IN THE COURT OF APPEALS OF IOWA
No. 14-1024 Filed August 27, 2014
IN THE INTREST OF N.S., Minor Child,
L.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Mary L.
Timko, Associate Juvenile Judge.
Mother appeals from an order terminating her parental rights.
AFFIRMED.
Lisa Mazurek, Cherokee, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Dave Patton, County Attorney, and Elizabeth D. LaPole,
Assistant County Attorney, for appellee.
David A. Dawson, Sioux City, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ. 2
MCDONALD, J.
On June 6, 2014, the juvenile court entered an order terminating the
parent-child relationship between Johnathan and Lisa and their child N.S. Only
Lisa appeals the termination order. On appeal, Lisa contends there is not
sufficient evidence supporting the termination of her parental rights. Lisa also
contends the court should not have terminated her parental rights because two
different family members were willing to provide for the child “by adoption or
guardianship.”
We review de novo proceedings terminating parental rights. In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law, and we
adjudicate anew those issues properly preserved and presented. In re L.G., 532
N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the findings of the
juvenile court, especially concerning the credibility of witnesses, but we are not
bound by them. See id. at 480-81. Our obligation to review termination
proceedings de novo means our review is not a rubber stamp of what has come
before. We will thus uphold an order terminating parental rights only if there is
clear and convincing evidence of grounds for termination. See In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing” when there
are no “serious or substantial doubts as to the correctness [of] conclusions of law
drawn from the evidence.” Id.
Termination of parental rights under Iowa Code chapter 232 (2013) follows
a three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) has 3
been established. Id. Second, if a ground for termination is established, the
court must apply the framework set out in section 232.116(2) to decide if
proceeding with termination is in the best interests of the child. Id. Third, if the
statutory best-interests framework supports termination of parental rights, the
court must consider if any statutory exceptions set forth in section 232.116(3)
should serve to preclude the termination of parental rights. Id.
The juvenile court terminated Lisa's parental rights pursuant to section
232.116(1)(h). As relevant here, to establish this ground for termination, the
State was required to prove by clear and convincing evidence the child “cannot
be returned to the custody of the child's parents as provided in section 232.102 at
the present time.” Iowa Code § 232.116(1)(h)(4); see In re Chad, 318 N.W.2d
213, 217 (Iowa 1982). A child cannot be returned to the custody of the child's
parents under section 232.102 if by doing so the child would remain a child in
need of assistance or would be exposed to any harm amounting to a new child in
need of assistance adjudication. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa
Ct. App. 1995), overruled on other grounds by P.L., 778 N.W.2d at 39; see also
In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“The threat of probable harm will
justify termination, and the perceived harm need not be the one that supported
the child's initial removal from the home.”). We conclude the State proved this
ground by clear and convincing evidence and termination of Lisa’s parental rights
is in the best interests of N.S.
The family first came to the attention of the Iowa Department of Human
Services (hereinafter IDHS) several months after N.S.’s birth in 2012. At that 4
time, Lisa was no longer in a relationship with Johnathan, N.S.’s father. IDHS
was notified Lisa was engaged to and living with Tony, a career criminal and
registered sex offender recently released from prison. Lisa was then arrested
and charged with child endangerment. Investigation revealed Lisa was aware of
Tony’s status as a registered sex offender but thought his sex offender status
would not matter once they were married. Upon being released from jail and
being confronted with the choice of living with N.S. or with Tony, Lisa agreed to
have N.S. placed with Lisa’s mother, Judy, so Lisa could continue to live with
Tony.
Initially, while N.S. was out of Lisa’s custody, Lisa did little to work toward
reunification with N.S. and continued to place her desire to date Tony over her
relationship with N.S. Lisa did little to care for N.S. and little to create any bond
with N.S. Lisa had the right to supervised visitation with N.S., but she did not
often exercise that right. Judy explained when Lisa did exercise visitation, the
visitation typically lasted only fifteen minutes. The visits were short because
Tony texted and called Lisa during the visit and Lisa would leave in response.
Judy’s care of N.S. abruptly ended in July 2013 when IDHS learned Judy
left the area with a man she had known for only a week and left N.S. with Judy’s
sister, Michelle. IDHS was concerned that Judy demonstrated the same poor
decision-making skills as Lisa with respect to choosing male partners. IDHS
decided placement of N.S. with Judy was no longer viable. Although IDHS
preferred relative placement, all options were unsuccessful and N.S. was placed
in foster care. It was at this time N.S. was adjudicated in need of assistance. 5
Despite the receipt of numerous services, Lisa was unable to progress to
a point where she could resume care of N.S. without exposing N.S. to the risk of
adjudicatory harm. Lisa has been diagnosed with Intellectual Disability (formerly
Mild Mental Retardation) and Adjustment Disorder. While lower mental
functioning alone is not sufficient grounds for termination, it is a relevant
consideration where it affects the child’s well being. See In re A.M., 843 N.W.2d
100, 111 (Iowa 2014). Lisa is unable to control her impulses with respect to
choosing partners, and Lisa chooses partners that create a risk of harm to N.S.
IDHS learned Lisa began a romantic relationship with another man after her
relationship with Tony ended. This second man also posed a risk of harm to N.S.
When asked about the relationship, Lisa misrepresented to IDHS and the
juvenile court the second relationship had ended.
Lisa has difficulty controlling her emotions and frequently is in conflict with
others.
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IN THE COURT OF APPEALS OF IOWA
No. 14-1024 Filed August 27, 2014
IN THE INTREST OF N.S., Minor Child,
L.S., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Mary L.
Timko, Associate Juvenile Judge.
Mother appeals from an order terminating her parental rights.
AFFIRMED.
Lisa Mazurek, Cherokee, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Dave Patton, County Attorney, and Elizabeth D. LaPole,
Assistant County Attorney, for appellee.
David A. Dawson, Sioux City, attorney and guardian ad litem for minor
child.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ. 2
MCDONALD, J.
On June 6, 2014, the juvenile court entered an order terminating the
parent-child relationship between Johnathan and Lisa and their child N.S. Only
Lisa appeals the termination order. On appeal, Lisa contends there is not
sufficient evidence supporting the termination of her parental rights. Lisa also
contends the court should not have terminated her parental rights because two
different family members were willing to provide for the child “by adoption or
guardianship.”
We review de novo proceedings terminating parental rights. In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011). We examine both the facts and law, and we
adjudicate anew those issues properly preserved and presented. In re L.G., 532
N.W.2d 478, 480 (Iowa Ct. App. 1995). We give weight to the findings of the
juvenile court, especially concerning the credibility of witnesses, but we are not
bound by them. See id. at 480-81. Our obligation to review termination
proceedings de novo means our review is not a rubber stamp of what has come
before. We will thus uphold an order terminating parental rights only if there is
clear and convincing evidence of grounds for termination. See In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing” when there
are no “serious or substantial doubts as to the correctness [of] conclusions of law
drawn from the evidence.” Id.
Termination of parental rights under Iowa Code chapter 232 (2013) follows
a three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) has 3
been established. Id. Second, if a ground for termination is established, the
court must apply the framework set out in section 232.116(2) to decide if
proceeding with termination is in the best interests of the child. Id. Third, if the
statutory best-interests framework supports termination of parental rights, the
court must consider if any statutory exceptions set forth in section 232.116(3)
should serve to preclude the termination of parental rights. Id.
The juvenile court terminated Lisa's parental rights pursuant to section
232.116(1)(h). As relevant here, to establish this ground for termination, the
State was required to prove by clear and convincing evidence the child “cannot
be returned to the custody of the child's parents as provided in section 232.102 at
the present time.” Iowa Code § 232.116(1)(h)(4); see In re Chad, 318 N.W.2d
213, 217 (Iowa 1982). A child cannot be returned to the custody of the child's
parents under section 232.102 if by doing so the child would remain a child in
need of assistance or would be exposed to any harm amounting to a new child in
need of assistance adjudication. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa
Ct. App. 1995), overruled on other grounds by P.L., 778 N.W.2d at 39; see also
In re M.M., 483 N.W.2d 812, 814 (Iowa 1992) (“The threat of probable harm will
justify termination, and the perceived harm need not be the one that supported
the child's initial removal from the home.”). We conclude the State proved this
ground by clear and convincing evidence and termination of Lisa’s parental rights
is in the best interests of N.S.
The family first came to the attention of the Iowa Department of Human
Services (hereinafter IDHS) several months after N.S.’s birth in 2012. At that 4
time, Lisa was no longer in a relationship with Johnathan, N.S.’s father. IDHS
was notified Lisa was engaged to and living with Tony, a career criminal and
registered sex offender recently released from prison. Lisa was then arrested
and charged with child endangerment. Investigation revealed Lisa was aware of
Tony’s status as a registered sex offender but thought his sex offender status
would not matter once they were married. Upon being released from jail and
being confronted with the choice of living with N.S. or with Tony, Lisa agreed to
have N.S. placed with Lisa’s mother, Judy, so Lisa could continue to live with
Tony.
Initially, while N.S. was out of Lisa’s custody, Lisa did little to work toward
reunification with N.S. and continued to place her desire to date Tony over her
relationship with N.S. Lisa did little to care for N.S. and little to create any bond
with N.S. Lisa had the right to supervised visitation with N.S., but she did not
often exercise that right. Judy explained when Lisa did exercise visitation, the
visitation typically lasted only fifteen minutes. The visits were short because
Tony texted and called Lisa during the visit and Lisa would leave in response.
Judy’s care of N.S. abruptly ended in July 2013 when IDHS learned Judy
left the area with a man she had known for only a week and left N.S. with Judy’s
sister, Michelle. IDHS was concerned that Judy demonstrated the same poor
decision-making skills as Lisa with respect to choosing male partners. IDHS
decided placement of N.S. with Judy was no longer viable. Although IDHS
preferred relative placement, all options were unsuccessful and N.S. was placed
in foster care. It was at this time N.S. was adjudicated in need of assistance. 5
Despite the receipt of numerous services, Lisa was unable to progress to
a point where she could resume care of N.S. without exposing N.S. to the risk of
adjudicatory harm. Lisa has been diagnosed with Intellectual Disability (formerly
Mild Mental Retardation) and Adjustment Disorder. While lower mental
functioning alone is not sufficient grounds for termination, it is a relevant
consideration where it affects the child’s well being. See In re A.M., 843 N.W.2d
100, 111 (Iowa 2014). Lisa is unable to control her impulses with respect to
choosing partners, and Lisa chooses partners that create a risk of harm to N.S.
IDHS learned Lisa began a romantic relationship with another man after her
relationship with Tony ended. This second man also posed a risk of harm to N.S.
When asked about the relationship, Lisa misrepresented to IDHS and the
juvenile court the second relationship had ended.
Lisa has difficulty controlling her emotions and frequently is in conflict with
others. She has been diagnosed with Generalized Anxiety Disorder, Major
Depressive Disorder, ADHD, and Histrionic personality traits. During the time
N.S. was removed from her care, Lisa had conflicts with her neighbors. She had
conflicts with her friends and family. The social worker assigned to the case
testified that these recurring conflicts created a risk of harm to N.S. because N.S.
was present during some of the conflicts. In addition, the general chaotic
environment was not good for N.S.’s development.
Lisa is also unable to manage her financial affairs or control her impulses
with respect to spending money. Lisa’s Social Security Disability Insurance
benefits are managed by a designated payee. The money Lisa earns from 6
employment is compulsively spent or gambled away. IDHS provided services to
Lisa to assist her in managing her money, but those services were not
successful. The social worker assigned to the case testified Lisa is barely able to
provide for herself let alone N.S. While termination cannot be based on
economic factors alone, we find those factors are relevant to the extent they
reflect on Lisa’s decision making process, or lack thereof. See id. IDHS
concluded there are no additional services that could be offered to address Lisa’s
needs to allow reunification without exposing N.S. to adjudicatory harm.
The goal of assistance proceedings “is to improve parenting skills and
maintain the parent-child relationship.” In re H.L.B.R., 567 N.W.2d 675, 677
(Iowa Ct. App. 1997). That being said, as a general rule, courts do not gamble
with a child's future by asking the child to wait indefinitely for stable biological
parenting. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Lisa has had
ample opportunity to avail herself of IDHS services and work toward reunification
with N.S. N.S. need not wait for Lisa to become a responsible parent. See In re
L.L., 459 N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for
responsible parenting. Parenting . . . must be constant, responsible, and
reliable.”). Given the foregoing, we conclude the termination of Lisa’s parental
rights is in the best interests of the child.
We also conclude there are no statutory grounds why termination should
not proceed. Lisa argues that N.S. can be placed with one of two relatives under
a guardianship. This argument was not presented to the district court, and it is
not preserved for our review. See In re A.U., No. 13-0599, 2013 WL 2646971, at 7
*3 (Iowa Ct. App. Jun. 12, 2013) (“The mother acknowledges that the juvenile
court did not rule upon issues of guardianship and additional time. As the mother
did not subsequently request such a ruling, she has not preserved error for
appellate review.”). To the extent Lisa is arguing the permissive exception set
forth in Iowa Code section 232.116(3)(a) applies, her argument fails. That
section applies only where a “relative has legal custody of the child.” Iowa Code
§ 232.116(3)(a). Here, IDHS has legal custody of the child.