In the Interest of Z.S.-J. and L.J., Minor Children

• Court: Court of Appeals of Iowa
• Decided: October 6, 2021
• Docket: 21-0979
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-0979 Filed October 6, 2021

IN THE INTEREST OF Z.S.-J. and L.J., Minor Children,

J.J., Father of L.J., Appellant,

A.S., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Korie Talkington,

District Associate Judge.

A mother and a father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant father.

Brenda Drew-Peeples, Davenport, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Jennifer Olsen, Davenport, attorney and guardian ad litem for minor

children.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ. 2

BOWER, Chief Judge.

A mother and a father separately appeal the termination of their parental

rights. We review termination proceedings de novo. In re A.S., 906 N.W.2d 467,

472 (Iowa 2018). “We are not bound by the juvenile court’s findings of fact, but we

do give them weight, especially in assessing the credibility of witnesses.” In re

D.W., 791 N.W.2d 703, 706 (Iowa 2010).

The mother has two children, Z.S.-J. and L.J., who at the time of the

termination-of-parental-rights hearing were ages five and two, respectively. The

mother and the father of L.J. are not married but continue to reside together. The

department of human services (DHS) became involved with the family in 2018 due

to the mother’s heroin addiction and lack of proper supervision of Z.S.-J. When

L.J. was born in June 2019, the umbilical cord tested positive for methadone and

THC. Shortly after L.J.’s birth, the children were removed from parental care.

The father is an alcoholic who continues to drink and also smokes

marijuana. The mother reported she smokes marijuana to combat an illness due

to radiation therapy for an eye condition. Despite being informed they must

address domestic-violence concerns and test negative for THC to have the

children returned to their care, the parents have been unwilling or unable to comply

with those court orders and expectations.

At the time of the termination hearings in March and April 2021, visits

remained fully supervised in an out-of-home setting because the parents did not 3

take DHS up on its offer to resume visits in the home.1 The children have been

adjudicated children in need of assistance, have been out of parental custody since

June 2019—more than the statutory time frame,2 and cannot be returned to the

parents at present. Neither parent denies statutory grounds for termination exist. 3

Both parents contend, however, the court should not have terminated their

parental rights pursuant to Iowa Code section 232.116(3)(c) (2021).4 They

intermingle the contention with a best-interest argument, though neither cites

section 232.116(2). “Even after we have determined that statutory grounds for

termination exist, we must still determine whether termination is in the children’s

best interests.” In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (citation omitted).

Iowa Code section 232.116(2) instructs, “[T]he court shall 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.”5 Children need “constant, responsible, and

reliable” parenting. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). The parents

1 Due to L.J.’s respiratory issues, service providers informed the parents that cigarette and marijuana smoke in the home was not appropriate and suggested any smoking be done outside the home. 2 The time frame for reunification with respect to Z.S.-J. is twelve months, for L.J.

it is six months. See Iowa Code § 232.116(1)(f)(3), (1)(h)(3). 3 The mother’s rights to Z.S.-J. were terminated pursuant to Iowa Code section

232.116(1)(e), (f), and (l) (2020). The juvenile court terminated the mother’s and the father’s rights to L.J. pursuant to Iowa Code section 232.116(1)(e), (h), and (l). Z.S.-J’s biological father’s rights were also terminated. He does not appeal. 4 The State contends the mother did not preserve the issue but acknowledges the

father did raise the issue. We will pass on the preservation issue and address the merits. 5 We refer to this directive as the statutory best-interests framework. See A.S.,

906 N.W.2d at 474. 4

have not been able to provide such parenting. The best placement for the

children’s long-term nurturing and growth is with a family who can.

“Once we have established that the termination of parental rights is in the

child[ren’s] best interests, the last step of our analysis is to determine whether any

exceptions in section 232.116(3) apply to preclude the termination.” A.S., 906

N.W.2d at 475 (citation omitted). The burden to prove a permissive exception to

termination under section 232.116(3) rests on the parent. See id. at 476.

While there is evidence of a bond between the mother and children, and

L.J. recognizes the father and generally responds positively to him, there is not

“clear and convincing evidence that termination would be detrimental to the

child[ren] due to the closeness of the parent-child relationship.” Iowa Code

§ 232.116(3)(c). Two-thirds of Z.S.-J.’s life and nearly all of L.J.’s have been spent

in the care of others. The mother is fairly consistent in attending the three, two-

hour supervised visits each week and provides appropriate parenting while there.

The father has attended less than half of offered visits and admits to a very passive

role in parenting L.J. The children have not been given a place of importance in

the parents’ lives. The court’s “consideration must center on whether the child will

be disadvantaged by termination, and whether the disadvantage overcomes [the

parent]’s inability to provide for [the child]’s developing needs.” See D.W., 791

N.W.2d at 709. Neither parent has met their burden to persuade us termination is

not in the children’s best interests.

The children have waited for almost two years in out-of-home placements

for the parents to attain stability. Yet, visits remain supervised, neither parent will

acknowledge or address domestic-violence concerns, and serious concerns 5

remain about the parents’ substance and alcohol abuse. Neither parent has been

able to put the children’s needs ahead of their own. Termination of parental rights

will provide the children an opportunity for permanence the parents cannot or will

not provide. We therefore affirm on both appeals.

AFFIRMED ON BOTH APPEALS.