In the Interest of J.M., L.M., and B.M., Minor Children ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-2073
Filed March 7, 2018
IN THE INTEREST OF J.M., L.M., and B.M.,
Minor Children,
SHANNON M. LEIGHTY, guardian ad litem,
Appellant.
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A guardian ad litem appeals the denial of termination-of-parental-rights
petitions concerning three children. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
Shannon M. Leighty of the Public Defender’s Office, Nevada, appellant.
Patrick C. Peters of Payer, Hunziker, Rhodes & Peters, LLP, Ames, for
appellee father.
Daniela Matasovic of Matasovic Law Firm, Ames, for appellee mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.
A guardian ad litem1 appeals the denial of termination-of-parental-rights
(TPR) petitions concerning three children, L.M., B.M., and J.M., born in 2013,
2014, and 2017, respectively. She contends the juvenile court erred in not
terminating the parents’ parental rights as to all three children pursuant to Iowa
Code section 232.116(1)(b), (e), and (l) (2017). She also argues the court erred
in concluding termination of the parents’ parental rights as to the youngest child,
J.M., under section 232.116(1)(h) was not in the child’s best interests.2
I. Background Facts and Proceedings
The parents and children came to the attention of the Iowa Department of
Human Services (DHS) in February 2017 when the mother visited the hospital
and tested positive for methamphetamine (meth). The State also alleged that
both parents cared for the two older children while under the influence of meth.
Shortly thereafter, the mother gave birth to the youngest of the three children and
both she and the child tested positive for meth. The mother also tested positive
for amphetamines and opiates. In March, the parents stipulated to removal and
the children were adjudicated children in need of assistance (CINA).
In April, DHS recommended both parents undergo substance-abuse and
mental-health treatment. The father began inpatient substance-abuse treatment
but left after a few days. He began outpatient treatment in May, but he did not
attend his sessions consistently. He was discharged from the program in July for
lack of attendance, having attended only one group session and no individual
1
The guardian ad litem is also designated as the children’s attorney.
2
The State has filed a statement to the court noting its agreement with the guardian ad
litem’s petition on appeal.
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sessions. The mother also began inpatient substance-abuse treatment, but she
left the program after about a week. The mother’s subsequent attempts to
complete an inpatient treatment program were unsuccessful. Neither parent
obtained mental-health treatment. Neither parent heeded DHS’s
recommendation to attend parenting classes.
The father was arrested in Iowa on or about July 19 and was subsequently
extradited to Georgia, having had his probation on a charge of credit card fraud
revoked in response to his failure of drug tests. His tentative release date was
January 18, 2018. His release would be followed by three years of probation,
which he would be allowed to serve in Iowa upon his completion of a thirty-day,
inpatient-rehabilitation program following his release. The father testified his
drug addiction has been “off and on” for the last ten years. The father has not
seen his children since the commencement of his incarceration in July.
However, in the three months leading up to the termination hearing, he talked to
the two older children almost once a week via phone.
In September, the mother moved from Iowa to Georgia to live with her
parents. She testified she made the move because she has no support system
in Iowa to help her stay clean. Since the move to Georgia, the mother has not
had any contact with the children, but she has text messaged their foster
placements “to ask how they were.” A home study was done on the mother’s
parents’ home, but the Georgia Division of Family and Children Services
concluded the home was not a suitable placement for the children, citing a
number of concerns. At the time of the termination hearing, the mother was not
engaged in any substance-abuse treatment but had plans to start outpatient
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treatment in the coming months. She testified she had not used since moving to
Georgia.
Both parents were honest with DHS about their drug use throughout the
case, which was continuous before the father’s incarceration in July and the
mother’s move to Georgia in September. Before the father’s incarceration and
the mother’s move to Georgia, their visitations with the children were sporadic
and the longest period of sobriety either parent was able to attain was eleven
days. The parents have not provided any financial support to the children
throughout the case. The parents seem to plan to return to Iowa and resume
their relationship upon the father’s release from jail. Both parents recognize that
they each trigger the other’s drug use.
Since being placed with their current foster parents, the two older
children’s behavior has improved, especially since the discontinuance of visits
with their biological parents. The children have become integrated into the foster
home and are bonded with their foster parents. The youngest child has been
placed with her foster mother since she was one month old; the child has a
strong bond with her foster mother. Both homes the children are residing in are
pre-adoptive placements. There is no bond between the two older children and
the youngest child due to lack of meaningful contact. It is undisputed that the
parents care deeply for all three children. However, the parents’ bond with the
children appears to have slightly decreased as the case has progressed.
The State filed termination petitions as to all three children. Following a
hearing in November, the juvenile court denied the State’s petitions. The court
concluded clear and convincing evidence did not support termination under Iowa
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Code section 232.116(1)(b) because the father’s incarceration and the mother’s
move to Georgia to obtain sobriety did not amount to intentional acts to abandon
or desert the children. As to section 232.116(1)(e), the court concluded clear and
convincing evidence did not support a finding that the parents have not
maintained significant and meaningful contact with the children during the
previous six months. The court also concluded clear and convincing evidence
did not support termination under section 232.116(1)(l) because the opinions
offered by expert witnesses as to each parent’s prognosis were stale, having
been formulated several months before the termination hearing and not
reexamined in light of the parents’ recent sobriety. Next, the court concluded the
State established clear and convincing evidence to support termination under
section 232.116(1)(h) as to J.M. but found it was in the child’s best interests to
allow the parents an additional six months to work toward reunification. Finally,
the court stated its conclusion that, even if it had found clear and convincing
evidence to terminate parental rights as to the two older children, it was still in
those children’s best interests to allow the parents an additional six months to
work toward reunification.
As noted, the guardian ad litem appeals.
II. Standard of Review
Appellate review of TPR proceedings is de novo. In re A.S., ___ N.W.2d
___, ___, 2018 WL 480373, at *4 (Iowa 2018) (quoting In re A.M., 843 N.W.2d
100, 110 (Iowa 2014)). “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.”
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Id. (quoting A.M., 843 N.W.2d at 110). Our primary consideration is the best
interests of the children. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
III. Analysis
The juvenile court denied the State’s petitions to terminate the parents’
parental rights to all three children under Iowa Code section 232.116(1)(b), (e),
and (l). The court alternatively concluded termination is not in the best interests
of the children. We may reverse the juvenile court’s denial of the State’s
petitions only if we find clear and convincing evidence supports at least one of
the grounds for termination, termination is in the best interests of the child, and
no exceptions apply to preclude termination. See A.S., 2018 WL 480373, at *4
(describing three-step analysis in TPR proceedings).
A. Grounds for Termination
If clear and convincing evidence supports one ground for termination, we
need not consider the others. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
In this case, we choose to limit our analysis to Iowa Code section 232.116(1)(e),
which allows the juvenile court to terminate parental rights where: (1) the child
has been adjudicated a CINA; (2) the child has been removed from the physical
custody of the parents for a period of at least six consecutive months; and (3)
there is clear and convincing evidence that the parents have not maintained
significant and meaningful contact with the child during the previous six
consecutive months and have made no reasonable efforts to resume care of the
child despite being given the opportunity to do so.
The State’s establishment of the first two elements is undisputed. As to
the third element,
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“significant and meaningful contact” includes but is not limited to the
affirmative assumption by the parents of the duties encompassed
by the role of being a parent. This affirmative duty, in addition to
financial obligations, requires continued interest in the child, a
genuine effort to complete the responsibilities prescribed in the
case permanency plan, a genuine effort to maintain communication
with the child, and requires that the parents establish and maintain
a place of importance in the child’s life.
Iowa Code § 232.116(1)(e)(3).
It is undisputed that, in the six months leading up to the termination
hearing, the parents provided no financial support to the children. Obviously, the
father’s incarceration limited his ability to provide financial support to his children,
but he failed to provide financial support to the children even before his
incarceration, as did the mother during the entire six-month period. Rather than
provide financial support to their children, it appears the parents directed any and
all of their resources at fueling their drug addictions.
On September 12, 2017, the juvenile court held a hearing and in its
permanency order made these findings:
Both parents attempted inpatient substance abuse treatment
but left after only a couple of weeks. There is also a history of
domestic violence in the family. Since May the parents have been
offered 38 opportunities to visit with the children but have only
visited 13 times. In July the parents attended one visit together and
the father attended one visit alone. In August the mother visited
with the children one time. The parents sold their vehicle in order
to obtain money to purchase drugs rather than support their
children. The children remain placed in foster care.
The parents have been offered a multitude of services to
address drug abuse and housing instability. They have been
uncooperative with services and have not visited with their children.
In July and August of 2017 they visited with the children a grand
total of three times. The father has been extradited to the state of
Georgia to face criminal charges. The behavior of the older two
children declined significantly between visitations as a result of the
parents’ inconsistent contact and visitation with the children. The
parents in attentiveness to visitation [leads] the court to conclude
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that they continue to neglect their children. Services are needed for
[the older two children] to address emerging behaviors that are of
growing concern.
. . . . The parents have done absolutely nothing to cooperate
with the case permanency plan and have instead continued their
severe and chronic substance abuse. The court can point to no
substantive or material progress that the parents have made, nor
can it point to any substantial or material circumstances currently
being experienced by the parents that would suggest an additional
period of six months would assist in the goal of reunifying the
children with their parents. The parents simply choose drugs and
criminal behavior over their children leading to neglect of the
children by the parents.
(Footnote omitted.)
The order also directed the county attorney to institute TPR proceedings
pursuant to section 232.104(2)(c). On our de novo review of the entire record,
we agree with the findings of the juvenile court through the time of the
permanency hearing and incorporate them as our own. So, our analysis of
section 232.116(1)(e) now focuses on what, if anything, changed between the
September 12 permanency hearing and the November 28 termination hearing.
Although the parents have, as the juvenile court characterized in its order
denying the termination of parental rights, demonstrated a “continuing interest” in
the children, section 232.116(1)(e)(3) requires more than “interest.” At the time
of the termination hearing, the mother had not had any direct contact with any of
the children for more than two months; that is, since the permanency hearing.
Her texts to the foster parents showed some “interest” in the children, but she
made no efforts to contact the children. Even when she came to Iowa for the
termination hearing, she had made no prior arrangements to see her children. At
the hearing she testified, “Hopefully . . . I can get a visit with the kids,” but she
later said: “I don’t know what I should do, because I miss them. And I haven’t
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seen them in months, but if I see them, then I’ll hurt them more, and I’ll be hurting
myself.” The father had not seen his children since the commencement of his
incarceration, but in the three months leading up to the termination hearing, he
talked to the two older children almost once a week via phone. The parents’
contact with the children in the six months leading up to the termination hearing
can hardly be described as significant and meaningful. See In re D.W., No. 17-
0281, 2017 WL 1735934, at *3 (Iowa Ct. App. May 3, 2017) (“‘Significant and
meaningful contact’ is defined as more than just visitation, it requires ‘a genuine
effort to complete the responsibilities’ set forth in the case permanency plan, to
communicate with the child, and to ‘establish and maintain a place of importance
in the child’s life.’” (quoting Iowa Code § 232.116(1)(e)(3))); In re T.B.V., No. 08-
1222, 2008 WL 4531554, at *2 (Iowa Ct. App. Oct. 1, 2008) (“[S]ection
232.116(1)(e) requires more than the minimum efforts . . . to maintain significant
and meaningful contact.”).
It was not until the parents found themselves in controlled environments,
the father in jail in Georgia and the mother living with her parents in Georgia, that
the parents exhibited any form of compliance with the case permanency plan,
including showing an interest in their children. We recognize that, as a result of
their controlled environments, both parents were experiencing a period of
sobriety in the months leading up to the termination hearing. But parents cannot
wait until the eve of termination to begin to express an interest in parenting. In re
C.B., 611 N.W.2d 489, 495 (Iowa 2001).
Based on the foregoing, we conclude clear and convincing evidence exists
to support termination of the parents’ parental rights as to all three children under
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Iowa Code section 232.116(1)(e), and reverse the juvenile court on this ground.
We agree with the juvenile court that clear and convincing evidence supports
termination of the parents’ parental rights as to the youngest child under section
232.116(1)(h).
B. Best Interests and Statutory Exceptions
“If we determine ‘that a ground for termination has been established, then
we determine whether the best-interest framework as laid out in section
232.116(2) supports the termination of parental rights.’” A.S., 2018 WL 480373,
at *4 (quoting In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016)). In considering
whether termination is in a 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).
It is undisputed that both parents share a strong bond with the two older
children and that the severance of those bonds may be difficult for the children.
The bond between the youngest child and the parents is more limited given the
child’s young age coupled with the fact the child has been removed from the
physical custody of her parents for most of her life. In its lengthy findings on the
best-interests issue, the juvenile court provided these findings and analysis:
The CINA proceedings are less than one year old and in fact
only began about nine months ago in late February 2017. A
dispositional order entered a mere six months prior to the hearing
on the termination of parental rights. As shown by her date of birth
on the petition, the mother is only 23 years of age. Her drug
problems commenced when she was but 14 years of age. The
father is 29 years of age as shown by his date of birth on the
petitions and his drug problems commenced approximate[ly] seven
years ago when he was 22 years of age. The parents have drug
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abuse problems that are years in the making. It is unreasonable to
think that those problems would be completely addressed within six
months. Consequently it is unreasonable to conclude that their
parental rights should be terminated in the absence of an
appropriate opportunity to meet the case plan goals in a reasonable
amount of time under the circumstances. The children deserve
permanency but also deserve an opportunity to have a life with their
parents. [It is i]n the children’s best interest to continue the
permanency order for an additional period of six months in order to
provide the parents an opportunity to reunify with their children [by]
attaining sobriety and stability.
The parents are in the early stages of attaining sobriety and
stability. Although it has come about through his arrest and
incarceration, the father has now been attend[ing] to his mental
health needs and is receiving medication management and
psychotherapy. He is now in the longest period of sobriety known
to this court and has testified credibly to the clarity of mind he now
is possessed of and the recognition of the goals he must attain in
order to reunify with his children. He has attained such a great
degree of stability that he recognizes the codependent relationship
he has with [the mother] and now appropriately identifies additional
services to include individual and family therapy to assist them in
their relationship—a factor and service as yet unrecognized by the
court and Iowa DHS in fashioning reasonable efforts. The court
finds the father has identified an additional reasonable effort that
should be provided and then an additional period of six months
should be permitted in order to provide a reasonable opportunity for
[the father] and [the mother] to engage in appropriate therapy to
explore, address and treat their codependent marital relationship.
[The mother] too is in the early stages of attaining sobriety
and stability. She [has] found current although temporary stability
in the home of her parents. Here she has their support and access
to private insurance which will assist her in accessing appropriate
substance abuse treatment. Although consequential, her decision
to leave the state of Iowa was not reasonable under the totality of
her circumstances. In fact it could be viewed as the first step in
breaking a cycle of chronic, severe and tragic drug addiction. The
FSRP worker reported that [the father] believed his wife was trading
sexual favors for drugs. [The mother] admitted to residing in the
home with persons supplying her with drugs before she left the
state of Iowa. Both [the mother] and [the father] have a
demonstrated history of nearly complete honesty when reporting
their drug activities and therefore this court concludes that [the
mother] is not only the victim of severe and chronic substance
abuse but likely a victim traumatized by the collateral effects of
sexual abuse related to her drug abuse and of those who would
prey upon her vulnerabilities.
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. . . . While the children have developed a close relationship
with [the] foster parents, the court cannot conclude that given the
history of the bond between the older children and their parents,
that the parent-child bond between the . . . children and their
parents has been destroyed beyond the possibility of repair. [J.M.]
is less than the one year of age and because she has been in the
care and custody of a devoted and loving foster mother, she does
not suffer the harmful effects of neglect in the very earliest and
critical stages of her life. Consequently the real possibility of
developing an appropriate and close parent-child bond with her
biological parents continues to exist.
Problematic is the parents’ chosen course of conduct since DHS initially
became involved in these children’s lives. These parents have been given
multiple opportunities to put their children first and obtain and maintain sobriety.
The parents were unable to obtain sobriety until they were physically separated
by the father’s incarceration and the mother leaving Iowa, where she is
admittedly unable to stay clean. The record reveals, however, upon the father’s
release the parents are likely to resume their relationship and return to Iowa.
“We hold no crystal ball, and to some extent, the [best-interests] determination
must be made upon past conduct.” In re M.M., No. 16-1685, 2016 WL 7395788,
at *4 (Iowa Ct. App. Dec. 21, 2016). “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.” In re A.B., 815 N.W.2d 764, 777
(Iowa 2012) (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa 2010)). “[A]t some
point, the rights and needs of the children rise above the rights and needs of the
parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009).
At the same time, we recognize that juvenile court is premised on a belief
that rehabilitation is possible. Juvenile court judges and appellate courts do their
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best to predict the future, taking into account the past and present. Given the
relatively short period of DHS involvement and supervision in this case and the
juvenile court’s extensive credibility findings and careful analysis of the
particulars of this case, we do not find the evidence is clear and convincing that
termination would be in the best interests of the children at the time of the
termination hearing.
Thus we affirm the juvenile court’s conclusion that it would not be in the
best interests of the children to terminate parental rights.
IV. Conclusion
We reverse the juvenile court’s determination that the State failed to
satisfy the statutory grounds for termination under section 232.116(1)(e), but we
affirm in all other respects. We reverse in part and remand the case to the
juvenile court for further proceedings in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.