In the Interest of O.J., Minor Child

• Court: Court of Appeals of Iowa
• Decided: August 7, 2024
• Docket: 24-0675
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0675 Filed August 7, 2024

IN THE INTEREST OF O.J., Minor Child,

L.K., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Audubon County, Justin R. Wyatt,

Judge.

A mother appeals the order terminating her parental rights to her three-year-

old daughter. AFFIRMED.

Jonathan Mailander, Atlantic, for appellant mother.

Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney

General, for appellee State.

William T. Early, Harlan, attorney and guardian ad litem for minor child.

Considered by Tabor, P.J., and Greer and Schumacher, JJ. 2

TABOR, Presiding Judge.

O.J., who was born in April 2021, has spent most of her life in and out of the

care of relatives. Her mother, Lacey, battles drug addiction. Just before her first

birthday, O.J. was removed from Lacey’s home after the mother admitted using

methamphetamine. For two years, Lacey worked toward sobriety. Twice, O.J.

was placed back in Lacey’s care; both times, O.J. was again removed after a brief

period of sobriety ended in relapse. After two years, the juvenile court terminated

Lacey’s parental rights. Lacey appeals, arguing that the State failed to prove

grounds for termination under Iowa Code section 232.116(1)(h) (2023) and that

the juvenile court should have made an exception under section 232.116(3)(c).

Because we reject both arguments, we affirm the termination.

I. Facts and prior proceedings

Lacey has been using methamphetamine, off and on, since 2018. When

O.J. was born, Lacey was living with O.J.’s father, Robert.1 The Iowa Department

of Health and Human Services (HHS) became concerned about O.J.’s welfare in

October 2021 after it received a report that Robert had been using

methamphetamine while caring for the infant. To address that concern, the

department and O.J.’s parents opened a voluntary services case for O.J. The

department made a series of recommendations to Lacey: first, that she and Robert

remain sober while caring for O.J.; second, that Robert find separate living

arrangements until he achieved sobriety; third, that she supervise interactions

between Robert and O.J.

1 The court also terminated Robert’s parental rights. He does not appeal. 3

In February 2022, the department received a report that Robert had

assaulted Lacey in O.J.’s presence and that the parents had been using

methamphetamine.2 Investigating that report, a child protection worker noted that

Lacey’s home was in “good shape” with “a safe sleep space” for O.J. Lacey told

the worker that she would not allow Robert to live with her and O.J. anymore.

When the worker noted that Lacey had not followed through on that promise

before, she responded that she was “not messing around this time.” Lacey told

the worker that she had not used drugs for over a year.

But on March 10, Lacey admitted that she had been using

methamphetamine that spring, and a urinalysis confirmed her admission. The next

day, the district court transferred custody of O.J. to the department, which placed

O.J. in the care of her paternal aunt and later in the care of her paternal

grandmother.

In April, the court adjudicated O.J. as a child in need of assistance (CINA)

under Iowa Code sections 232.2(6)(c)(2), (n), and (p).3 It noted: “A child under one

year of age is unable to self-protect from a caretaker who is using

methamphetamine. A parent’s methamphetamine addiction itself can result in

harmful effects to the child, justifying state intervention to protect the child.”

A week after the CINA ruling, the department authorized Lacey to take O.J.

on a weekend visit to Lacey’s parents. But it revoked the authorization when it

2 O.J.’s half-sister, M.H., went to live with her father after this incident under a

custody agreement between Lacey and M.H.’s father. 3 These provisions are now substantially codified at Iowa Code section 232.96A(3)(b), (14), and (16) (2024). 4

learned that Lacey had invited Robert, freshly unsuccessfully discharged from

inpatient treatment, to join them without permission.

In May, the department reported to the court that O.J. was “healthy” and

“bonded with her parents” and that “[b]oth Lacey and [Robert] demonstrate very

nurturing and loving parental roles and interactions.” The court adopted the

department’s recommendation that the goal be reunification.

But four days later, a case worker visited Lacey’s house and found Robert

“agitated” and with eyes dilated. On a tour of the house, the worker noted Lacey’s

nervous behavior, a “foul smell . . . more bitter and stronger than . . . cigarette

smoke,” a man hiding under the bed, and an odd arrangement in the basement

resembling a methamphetamine lab. Police officers later found drug paraphernalia

in the house. After these findings, the department revoked permission for at-home

visitation between O.J. and her parents. At the end of May 2022, both Lacey and

Robert tested positive for methamphetamine, were evicted, and moved into a

house known in town as a “drug dealer home.” Ten days later, both Lacey and

Robert entered inpatient treatment.

Lacey’s treatment went well, and in mid-July the department placed O.J. in

her care at the facility. Later, in August, O.J. returned home with Lacey after Lacey

completed treatment. The department again reported to the court that O.J. was

“healthy” and “bonded with her parents,” adding that she “demonstrates emotional

responses when able to see her parents.” Still, it relayed some concern about

Lacey’s behavior while in treatment, noting Lacey’s “breaking and manipulating

rules” and “disregard[ing] requests by [the department]” to supervise off-campus

visitation with O.J. 5

Two months later, the department removed O.J. from Lacey’s care after

Lacey admitted cocaine use and tested positive for methamphetamine.4 During

the two months O.J. lived at Lacey’s house, Lacey again allowed Robert to care

for O.J. without supervision. After Lacey’s relapse, the department placed O.J. in

the care of her maternal grandparents, to whose home Lacey also moved. A

permanency hearing in early November maintained the reunification goal but did

not return O.J. to Lacey’s custody; the court set a modification hearing for February

2023. See Iowa Code § 232.58(3)(b).

While Robert spent another period in inpatient drug treatment after a

positive methamphetamine test, Lacey stayed sober, and in February 2023, the

court returned O.J. to Lacey’s custody under HHS supervision. Lacey had by that

time moved out of her parents’ home and into an apartment. The court kept the

reunification goal but again postponed making a final permanency decision and

set a modification hearing for June. See Iowa Code § 232.58(3)(b).

One month later, Lacey relapsed again. The court returned O.J. to the

department’s custody; the department returned O.J. to the care of her maternal

grandparents. In June, the department reported steady methamphetamine use by

both Lacey and Robert and recommended termination of their parental rights to

O.J. The court ordered the county attorney to petition for termination, noting O.J.

by that point “struggle[d] with the confusion caused by visitation, specifically in

regard to her mother leaving at the end of visits.”

4 Lacey denied using drugs to her counselor one day before testing positive. 6

Throughout the summer, Robert and Lacey continued using

methamphetamine. Yet Lacey told her family-centered services worker and her

counselor that she had been sober. And she allowed O.J. to stay overnight at her

apartment without department permission. Her attendance at outpatient treatment

became inconsistent. By September, though no time limits had been placed on

Lacey’s visitation with O.J., Lacey was visiting her only two or three times per

week, for only twenty minutes at a time.

In September 2023, O.J.’s grandmother reported that her health would no

longer allow her to care for O.J. The department transferred O.J. back to the care

of her paternal aunt.

That same month, the county attorney petitioned for termination of Lacey’s

parental rights with respect to O.J. under Iowa Code section 232.116(1)(h). The

court scheduled a trial for December, which was continued until February 2024. In

the meantime, the department reported that O.J. had become “very confused

about parental roles and family relationships,” as shown by her “addressing all

females in a caretaking role as ‘mom.’”

Lacey was sober over the autumn months. Yet she missed a drug test in

January 2024. While she returned a negative test twenty days later, her missed

test was a key concern at trial. Lacey argued that the State failed to prove O.J.

could not be returned to her custody, a necessary element of

section 232.116(1)(h), since she had been sober for over six months and had an

adequate source of income, a car, and an appropriate residence. Iowa Code

§ 232.116(1)(h)(4). Her explanation for the missed test in January was that she

could not urinate. She also argued that even if the State proved that O.J. could 7

not be returned, the court should make an exception because of the closeness of

O.J.’s bond with her. See Iowa Code § 232.116(3)(c).

The court doubted Lacey’s sobriety: “[Lacey] could not explain her inability,

or refusal, to provide a UA drug screen as requested on January 11, 2024, despite

drinking water and remaining at the testing facility for 5 hours.” The court’s concern

led it to conclude that O.J. could not be returned to Lacey’s custody at the time of

the trial. And it declared that termination was in O.J.’s best interest.

Neither did the court embrace Lacey’s exception argument. It found only a

weak bond between O.J. and Lacey that had deteriorated significantly over the

year before. As evidence, it cited reports that Lacey was visiting O.J. sparingly as

well as O.J.’s habit of calling other caretakers “mom.” Thus, the court declined to

forgo termination under section 232.116(3)(c). Lacey appeals.

II. Standard of review

We review termination-of-parental-rights cases de novo. In re M.W., 876

N.W.2d 212, 219 (Iowa 2016). Accordingly, we review the evidence and adjudicate

rights anew; and though we give weight to fact findings of the juvenile court,

especially when considering credibility of witnesses, we are not bound by them.

In re M.M., 483 N.W.2d 812, 814 (Iowa 1992); see In re H.L.B.R., 567 N.W.2d 675,

679 (Iowa Ct. App. 1997) (“Where there is conflicting evidence on some issues,

we give consideration to juvenile court on issues of credibility.”).

To prevail, the State must present clear and convincing evidence in support

of termination. Iowa Code § 232.117(3). Evidence is clear and convincing when

there is no serious or substantial doubt about the correctness of a legal conclusion

drawn from the evidence. In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App. 2016). 8

III. Discussion

Section 232.116 calls for a three-part analysis in termination decisions.

First, we must determine whether the State has proven a statutory ground for

termination. Iowa Code § 232.116(1). If the State has, we ensure termination is

in the child’s best interest. Id. § 232.116(2). Finally, before terminating a parent’s

rights, we must decide whether to apply any of the permissive exceptions. Id.

§ 232.116(3).

A. Ground for termination

As for the first piece of the analysis, the State based its petition on

paragraph (h), which requires proof of four elements. Iowa Code § 232.116(1)(h).5

Lacey concedes all but the fourth element, which requires proof “that the child

cannot be returned to the custody of the child’s parent[] as provided in section

232.102 at the present time.” Id. § 232.116(1)(h)(4). “‘[A] child cannot be returned

to the custody of the child’s parent under section 232.102 if by doing so the child

would be exposed to any harm amounting to a new child in need of assistance

5 To find termination appropriate under paragraph (h), the court must find all the

following supported by clear and convincing evidence: (1) The child is three years of age or younger. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time. Iowa Code § 232.116(1)(h). 9

adjudication.’” M.S., 889 N.W.2d at 680 (quoting M.M., 483 N.W.2d at 814); see

Iowa Code § 232.102(4)(a)(2).6

A parent’s methamphetamine addiction alone is sufficient evidence to prove

that the child has suffered or is imminently likely to suffer “harmful effects” because

of the parent’s failure to exercise a reasonable degree of care in supervising them,

a basis for CINA designation under section 232.96A(3)(b). In re J.S., 846 N.W.2d

36, 41–42 (Iowa 2014) (“[A] juvenile court could reasonably determine that a

parent’s active addiction to methamphetamine is ‘imminently likely’ to result in

harmful effects to . . . the children in the parent’s care.”) (citing In re A.B., 815

N.W.2d 764, 776 (Iowa 2012)); see State v. Petithory, 702 N.W.2d 854, 859 (Iowa

2005) (“No parent should leave his small children in the care of a meth addict—

the hazards are too great.”).

O.J. could not have been returned to Lacey’s custody under section

232.102 at time of trial. Were O.J. returned to Lacey’s custody, she would be

exposed to the same harms for which she was adjudicated as a CINA more than

two years ago, all of which stem from her mother’s addiction to methamphetamine.

As the juvenile court stated in its CINA ruling, a young child is unable to self-protect

from a caretaker who is using methamphetamine.

6 Our case law offers two formulations for what it means when a child “cannot be

returned” to parental custody as provided in section 232.102 (discussing transfer of a child’s legal custody if staying in the home would be “contrary to the welfare of the child”). Many cases cite M.M., 483 N.W.2d at 815, as we do here. But our supreme court often describes that element as the inability to “safely return” children to their parents’ care. See, e.g., In re T.W., No. 20-0145, 2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020) (collecting cases). Under either formulation, the State met its burden of proof here. 10

And the State proved that Lacey was still grappling with her addiction by the

time of trial. We presume that she missed the January 11 test because she had a

lapse. The juvenile court did not believe her excuse for not providing a urine

sample, and we defer to its credibility determination. We consider Lacey’s

dishonesty regarding her drug use over the course of O.J.’s CINA case in

accepting that determination. See In re Dameron, 306 N.W.2d 743, 745 (Iowa

1981) (“[W]e necessarily consider what the future likely holds for the child if

returned to his or her parents. Insight for this determination can be gained from

evidence of the parent’s past performance, for that performance may be indicative

of the quality of the future care that parent is capable of providing.”).

Because the evidence revealed an ongoing danger of methamphetamine

use, we have no serious doubts about the juvenile court’s conclusion that O.J.

could not be returned home at time of trial. Thus, the State proved by clear and

convincing evidence the grounds for termination under section 232.116(1)(h).

B. Best interests of the child

The next step is to ensure termination is in O.J.’s best interests. See Iowa

Code § 232.116(2). In making that determination, we must consider, among other

things, “[O.J.’s] safety,” “the best placement for furthering [O.J.’s] long-term

nurturing and growth,” and “[O.J.’s] physical, mental, and emotional needs.” Id.

§ 232.116(2); see In re P.L., 778 N.W.2d 33, 36–39 (Iowa 2010) (“Rather than a

court using its own unstructured best-interest[s] test, the court is required to use

the best-interest[s] framework established in section 232.116(2) when it decides

what is in the best interest[s] of the child.”). 11

The conclusion that O.J. would be safer with Lacey’s parental rights

terminated follows from our finding that Lacey has not yet overcome her addiction.

See Petithory, 702 N.W.2d at 859. What’s more, O.J. needs stability and

permanency to foster her long-term nurturing and growth. Lacey’s past

performance makes us doubt that she can provide that right now. Termination is

in O.J.’s best interest.

C. Statutory exception

Finally, having decided termination is in O.J.’s best interest, we turn to

section 232.116(3). Lacey argues we should apply an exception because of her

bond with O.J. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (“[O]nce the State

has proven a ground for termination, the parent resisting termination bears the

burden to establish an exception to termination under Iowa Code

section 232.116(3)(a).”).

But the record does not show that O.J.’s relationship with Lacey is so close

that “termination would be detrimental to the child.” See Iowa Code

§ 232.116(3)(c). O.J. does have a connection with Lacey. But, as the juvenile

court found, their ties weakened in the year before the trial. The department did

not report a bond between Lacey and O.J. after October 2022, though it had

consistently done so up to that time. Lacey had only short visits with her daughter

during the final months before trial. We decline to apply that exception here.

AFFIRMED.