In the Interest of O.H. and V.H., Minor Children, S.H., Mother, B.H., Father

• Court: Court of Appeals of Iowa
• Decided: March 22, 2017
• Docket: 16-2127
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-2127 Filed March 22, 2017

IN THE INTEREST OF O.H. and V.H., Minor Children,

S.H., Mother, Appellant,

B.H., Father, Appellant.

________________________________________________________________

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

District Associate Judge.

A mother and a father separately challenge a juvenile court order

terminating their parental rights. AFFIRMED ON BOTH APPEALS.

Raya D. Dimitrova of Carr & Wright, P.L.C., Des Moines, for appellant

mother.

Bonnie J. Heggen, Ankeny, for appellant father.

Thomas J. Miller, Attorney General, and David M. Van Compernolle,

Assistant Attorney General, for appellee State.

Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor child.

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

TABOR, Judge.

These termination-of-parental-rights appeals involve two children: seven-

year-old O.H. and his one-year-old sister, V.H. The relationship of their parents,

Stephanie and Braden, has been plagued by domestic violence and substance

abuse. In granting the State’s petition to terminate parental rights, the juvenile

court decided those issues continued to endanger the children. In their separate

appeals, Stephanie and Braden contend the State did not offer clear and

convincing evidence to support the statutory grounds for terminating their

parental rights. Stephanie also argues termination was not in the children’s best

interests and asks for six additional months to achieve reunification. After an

independent review of the record, we conclude clear and convincing evidence

supports the juvenile court’s order.1

I. Facts and Prior Proceedings

O.H., born in November 2009, and V.H., born in August 2015, are the

biological children of Braden and Stephanie. Stephanie has an older daughter,

L.S., who is not a subject of this appeal. O.H. and L.S. came to the attention of

the Iowa Department of Human Services (DHS) in June 2015 upon reports

Braden and Stephanie were abusing methamphetamine, marijuana, and illegal

prescription drugs; Braden was selling drugs from the home; and Braden had

1 We review termination proceedings de novo, which means we examine both the facts and the law and judge anew those issues properly preserved and presented. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016); In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the juvenile court’s factual findings, especially when it comes to assessing the credibility of witnesses, but are not bound by them. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). The clear-and-convincing-evidence standard is less onerous than the standard of proof beyond a reasonable doubt but more burdensome than proof by a preponderance of the evidence; it means “there must be no serious or substantial doubt about the correctness of a particular conclusion drawn from the evidence.” In re B.B., 826 N.W.2d 425, 428 (Iowa 2013) (citation omitted). 3

assaulted Stephanie in the presence of the children.2 The juvenile court

adjudicated O.H. and L.S. as children in need of assistance (CINA) and issued

an order for removal of the children. L.S.—who was placed with her biological

father, Chad—told child abuse investigators she and O.H. witnessed domestic

violence in their home, including Braden placing Stephanie “in a chokehold” while

Stephanie was pregnant with V.H.

Despite the pending CINA case for her older children, Stephanie did not

inform DHS workers that she was pregnant or had given birth. The juvenile court

ordered removal of the new baby, V.H., in September 2015 and adjudicated her

as a CINA due to ongoing concerns about domestic violence and substance

abuse. The DHS placed O.H. and V.H. with extended family members; both

families have taken steps to become pre-adoptive homes.

The parents did not exhibit progress regarding their substance-abuse

issues during the case. Stephanie reported struggling with drug abuse since her

teens. In September 2015, she tested positive for Oxycodone and

Oxymorphone, which were prescribed to her following complications with her

Caesarean section. But during the course of the case, Stephanie failed to

recognize her reliance on opiates as a problem. The medical clinic she attended

flagged her files for drug-seeking behavior. As part of her case plan, Stephanie

was called to provide drug screens, which she frequently missed; she also

tampered with the urine samples or tested positive.

2 The juvenile court also noted O.H. was present during a drug raid at the father’s home in September 2014. 4

Braden also has a history of substance abuse dating back to high school.

His participation in outpatient treatment in 2015 was sporadic. In December

2015, Braden was arrested for a probation violation and remained in jail until

March 1, 2016, when he was released to an in-patient treatment program. He

was unsuccessfully discharged from that program after only one week when he

snuck out of the facility to meet with Stephanie. A warrant was pending for his

arrest between March and July 8, 2016, when he was found at Stephanie’s

residence. Braden has been incarcerated since that time.

Domestic violence also persists as a problem in this family. Both parents

have sought civil protective orders alleging abuse by the other. During the CINA

case, both parents played down the seriousness of the domestic violence

perpetrated by Braden against Stephanie and did not appreciate its negative

impact on the children.

On July 15, 2016, the State filed a petition to terminate parental rights.

The juvenile court heard the matter on several trial dates in August and

September 2016. On November 30, 2016, the juvenile court issued an order

terminating the parental rights of both Braden and Stephanie based on Iowa

Code section 232.116(1)(f) (2016) for O.H. and section 232.116(1)(h) for V.H.

The court found Stephanie to be dishonest in both her dealings with service

providers and during her trial testimony. The court expressed concerned about

Stephanie’s minimization of her addiction to pain medication and her “clear

intent” to maintain a relationship with Braden despite the history of domestic

violence. The court also found Braden was “not in a position to resume custody

of these children as he has not successfully addressed any of the issues which 5

led to removal.” The court pointed out that for the majority of 2016, Braden had

been “in custody or on the run with an active warrant.” At the time of the

termination proceedings, Braden was serving a ten-year prison sentence with a

mandatory one-third minimum.

Both parents filed petitions to appeal the court’s termination order.

II. Father’s Claims Not Preserved

At the termination hearing, Braden argued only that the juvenile court

should delay permanency until the children could be placed with him. See Iowa

Code § 232.104(2)(b) (allowing court to delay “placement of the child for an

additional six months at which time the court shall hold a hearing to consider

modification of its permanency order”).3

But in his petition on appeal, he contends the State failed to meet its

burden to offer clear and convincing evidence to support the statutory grounds

for termination. Braden’s appellate argument was not preserved for our review.

See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (holding general rule that an

argument may not be raised for the first time on appeal applies in termination-of-

parental-rights cases). Additionally, to the extent Braden is mounting a

reasonable-efforts challenge on appeal, the juvenile court record also shows that

he failed to preserve that issue for our review. See In re A.A.G., 708 N.W.2d 85,

91 (Iowa Ct. App. 2005). We affirm the juvenile court on Braden’s appeal.

3 Braden acknowledged that because of his incarceration, he would not be in a position to resume custody even after six months. 6

III. Mother’s Claims Refuted by the Record

A. Statutory Grounds

The juvenile court based its termination order on paragraphs (f) and (h) of

Iowa Code section 232.116(1).4 Both paragraphs require the State to prove, by

clear and convincing evidence, the children cannot be returned to the custody of

their parents at the present time. See Iowa Code § 232.116(1)(f)(4), (h)(4). It is

that element in both statutes that Stephanie contests.

Stephanie argues she lives in a home that is ready for the children’s

return. She acknowledges the home is in Braden’s name, but she asserts that

entanglement is not a problem because he is currently incarcerated. Stephanie

also asserts she has been “compliant with services” and “has made progress.”

Deferring to the juvenile court’s grave concerns about Stephanie’s

honesty, we find a return to their mother’s care at the present time would not be a

safe option for O.H. and V.H. The record includes clear and convincing evidence

of Stephanie’s unresolved substance-abuse issues and a dangerous co-

dependency between Stephanie and Braden. Stephanie testified she did not

believe Braden was a safe person “yet”—that he needed to seek treatment for

anger management and drug addiction. But the juvenile court did not believe,

based on the evidence of Stephanie’s ongoing communication with Braden, that

she would place the safety and well-being of the children ahead of her desire to

continue an intimate relationship with Braden. See In re T.S., 868 N.W.2d 425,

4 Paragraph (f) requires proof the child is four years of age or older and has been removed for at least twelve of the last eighteen months, while paragraph (h) requires proof the child is three years of age or younger and has been removed for at least six months of the last twelve months. Iowa Code § 232.116(1)(f), (h). 7

435 (Iowa Ct. App. 2015) (finding that returning child to mother was “contrary to

his welfare” where record disclosed mother “gained very little insight over the

course of the proceedings about her domestic violence issues and the dangers

they pose to the children”).

The State’s evidence demonstrated Stephanie lacked any steady

employment, instead selling Braden’s sports memorabilia on eBay for income.

The juvenile court also doubted testimony from service providers indicating

Stephanie was making progress with the issues of substance abuse or domestic

violence because they were working with selective and misleading information

provided by Stephanie. Reviewing the evidence in its entirety, we conclude

Stephanie cannot provide the children a stable home at the present time.

B. Best Interests of the Children

Stephanie next argues termination of her parental rights was not in the

best interests of the children. She highlights her “close, loving relationship” with

O.H. and V.H., as documented by her own testimony, as well as by the

observations of the social workers. We acknowledge the record shows a loving

bond between Stephanie and her children. But that emotional connection is not

enough to preserve the legal relationship if a return to parental custody poses a

risk of harm to the children.

Our determination of the children’s best interests must track Iowa Code

section 232.116(2). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (rejecting

judicial use of an unstructured best-interests test). That provision focuses our

attention on the children’s safety; the best placement for furthering their long-

term nurturing and growth; and their physical, mental, and emotional condition 8

and needs. See Iowa Code § 232.116(2). In assessing best interests, the

juvenile court wrote: “These children’s future can be gleaned from evidence of

the parent’s past performance and motivations.” In re T.B., 604 N.W.2d 660, 662

(Iowa 2000). We agree. Stephanie has not been able to offer the children a

safe, stable environment, free from the specter of domestic violence and

substance abuse. Their physical, mental, and emotional needs appear to be

best served by terminating her parental rights and moving toward permanent

placements.

C. Request for Six-Month Extension

As an alternative argument, Stephanie asks for six more months to allow

reunification. See Iowa Code § 232.104(2)(b).5 She contends her willingness to

engage in services and anticipated employment would enable her to successfully

resume custody of O.H. and V.H. with an extension of time.6

For the reasons discussed above, we decline to defer the children’s

permanency. While Stephanie may be able to achieve greater stability in her

housing and employment over time, the record offers little hope she will

5 That section reads, in relevant part: After a permanency hearing the court shall . . . [e]nter an order . . . to continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order. An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist at the end of the additional six-month period. 6 Stephanie contends on appeal that the juvenile court’s refusal to delay permanency was a Due Process violation. Because it does not appear Stephanie alerted the juvenile court to a constitutional claim, we decline to consider a separate Due Process argument on appeal. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) (“Even issues implicating constitutional rights must be presented to and ruled upon by the district court in order to preserve error for appeal.”). 9

appreciate the peril posed by her continued association with Braden or will fully

address her addiction in the near future. Because the children had been out of

the home for twelve months at the time of the termination hearing, “we view the

proceedings with a sense of urgency.” In re A.A.G., 708 N.W.2d at 93. From our

de novo review of the record, we are unable to make a finding the need for

removal would no longer exist after a six-month extension.

AFFIRMED ON BOTH APPEALS.