In the Interest of T.G., T.G., S.G., and M.G., Minor Children, C.G., Mother

• Court: Court of Appeals of Iowa
• Decided: January 27, 2016
• Docket: 15-1986
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1986 Filed January 27, 2016

IN THE INTEREST OF T.G., T.G., S.G., and M.G., Minor Children,

C.G., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L.

Block, Associate Juvenile Judge.

A mother appeals from a juvenile court order terminating her parental

rights to her four children. AFFIRMED.

Michelle M. Jungers of Iowa Legal Aid, Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Kathryn S. Miller-Todd and

Charles K. Phillips, Assistant Attorneys General, for appellee.

Christina M. Shriver of Coonrad Law Firm, Hudson, attorney and guardian

ad litem for minor children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

MULLINS, Judge.

The mother appeals from a juvenile court order terminating her parental

rights to her four children: T.G., born in July 2000; T.G., born in March 2006;

S.G., born in April 2008; and M.G., born in May 2011. She contends termination

was not in the children’s best interests because they are in the care of their

maternal aunt and uncle, who are also their foster parents, and the court should

have ordered “another planned permanent living arrangement” (APPLA) under

Iowa Code section 232.104(2)(d) (2015). Upon our de novo review, we find

termination is in the children’s best interests and affirm.

I. Background Facts and Proceedings

The family came to the attention of the Iowa Department of Human

Services (DHS) in February 2014, due to allegations of domestic violence

between the parents and allegations the parents were using methamphetamine

while caring for the children. A child protection assessment revealed the oldest

child had witnessed domestic violence between his parents and also knew his

parents were using drugs. Drug paraphernalia, including burnt spoons and

needles, were found in the children’s rooms. The children, who were then

already living with their maternal aunt and uncle, were removed from the parents’

care and custody, and placed in relative care with their aunt and uncle.

In March 2014, the State filed a child-in-need-of-assistance (CINA) petition

for all four children. In May 2014, the parents stipulated to the children being

adjudicated CINA. The juvenile court held dispositional and review hearings in

July and August 2014, confirming the CINA adjudication and placement with the 3

children’s maternal aunt and uncle. In December 2014, the aunt and uncle

became licensed foster care providers, and the court modified the dispositional

order to allow for placement of the children in family foster care instead of relative

care. The modification allowed the aunt and uncle to receive a foster care

payment for the children.

In March 2015, the juvenile court held a permanency hearing and

determined the children should continue to be placed with their aunt and uncle.

The father was incarcerated and therefore unavailable to provide care for the

children. The mother had been released from jail but had failed to participate

consistently in services provided by DHS, including drug testing and attending

appointments with mental health providers and child welfare workers. There was

a no-contact order in place between the parents due to their history of domestic

violence. The court noted the children were anxious about the uncertainty in

their lives and the oldest child especially struggled to deal with his parents’ failure

to make changes that would allow for the children to return to their care. The

court found the children appeared to be well-adjusted and were thriving in their

aunt and uncle’s care. The court concluded it was in the children’s best interests

to move toward permanency and directed the State to file a petition to terminate

the parents’ parental rights.

In August 2015, the juvenile court held a combined permanency and

termination hearing. Neither parent was present at the termination hearing,

though both appeared through their respective attorneys. Although the parents’

attorneys contested the termination petition, no witnesses were called to testify 4

against termination at the hearing. The father was still in prison, having been

incarcerated since October 2014. He had an expected release date of 2019.

The mother was also unavailable due to criminal activity as she was avoiding an

outstanding bench warrant.

At the hearing, all witnesses agreed the children love their mother and are

well-bonded to her. However, the Court Appointed Special Advocate (CASA)

expressed that everyone had worked toward reunification in the case except for

the parents. Both of the DHS social workers and the CASA stated the mother

had failed to make any progress in the services offered to her. In fact, the CASA

testified she believed the mother was further away from reunification with the

children than when the case was opened. For these reasons, the DHS social

workers, the CASA, the State, and the guardian ad litem (GAL) all believed

termination of the parents’ parental rights was in the children’s best interests.

The three caseworkers agreed it would be their preference that the

maternal aunt and uncle would adopt all four children. However, all also agreed

that termination was in the children’s best interests even if the aunt and uncle

chose not to adopt the children, so long as the children are adopted as a sibling

unit. The caseworkers agreed the children should not be separated because a

separation could be “extremely traumatic” for the children.

The children’s maternal aunt and foster mother provided a post-

evidentiary statement in which she stated APPLA was “the best scenario” for

them “from a financial standpoint.” She discussed their desire to retain daycare

reimbursement, child support payments, and respite care, none of which would 5

be available if the parents’ parental rights were terminated. She stated the

parents shared a strong bond with their children and the children would always

consider their mother and father their parents. Both the aunt and uncle stated

that regardless of whether they decided to adopt the children, they intended to

keep the children in their home and care for them indefinitely.

The State, the GAL, and the caseworkers all disagreed with the APPLA

option, stating it was not the most permanent option for the children and that

permanency should be the primary concern for these children.1 The GAL

informed the court of the recent changes to federal law regarding APPLA2 and

stated she believed APPLA was not in the children’s best interests. She stated

she had completed APPLAs in other cases and had observed that children in

APPLAs experienced “no sense of belonging.” She believed that if APPLA were

ordered in this case, the children would continue to exist in “limbo . . . hoping

some day they can return to their mother’s home.” The caseworkers all

acknowledged there would be more financial support available to the aunt and

uncle under APPLA but also recognized the family would be eligible for an

adoption subsidy.3

1 The GAL stated that due to the financial considerations in this case, guardianship was not a viable option. 2 The U.S. Congress recently modified 42 U.S.C. § 675(5)(C) to restrict the application of APPLAs to children age sixteen and older. Preventing Sex Trafficking and Strengthening Families Act, Pub. L. No. 113-183, sec. 112, § 475(5)(C)(i), 128 Stat. 1919, 1926 (2014). The amendment became effective September 29, 2015, following the termination hearing in this case but prior to the court’s written ruling. We note Iowa law has generally followed federal law in this respect, and although it is anticipated the Iowa legislature will make changes to the permanency options available under Iowa Code section 232.104 corresponding to the amended federal law, it is unknown when or how such changes will be made. 3 One DHS worker testified that if the aunt and uncle were to adopt the children, financial assistance for daycare would no longer be an available option and the parents would no 6

In its November 2015 order, the court discussed the mother’s history of

domestic violence with the father, substance abuse problems, criminal activity,

and mental health issues. The court also pointed to the mother’s lack of

transportation, employment, and stable housing for the children, having lost the

family home to foreclosure. The court noted as recently as three weeks before

the termination hearing, the mother had tested positive for methamphetamine

and morphine despite having undergone three substance abuse evaluations, two

sessions of inpatient treatment, and one session of outpatient treatment.

Further, it found the mother had completely stopped visiting her children two

weeks before the hearing. The court noted the various services that had been

offered to the family and determined the children could not be returned to their

parents’ care at the time of the termination hearing. The court considered the

aunt and uncle’s request for APPLA but concluded termination was in the

children’s best interests. Pursuant to the Iowa Code, the court terminated the

mother’s parental rights to her four children under section 232.116(1)(e), (f), and

(l).4 The mother appeals.

II. Standard of Review

We review termination-of-parental-rights proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations

of the juvenile court, especially with regard to witness credibility, but are not

longer be required to pay child support. However, the worker also testified the father had a tentative prison release date of 2019 and the mother was unemployed, and thus, neither would be in a position to fulfill their child support obligation for the foreseeable future anyway. 4 The court also terminated the father’s parental rights to the four children under Iowa Code section 232.116(1)(e), (f), and (l). The father does not appeal. 7

bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary

consideration is the best interests of the children. See id. at 776.

III. Analysis

On appeal, the mother does not challenge the statutory grounds for

termination, and we do not address the issue any further. See In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). Instead, the mother claims termination of her

parental rights was not in the children’s best interests under Iowa Code section

232.116(2) and the court should have ordered APPLA pursuant to section

232.104(2)(d).5

5 Under Iowa Code section 232.117(5), if a court does not order termination, it may enter an order in accordance with section 232.104. Section 232.104 provides in pertinent part: 2. After a permanency hearing the court shall do one of the following: a. Enter an order pursuant to section 232.102 to return the child to the child’s home. b. Enter an order pursuant to section 232.102 to continue placement of the child for an additional six months at which time the court shall hold a hearing to consider modification of its permanency order. An order entered under this paragraph shall enumerate the specific factors, conditions, or expected behavioral changes which comprise the basis for the determination that the need for removal of the child from the child’s home will no longer exist at the end of the additional six-month period. c. Direct the county attorney or the attorney for the child to institute proceedings to terminate the parent-child relationship. d. Enter an order, pursuant to findings required by subsection 3, to do one of the following: (1) Transfer guardianship and custody of the child to a suitable person. (2) Transfer sole custody of the child from one parent to another parent. (3) Transfer custody of the child to a suitable person for the purpose of long-term care. (4) If the department has documented to the court’s satisfaction a compelling reason for determining that an order under the other subparagraphs of this paragraph would not be in the child’s best interest, order another planned permanent living arrangement for the child. 3. Prior to entering a permanency order pursuant to subsection 2, paragraph “d”, convincing evidence must exist showing that all of the following apply: 8

Under Iowa law, even if a statutory ground for termination is met, a

decision to terminate must still be in the children’s best interests. In re P.L., 778

N.W.2d at 37; see also Iowa Code § 232.116(2). We do not deprive a child of

permanency when the State has proved a ground for termination “by hoping

someday a parent will learn to be a parent and be able to provide a stable home.”

In re A.M., 843 N.W.2d at 113. Termination followed by adoption is the preferred

method of establishing permanency for a child who cannot be safely returned

home. In re R.L., 541 N.W.2d 900, 903 (Iowa Ct. App. 1995) (“Long-term foster

care is not preferred to termination of parental rights.”). Whenever possible,

siblings should be kept together. In re L.B.T., 318 N.W. 2d 200, 202 (Iowa 1982).

The mother contends her strong bond with the children, and their

placement with their maternal aunt and uncle, necessitate an order for APPLA

rather than termination. She praises her sister’s care of the children and credits

the aunt and uncle as the “source of their stability and wellbeing.” She claims

that due to the financial circumstances of the aunt and uncle, they may not adopt

the children and the children will then likely be adopted by strangers and may

even be separated from each other. For these reasons, she argues termination

is not in the children’s best interests.6

a. A termination of the parent-child relationship would not be in the best interest of the child. b. Services were offered to the child’s family to correct the situation which led to the child’s removal from the home. c. The child cannot be returned to the child’s home. 6 The mother also contends the juvenile court erred in determining APPLA was not an available option to the court. We decline to address this issue because we agree with the juvenile court that termination of the mother’s parental rights is in the children’s best interests. 9

Where, as here, statutory grounds for termination have been proved to

exist, the needs of the child are promoted by termination, and placement of the

child with a relative pursuant to a permanency order is not a preferential

alternative to termination. In re L.M.F., 490 N.W.2d 66, 67–68 (Iowa Ct. App.

1992). Termination is the appropriate solution when a parent is unable to regain

custody within the timeframes of chapter 232. See In re C.K., 558 N.W.2d 170,

174 (Iowa 1997) (“An appropriate determination to terminate a parent-child

relationship is not to be countermanded by the ability and willingness of a family

relative to take the child.”). Furthermore, “the anticipated loss of [financial

support] . . . as a result of termination should not be part of the section

232.116(2) best-interests analysis.” In re H.S., 805 N.W.2d 737, 746 (Iowa

2011). Instead, when considering a child’s best interests, 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). Both the long-term

and immediate interests must be considered. See In re J.E., 723 N.W.2d 793,

798 (Iowa 2006).

The mother has an unfortunate history of domestic violence, substance

abuse problems, criminal activity, and mental health issues. She also lacks

transportation, employment, and any stable housing for the children. She has

failed to make any progress in the services available to her and is further from

reunification with her children than when the CINA case began over twenty

months ago. Although we recognize the financial concerns of the aunt and 10

uncle, we cannot deprive these four children, ranging in age from four to fifteen,

of the permanency and stability they deserve. See In re A.B., 815 N.W.2d at

777. Thus, upon our de novo review, we conclude termination of the mother’s

parental rights is in the children’s best interests and affirm the juvenile court’s

order.

AFFIRMED.