In the Interest of N.W., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0071
Filed April 14, 2021
IN THE INTEREST OF N.W.,
Minor Child,
J.N., Mother,
Appellant,
T.W., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III,
District Associate Judge.
Parents separately appeal the termination of their parental rights to their
child. AFFIRMED ON BOTH APPEALS.
T. Cody Farrens of Fankhauser, Farrens & Rachel, P.L.C., Sioux City, for
appellant mother.
Jessica R. Noll of Deck Law PLC, Sioux City, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Marchelle M. Denker of Juvenile Law Center, Sioux City, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.
Parents separately appeal the termination of their parental rights to their
child, born in April 2018, pursuant to Iowa Code section 232.116(1)(h) and (l)
(2020).1 Both parents challenge the sufficiency of the evidence supporting the
statutory grounds for termination, argue termination is contrary to the child’s best
interests, and request an additional six months to work toward reunification.
I. Background
The parents have a long history of domestic disturbances and violence,
dating back to before the child’s birth. Between mid-2017 and mid-2018 there were
a slew of law-enforcement contacts with the parents due to altercations between
the parents. The Iowa Department of Human Services (DHS) became involved in
June 2018 upon a report the father kicked in the mother’s door and threw a
television on the floor, in the child’s presence. The mother requested criminal
charges be dropped. Reports of disturbances continued through July of 2019. The
bulk of these incidents were alcohol and drug related. Late that month, DHS
received reports the parents left the child at home alone for five hours while they
went out drinking, the father had previously done so while he went to a casino, the
father was using and selling marijuana from his home, and the child had recently
suffered a broken leg.
Based on the parents’ long history of discord and substance abuse, the
State filed a petition to adjudicate the child as in need of assistance (CINA) in
1 The father’s biological relation to the child was never established through
paternity testing, but he is listed on the child’s birth certificate. The court terminated
the parental rights as to any other putative father, and no other father appeals.
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August. At the ensuing hearing on the petition, the State requested the child be
placed in the father’s custody and visitation for the mother be at DHS discretion.
The court adjudicated the child as in need of assistance and placed her in DHS
custody for placement with the father, with another relative, in foster care, or with
another suitable person.
The parents submitted to drug testing in November. The mother tested
negative for all substances, despite reporting recent use of cocaine, and the father
tested positive for cocaine. Due to the father’s positive test, the child was placed
with her paternal grandmother, where she has remained. Following a substance-
abuse evaluation, the mother was recommended to participate in intensive
outpatient treatment in relation to her alcohol abuse. She was discharged from
treatment about a month later for lack of attendance. The mother continued to
exhibit signs of alcohol abuse and suicidal behavior. The father tested negative
for drugs in December 2019 and January 2020. By the time of the dispositional
hearing in January 2020, the father had also undergone a substance-abuse
evaluation. He was recommended to engage in extended outpatient treatment.
Also around this time, the mother admitted ongoing use of methamphetamine for
a period of three weeks. The father tested negative for drugs in February and
continued participating in treatment. Then, in March, the father was arrested on
several traffic charges, including operating while intoxicated (OWI).2 The father’s
participation in treatment was sporadic that month. In April, the father continued
to test negative for drugs and reengaged in treatment.
2 The father later pleaded guilty to the OWI charge.
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The mother obtained a second substance-abuse evaluation in May.
Extended outpatient treatment was again recommended. The father again tested
negative for drugs in May, but his engagement in treatment was inconsistent. Both
parents underwent mental-health evaluations in June. The mother was
recommended to engage in mental-health treatment, but the father was not. By
June, the father’s participation in substance-abuse treatment was stagnant and his
counselor reported he was not committed to treatment.
The State filed a petition to terminate the parents’ rights in late June. Up to
that point, the mother was inconsistent in attending visits with the child and had
not progressed beyond supervised visits. She had also largely evaded drug
testing. The father was generally consistent in attending visits and had progressed
to semi-supervised visits in February 2020. He was returned to fully-supervised
visits following his OWI arrest and did not progress back to semi-supervised. In
July, the father tested positive for alcohol and his attendance at treatment was
sporadic. In August, he tested negative for all substances and regularly attended
treatment. His participation in treatment continued to improve in September.
The matter proceeded to a termination hearing over two days in October.
The mother was still inconsistent in attending substance-abuse treatment. By the
time of the second day of hearing, the father had been successfully discharged
from substance-abuse treatment. It was recommended that he begin attending
recovery meetings, obtain sponsorship, and take relapse-prevention measures.
The father had yet to meaningfully engage in recovery meetings or obtain a
sponsor, and he testified that he had no desire to continue substance-abuse
treatment, as he believed he no longer had a problem. While each of the parents
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testified they were no longer in a relationship, the mother testified they shared an
intimate encounter as recently as August, when the pair went to a casino, gambled,
and consumed alcohol. The child had been placed with the paternal grandmother
for nearly a year. The grandmother testified she intended to adopt the child if
termination occurred but noted she would continue to allow the parents to have
contact with the child.
Following hearing, the court terminated both parents’ rights pursuant to
Iowa Code section 232.116(1)(h) and (l). The court concluded the child could not
be returned to either parent’s care at the time or in the foreseeable future,
termination is in the child’s best interests, and no permissive exception to
termination should be applied. Both parents appeal.
II. Standard of Review
Appellate review of orders terminating parental rights is de novo. In re A.B.,
___ N.W.2d ___, ___, 2021 WL 935436, at *5 (Iowa 2021); In re C.Z., ___ N.W.2d
___, ___, 2021 WL 934999, at *5 (Iowa 2021). Our primary consideration is the
best interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining
elements of which are the child’s safety and need for a permanent home. In re
H.S., 805 N.W.2d 737, 748 (Iowa 2011).
III. Analysis
A. Mother
1. Sufficiency of the evidence
The mother challenges the sufficiency of the evidence supporting the
statutory grounds for termination. “[W]e may affirm the juvenile court’s termination
order on any ground that we find supported by clear and convincing evidence.” In
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re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to focus on Iowa Code
section 232.116(1)(h). As to that section, the mother only challenges the State’s
establishment of the final element—that the child could not 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 children cannot be returned to
the custody of their parents at the present time); D.W., 791 N.W.2d at 707
(interpreting the statutory language “at the present time” to mean “at the time of
the termination hearing”).
The mother has a long history of alcohol abuse, which has resulted in
instability, erratic behavior, and violent tendencies. She has never provided full-
time care for the child, even before DHS intervention. She was inconsistent in
attending treatment and visits. In order for the child to be returned to the mother,
she needed to demonstrate an extended period of sobriety, stability, and parenting
capabilities, which she failed to do. We agree the child could not be returned to
the mother’s care and the evidence was sufficient to support termination under
section 232.116(1)(h).
2. Best interests
We turn to the mother’s best-interests challenge. In determining whether
termination is in the best interests of a child, 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 mother argues, “Terminating parental rights right now does nothing to
further” the child’s best interests because “termination will not fundamentally
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change the role of the parents or access to the child.” She also argues the child
will be disadvantaged as a result of losing the benefits that accompany a parent-
child relationship, such as financial support. True, the mother will still have access
to the child, and we agree the mother’s parenting role will not change. The problem
is the mother has not meaningfully served as a parent to the child. The mother
has been given ample time to get her affairs in order, and the child’s best interests
are best served by providing permanency and stability now. See In re A.B., 815
N.W.2d 764, 778 (Iowa 2012) (noting it is not in the best interests of children to
keep them in temporary situations “while the natural parents get their lives
together.” (quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))). We find
termination to be in the child’s best interests.
3. Additional time
The mother requests additional time to work toward reunification. If,
following a termination hearing, the court does not terminate parental rights but
finds there is clear and convincing evidence that the child is a child in need of
assistance, the court may enter an order in accordance with section 232.104(2)(b).
Iowa Code § 232.117(5). Section 232.104(2)(b) affords the juvenile court the
option to continue placement of a child for an additional six months if the court
finds “the need for removal . . . will no longer exist at the end of the additional six-
month period.”
We agree with the mother she got off to a “slow start” in participating with
services. She did not start to meaningfully engage in services until the possibility
of termination reared its head. The mother simply waited too long to engage in
services. Given the mother’s history, she would be required to fully engage in
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services for an extended period of time before the child could be returned to her
care, and we determine this process would take longer than six months. We are
unable to conclude the need for removal from the mother’s care would no longer
exist after an extension, so we decline the mother’s request for an extension.
We affirm the termination of the mother’s parental rights.
B. Father
1. Sufficiency of the evidence
The father also challenges the sufficiency of the evidence supporting the
statutory grounds for termination. As noted, “we may affirm the juvenile court’s
termination order on any ground that we find supported by clear and convincing
evidence.” D.W., 791 N.W.2d at 707. We again choose to focus on Iowa Code
section 232.116(1)(h). Like the mother, the father only challenges the State’s
establishment of the final element—that the child could not be returned to his care
at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4); D.W.,
791 N.W.2d at 707.
We fully acknowledge the progress the father made during the proceedings,
although it was sporadic at times. However, we also note the father has a long
history of substance abuse. While the father was successfully discharged from
substance-abuse treatment by the second day of trial, he was recommended to
begin attending recovery meetings, obtain sponsorship, and take relapse-
prevention measures. The father had yet to meaningfully engage in recovery
meetings or obtain a sponsor, and he testified that he has no desire to continue
substance-abuse treatment, as he does not believe he has a problem. Given the
father’s history, we find this concerning. The father’s use did not discontinue until
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court involvement and his participation, albeit sporadic, in substance-abuse
treatment. If the father is not going to engage in relapse-prevention measures, as
he has demonstrated and explained, then the child cannot be returned to his care.
So, we find the evidence was sufficient to support termination under section
232.116(1)(h).
2. Best interests
The father also claims termination is contrary to the child’s best interests.
As noted, 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 father’s declination to engage in relapse-prevention is also a concern
on the best-interests front. If those measures are not pursued, then the father is
not the best placement for providing safety, furthering the long-term nurturing and
growth, or meeting the needs of the child. See id. We conclude termination is in
the child’s best interests.
3. Additional time
In his request for additional time, the father highlights that he has completed
substance-abuse treatment, his recent drug tests have been negative, and he has
stable housing and employment. He asserts these facts justify additional time to
work toward reunification. We disagree. While it is a relatively minor point, we
point out that, while the father has an apartment and a job, he obtained both less
than two months prior to the termination hearing. It is commendable the father has
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housing and employment, but it remains to be seen whether either or both can be
maintained on a long-term basis.
A much more important consideration that undermines the father’s request
for a six-month extension is the father’s substance-abuse treatment history and
plan. The father did not meaningfully participate in substance-abuse treatment
until the termination hearing was imminent. See In re C.B., 611 N.W.2d 489, 495
(Iowa 2000) (“A parent cannot wait until the eve of termination, after the statutory
time periods for reunification have expired, to begin to express an interest in
parenting.”). While he completed treatment just a few days before the conclusion
of the termination hearing, he missed a significant number of recommended group
meetings over the course of his treatment.
More alarming is the fact the father admitted that he did not believe
continued treatment was for him, did not believe he had a substance-abuse
problem, did not believe he had an alcohol-abuse problem, and did not plan to
continue with treatment even though continued treatment was recommended. This
is particularly alarming given the fact the father has a long history of substance
abuse; his substance abuse has contributed to violence in front of the child and
created chaos in her life; he has a recent history of relapse; and he has a recent
conviction for OWI. In order to grant the father an additional six months to work
toward reunification, we must first be able to “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that the need for removal of the child from the child’s home will no
longer exist at the end of the additional six-month period.” Iowa Code
§ 232.104(2)(b). Given the father’s track record of problems, his eleventh-hour
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efforts at treatment, and his stated intention to not follow through with treatment,
we cannot make a determination that the conditions that prevent the child’s return
to the father’s care will no longer exist if an additional six months was allowed. 3
Therefore, we decline the father’s request for an extension, and we affirm the
termination of his parental rights.
IV. Conclusion
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.
3 We are mindful of and have considered the supreme court’s recent decision in In
re C.Z., in which the order terminating the father’s parental rights was reversed
based on the father’s progress leading up to the termination hearing. 2021 WL
934999, at *8–9. Because of the fact-intensive nature of termination cases, other
cases are of “little precedential value, and we must base our decision primarily on
the particular circumstances of the parties presently before us.” In re C.L.C., 479
N.W.2d 340, 343 (Iowa Ct. App. 1991). Here, we find the facts distinguishable
from those in C.Z. In comparison to the quality, quantity, and longevity of the
improvements exhibited by the father in C.Z., the father here had several recent
missteps, had only shown initiative on the eve of the termination hearing, and, most
importantly, did not believe he had a substance-abuse problem and had no
intention of continuing with treatment. Given the role substance abuse has played
in the father creating an environment of chaos for the child throughout her life, the
father’s unwillingness to continue much-needed treatment is a deciding factor and
one that distinguishes his case from that of the father in In re C.Z. See In re T.S.,
868 N.W.2d 425, 443 (Iowa Ct. App. 2015) (noting that, because of the intensely
fact-based nature of termination cases, the decision often hinges on “a single, or
seemingly minor fact or factor”).