In the Interest of R.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: November 2, 2022
• Docket: 22-1346
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1346 Filed November 2, 2022

IN THE INTEREST OF R.B., Minor Child,

K.L., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jones County, Joan M. Black, District

Associate Judge.

The mother appeals the juvenile court ruling waiving the reasonable-efforts

requirement under Iowa Code section 232.102(12)(c) (2022). AFFIRMED.

Robin L. Himes, Cedar Rapids, for appellant mother.

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

General, for appellee State.

David G. Baumgartner, Strawberry Point, attorney and guardian ad litem for

minor child.

Considered by Bower, C.J., and Greer and Badding, JJ. 2

GREER, Judge.

The mother appeals the juvenile court ruling granting the State’s request to

waive reasonable efforts to reunify the mother with R.B. under Iowa Code section

232.102(12)(c) (2022).1

I. Background Facts and Proceedings.

In April 2022, the mother traveled from Iowa to Utah because she was

contemplating giving up her unborn child for adoption. The mother changed her

mind and, while in the process of returning to Iowa, went into labor at an airport in

Colorado. R.B. tested positive for methamphetamine at birth, and the child was

removed from the mother’s care before being discharged from the hospital. A

worker from the Iowa Department of Health and Human Services2 traveled to

Colorado to take custody of the child; both R.B. and the mother returned to Iowa

on April 19, 2022.

Because the mother had left Iowa while on pretrial release for pending

criminal charges, she was arrested when she returned to the state; she remained

in jail until May 9, 2022.

1 The State filed its application on May 12, 2022, and the district court heard it on June 30; we apply the 2022 Iowa Code. But we recognize this specific law changed as of July 1, 2022. See 2022 Iowa Acts ch. 1098 §§ 47 (striking Iowa Code § 232.102(12)), 49 (creating Iowa Code § 232.102A (Supp. 2022)); see also Iowa Const. art. III, § 26 (“An act of the general assembly passed at a regular session of a general assembly shall take effect on July 1 following its passage unless a different effective date is stated in an act of the general assembly.”); Iowa Code § 4.5 (“A statute is presumed to be prospective in its operation unless expressly made retrospective.”). 2 In 2022, the Iowa legislature merged the department of human services with the

department of public health into the Iowa Department of Health and Human Services, with the transition starting July 1, 2022. See 2022 Iowa Acts ch. 1131 § 51. We will refer to the department as DHHS. 3

The mother was out of custody from May 9 until June 18. During those

nearly six weeks, the mother attended one visit with R.B.; she missed the first forty

minutes of the ninety-minute visit. She did not begin drug or mental-health

treatment or participate in any drug tests. According to the mother’s testimony,

she used methamphetamine until she went back into jail.

In May, the State filed an application to waive reasonable efforts under

section 232.102(12)(c), which provides:

If the court determines by clear and convincing evidence that aggravated circumstances exist, with written findings of fact based upon evidence in the record, the court may waive the requirement for making reasonable efforts. The existence of aggravated circumstances is indicated by any of the following: .... c. The parent’s parental rights have been terminated under section 232.116 or involuntarily terminated by an order of a court of competent jurisdiction in another state with respect to another child who is a member of the same family, and there is clear and convincing evidence to show that the offer or receipt of services would not be likely within a reasonable period of time to correct the conditions which led to the child’s removal.

The juvenile court considered the application in conjunction with the dispositional

hearing on June 30.

At the onset of the hearing, the court took judicial notice of several other

court files, including those establishing the mother’s rights had previously been

terminated to four other children in two separate proceedings.3 The mother’s drug

use and criminal issues were common themes in the prior termination proceedings.

The juvenile court also took judicial notice of criminal file FECR008464, which

3 The mother’s rights were terminated to A.L. and A.L. (both born in April 2017) and A.L. (born in September 2018) in a September 2019 termination order. Her rights were also terminated to J.L. (born in March 2021) in October 2021—about six months before the mother gave birth to R.B. 4

showed the mother had been charged with and pled guilty to gathering where

controlled substances are used, a class “D” felony. The mother was still in jail

pending sentencing, which was scheduled to take place July 25—at which point

R.B. would have been out of the mother’s care for more than three months. The

mother’s guilty plea left the issue of sentencing to the district court’s discretion,

and the court could send her to prison for five years, order her to a supervised-

probation setting, or give her probation and release her. The mother admitted that

she attended only one visit with R.B. during the approximately six weeks she was

out of jail since DHHS became involved with R.B. She testified she missed some

visits due to transportation issues and being unable to find the special formula R.B.

needs but also admitted she missed some because she was using

methamphetamine and did not want to be around her child while high. The mother

resisted the State’s motion to waive reasonable efforts, testifying that once she

was released from jail, she would have more than thirty days sober and would

participate in drug testing, mental-health treatment, substance-abuse treatment,

and any services DHHS requested of her.

The juvenile court granted the State’s application to waive reasonable

efforts, finding:

[The mother] has four older children. None of them are in her care. The issues that caused [her] to lose care of her older children are the same issues that brought [R.B.] to the attention of [DHHS]. [The mother] . . . ha[s] a long history of involvement with [DHHS] and ha[s] demonstrated little if any ability or willingness to change. [The mother] has not demonstrated an ability to remain drug free, or to stay out of jail. It is simply unrealistic to believe that the grant of additional time will result in a different outcome.

The mother appeals. 5

II. Standard of Review.

We perform a de novo review of dispositional orders in child-in-need-of-

assistance (CINA) cases, including an order waiving reasonable efforts. See In re

G.D., No. 17-0874, 2017 WL 4050969, at *2 (Iowa Ct. App. Sept. 13, 2017).

III. Discussion.

DHHS generally has a duty to “make every reasonable effort” to return

children to their parents “as quickly as possible” consistent with the children’s best

interests. Iowa Code § 232.102(7); see also In re C.B., 611 N.W.2d 489, 493 (Iowa

2000) (“[T]he scope of the efforts by the DHS to reunify parent and child after

removal impacts the burden of proving those elements of termination which require

reunification efforts.”). But this mandate is not absolute. The juvenile court may

waive the requirement if it finds by clear and convincing evidence that aggravated

circumstances exist. See Iowa Code § 232.102(12); see also C.B., 611 N.W.2d at

493 (“[T]he reasonable efforts requirement has undergone some transformation.

This is because the family preservation concept which guided our general national

policy for the last two decades was found to be detrimental to children in some

cases. Consequently, the Adoption and Safe Families Act of 1997, Public Law

105–89, 111 Statutes 2115 (codified as amended in scattered sections of 42

U.S.C.), now broadens the focus of reunification to place greater emphasis on the

health and safety of the child, and mandates a permanent home for a child as early

as possible.” (internal citations omitted)). 6

Here, the juvenile court waived the reasonable-efforts requirement, finding

aggravated circumstances existed under section 232.102(12)(c).4 Section

232.102(12)(c) has two elements: (1) the parent’s rights have previously been

terminated with respect to another child who is a member of the same family and

(2) “there is clear and convincing evidence to show that the offer or receipt of

services would not be likely within a reasonable period of time to correct the

conditions which led to the child’s removal.” The mother does not contest the first

element is met. She challenges the second, generally claiming that she planned

to engage in services after her possible July release from jail and she “would be

successful” this time.

Using the past as the best predictor, we agree with the juvenile court’s

finding of aggravated circumstances. See In re T.B., 604 N.W.2d 660, 662 (Iowa

2000) (“The future can be gleaned from evidence of the parents’ past performance

and motivations.”). The mother lost her parental rights to four other children largely

due to her issues with methamphetamine. After losing her rights to J.L. in October

2021 (at which time she was already pregnant with R.B.), the mother continued

using methamphetamine. The mother had about six weeks out of jail during the

pendency of this case; during those six weeks, she did not engage with substance-

abuse or mental-health treatment and she attended only half of one visit with R.B.

4 We presume the juvenile court relied upon this statute, but the order is silent on the section applied and neither party cited proper authority in this case. The prosecutor applied for waiver of reasonable efforts citing section 232.101(12) and the mother’s petition on appeal references section 232.57 (which is about waiving reasonable efforts in delinquency proceedings—not CINA proceedings). Likewise, the mother failed to cite to any caselaw in her appellate filing that discussed the proper code section. 7

Most of the other visits offered to the mother were never confirmed by her and so

they had to be cancelled. And the mother admitted she used methamphetamine

during this period. Even if the mother was released at sentencing in late July—the

earliest date she anticipated possibly leaving custody—R.B. would be out of her

care for more than three months at that time. In other words, less than three

months would remain before the mother’s rights could be terminated to R.B. under

section 232.116(1)(h). See Iowa Code § 232.116(1)(h) (allowing the court to

terminate parental rights to a child three or younger if the child has been removed

from the parent’s care at least six months and cannot return home). Even if DHHS

provided the mother services, based on her track record, those efforts would not

correct the long-standing failure to cooperate with visits and services offered and

the lack of follow through exhibited by the mother towards addressing her

substance abuse problem. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App.

1998) (“[I]n considering the impact of a drug addiction, we must consider the

treatment history of the parent to gauge the likelihood the parent will be in a

position to parent the child in the foreseeable future.”); see also In re Q.A.S.,

No. 13-1182, 2013 WL 5229746, at *3–4 (Iowa Ct. App. Sept. 18, 2013) (affirming

juvenile court’s waiver of reasonable efforts when “the parent[] shows a continuing

pattern of [being] unamenab[le] to services, lack of follow through in the important

areas of drug treatment and mental health treatment, and a continuing

dysfunctional relationship that prevents them from focusing on their child”).

Because we find clear and convincing evidence of aggravated

circumstances based upon the mother’s history and her demonstrated lack of 8

commitment to her parental role, we affirm the juvenile court’s waiver of the

reasonable-efforts requirement.

AFFIRMED.