In the Interest of S.T. and T.R., Minor Children

• Court: Court of Appeals of Iowa
• Decided: May 10, 2023
• Docket: 22-1984
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1984 Filed May 10, 2023

IN THE INTEREST OF S.T. and T.R., Minor Children,

B.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,

District Associate Judge.

A mother appeals the termination of her parental rights to two children.

AFFIRMED.

Mark D. Reed of Marberry Law Firm, P.C., Urbandale, for appellant mother.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Bo Woolman, Des Moines, attorney and guardian ad litem for minor

children.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. 2

VAITHESWARAN, Presiding Judge.

A mother appeals the termination of her parental rights to two children, born

in 2012 and 2015. She contends (1) the record lacks clear and convincing

evidence to support the grounds for termination cited by the district court;

(2) termination was not in the children’s best interest; and (3) the district court

should have granted exceptions to termination.

The district court terminated the mother’s parental rights under two statutory

grounds. We may affirm if we find clear and convincing evidence to support either

of those grounds. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We will

focus on Iowa Code section 232.116(1)(f) (2022), which requires proof of several

elements, including proof that the children could not be returned to parental

custody.

The department of health and human services intervened in mid-2021 “due

to concerns that [the mother] was smoking marijuana cigarettes dipped in

embalming fluid . . . while she was taking care of her children.” The district court

ordered the children be removed from her custody. The younger child was placed

with her father. The older child was placed with that father’s sister. The children

were later adjudicated in need of assistance.

Meanwhile, the mother was convicted and sentenced to two crimes and

received suspended sentences and probation. In the fifteen months following the

children’s removal, the mother made some effort to engage in treatment services.

She underwent two substance-abuse evaluations, participated in recovery court

on a weekly basis, and submitted to drug testing. At the same time, she tested 3

positive for PCP on several occasions, consumed alcohol in violation of probation

rules, and failed to appear for scheduled visits with her probation officer.

The district court revoked the mother’s probation and ordered her to serve

thirty days in jail. In combination with another sentence, the mother admitted she

was jailed a total of “[a]bout 90 days” out of the fifteen months between removal

and termination. As a result of the probation-revocation sentence, the mother was

unable to pursue an extended outpatient treatment program recommended by the

second substance-abuse evaluator.

To her credit, the mother began the program after discharging her sentence

days before the termination hearing. She had her first “one-on-one session[ ] with

the counselor” and started “group [sessions] twice a week.” She also expressed

an intent to return to recovery court following the termination hearing. And she

appeared to move a step closer to internalizing the consequences of her drug use

when she testified that “[s]ometimes [PCP] [could] cause [her] to be irrational and

make bad decisions.”

But the mother juxtaposed that acknowledgment with a categorical denial

of alcohol or PCP abuse. She also suggested her recent positive drug tests

reflected accidental ingestion of PCP. Most concerning were the department’s

reports of her “erratic, and aggressive behavior[s],” including a fraught interaction

with a service provider and an apparent vehicle break-in and self-injury. At the

time of the termination hearing, the mother had not sufficiently engaged in services

to address this type of conduct. The department case manager testified, “there

had never been mental health services provided, other than . . . medication

management.” The mother agreed, stating she did not have “individual therapy 4

throughout this case” other than occasional chats with a service provider. She had

yet to attend Alcoholics Anonymous or Narcotics Anonymous. While she stated

there was nothing that would prevent her from safely parenting the children on the

date of the termination hearing, her visits with them remained fully supervised due

to her “unresolved substance abuse and unresolved mental health concerns.” On

our de novo review, we conclude the State proved that the children could not be

returned to her custody.

Termination must also be in the child’s best interests. See Iowa Code

§ 232.116(2). The guardian ad litem filed a report stating the risk of harm to the

children if returned to the mother outweighed the traumatic impact of their removal.

The report also stated the children were “doing very well and” were “healthy” and

“excelling at school.” While they “wish[ed] to live with their mother,” the guardian

ad litem concluded they were “not of a sufficient age” or maturity level “to make an

informed decision in this matter.”

The mother conceded the older child was “in good hands” and his

“behavioral issues” at school had “gotten better.” As for the younger child, the

mother testified she was “fine with her father.”

On our de novo review, we agree with the district court’s determination that

the mother “remain[ed] largely in denial about the extent of her substance use and

mental health and the negative impact on her children” and “[h]er actions

present[ed] ongoing risk of disruptive behavior.” Termination of her parental rights

was in the children’s best interests.

We are left with the mother’s reliance on the relative custody exception to

termination. See id. § 232.116(3)(a). The district court granted the younger child’s 5

father legal custody of the child. While the district court could have declined to

terminate that child’s rights in light of the custody award, the court was not

obligated to do so. See In re A.S., 906 N.W.2d 467, 475 (Iowa 2018) (stating the

exceptions are “permissive, not mandatory”). We agree with the court that there

was “a risk of ongoing disruption to the child[ ] if [the mother’s] parental rights

remain[ed] intact.” As for the older child, he was placed in the custody and

guardianship of the department rather than a relative. But assuming without

deciding the “relative custody” exception applied, the child showed a marked

improvement in his behaviors following his removal. The mother was not in a

position to help the child maintain that trajectory.

The mother also argues termination was not warranted given the strength

of her bond with the children. See Iowa Code § 232.116(3)(c). The same reasons

supporting the district court’s denial of the relative custody exception support the

court’s refusal to apply this exception, notwithstanding the children’s desire to live

with the mother.

We affirm the termination of the mother’s parental rights to the children.