In the Interest of T.J., Minor Child, R.J., Mother

• Court: Court of Appeals of Iowa
• Decided: September 17, 2014
• Docket: 14-0810
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0810 Filed September 17, 2014

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

R.J., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Franklin County, Peter B. Newell,

District Associate Judge.

A mother appeals the termination of her parental rights to her child, born in

2012. AFFIRMED.

Megan R. Rosenberg of Hobson Cady & Cady, P.L.C., Hampton, for

appellant mother.

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

Attorney General, Dan Wiechmann, County Attorney, and Brent J. Symens,

Assistant County Attorney, for appellee State.

Randy Johansen, Sheffield, attorney and guardian ad litem for minor child.

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

VAITHESWARAN, P.J.

A mother appeals the termination of her parental rights to her child, born in

2012. She contends the district court should not have terminated her parental

rights pursuant to Iowa Code section 232.116(1)(h), requiring proof of several

elements, including proof that the child could not be returned to her custody.

Iowa Code § 232.116(1) (2013). She also contends termination was not in the

child’s best interests.

I. Our de novo review of the record reveals the following facts. The mother

has a history of alcohol abuse that resulted in the revocation of her driver’s

license. She drove nonetheless, with three children in the car. The vehicle

crashed and one of the children was seriously injured. Testing revealed that the

mother had blood alcohol content of more than twice the legal limit.

The child involved in this appeal was removed from the mother’s care and

was placed in foster care. The State charged the mother with several crimes,

and she eventually pled guilty to child endangerment, serious injury by vehicle,

and operating a motor vehicle while intoxicated (third offense). The district court

sentenced the mother to prison terms not exceeding fifteen years, with two to be

served concurrently. Her tentative discharge date was July 2018. Given the

mother’s incarceration, the child could not be returned to her custody.

The mother nonetheless contends that she anticipated an imminent

release from prison and the court should have denied the termination petition on

this basis. However, section 232.116(1)(h) does not refer to an “imminent” return

of custody. The statute requires proof “the child cannot be returned to the

custody of the child’s parents . . . at the present time.” Id. “Present time” is the 3

time of the termination hearing. See In re C.B., 611 N.W.2d 489, 494-95 (Iowa

2000) (holding termination of mother’s rights appropriate where at time of

hearing, it would be another year until children could be safely returned); see

also In re A.M.S., 419 N.W.2d 723, 726 (Iowa 1988) (“The proof must only show

that any of the alleged definitional grounds of a child in need of assistance . . .

exist at the time of the termination hearing.”). The mother was incarcerated as of

the termination hearing.

Even if section 232.116(1)(h) could be read to afford a parent a short time

to prepare for a child’s return, the mother was not in a position to avail herself of

this opportunity. At the time of the termination hearing, she had yet to begin an

eight-week substance-abuse program. While she expected to start the program

on the evening of the termination hearing, it would be weeks before professionals

could evaluate her progress. Additionally, the mother’s prospects for release

were not as rosy as she asserted. Although she testified her prison counselor

would “run [her] up in front of the parole board” during the fifth week of the

substance abuse program, she acknowledged the purpose of the parole board

appearance was simply to “get classified” and to receive information on “what

you need to do before they can let you leave.” She also admitted she would

have to spend approximately thirty days at a halfway house following her release.

In short, the mother’s release was not imminent and the district court acted

appropriately in terminating her parental rights pursuant to section 232.116(1)(h).

II. The mother argues termination was not in the child’s best interests. See

In re P.L., 778 N.W.2d 33, 37-39 (Iowa 2010). On our de novo review, we

disagree. Following her incarceration, the mother had no contact with her child 4

because the prison did not allow inmate visits with victims of their crimes. On her

release, she would require time to reacquaint herself with the child and address

the issues that compromised the child’s safety two years earlier. Under these

circumstances, we conclude termination was in the child’s best interests.

AFFIRMED.