In the Interest of Z.B., Minor Child, J.B., Mother

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-0369 Filed April 30, 2014

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

J.B., Mother, Appellant. ________________________________________________________________

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

District Associate Judge.

A mother appeals the order terminating her parental rights. AFFIRMED.

Emily K. Tisinger of Springer & Laughlin Law Offices, P.C., Des Moines for

appellant mother.

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

Attorney General, John P. Sarcone, County Attorney, and Andrea S. Vitzthum,

Assistant County Attorney, for appellee State.

Karl Wolle of the Juvenile Public Defender’s Office, Des Moines, attorney

and guardian ad litem for minor child.

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

DOYLE, J.

A mother appeals from the juvenile court’s order terminating her parental

rights to her eleven-month-old child.1 We affirm.

I. Background Facts and Proceedings

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

Services (DHS) in August 2013 following the hospitalization of the mother and

father due to intravenous drug use.2 The child, then five months old, was

removed the parents’ care and placed in foster care.3 The mother’s drug screen

tested positive for cannabis, oxycodone, benzodiazepines, and opiates. The

mother admitted she had been using drugs “about every day” for “about four

months” prior to the child’s removal. The mother completed a substance abuse

evaluation, which recommended she attend intensive outpatient drug treatment

while on the waiting list for halfway house residential programming through the

House of Mercy. The mother did not participate in the recommended drug

treatment.

The child was adjudicated in need of assistance in September 2013. At

that time, DHS presented the mother with a Contract of Expectations, setting

forth specific action expected of the mother, including that she would participate

in substance abuse treatment, maintain sobriety, submit to random UA’s,

participate in offered visitation with the child, be responsible for scheduling and

1 The father has not appealed the termination of his parental rights to the child. 2 The mother overdosed on morphine injection and had a staph infection at the injection site on her arm. The mother stated she used morphine only when she “couldn’t get other drugs,” due to her belief that she was allergic to morphine. 3 The child has remained in the same family foster care placement since removal. That family has expressed its willingness and ability to adopt the child. 3

maintaining medical and other appointments for the child, participate in parenting

classes, obtain a mental health evaluation, maintain stable and safe living

arrangements, and maintain employment. The Contract of Expectations was

signed by the mother and her DHS caseworker.

In October 2013, the mother missed an appointment with her probation

officer.4 She admitted to her probation officer that she had continued abusing

drugs. The mother was charged with a probation violation and was placed in

custody. She spent ninety-five days at the Polk County Jail, and was then

transferred to a women’s residential facility in Des Moines, where she had

resided for two weeks as of the time of the termination hearing.

The State filed a petition to terminate parental rights in January 2013. The

termination hearing was held in February 2014. The juvenile court observed the

mother was twenty-one years old and had a significant history of drug abuse,

beginning when she was thirteen years old. The mother testified she last used

drugs on the day of her arrest, and she had not successfully completed any sort

of substance abuse treatment program. The mother had just begun substance

abuse treatment at the women’s residential facility two weeks prior. The mother

stated she had also briefly attempted treatment at the House of Mercy right after

the child was removed, but that she stopped going and continued to use drugs.5

Prior to her probation violation the mother had been living with her mother

who used methamphetamine and gave her money to obtain drugs. The mother

4 The mother was on probation stemming from a prior conviction for third-degree burglary. 5 The mother’s prior attempt at drug treatment (namely, court-ordered drug treatment as a condition of her probation in March 2011) ended when the mother quit attending because she “felt like she had better things to do at the time.” 4

had also lived with a boyfriend who was on probation for an OWI and sometimes

drank to excess. The mother’s only employment during these proceedings—

Dunkin Donuts for two and one-half months—ended when she was fired for

theft.6 She had not completed a mental health evaluation. She had not

consistently participated in visits with the child.

The mother agreed the child could not be returned to her custody at the

time of the termination hearing, but stated she was “really trying to change [her]

life.” The mother also admitted she had not been able to stay clean and sober

for a significant period in her life since the age of thirteen, and that the prospect

of confinement in jail due to a probation violation was not sufficient motivation for

her to stay sober in the past. The juvenile court denied the mother’s request for

a six-month extension.

Following the termination hearing, the juvenile court entered its order

terminating the mother’s parental rights pursuant to Iowa Code sections

232.116(1)(d), (i), and (I) (2013). The mother appeals.

II. Scope and Standard of Review

We review proceedings to terminate parental rights de novo. In re A.B.,

815 N.W.2d 764, 773 (Iowa 2012). We give weight to the juvenile court’s factual

findings, especially when considering the credibility of witnesses, but we are not

bound by them. Id. We will uphold an order terminating parental rights if there is

clear and convincing evidence of grounds for termination under Iowa Code

section 232.116. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is

6 The mother testified she had a history of thefts. 5

clear and convincing when there are no serious or substantial doubts as to the

correctness of conclusions of law drawn from the evidence. Id.

III. Discussion

A. Grounds for Termination

We must first determine whether a ground for termination under section

232.116(1) is established. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). The

mother disputes the grounds to terminate her parental rights under each ground

found by the juvenile court. “We only need to find grounds to terminate parental

rights under one of the sections cited by the district court in order to affirm its

ruling,” see In re R.K., 649 N.W.2d 18, 19 (Iowa Ct. App. 2000), and we elect to

address the mother’s contention that statutory grounds under section

232.116(1)(d) have not been proved by clear and convincing evidence.7

Under that section, termination may be ordered when a child has been

adjudicated in need of assistance for physical or sexual abuse or neglect and the

circumstances continue despite receipt of services. See Iowa Code

§ 232.116(1)(d). The mother did not contest the removal of the child from her

care in August 2013 following her hospitalization for intravenous drug use. The

mother later testified she was abusing drugs at the time she became pregnant

with the child, for a time during the pregnancy, and nearly every day in the four

months preceding the child’s removal. The child was five months old at the time

of removal. The mother agreed she placed herself and others at risk because of

7 The State’s petition alleged the child’s adjudication pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (n). The adjudication was not contested. “[A] CINA determination under section 232.2(6)(b) may lead to termination of parental rights under section 232.116(1)(d) . . . .” In re J.S., No. 13-1606, ___ N.W.2d ___, ___ (Iowa 2014). 6

her drug use. We agree with the juvenile court’s astute conclusion that “[t]his

serious, unfettered abuse of hard drugs while caring for an infant is certainly the

kind of neglect that places the child in imminent danger.” To us, the mother’s

focus on the fact that she kept her needles for intravenous drug use locked up

and away from the child emphasizes the mother’s complete disregard, or at the

very least, startling lack of understanding concerning her infant child’s safety and

well-being.

The mother claims there has been a “substantial change in [her] attitude,

her persistence to engage in all resources available to her and work toward

reunification with her child.” At the termination hearing, however, the mother

testified she had not yet completed drug treatment despite her understanding

that such treatment was a critical component to become reunited with the child.

In this case, the mother’s actions and inactions speak louder than her words: she

continued to use drugs after the child’s removal and after she signed the

Contract of Expectations; she lived with her mother who provided her money to

buy drugs; and she has been in custody or residential placement since the very

day she last used drugs. This is not even to mention the unaddressed concerns

regarding the mother’s mental health. Clearly, the circumstances leading to the

initial adjudication have not been rectified despite the receipt of services. Under

these facts and circumstances, we conclude there is clear and convincing

evidence that grounds for termination exist under section 232.116(1)(d).

B. Factors in Termination

Even if a statutory ground for termination is met, a decision to terminate

must still be in the best interests of a child after a review of section 232.116(2). 7

P.L., 778 N.W.2d at 37. In determining the best interests, this court’s primary

considerations are “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.” Id.

The mother contends termination of her parental rights is not in the best

interests of the child. The mother’s best-interests claim essentially focuses on

the juvenile court’s failure to grant her a six-month extension.8 As the mother

claims, “Allowing [her] to have an additional six months to complete the services

she had engaged in would not have been detrimental to the child.”

We agree with the juvenile court’s finding that termination of the mother’s

parental rights is in the best interests of the child and would best provide for the

child’s long-term nurturing and growth. Nothing in the record suggests additional

time and services would correct the circumstances leading to the child’s

adjudication and removal. As the juvenile court observed:

In this case, neither [the mother nor the father] is able to care for [the child] in either of their homes at this time. It is unlikely that [the child] can be safely returned to [the mother or father] in the foreseeable future. To return the child to her mother or father at this time or in the foreseeable future would subject her to great instability and uncertainty inflicted by her parents. There has not been any resolution to the concerns raised at the time of the child’s removal. A parent’s past behavior is an important factor in determining what the future holds for a child if returned to the parent’s care and custody. . . . .... The parents each argue for a six month extension under Iowa Code section 232.104(2)(b). Neither parent, however, is able to state when he or she will be released from custody, or where each would go once released from custody. Neither parent is employed. . . . [The mother] has yet to address her mental health

8 The mother also raises this claim in section V of her brief, but we will not address that claim separately in light of our discussion on this issue here. 8

issues, and has just now begun outpatient and relapse classes as part of her halfway house program. It is impossible for the Court to enumerate specific factors, conditions, or expected behavior changes which would comprise the basis for a determination that the need for removal of the child will no longer exist at the end of an additional six-month period. Therefore, termination is in the best interests of this child.

“It is well-settled law that we cannot deprive a child of permanency after

the State has proved a ground for termination under section 232.116(1) by

hoping someday a parent will learn to be a parent and be able to provide a stable

home for the child.” Id. at 41; see In re A.B., 815 N.W.2d 764, 778 (Iowa 2012)

(noting the parent’s past conduct is instructive in determining his future behavior).

Here, the mother is unable to assume custody of the child now or at any time in

the foreseeable future. Children are not equipped with pause buttons. “The

crucial days of childhood cannot be suspended while parents experiment with

ways to face up to their own problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa

1987). There is no reason to delay the child the permanency she needs and

deserves.

C. Factors Against Termination

Finally, we give consideration to whether any exception or factor in section

232.116(3) applies to make termination unnecessary. The mother claims the

juvenile court erred in terminating her parental rights due to her close bond with

the child. Termination is not mandatory when clear and convincing evidence is

found that termination would be detrimental to the child due to the closeness of

the parent-child relationship. See Iowa Code § 232.116(3)(c).

We have discretion, based on the unique circumstances of each case and

the best interests of the child, whether to apply the factors in this section to save 9

the parent-child relationship. In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct. App.

2011). Although the mother loves the child, there is no evidence the mother’s

relationship with the child is one that is so close it would be detrimental to the

child if termination occurred. No exception or factor contained in section

232.116(3) applies to make termination of the mother’s parental rights

unnecessary in this case.

IV. Conclusion

There is clear and convincing evidence that grounds for termination exist,

termination of parental rights is in the child’s best interests, nothing in the record

suggests an additional six months would correct the circumstances leading to the

child’s adjudication and removal, and no consequential factor weighing against

termination requires a different conclusion. Accordingly, we affirm termination of

the mother’s parental rights.

AFFIRMED.

Vogel, P.J., concurs; Mullins, J., concurs specially. 10

MULLINS, J. (specially concurring)

I concur that the ruling to terminate the mother’s parental rights should be

affirmed, but write separately as I believe it should be affirmed under section

232.116(1)(i) not under section 232.116(1)(d).