IN THE COURT OF APPEALS OF IOWA
No. 18-0890 Filed September 12, 2018
IN THE INTEREST OF R.M. and K.M., Minor Children,
T.M., Mother, Appellant.
R.M., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mills County, Craig M. Dreismeier,
District Associate Judge.
A mother and father appeal the termination of their parental rights to their
children. AFFIRMED ON BOTH APPEALS.
DeShawne L. Bird-Sell of Sell Law, PLC, Glenwood, for appellant mother.
J. Joseph. Narmi, Council Bluffs, for appellant father.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Abby L. Davison of State Public Defender Office, Council Bluffs, guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
VAITHESWARAN, Presiding Judge.
A mother and father appeal the termination of their parental rights to their
children, born in 2012 and 2014.1 Both parents challenge the evidence supporting
the grounds for termination cited by the district court. The father also argues the
State failed to make reasonable efforts toward reunification, termination was not in
the children’s best interests, and the court should have declined to terminate his
parental rights based on the strength of the parent-child bond.
I. Grounds for Termination
The facts underlying the termination petition were summarized in a prior
opinion of this court:
The DHS first began providing services to this family in September 2013, before K.M. was born, after finding the home full of unwashed clothing, spoiled food, and dirty dishes. All the utilities had been shut off. In an interview with a DHS social worker, Tera admitted using marijuana; Robert was using methamphetamine. The DHS temporarily removed M.S. and R.M. to their grandparents’ home, but the children returned to their parents’ care in November 2013 after Tera and Robert agreed to voluntarily participate in services. After K.M.’s birth, Tera and Robert continued to struggle with the issues that first prompted DHS involvement. In January 2015, the three children were briefly removed from Tera and Robert’s care after a child protective worker again observed unsanitary conditions in the home and found Tera and Robert were regularly leaving M.S. and R.M. in a locked bedroom. Then on March 23, 2015, the children were removed after Tera and Robert tested positive for illegal substances. Both Tera and Robert tested positive for methamphetamine and amphetamines; Tera also tested positive for barbiturates and marijuana. At the time of their removal, the children “were wearing dirty clothes and obviously in need of a bath.” The children have consistently been in foster or shelter care since that time.
In re M.S., No. 16-1860, 2017 WL 362606, at *1 (Iowa Ct. App. Jan. 25, 2017).
1 A third child of the mother is not involved in these proceedings. 3
After recounting this history, the court turned to the grounds for termination cited
by the district court. The court concluded those grounds were not satisfied,
requiring reversal of the termination ruling. The matter was remanded to the
district court.
On remand, the department of human services reinitiated reunification
services, including supervised visits with the children. The parents participated in
visits. They were less compliant with drug-testing services.
The State again petitioned to terminate their parental rights to the children.
Following a hearing, the district court granted the petition pursuant to Iowa Code
section 232.116(1)(f) and (h) (2017), which require proof the children cannot be
returned to the parents’ custody. The district court found (1) the maternal
grandmother’s home in which the parents had been living lacked sufficient space
to accommodate the children; (2) the parents needed “ongoing support” with
parenting skills and “to assure the daily needs of the children were being met”; and
(3) “[b]oth parents . . . struggled in compliance with substance abuse treatment
and recommendations.”
On our de novo review, we find clear and convincing evidence to support
the third basis for termination. The children were removed from the parental home
approximately three years prior to the second termination hearing. When services
were restarted in February 2017, the parents were well aware of their obligation to
refrain from using illegal substances. To her credit, the mother obtained an
updated substance abuse evaluation and completed outpatient substance abuse
treatment. But nine months after the reinitiation of services, she tested positive for
methamphetamine, amphetamine, and THC. She declined further drug testing 4
despite the department’s willingness to have the tests performed at her home. The
father was similarly noncompliant, albeit more sporadically. He tested positive for
methamphetamine three months after services were reinitiated and missed the
next test. Like the mother, he made efforts to improve, undergoing six consecutive
negative drug tests. But, beginning four months before the second termination
hearing, he missed or refused eleven drug tests.
The department social worker assigned to the case stated no-shows for
drug testing were deemed positive tests. In light of the missed drug screens, she
testified she would “not feel safe” transitioning the children to semi-supervised
visits with their parents, which was the first step toward reunification. She
recommended against returning the children to the parents’ custody.
The service provider who supervised visits agreed. While acknowledging
the visits went well, he stated he “would not” be comfortable leaving the parents
alone with the children.
The parents point out that the department expressed no qualms about
leaving the parents alone with the mother’s seven-year-old niece, who lived in the
maternal grandmother’s home. But the niece was not a subject of these
proceedings. And, while the parents’ positive interactions with her are
commendable, the parents’ ability to engage with children for a few hours at a time
was not in question. The key issue was their long-term ability to care for their
children without assistance. Three years after the children’s removal, there was
every reason to believe ongoing drug use would compromise the parents’ ability
to maintain a safe and healthy environment. 5
We conclude the State proved the grounds for termination cited by the
II. Reasonable Efforts
The department is obligated to make reasonable efforts to reunify a parent
and child. See Iowa Code § 232.102(7) (stating department must make “every
reasonable effort to return the child to the child’s home as quickly as possible
consistent with the best interests of the child”); In re C.B., 611 N.W.2d 489, 493
(Iowa 2000). The father argues the agency failed in this obligation. He points to
the single, weekly, four-hour visit he was afforded with the children. He maintains
the department could have left the children in a foster home that was closer to the
parents and could have afforded him telephone, Facebook, and Skype contact with
the children.
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IN THE COURT OF APPEALS OF IOWA
No. 18-0890 Filed September 12, 2018
IN THE INTEREST OF R.M. and K.M., Minor Children,
T.M., Mother, Appellant.
R.M., Father, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Mills County, Craig M. Dreismeier,
District Associate Judge.
A mother and father appeal the termination of their parental rights to their
children. AFFIRMED ON BOTH APPEALS.
DeShawne L. Bird-Sell of Sell Law, PLC, Glenwood, for appellant mother.
J. Joseph. Narmi, Council Bluffs, for appellant father.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Abby L. Davison of State Public Defender Office, Council Bluffs, guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
VAITHESWARAN, Presiding Judge.
A mother and father appeal the termination of their parental rights to their
children, born in 2012 and 2014.1 Both parents challenge the evidence supporting
the grounds for termination cited by the district court. The father also argues the
State failed to make reasonable efforts toward reunification, termination was not in
the children’s best interests, and the court should have declined to terminate his
parental rights based on the strength of the parent-child bond.
I. Grounds for Termination
The facts underlying the termination petition were summarized in a prior
opinion of this court:
The DHS first began providing services to this family in September 2013, before K.M. was born, after finding the home full of unwashed clothing, spoiled food, and dirty dishes. All the utilities had been shut off. In an interview with a DHS social worker, Tera admitted using marijuana; Robert was using methamphetamine. The DHS temporarily removed M.S. and R.M. to their grandparents’ home, but the children returned to their parents’ care in November 2013 after Tera and Robert agreed to voluntarily participate in services. After K.M.’s birth, Tera and Robert continued to struggle with the issues that first prompted DHS involvement. In January 2015, the three children were briefly removed from Tera and Robert’s care after a child protective worker again observed unsanitary conditions in the home and found Tera and Robert were regularly leaving M.S. and R.M. in a locked bedroom. Then on March 23, 2015, the children were removed after Tera and Robert tested positive for illegal substances. Both Tera and Robert tested positive for methamphetamine and amphetamines; Tera also tested positive for barbiturates and marijuana. At the time of their removal, the children “were wearing dirty clothes and obviously in need of a bath.” The children have consistently been in foster or shelter care since that time.
In re M.S., No. 16-1860, 2017 WL 362606, at *1 (Iowa Ct. App. Jan. 25, 2017).
1 A third child of the mother is not involved in these proceedings. 3
After recounting this history, the court turned to the grounds for termination cited
by the district court. The court concluded those grounds were not satisfied,
requiring reversal of the termination ruling. The matter was remanded to the
district court.
On remand, the department of human services reinitiated reunification
services, including supervised visits with the children. The parents participated in
visits. They were less compliant with drug-testing services.
The State again petitioned to terminate their parental rights to the children.
Following a hearing, the district court granted the petition pursuant to Iowa Code
section 232.116(1)(f) and (h) (2017), which require proof the children cannot be
returned to the parents’ custody. The district court found (1) the maternal
grandmother’s home in which the parents had been living lacked sufficient space
to accommodate the children; (2) the parents needed “ongoing support” with
parenting skills and “to assure the daily needs of the children were being met”; and
(3) “[b]oth parents . . . struggled in compliance with substance abuse treatment
and recommendations.”
On our de novo review, we find clear and convincing evidence to support
the third basis for termination. The children were removed from the parental home
approximately three years prior to the second termination hearing. When services
were restarted in February 2017, the parents were well aware of their obligation to
refrain from using illegal substances. To her credit, the mother obtained an
updated substance abuse evaluation and completed outpatient substance abuse
treatment. But nine months after the reinitiation of services, she tested positive for
methamphetamine, amphetamine, and THC. She declined further drug testing 4
despite the department’s willingness to have the tests performed at her home. The
father was similarly noncompliant, albeit more sporadically. He tested positive for
methamphetamine three months after services were reinitiated and missed the
next test. Like the mother, he made efforts to improve, undergoing six consecutive
negative drug tests. But, beginning four months before the second termination
hearing, he missed or refused eleven drug tests.
The department social worker assigned to the case stated no-shows for
drug testing were deemed positive tests. In light of the missed drug screens, she
testified she would “not feel safe” transitioning the children to semi-supervised
visits with their parents, which was the first step toward reunification. She
recommended against returning the children to the parents’ custody.
The service provider who supervised visits agreed. While acknowledging
the visits went well, he stated he “would not” be comfortable leaving the parents
alone with the children.
The parents point out that the department expressed no qualms about
leaving the parents alone with the mother’s seven-year-old niece, who lived in the
maternal grandmother’s home. But the niece was not a subject of these
proceedings. And, while the parents’ positive interactions with her are
commendable, the parents’ ability to engage with children for a few hours at a time
was not in question. The key issue was their long-term ability to care for their
children without assistance. Three years after the children’s removal, there was
every reason to believe ongoing drug use would compromise the parents’ ability
to maintain a safe and healthy environment. 5
We conclude the State proved the grounds for termination cited by the
II. Reasonable Efforts
The department is obligated to make reasonable efforts to reunify a parent
and child. See Iowa Code § 232.102(7) (stating department must make “every
reasonable effort to return the child to the child’s home as quickly as possible
consistent with the best interests of the child”); In re C.B., 611 N.W.2d 489, 493
(Iowa 2000). The father argues the agency failed in this obligation. He points to
the single, weekly, four-hour visit he was afforded with the children. He maintains
the department could have left the children in a foster home that was closer to the
parents and could have afforded him telephone, Facebook, and Skype contact with
the children.
The department social worker listed a litany of services that were provided
the family, including supervised visits. According to her, “[w]hen [the parents] . . .
asked for more visits, we said we could split up and do a couple of visits a week
for a couple hours.” The parents “agreed to [a single visit] because of the distance
with the kids.”
The department’s willingness to facilitate more frequent visits
notwithstanding the distance obviated the need to move the children to a nearby
foster home. Notably, the children had lived in the more distant foster home since
December 2015 and were doing well there. The first two foster homes in which
they stayed were arguably closer but served as placements for only six and three
months respectively. 6
As for the department’s denial of telephone contact, the department social
worker testified the foster parents were not required to disclose their phone number
and they had elected to keep it private. Additionally, the service provider could not
recall that the father made a request for Facebook or Skype contact with the
children. Under these circumstances, we conclude the department satisfied its
reasonable-efforts mandate.
III. Best Interests, Exception to Termination
The father argues termination was not in the children’s best interests and
the district court should have declined to terminate his parental rights based on the
closeness of the parent-child bond. See In re M.W., 876 N.W.2d 212, 224 (Iowa
2016) (“Once we have established that at least one ground for termination under
section 232.116(1) exists, the next step of our analysis is to evaluate whether the
termination of parental rights would be in the best interest of the child under
section. 232.116(2).”); see also Iowa Code § 232.116(3)(c) (“The court need not
terminate the relationship between the parent and child if the court finds any of the
following: . . . There is clear and convincing evidence that the termination would
be detrimental to the child at the time due to the closeness of the parent-child
relationship.”). On our de novo review, we agree with the district court that
termination was necessary to ensure the children’s safety and the bond between
the father and children did not warrant a denial of the termination petition. As the
district court stated,
This Court has no doubt that the children love their parents and vice versa. There was testimony that they do share a bond with one another. Unfortunately, this alone does not give them the permanency they need. The parents have struggled with a myriad of issues which has prevented reunification. Services have been 7
offered to correct the problem but unfortunately this simply has not occurred. It is not safe to return the children to the care of their parents now or in the near future. Further, even if the children were returned, in-home services to assist the parents would need to be in place in order to assure the children’s safety. This is not permanency.
We affirm the termination of the parent’s rights to the children.
AFFIRMED ON BOTH APPEALS.