In the Interest of S.C., F.C., M.C., A.C., and M.C., Minor Children

• Court: Court of Appeals of Iowa
• Decided: November 17, 2022
• Docket: 22-1171
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1171 Filed November 17, 2022

IN THE INTEREST OF S.C., F.C., M.C., A.C., and M.C., Minor Children,

M.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Andrew Smith,

District Associate Judge.

A mother appeals an order terminating her parental rights to five children.

AFFIRMED.

Jessica R. Noll (until withdrawal), Sioux City, and Tisha Halverson of Klay,

Veldhuizen, Bindner, DeJong & Halverson, PLC, Paullina, for appellant mother.

Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

Justin F. Reininger of Boerner & Goldsmith Law Frim, P.C., Ida Grove,

attorney for S.C. and guardian ad litem for all minor children.

Lisa Mazurek of Miller, Miller, Miller, P.C., Cherokee, attorney for F.C., M.C.,

A.C., and M.C.

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

TABOR, Judge.

Maria, a mother of five, appeals the juvenile court’s order terminating her

parental rights. She alleges the State failed to prove that the children could not be

returned to her custody. Maria also contends termination was not in the children’s

best interests, citing their strong connection with her. At a minimum, she asks for

more time to work toward reunification.

After our independent review, we reach the same conclusion as the district

court.1 Maria’s recent use of methamphetamine and her lack of candor about the

lapse rules out a safe return of the children to her custody. And the children’s need

for permanency after thirty months of removal overrides the detriment of severing

the legal bond with their mother. We thus affirm the termination order.

I. Facts and Prior Proceedings

The children are M.A.C. (born in 2007), A.G.C. (born in 2012), M.B.C. (born

in 2015), F.B.C. (born in 2017), and S.C.C. (born in 2020). The Iowa Department

of Human Services became involved with their family in 2019, based on reports

that Maria was using methamphetamine. The department also had concerns

about lack of supervision and poor school attendance. When Maria tested positive

for methamphetamine in January 2020, the department removed the four older

children from her home. They have not returned to her custody since then.

Maria admitted using methamphetamine again in February 2020, and

entered in-patient treatment that April, discharging successfully in June. Pregnant

1 We review termination proceedings de novo. In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). We respect the juvenile court’s fact findings but are not required to adopt them. Id. The State must prove the grounds for termination by clear and convincing evidence. Id. 3

with her fifth child, Maria moved in with her mother. Given Maria’s progress, the

department moved the children from foster care to their grandmother’s home.

When the children were in her mother’s home, Maria participated in their care.

S.C.C. was born in December 2020.

But the relative placement proved precarious. The department received

reports that the children “were often left to fend for themselves” without the

grandmother or other adults providing meals. A child abuse assessment found

that the baby, S.C.C., and then five-year-old M.B.C. were left in the care of their

eight-year-old brother, A.G.C., for “an unknown amount of time.” Given the

supervision concerns at the grandmother’s house, the department moved the

children back to foster care.2

To her credit, Maria took the opportunity to reengage in services, attending

family treatment court and substance-abuse therapy. But while a permanency

hearing was pending in the spring of 2021, a service provider dropped in on Maria

and found her to be “very intoxicated.” Maria also admitted using

methamphetamine again. Even after that setback, Maria was consistent in her

visitation with the children and continued to access services for her substance

abuse and mental health.

2 The juvenile court reported that, after this move, the department required Maria’s visits to be supervised because she “did not follow the requirement that she only speak English to the children and was disrespectful and demanding to the foster parents.” Maria is a native Spanish speaker. The foster mother said that her own Spanish skills were “not very good.” We do not condone any disrespect to the foster parents. But we question the requirement that a parent whose second language is English not be allowed to speak to their children in their first language. 4

Then Maria experienced more trauma. In January 2022, she suffered an

injury to her arm when S.C.C.’s father, Saul, cut her with a knife. He was charged

with domestic abuse assault. Maria testified at a combined permanency-

termination hearing that she intended to end her relationship with Saul, noting that

she handled the situation better than she would have in the past.3 Indeed, her

counselor reported that Maria was making less impulsive decisions and using

better coping skills. In a February 2022 order, the juvenile court terminated the

parental rights of the children’s four fathers.4 But the court found that the evidence

supported giving Maria six more months to work toward reunification. The court

set strict expectations for Maria, among them that she “refrain from use of all mood-

altering substances, including, but not limited to, alcohol, illegal drugs, or the abuse

of prescription medication.”

Unfortunately, she did not meet that expectation. In late February or early

March, she accepted an invitation to smoke methamphetamine with a former drug

associate. She testified she turned him down at first, saying “I’m doing good in life

right now.” But when he showed her “a pipe of meth” it was a “new trigger” for her

and she “jumped in the car with that person.” She recalled using the drug for hours

at his place. She did not report the lapse to service providers.5 The department

3 The court credited her testimony, finding that it could not “countenance a decision that Maria’s visitation should be curtailed based in any part on an incident of domestic violence wherein she was the victim, especially when it appears she took all appropriate steps in response to violence by Saul.” 4 The fathers are not parties to this appeal. 5 She testified that she was not forthcoming about the methamphetamine use

because she was “very scared” of the consequences. 5

found out when she tested positive in late March.6 Maria missed a visit with her

children after the positive drug test; she later explained that she had “just shut

down” emotionally. During that shutdown, she failed to ensure that A.G.C. took

his prescription medication. And as the juvenile court explained in its termination

ruling, even before the positive drug test, Maria had been lax about supervising

the children during semi-supervised visits at the grandmother’s house.

Cutting short Maria’s six-month extension for reunification, the court

scheduled a permanency review and termination-of-parental-rights hearing in June

2022. The court heard testimony from Maria, the department case manager, a

foster parent, and the service provider. At the close of the trial, the State and the

children’s guardian ad litem (GAL) recommended termination of parental rights.

The attorney for the four older children told the court that fourteen-year-old M.A.C.

opposed termination of his mother’s parental rights and that the siblings wished to

remain together. Noting the foster family was caring for all the siblings, the

children’s attorney asked the court to “give Maria the balance of the six months

previously ordered.” Maria’s counsel seconded that recommendation and urged

the court to order the department to expand her visitation.

In its written ruling, the juvenile court sided with the State and GAL, finding

termination was proper under Iowa Code sections 232.116(1)(f) (2022) (for the

older children) and (h) (as to S.C.C.). The court rejected Maria’s request to delay

permanency, believing she had been “provided an extreme measure of patience.”

Maria now appeals the termination ruling.

6Maria acknowledged at the termination hearing that she knew she was pregnant with her sixth child when she smoked the methamphetamine. 6

II. Analysis

A. Statutory Grounds

Maria contends the State did not prove by clear and convincing evidence

that the children could not be safely returned to her care. That is the fourth element

of both paragraph (f) and paragraph (h) of section 232.116(1).7 She emphasizes

that she had housing, employment, and transportation and was engaged in

substance-abuse and mental-health therapy. What Maria doesn’t mention is her

recent methamphetamine binge and her decision to not come clean with providers.

She also doesn’t confront the lingering supervision issues. As the GAL argued:

“[Maria] has received services through the case. . . . [T]he danger of substance

abuse still exists, the danger of leaving the children unsupervised still exists. . . .

7 Iowa Code section 232.116(1)(f) requires proof of these elements: (1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102. Iowa Code section 232.116(1)(h) requires proof of these elements: (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. 7

We are over two years into this. The same issues exist from the beginning exist

now.”

We are persuaded by the GAL’s argument. No doubt, Maria worked on her

mental health and addiction during the case. And she gained some stability. But

her forward progress was not enough to ensure that all five children could be safely

returned to her custody at the time of the termination hearing.8 See In re L.M., 904

N.W.2d 835, 839 (Iowa 2017) (noting “present time” means date of termination

hearing). In fact, at the hearing, her attorney did not argue she was ready for their

return. Rather, her attorney asked for more time to “work towards reunification.”

On this record, termination was proper under paragraphs (f) and (h).

B. Best Interests and Permissive Exceptions

Maria next argues termination was not in the children’s best interests. She

contends all the children enjoy a “significant bond” with her. But, in particular, she

highlights the wishes of her oldest son, M.A.C., who opposed termination and was

reluctant to discuss adoption with the foster parents. Maria’s argument is an

8 Our case law offers two interpretations for finding that children “cannot be returned” to parental custody as provided in section 232.102, which discusses transfer of a child’s legal custody if staying in the home would be “contrary to the welfare of the child.” Many cases cite In re M.M., 483 N.W.2d 812, 815 (Iowa 1992) which quotes section 232.102(4)(a)(2)—then numbered section 232.102(5)(b)—for the proposition that custody should be transferred only if the court finds “the child cannot be protected from some harm which would justify adjudication of the child as a child in need of assistance and an adequate placement is available.” See, e.g., In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016). But more recent cases observe that our supreme court often describes that element simply as the inability to “safely return” children to a parent’s custody. 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 articulation, we find the State met its burden of proof. 8

amalgam of the best interests analysis in Iowa Code section 232.116(2) and the

permissive factors in section 232.116(3).

Turning first to bests interests, we give primary attention to the children’s

safety; to the best placement for furthering their long-term nurturing and growth;

and to their physical, mental, and emotional condition and needs. Iowa Code

§ 232.116(2). We also consider whether they are integrated into a family foster

home, how long they have been in that placement, and the desirability of

maintaining that environment. Id. § 232.116(2)(b)(1). Plus, we weigh the

reasonable preferences of children who have the capacity to express their wishes.

Id. § 232.116(2)(b)(2).

These children have been in foster care for two years. The department

case manager testified that they looked to the foster parents for guidance and to

have their needs met. And “overall they appear to be happy.” Even M.A.C. had

settled into a routine, going out for sports and learning to drive. Given Maria’s

tenuous sobriety and persistent problems with supervision of the children, we find

that termination of her parental rights serves the children’s bests interests.

As for permissive factors, Maria focuses on M.A.C.’s opposition to

termination and the closeness of her relationship with the children. See id.

§ 232.116(3)(b), (c). On paragraph (b), we hold two thoughts at the same time.

One, because M.A.C. has the capacity to offer a meaningful viewpoint, we cannot

ignore his preference. Two, what a child wants is not always in their best interests.

In re A.R., 932 N.W.2d 588, 592 (Iowa Ct. App. 2019).9 M.A.C.’s attorney reported

9 When weighing children’s preferences, we consider (1) their age and education level; (2) the strength of their preference; (3) their intellectual and emotional make- 9

that the oldest child has “never vacillated” that he doesn’t want his mother’s

parental rights to be terminated. But M.A.C. also insists all the siblings want to

stay together. Because the foster parents are willing to adopt all five children, the

best option to maintain that sibling bond may be termination of Maria’s parental

rights to M.A.C., along with his brothers and sisters.10 And as a bottom line,

termination will provide M.A.C. the prospect of a more certain and stable

environment. On paragraph (c), we don’t discount Maria’s love for her children.

The service provider testified that their bond was “getting better” but was “still a

struggle.” On this record, the danger posed by Maria’s instability outweighs the

disadvantage imposed on the children by the termination. See In re W.M., 957

N.W.2d 305, 316 (Iowa 2021).

C. Delayed Permanency

Finally, Maria contends the juvenile court erred in not granting her more

time to work toward reunification under Iowa Code section 232.104(2)(b). We

reject her contention and adopt the juvenile court’s reasoning:

The circumstances at this point are no better than they were at [the time of the permanency hearing], and are arguably worse. Unlike at the time of the permanency hearing, Maria has a recent use of controlled substance. The Court is not concerned about that use, as much as about Maria’s lack of honesty regarding that use. Even an admission at the time she was asked to submit to the test which yielded a positive result would have improved the current circumstances. It appears, though, that Maria simply crossed her

up; (4) their relationship with family members; (5) the reason for their decision; (6) the advisability of honoring the children’s desire; and (7) the court’s recognition it is not aware of all the factors influencing the children’s view. A.R., 932 N.W.2d at 592 10 The record is unclear whether M.A.C. would be open to being adopted after the

termination of his mother’s parental rights. 10

fingers and hoped her use would not be revealed, even though she had every reason to believe it would.

The evidence does not show it is likely that the need for the removal of the children

from the mother’s custody would no longer exist at the end of another six months.

In re L.H., 949 N.W.2d 268, 272 (Iowa Ct. App. 2020).