In the Interest of T.C., Minor Child, L.C., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0116 Filed April 16, 2014

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

L.C., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joe E. Smith, Judge.

A mother appeals the juvenile court order terminating her parental rights.

AFFIRMED.

Nicholas Bailey, Altoona, for appellant mother.

Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant

Attorney General, John P. Sarcone, County Attorney, Jennifer Galloway,

Assistant County Attorney, for appellee State.

Michael Sorci of the Youth Law Center, Des Moines, for minor child.

Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. 2

MULLINS, J.

A mother appeals a juvenile court order terminating her parental rights to

one child, T.C., under Iowa Code sections 232.116(1)(d), (h), and (l) (2013). She

argues the State failed to show sufficient evidence to terminate, and a statutory

exception under section 232.116(3) applied to prevent termination. We affirm.

I. Facts and Background Proceedings.

The mother has a long history of drug and alcohol abuse, using on a daily

basis. She also has a long history of selecting unsafe men as associates,

oftentimes abusing drugs with them. The child in interest, T.C., was born in May

2010. In December 2012, the mother and T.C. were living between her

grandfather’s home and the home of an intimate partner, George. While living

with George, the mother used methamphetamine regularly with T.C. present.

While she was high, the mother allowed strangers who were also present in the

home to care for T.C. In December 2012, there was a domestic incident in which

the mother claimed George assaulted and raped her and refused to allow her to

leave the house. She claimed George super-glued a methamphetamine pipe to

her hand and forced her to smoke it. She later admitted she had lied about being

forced to smoke the methamphetamine. T.C. was present in the home during

this incident. The mother adamantly denied that T.C. saw any sexual activity

between herself and George during their relationship but admits she was high on

methamphetamine, and her perception of events at that time is hazy.

As a result of the December incident, the department of human services

(DHS) became involved in the case and removed T.C. from the mother’s care,

placing her with an aunt and uncle. The juvenile court adjudicated T.C. a child in 3

need of assistance (CINA) on February 5, 2013. In the adjudication order, the

juvenile court found the mother’s failure to seek substance abuse treatment and

her unresolved mental health issues presented a danger to T.C. if she were

returned to the mother’s care. The DHS continued to be concerned about the

mother’s relationships with various men. These relationships presented a

negative influence to return to drugs and alcohol and exposed the mother to the

risk of violence. In June 2013, DHS removed T.C. from the aunt and uncle

following a founded child abuse report against the uncle. DHS placed T.C. with

another foster family where she has resided since that time.

Following T.C.’s removal in December 2012, the mother ended her

relationship with George and began living with a man named Chris. She lived

there until February 2013, when there was another domestic assault incident and

she moved out. In February, the mother entered MECCA and successfully

completed a twenty-one-day program. However, she relapsed only two weeks

later and admitted to getting high in a park with a man named Harris, using

methamphetamine, marijuana, and alcohol.

In March, she began a relationship with Joshua. Joshua also was a drug

user, had a criminal record, and his parental rights to his own children had been

terminated. The mother had used drugs with Joshua in the past. At one point

during their intimate relationship, the mother feared she had gotten pregnant by

Joshua.

In April, the mother entered Hope Ministries and began their “Christ-

based” recovery program. Hope Ministries operates a Christian “life recovery”

program and is not certified to provide substance abuse counseling. The mother 4

tested positive for methamphetamine when entering Hope Ministries and

admitted she had been using off-and-on until that time. However, thereafter and

until the date of the termination hearing, the mother gave all clean drug tests.

Participants in the Hope Ministries residential program face a number of

restrictions as they meet with counselors and attend classes. Intimate

relationships are strictly forbidden as counselors teach the participants how to

engage in appropriate relationships. Participants are required to remain in the

facility. However, they are permitted to use “home passes.” They must sign out

and in and indicate where they will be. As part of the program, participants are

not permitted to be around people who are actively using drugs or have a history

of use.

While at Hope Ministries, the mother received substance abuse

counselling through House of Mercy as an outpatient. The substance abuse

counselor testified she did not consider someone who continued to associate

with drug users as someone in recovery. She considered such behavior risky for

a person with a drug history. The mother did not inform the substance abuse

counselor that she was engaging in such behavior. The counselor also stated

she recommended the mother engage in the inpatient substance abuse program

but she had not done so. The mother had not attended outpatient treatment

consistently because of scheduling conflicts with Hope Ministry’s program. The

mother also refused to discuss her drug use history. The counselor testified this

placed her at a higher risk of relapse.

During the earliest stages of the Hope Ministries program, the mother

continued her relationship with Joshua. She did not disclose to any staff at Hope 5

Ministries she was in this relationship. Their relationship ended sometime in May

or June. In August, she began another relationship with Bruce. The mother had

known Bruce for several years. Bruce had ongoing substance abuse issues, and

the mother had used drugs with him in the past. She admitted to concealing the

relationship and lying about it with staff, counsellors, and DHS. Hope Ministries

staff later discovered the mother used her home passes to see Bruce and lied

about where she was. On one occasion, Bruce and the mother went to see a

friend of Bruce’s, from whom Bruce purchased drugs. The mother testified she

was unaware this was the purpose of the visit and left the area on her own. The

relationship with Bruce lasted about a month, and the mother did not inform staff

of it until the end of September.1 Also in August, Hope Ministries staff graduated

the mother from the beginning recovery program to the more advanced program.

The Hope Ministries counsellor admitted had they known the mother was

maintaining an inappropriate relationship they would not have graduated her.

While at Hope Ministries, the mother also sought mental health treatment.

She saw a psychiatrist and received medication for her mental health issues.

She had received several diagnoses including post-traumatic stress disorder and

bipolar disorder. The juvenile court had ordered the mother to see a mental

health therapist to address the behaviors that led to her associating with

dangerous and unhealthy men. At the time of the termination hearing in

November 2013, she had not been seeing a therapist regularly. She also

1 It is difficult to determine the precise dates of these relationships because the mother concealed them from Hope Ministry’s staff and DHS who later learned about them and confronted her. 6

admitted that a barrier to her successful treatment was that she had lied to her

therapists about her behaviors. The family safety, risk, and permanency (FSRP)

worker testified she thought the mother had made progress but still had a lot of

work to do.

Shortly after the December 2012 removal, the DHS worker noted behavior

in T.C. that concerned her. The DHS worker testified upon first meeting her, T.C.

wanted to sit in her lap and give her a hug. The child therapist also testified at

their first meeting, T.C. wanted to sit on her lap and asked for hugs and kisses.

The mother indicated this was typical behavior for T.C. and that she was a

friendly child. The DHS worker and the child therapist were concerned because

T.C. appeared willing to approach complete strangers. During a visitation under

FSRP supervision, the mother encouraged T.C. to hug a man she had met at

MECCA, a drug addict, whom T.C. had never met before.

In August, T.C. began seeing a child therapist after she began to exhibit

“sexualized behavior” including attempting to insert objects into the genital areas

of her dolls. The child therapist testified typically children of that age—

approximately three years old—have seen such behavior elsewhere before

imitating it. The therapist could not identify the origin of these behaviors but

stated they could stem from T.C. being exposed to sexual behavior during the

mother’s relationships or from witnessing abuse in the aunt and uncle’s home.2

The therapist also testified T.C. demonstrated unusual “emotional reactivity,”

2 While T.C. was in the aunt and uncle’s home, the aunt discovered her own daughter had been sexually abused by a neighbor’s child. The therapist speculated that perhaps T.C. had witnessed this. 7

meaning she would easily get upset over small matters and had difficulty with

transitions.

The mother had semi-supervised visitation with T.C. at Hope Ministries

twice a week for two hours each visit. She was not permitted to leave the facility

with T.C. She also had three overnight visits. Each visit reportedly went well.

The FSRP worker testified the mother and T.C. have a good rapport, and the

mother provided adequate structure and appropriate activities. The Hope

Ministries counselor testified she did not believe the mother was in a position to

assume care of T.C. The counselor thought this might be possible in two

months’ time. The FSRP worker testified she thought T.C. and the mother were

very bonded, and it would be very hard on T.C. not to see her mother. However,

she also testified T.C. needs a stable lifestyle, particularly after having been

removed from her mother, then moved from her aunt’s home to the foster home.

She also stated she was not comfortable enough with the mother’s progress to

recommend returning T.C. to the mother. The child therapist also testified

another transition would be detrimental to T.C. The mother testified she planned

to remain in the Hope Ministry’s program, which will last two years. During that

time, she will be restricted from leaving the facility. The Hope Ministry counselor

testified the mother would not be able to take T.C. to medical or therapy

appointments outside the facility.

In June 2013, following a permanency review hearing, the juvenile court

ordered the State to file a petition to terminate the mother’s parental rights. The

State did so in July, and the court set a pre-trial hearing for August 21, 2013. At

the August 21, 2013 hearing, the court continued the termination trial to 8

November. At the time of the hearing, T.C. was three-and-one-half years old.

The juvenile court found statutory grounds sufficient to terminate the mother’s

parental rights under Iowa Code section 232.116(1)(d), (h), and (l). The mother

appeals.3

II. Standard of Review.

We review a juvenile court order terminating parental rights de novo. In re

A.B., 815 N.W.2d 764, 773 (Iowa 2012). We give weight to the factual

determinations of the juvenile court, especially with regard to witness credibility,

but are not bound by them. Id. Our primary consideration is the best interests of

the child. Id. at 776.

III. Analysis.

We will uphold the termination of parental rights where there is clear and

convincing evidence of the statutory grounds for termination. In re D.W., 791

N.W.2d 703, 706 (Iowa 2010). Evidence is clear and convincing when there are

no serious or substantial doubts as to the correctness of conclusions of law

drawn from the evidence. Id.

A. Statutory Grounds.

The mother first argues that there was insufficient evidence to terminate

under the statutory grounds alleged. When the juvenile court terminates parental

rights on more than one statutory ground, we need only find grounds to terminate

under one of the cited sections to affirm. In re J.A.D.-F., 776 N.W.2d 879, 884

3 T.C.’s father was also a subject of the termination petition. The juvenile court found he had never been involved in T.C.’s life in any way and terminated his rights under Iowa Code section 232.116(1)(b). He does not appeal. 9

(Iowa Ct. App. 2009). Here, we focus on the evidence supporting the court’s

termination of the mother’s parental rights under Iowa Code section

232.116(1)(h). To terminate parental rights under Iowa Code section

232.116(1)(h), the State must show by clear and convincing evidence the child is

three years old or younger,4 has been adjudicated a child in need of assistance,

has been removed from the parent’s care for at least the last six consecutive

months,5 and cannot be returned to the parent’s custody at the time of the

termination hearing.

The mother argues the circumstances leading to T.C.’s removal no longer

exist because she has been sober for over seven months, with no positive drug

screens. She asserts she can now parent T.C. safely. The evidence at the

termination hearing discloses, until very recently, the mother has chosen to

associate with men who are involved in illicit drug culture and who pose an

increased risk of violence for the mother and T.C., even up to and including the

month of August, after the termination petition was filed. Her choices of

associates who are using illegal drugs also places her at a higher risk of

relapsing, which she has already done once before, only two weeks after

completing treatment at MECCA. She is not progressing in substance abuse

treatment because of her refusal to discuss her past drug use. She has admitted

to lying to police, Hope Ministries, her substance abuse counselor, the FSRP

4 For termination of parental rights, the child’s age is determined upon the date of completion of the termination hearings. In re N.N., 692 N.W.2d 51, 53 (Iowa Ct. App. 2004). We recognize T.C. was beyond her third birthday during the termination hearings. Nonetheless, Iowa Code section 232.116(1)(h) is applicable to a child who is three but not yet four. Id. at 53-54. 5 Or six of the last twelve months. Iowa Code § 232.116(1)(h). 10

worker, and the DHS worker about various matters, including her conduct,

activities, and whereabouts. Under these circumstances, and considering the

impact her behavior has already had on T.C., we find the evidence clear and

convincing that T.C. cannot be returned to the mother’s care at this time.

B. Statutory Exception.

The mother next argues the juvenile court erred in terminating her parental

rights because, pursuant to Iowa Code section 232.116(3)(c), termination was

more detrimental to T.C. than any danger posed by not terminating. Termination

of parental rights follows a three-step analysis. In re P.L., 788 N.W.2d 33, 39

(Iowa 2010). First, the court must determine if a statutory ground for termination

exists under Iowa Code section 232.116(1). Id. Second, the court must give

consideration to the child’s best interests, including the child’s safety, the best

placement for furthering the long-term nurturing and growth of the child, and the

physical, mental, and emotional condition and needs of the child. See Iowa

Code § 232.116(2). Finally, the court need not terminate parental rights if it finds

any of the statutory exceptions under Iowa Code section 232.116(3) apply. P.L.

778 N.W.2d at 39.

The State argues the mother failed to preserve this argument because the

termination order did not address this issue. Generally, issues raised on appeal

must first be raised in the trial court. In re A.B., 815 N.W.2d 764, 773 (Iowa

2012.) This rule also applies in the context of CINA and termination-of-parental-

rights proceedings. Id. Where, as here, the juvenile court failed to make a

written finding of fact or conclusion of law, “[t]he findings and conclusions may be

enlarged or amended and the judgment or decree may be modified upon timely 11

posttrial motion [pursuant to Iowa R. Civ. P. 1.904(2)].” In re A.M.H., 516 N.W.2d

867, 872 (Iowa 1994). Failure to file such a motion waives any challenges to the

deficiency in the court’s termination order. Id. Here, although the juvenile court

did consider the best interests prong of the termination analysis, it did not make a

determination addressing whether any statutory exception applied. The mother

did not make any further motion to amend and enlarge the court’s findings.

Therefore, the issue was not preserved for appeal, and we do not address it.

IV. Conclusion.

Upon our de novo review, we find there was clear and convincing

evidence for termination of the mother’s parental rights under Iowa Code section

232.116(1)(h). The mother’s statutory exception argument was not preserved for

appeal. Therefore, we affirm the juvenile court order.