In the Interest of T.B., Minor Child

• Court: Court of Appeals of Iowa
• Decided: September 12, 2018
• Docket: 18-1139
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1139 Filed September 12, 2018

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

C.L.M., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

Jonathan M. Causey of Causey & Ye Law, PLLC., Des Moines, for appellant

mother.

Thomas J. Miller, Attorney General, and John B. McCormally, Assistant

Attorney General, for appellee State.

Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for

minor child.

Considered by Potterfield, P.J., and Bower and McDonald, JJ. 2

McDONALD, Judge.

A mother, Copa, appeals from an order terminating her parental rights in

her child, T.B., pursuant to Iowa Code section 232.116(1)(g) and (h) (2018). The

mother challenges the sufficiency of the evidence supporting the statutory grounds

authorizing the termination of her parental rights, the juvenile court’s finding the

State made reasonable efforts to facilitate her reunification with the child, and the

denial of her request for six additional months to work toward reunification. The

mother also contends termination of the parent-child relationship is not the child’s

best interest, the State failed to provide a social history report, and the State failed

to comply with the Indian Child Welfare Act. Finally, she claims she received

ineffective assistance of counsel from her first attorney.

I.

This family first came to the attention of the Iowa Department of Human

Services (IDHS) in 2014 when IDHS removed two children from Copa’s care

because of her methamphetamine use. Despite IDHS intervention, Copa

continued to use methamphetamine. Ultimately, she consented to the termination

of her parental rights with respect to the two children removed from her care.

The family again came to the attention of IDHS. The day after T.B.’s birth

in 2014, there was a report of domestic violence. T.B. was removed from the

mother’s care in December 2014, and a child-in-need-of-assistance proceeding

was initiated. The juvenile court closed the case and returned T.B. to Copa’s care

in January 2016.

Shortly thereafter, following a subsequent incident of domestic abuse in the

home, another assistance proceeding was initiated. The juvenile court permitted 3

T.B. to remain in Copa’s care. As part of the case plan, Copa was required, among

other things, to take random drug screens due to her history of substance abuse.

In particular, she had a long history of using methamphetamine.

The child did not remain in Copa’s care for long. Copa tested positive for

methamphetamine in January 2017, and T.B. was removed from her care and

placed in foster care. Copa requested her aunt be considered as a placement

option for T.B. The juvenile court did not approve of the requested placement

because T.B.’s social worker had past altercations with the aunt and did not believe

the two could interact constructively. Copa continued to test positive for

methamphetamine in subsequent tests. Initially, Copa denied drug use and

accused IDHS of setting her up for failure. Eventually, Copa conceded she

relapsed, but she then recanted her concession, arguing her attorney coerced her

into admitting drug use. Copa’s recantation is not credible. In an email from

December 2017, Copa admitted to her social worker she had been using

methamphetamine since November 2016 and realized she needed to make

changes in her life.

The State petitioned to terminate Copa’s parental rights. Copa contested

the termination of her parental rights. The juvenile court terminated Copa’s

parental rights pursuant to Iowa Code section 232.116(1)(g) and (h). Copa now

appeals.

II.

This court reviews termination proceedings de novo. See In re A.M., 843

N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination

of a parent-child relationship is well established. See In re A.S., 906 N.W.2d 467, 4

472–73 (Iowa 2018) (setting forth the statutory framework). The burden is on the

State to prove by clear and convincing evidence (1) the statutory ground or

grounds authorizing the termination of parental rights and (2) termination of

parental rights is in the best interest of the child. See In re E.H., No. 17-0615, 2017

WL 2684420, at *1 (Iowa Ct. App. June 21, 2017). Even where the State proves

its case, however, the juvenile court has the discretion to preserve the parent-child

relationship where the parent proves by clear and convincing evidence a statutory

factor allowing preservation of the parent-child relationship. See Iowa Code

§ 232.116(3) (setting forth permissive factors to avoid the termination of parental

rights); In re A.S., 906 N.W.2d at 476 (stating it is the parent’s burden to prove an

exception to termination).

III.

A.

We begin by addressing Copa’s challenge to the sufficiency of the evidence.

Where, as here, “the juvenile court terminates parental rights on more than one

statutory ground, we may affirm the juvenile court’s order on any ground we find

supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We turn

our attention to Iowa Code section 232.116(1)(h).

On de novo review, we conclude there is clear and convincing evidence

proving this statutory ground authorizing the termination of Copa’s parental rights.

Copa contests only the fourth element under section 232.116(1)(h), which requires

“clear and convincing evidence the child[] would be exposed to an appreciable risk

of adjudicatory harm if returned to the parent’s custody at the time of the

termination hearing.” In re E.H., 2017 WL 2684420, at *1. At the termination 5

hearing, Copa conceded “[t]here’s no way [T.B.] can be returned to my care today.”

We agree. At the time of the termination hearing, she was unemployed and

homeless. See In re L.B., No. 18-1017, 2018 WL 3650370, at *1 (Iowa Ct. App.

Aug. 1, 2018) (collecting cases concluding a parent is unable to provide sufficient

care without stable housing or employment). She had not resolved, or

meaningfully attempted to resolve, her methamphetamine addiction. She failed at

several outpatient treatment programs and left an inpatient program after only two

and one-half weeks. The district court found, and we agree, Copa’s

methamphetamine use led to her increasingly erratic behavior. Copa’s continued

use of methamphetamine during the pendency of this case creates a risk of

adjudicatory harm to T.B. See id. (collecting cases concluding a child may not be

returned to a drug-addicted parent).

Related to her challenge to the sufficiency of the evidence supporting

termination of her parental rights, Copa contends the State failed to make

reasonable efforts toward reunification with the child. As a general rule, the State

must make reasonable efforts to return a child to his home following removal. See

Iowa Code § 232.102(9) (providing IDHS 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”). “[T]he reasonable efforts requirement is not viewed as a

strict substantive requirement of termination. Instead, the scope of the efforts by

[IDHS] to reunify parent and child after removal impacts the burden of proving

those elements of termination which require reunification efforts.” In re C.B., 611

N.W.2d 489, 493 (Iowa 2000). Reasonable efforts “facilitate reunification while

protecting the child from the harm responsible for the removal.” In re M.B., 553 6

N.W.2d 343, 345 (Iowa Ct. App. 1996). Reasonable efforts vary given the

particular needs of each family. See In re C.B., 611 N.W.2d at 493 (discussing

scope of mandate).

Here, the State made reasonable efforts to facilitate reunification of Copa

and T.B. Copa takes issue with the limited and supervised visitation provided to

her, the lack of housing assistance provided, and IDHS’s failure to place T.B. with

her family members rather than a foster family. According to Copa, these

deficiencies “set off a chain reaction that triggered past traumas and led [Copa]

into relapse.” Copa raised these issues in the juvenile court, and the juvenile court

founds the complaints were not substantiated. We agree. IDHS provided Copa

with numerous services, but she failed to avail herself of the services provided.

Copa often missed visitations. When she exercised her visitation, she often failed

to focus her attention on T.B., making expanded visitation or less-supervised

visitation inappropriate. IDHS did consider placement of T.B. with Copa’s family

but reasonably decided against the option given the family’s acrimonious

relationship with IDHS. Copa received significant housing assistance, including a

social worker dedicated to help Copa find suitable housing. When the social

worker inquired what additional housing services Copa needed, Copa declined to

request more. Copa was provided with services to assist her in overcoming her

methamphetamine addiction, but she failed to use the services to attain sobriety.

In addition to these services, Copa was provided with family safety, risk, and

permanency services; individual therapy; child-parent psychotherapy; case-

management services; family team meetings; and transportation assistance. The

lack of reasonable efforts to facilitate reunification falls on Copa and not the State. 7

Copa contends termination is not in T.B.’s best interest due to their strong

bond and argues T.B.’s foster placement with a family of a different racial and

religious background would “destroy [T.B.]’s religion, culture, and heritage.” When

making a best-interest determination, we “give primary consideration to the child’s

safety, to the best placement for furthering the long-term nurturing and growth of

the child, and to the physical, mental, and emotional condition and needs of the

child.” Iowa Code § 232.116(2); In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). Given

T.B.’s young age, three years, and the extended time spent out of Copa’s care, in

excess of twelve months in this proceeding, the bond between them is limited. It

is certainly not strong enough to preclude termination of Copa’s parental rights.

See In re A.H., No. 17-1717, 2017 WL 6513633, at *2 (Iowa Ct. App. Dec. 20,

2017) (rejecting strength of bond argument where “[b]oth children have been

removed from their parents for nearly half of their young lives”). Copa’s desire to

maintain T.B.’s religion, culture, and heritage is understandable. However, there

is no evidence that the termination of Copa’s parental rights will result in her

expressed concerns occurring. Indeed, T.B.’s foster mother expressed interest in

maintaining T.B.’s religion, culture, and heritage. Further, those considerations

are secondary to the need to remove T.B. from the risk of adjudicatory harm

created by Copa’s methamphetamine use.

In sum, on de novo review, we conclude there is clear and convincing

evidence authorizing the termination of Copa’s parental rights in T.B. and the

termination of Copa’s parental rights is in the best interest of the child. 8

B.

We next address Copa’s claim the juvenile court should have granted Copa

an additional six months to work toward reunification. Iowa Code section

232.104(2)(b) permits a court to enter an order deferring permanency for six

months so long as the need for removal would no longer exist at the end of the six-

month period. In granting an extension of time, the juvenile court must “enumerate

the specific factors, conditions, or expected behavioral changes which comprise

the basis for the determination that the need for removal . . . will no longer exist at

the end of the [extension].” Iowa Code § 232.104(2)(b). Copa cites her efforts to

address her drug use as evidence that she could safely parent T.B. if given six

additional months of time. We disagree. Copa’s rights in two other children were

terminated due to her methamphetamine abuse and domestic violence in the

home. Following that case, this case was initiated due to Copa’s

methamphetamine abuse and domestic violence in the home. During this case,

Copa’s efforts to address her methamphetamine addiction were minimal. She did

enter inpatient substance-abuse treatment, but she left without completing the

program. She admitted to using methamphetamine over the life of this case. Her

past performance is indicative of her future conduct. See In re A.B., 815 N.W.2d

at 778 (noting past conduct is predictive of future conduct). Given her long history

of substance abuse, this court cannot cite any “specific factors, conditions, or

expected behavioral changes” that indicate the need for removal will abate in six

months. See Iowa Code § 232.104(2)(b). “[T.B.] cannot wait for responsible

parenting” and deserves permanency now. In re L.L., 459 N.W.2d 489, 495 (Iowa

1990). 9

C.

Copa claims the State failed to file a current social history report prior to

entry of the dispositional order. Copa did not raise this issue in the juvenile court.

It is not preserved for appellate review. See In re A.B., 815 N.W.2d at 773 (noting

“the general rule that appellate arguments must first be raised in the trial court

applies to [child-in-need-of-assistance proceedings] and termination of parental

rights cases.” (citation omitted)); Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”). Even if Copa had preserved this issue for appellate review, the issue

would not entitle her to any relief in this termination proceeding. Iowa Code section

232.97 requires the court receive and consider a social report at least five days

prior to entering disposition in an assistance proceeding. As such, the time to

make her challenge was at the time of the dispositional order in the assistance

proceeding and not on appeal of the termination order. Cf. In re A.M., No. 17-

1920, 2018 WL 541038, at *2 (Iowa Ct. App. Jan. 24, 2018) (challenging a

dispositional order in child-in-need-of-assistance case following its entry).

D.

Copa contends the State failed to comply with the Indian Child Welfare Act

(ICWA). ICWA recognizes the interests of Native American tribes in tribal children

and seeks to place Native American children in homes best able to preserve the

child’s tribal relationship and heritage. See Iowa Code § 232B.2; see also In re

D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011). As the party seeking termination

of Copa’s parental rights in T.B., the State is required to determine T.B.’s 10

association with possible Native American tribes. See Iowa Code § 232B.4(2). If

it is determined the child has Native American heritage, then notice of the

proceedings must be sent to the child’s Native American custodians and the child’s

tribe. Iowa Code § 232B.5(4). Proceedings may not begin until ten days after the

interested parties receive notice. Iowa Code § 232B.5(5). The child’s tribe and

Native American custodians may intervene at any point in the proceedings. Iowa

Code § 232B.14.

ICWA is not implicated here. A social worker provided an affidavit stating

she inquired with the parents regarding any Native American heritage and the

parents denied any such heritage. The social worker’s affidavit is confirmed by a

text message from Copa, stating, “I am not Indian I keep telling you this.” The

social worker’s investigation and affidavit satisfies the dictates of Iowa Code

section 232B.4(2). While there was some assertion the child was of Native

American heritage, the assertion was not sufficient to trigger any further action. An

unsigned note written on a Notice of Child Abuse Assessment sent to the juvenile

court states, “whoever told you we didn’t have Native American in us is a lie, why

don’t some body ask [the social worker] how many children she lied on there (sic)

mothers and fathers and sold there (sic) babys (sic).” Given that the note is

unsigned and the author’s identity is uncertain, we cannot conclude the

handwritten note constituted notice to trigger further action. See Iowa Code

§ 232B.5(3)(a) (stating the court takes notice of claims made by certain individuals

such as an “interested person, an officer of the court, a tribe, an Indian

organization, a public or private agency, or a member of the child’s extended

family”). 11

E.

Finally, Copa argues she received ineffective representation from her first

attorney. “The test for ineffective assistance of counsel in termination cases is

generally the same as in criminal proceedings.” In re A.R.S., 480 N.W.2d 888, 891

(Iowa 1992). It requires a showing of counsel’s deficient performance and resulting

prejudice. Id. Copa argues her initial counsel was ineffective in two respects.

First, her counsel failed to contest T.B.’s removal following Copa’s positive test for

methamphetamine. Second, Copa contends counsel coerced her into admitting

to drug use.

Copa has not established deficient performance. There was no basis for

counsel to challenge removal of the child. There was significant evidence Copa

was using methamphetamine at the time of removal and her methamphetamine

use posed a risk of harm to the child. There is no evidence Copa’s counsel

coerced her into admitting use.

Neither has Copa established prejudice. There is strong evidence

establishing her methamphetamine use and the necessity of removal. Copa

repeatedly tested positive for methamphetamine use despite her denial of use.

After denying use for almost one year, Copa admitted in an email sent in December

2017 that she had, in fact, been using methamphetamine since November 2016.

Copa’s conduct after the initial test would have justified removal of the child from

her care. Copa’s ineffective-assistance claim fails. 12

IV.

Finding no merit in the mother’s challenge to the termination of her parental

rights, we affirm the judgment of the juvenile court.