In the Interest of Z.R., Minor Child

• Court: Court of Appeals of Iowa
• Decided: May 11, 2022
• Docket: 21-1290
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1290 Filed May 11, 2022

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

K.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, Clinton R.

Boddicker, District Associate Judge.

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

AFFIRMED.

Edward G. Harvey, Fairfield, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Kendra Abfalter of State Public Defender’s Office, Burlington, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ. 2

BADDING, Judge.

A mother who is in the depths of an addiction to methamphetamine appeals

the termination of her parental rights to her child, born in 2018, under Iowa Code

section 232.116(1)(h) (2021).1 We affirm.

I. Background Facts and Proceedings

This twenty-seven-year-old mother has a long history of trauma and

substance abuse. She began using marijuana at age thirteen, and then

methamphetamine at age nineteen. The Iowa Department of Human Services

became involved with the family in May 2020 when it was reported that the mother

and her boyfriend were using drugs and alcohol while caring for the child. The

mother and child were living in a hotel with the boyfriend, who also has issues with

drugs and alcohol. The mother was found passed out in bed with the child present.

She later tested positive for amphetamines, methamphetamine, and THC. The

child tested positive for the latter two substances. The State sought and obtained

an order for temporary removal, which was confirmed following a formal removal

hearing. The child was adjudicated in need of assistance under Iowa Code

section 232.2(6)(b), (n), (o), and (p) (2020).

In June, the mother obtained housing for a short time and underwent a

substance-abuse evaluation. Although the evaluation recommended extended

outpatient treatment, the mother decided to enter inpatient treatment in August.

While there, she had the child in her care every other week. She graduated from

the program in mid-October and went to live with her boyfriend’s mother. But by

1 The child’s father is deceased. 3

the end of October—and just before a visit with her child—the mother relapsed on

alcohol. The visit was canceled, and the mother refused to comply with a sweat

patch test. Her boyfriend’s mother kicked her out of the house a few days later. A

caseworker from the department encouraged her to go to a sober living house; the

mother instead moved in with her grandfather, who also used methamphetamine.

At the end of November, the mother tested positive for methamphetamine

and stopped attending substance-abuse treatment. Around the same time, the

mother became pregnant with a second child. She completed a negative urinalysis

in early January 2021, but the testing lab reported signs that her sample was

tampered with. The same day as the tampered drug screen, the mother refused

a hair-stat test. In late January, the mother tested positive for methamphetamine

through her substance-abuse provider. The mother admitted to her counselor that

she had been using the substance with her boyfriend. As a result, the counselor

recommended that the mother return to inpatient treatment. In late January, the

State initiated termination proceedings.

The mother’s life became even more chaotic in February when she was

pulled over in Illinois for a traffic violation and charged with possession of

methamphetamine. In March, Illinois probation and parole personnel reported that

the mother arrived to a pretrial appointment under the influence of alcohol and

methamphetamine. The mother submitted to a drug test, which was positive for

methamphetamine. She was arrested and held in jail in Illinois for several weeks.

To avoid more jail time, the mother agreed to go to inpatient treatment again. But

she arrived at treatment several hours late and under the influence of alcohol. The

mother completed the program toward the end of April. She was again 4

encouraged to go to a sober living house upon leaving treatment. Instead, she

decided to stay with her boyfriend and live out of their car and hotels.

The first day of the permanency and termination hearing started about a

week after the mother was released from her second inpatient program. At the

hearing, the mother touted her recent completion of treatment, attendance at group

substance-abuse meetings, and negative drug screens through her prenatal

appointments. Yet she testified that she intended to continue what providers called

her “co-dependent” relationship with her boyfriend—one where if he used drugs,

she did too. She was hopeful his mother would buy them a house to live in and

asked for permanency to be deferred for six months so that she could secure this

house. By the second day of the hearing in May, the mother had come up with a

new plan to secure housing through the Salvation Army in Illinois, which had

helped them find a hotel room to live in temporarily. She agreed that living situation

was not suitable for the child. But other than remedying her lack of appropriate

housing, the mother did not believe she needed to accomplish anything else in

order to have the child returned to her care.

Ultimately, the juvenile court found the child could not be returned to the

mother’s care because of her “lack of safe and stable housing, her serious, long-

standing and ongoing addiction to methamphetamine and alcohol, and her

turbulent and violent relationship with” her boyfriend. The court accordingly

terminated the mother’s parental rights under Iowa Code section 223.116(1)(h)

(2021). The mother appeals, challenging the sufficiency of the evidence

supporting the ground for termination. She also argues termination is contrary to 5

the child’s best interests, highlights the strength of the parent-child bond, and

requests more time to work toward reunification.2

II. Analysis

We apply a three-step analysis in conducting our de novo review of

terminations of parental rights, asking whether (1) a statutory ground for

termination is satisfied, (2) the child’s best interests are served by termination, and

(3) a statutory exception applies and should be exercised to preclude termination.

See In re L.B., 970 N.W.2d 311, 313 (Iowa 2022) (noting that in conducting our de

novo review, we “give weight to the [court’s] factual findings but are not bound by

them”); see also Iowa Code § 232.116(1)–(3). If all three steps support

termination, we consider the ancillary issue of whether a parent should be granted

additional time. See Iowa Code § 232.117(5); see also id. § 232.104(2)(b).

A. Ground for Termination

As to the statutory ground for termination, the mother only appears to

challenge the State’s establishment of the final element—that the child could not

2 The mother also passively suggests she was not provided reasonable efforts at reunification, but she does not offer an opinion on what additional services should have been provided. In any event, our review of the record discloses this complaint is being raised for the first time on appeal. Thus, error was not preserved. See In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005). In the same vein, the mother states her general disagreement with a number of the district court’s findings of fact and conclusions of law. We confine our consideration to the claims for which she provides a minimally sufficient argument to facilitate our review. See Iowa Rs. App. P. 6.201(1)(d) (“The petition on appeal shall substantially comply with form 5 in rule 6.1401.”); 6.1401–Form 5 (“[S]tate what findings of fact or conclusions of law the district court made with which you disagree and why. . . . General conclusions, such as ‘the trial court’s ruling is not supported by law or the facts’ are not acceptable.”); see also In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A broad, all encompassing argument is insufficient to identify error in cases of de novo review.”). 6

be returned to her care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(h)(4) (requiring “clear and convincing evidence that the child cannot

be returned to the custody of the child’s parents . . . at the present time”); In re

D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at

the present time” to mean “at the time of the termination hearing”). On this point,

the mother argues there was “no evidence that the child was ever harmed in [her]

care” and the “State failed to provide clear and convincing evidence that the child

. . . would suffer imminent harm or be in danger if placed with [her].” She also

points out she “has been engaged in substance abuse treatment,” while

acknowledging her addiction will be an ongoing issue.

To establish the challenged element, the State was only required to prove

that the child could not safely be returned to the mother’s care at the time of the

termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014). At the

second day of the termination hearing, the mother agreed the child could not yet

be returned to her care due to her housing instability. The mother’s concession

“amounts to clear and convincing evidence that the child[] could not be returned to

her care at the time of the termination hearing.” In re A.A., No. 21-1972, 2022 WL

946503, at *3 (Iowa Ct. App. Mar. 30, 2022). Concession aside, the remaining

record supports the court’s conclusion. The mother has a long history of substance

abuse, including methamphetamine. While she has participated in treatment

during these proceedings, she has continued to relapse and test positive for the

substance. Outside of her time in residential treatment, the mother had no

significant periods of sobriety during this case, even after she learned she was

pregnant with her second child. The mother’s continued use presents an ongoing 7

risk of adjudicatory harm and amounts to clear and convincing evidence that the

child cannot be returned to her care at present. See In re K.S., No. 21-1755, 2022

WL 951034, at *1 (Iowa Ct. App. Mar. 30, 2022) (collecting cases). We agree the

State met its burden for termination under section 232.116(1)(h).3

B. Best Interests

To the extent that the mother argues termination is contrary to the 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). The defining elements of a child’s best interests are safety and need

for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).

This child has been removed from parental care for roughly a year. During

that time, the mother has continued to use methamphetamine despite two stints at

inpatient treatment. Rather than moving to a sober living house, she chose to

remain homeless with her boyfriend. She has been unemployed since 2017 with

no concrete plans for that to change in the future. Though she consistently

participated in visits, she never progressed beyond fully supervised visitation. And

even then, providers were concerned about her ability to care for the child for more

than two hours at a time. She has been unable to provide stability and permanency

for herself, let alone her child. Though the child has been in his current pre-

3 In her petition on appeal, the mother refers to evidence that she has “given birth to another child who remains in her care and custody,” which she contends “contravene[s] any assertion that the child in interest in this action could not be returned to [her] care.” This evidence is not in the record before us because at the time of the termination hearing, the mother was still pregnant with her second child. We will not speculate about what has occurred since. 8

adoptive foster home for a short time, he has a good relationship with his foster

parents; he is integrated into the home; and the placement has continued to foster

his growth, condition, and needs. See Iowa Code § 232.116(2)(b). We agree with

the district court that termination is in the child’s best interests.

C. Statutory Exception

Throughout her petition on appeal, the mother often highlights the bond

between herself and the child. We interpret this as a request for application of the

statutory exception to termination in Iowa Code section 232.116(3)(c), which

grants the juvenile court discretion to forgo termination when “[t]here is clear and

convincing evidence that the termination would be detrimental to the child at the

time due to the closeness of the parent-child relationship.”

We first note the application of a statutory exception to termination, if an

exception exists, is “permissive, not mandatory.” In re M.W., 876 N.W.2d 212, 225

(Iowa 2016) (quoting A.M., 843 N.W.2d at 113). While we acknowledge a bond

between the mother and child, we conclude she failed to show “that the termination

would be detrimental to the child . . . due to the closeness of the parent-child

relationship,” especially given the child’s young age. See Iowa Code

§ 232.116(3)(c); see also In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (“[T]he

parent resisting termination bears the burden to establish an exception to

termination . . . .”). The mother presented no evidence the child would suffer

physical, mental, or emotional detriment if her rights were terminated. As a result,

we conclude this exception to termination does not apply. 9

D. Additional Time

The mother’s primary argument appears to be her request for a deferral of

permanency to allow her to continue to work toward reunification. See Iowa Code

§§ 232.117(5) (stating that if the juvenile court does not terminate parental rights,

it may enter an order under section 232.104(2)(b)), .104(2)(b) (allowing the juvenile

court to continue placement of a child for an additional six months). A six-month

extension is appropriate if the parent can establish that “the need for removal . . .

will no longer exist at the end of the additional six-month period.” Id. §

232.104(2)(b); accord In re W.T., 967 N.W.2d 315, 323 (Iowa 2021).

The only change the mother testified would occur if given more time was

rectification of her housing instability. See Iowa Code § 232.104(2)(b) (requiring

enumeration of “the specific factors, conditions, or expected behavioral changes”

showing the need for removal will no longer exist at the end of the period). But

she has been unable to accomplish continuous housing stability despite a year of

services and treatment. And the mother’s housing instability is not the only

circumstance needing rectification before removal could cease. Given the

mother’s track record, we cannot agree that giving her more time would lead to a

different result. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[A]

good prediction of the future conduct of a parent is to look at the past conduct.”).

We conclude additional time is not warranted in this case.

III. Conclusion

We affirm the termination of the mother’s parental rights.