opened almost three

years prior to the termination hearing. The juvenile court afforded the mother every

opportunity to resume care of her children, including regular visits and a trial home

placement of the younger child. The mother continued to use non-prescribed

opiates and showed herself unable to safely parent the younger child. The older

child was doing well in foster care and wished to remain there. We conclude

termination is in the children’s best interests.

In connection with her best-interests argument, the mother also contends

the court should have placed the children in a guardianship with their maternal

grandmother. The district court tried that option, without success. There was no

reason to try again.

On our de novo review, we affirm the district court’s termination of the

mother’s parental rights to these two children.

II. Father

As noted, the father of the two children involved in this appeal lived in South

Dakota and Minnesota. The district court denied the State’s petition to terminate

the father’s parental rights to the younger child, reasoning that the father did not

abandon or desert the child as alleged in section 232.116(1)(b) and made efforts

to have meaningful contact with the child, contrary to section 232.116(1)(e). The 5

father argues the court also should have declined to terminate his parental rights

to the older child. On our de novo review, we disagree.

The father concedes he had little contact with the older child. He attempts

to excuse the absence of contact by citing his limited resources. We do not doubt

that travel to Iowa was financially burdensome. But the department attempted to

alleviate the burden by offering him gift and gas cards. The department also

afforded the father phone calls with the older child, an option the father admitted

he did not regularly utilize. We are persuaded he failed to make “a genuine effort

to maintain communication with the child.” See id. § 232.116(1)(e)(3). The State

proved termination of the father’s parental rights to the older child is warranted

under section 232.116(1)(e).

The father also argues termination is not in the older child’s best interests.

See Iowa Code § 232.116(2). We disagree. The father did not participate in

therapy to repair his frayed relationship with the child. After almost three years,

the child expressed a strong desire to remain where she was. On our de novo

review, we conclude the emotional well-being of the child militated against

reunification. We affirm the termination of the father’s parental rights to the older

child.

AFFIRMED ON BOTH APPEALS.