In the Interest of J.S., M.S., and A.S., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1679
Filed February 16, 2022
IN THE INTEREST OF J.S., M.S. and A.S.,
Minor Children,
J.S., Father,
Appellant,
S.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, Andrew J. Smith,
District Associate Judge.
A mother and a father separately appeal the termination of their parental
rights to three children. AFFIRMED ON BOTH APPEALS.
Debra S. De Jong of De Jong Law Firm, P.C., Orange City, (until withdrawal)
and Jessica R. Noll of Deck Law PLC, Sioux City, for appellant father.
Bethany Brands of Boji Legal Services, Spirit Lake, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee, State.
Lisa K. Mazurek of Miller, Miller, Miller, P.C., Cherokee, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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CHICCHELLY, Judge.
A mother and a father separately appeal the termination of their parental
rights to three children. Each challenges the sufficiency of the evidence supporting
the grounds for termination and whether the State made reasonable efforts to
return the children home. In the alternative, they ask for more time. Finally, they
challenge the juvenile court’s determination that termination is in the children’s best
interests. Having reviewed these claims and concluded they lack merit, we affirm.
I. Background Facts and Proceedings.
This appeal involves three children under the age of four who came to the
attention of the Iowa Department of Human Services (DHS) in late 2019 due to
domestic violence in the home. The DHS offered the family voluntary services, but
the services that were provided made little difference. The father was arrested on
charges of domestic abuse assault against the mother in May 2020.1 Because this
incident occurred while the children were in the home and the father tested positive
for methamphetamine, allegations of denial of critical care for failure to provide
proper supervision and dangerous substances were founded against the father.
The State petitioned to adjudicate the children as children in need of
assistance (CINA) in June 2020. The juvenile court entered an adjudicatory order
in September of 2020 after the parents stipulated the children were CINA. In the
months that followed, the parents did little of what was expected of them and
domestic violence continued in the home. As a result, the juvenile court removed
the children from the parents’ care in December 2020. The children were tested
1 The father pled guilty to the charge and two counts of violating a protective order.
3
for drugs just after the removal, and all three children tested positive for
methamphetamine. Allegations of presence of illegal drugs and dangerous
substances were founded against both the mother and the father.
The violence between the mother and the father continued after the
children’s removal. A supervised visit with the children on January 27 was
cancelled when the children arrived and it was obvious that an incident had just
occurred; the father had fresh scratches on his face, and the mother’s right hand
was broken. Another incident occurred about two weeks later, which led to the
father’s arrest on a charge of domestic abuse assault, second offense. The next
day, the district court revoked the father’s probation on a felony drug charge. The
father has remained incarcerated with a tentative discharge date of August 25,
2025.2
Throughout the CINA proceedings, the mother denied using
methamphetamine and blamed the children’s exposure to methamphetamine on
the father, though she claims she was unaware he was using in the home. But in
February 2021, the father stated the mother had been using methamphetamine
with him. The mother denied the accusation but refused drug testing until April,
when she tested positive for methamphetamine. The mother did not participate in
testing again until July 2021, when she again tested positive for
methamphetamine. The mother completed substance-abuse evaluations, but
there were concerns about the accuracy of the information she provided to the
evaluators.
2 There is some indication the father is up for parole review in March 2022.
4
In June 2021, the State petitioned to terminate the mother’s parental rights
under Iowa Code section 232.116(1)(d), (h), and (l) (2021) and the father’s
parental rights under section 232.116(1)(d), (e), (h), and (j). After a hearing, the
juvenile court found the State showed by clear and convincing evidence the
grounds for termination under section 232.116(1)(d) and (h) for both parents. The
court also found termination is in the children’s best interests and none of the
reasons set forth in section 232.116(3) exist. It terminated both the mother’s and
the father’s parental rights under section 232.116(1)(d) and (h). Both appeal.
II. Discussion.
We review termination orders de novo. See In re B.H.A., 938 N.W.2d 227,
232 (Iowa 2020). We give weight to the juvenile court’s fact findings, especially
those about witness credibility, although they are not binding. See Iowa R. App.
P. 6.904(3)(g); In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010).
A. Grounds for Termination.
The juvenile court found the State proved by clear and convincing evidence
two grounds for terminating the mother’s and the father’s parental rights. We may
affirm if the record supports termination on either ground. See In re A.B., 815
N.W.2d 764, 774 (Iowa 2012). We confine our analysis to section 232.116(1)(h).
The court may terminate under section 232.116(1)(h) if it finds:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six of the last twelve months, or for the
last six consecutive months and any trial period at home has been
less than thirty days.
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(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
Only the last element is in dispute: whether the children could be returned to the
parent’s care at the time of the termination hearing. See In re D.W., 791 N.W.2d
703, 707 (Iowa 2010) (interpreting the term “at the present time” to mean “at the
time of the termination hearing”).
The father’s incarceration precludes the children from being returned to his
care. See, e.g., In re J.S., 470 N.W.2d 48, 51 (Iowa Ct. App. 1991) (“It is also clear
that at the present time the children cannot be returned to the custody of G.S.
because he is incarcerated.”). The father instead argues that the State failed to
prove the children could not be returned to the mother at the time of the termination
hearing. He is without standing to do so. See In re K.R., 737 N.W.2d 321, 323
(Iowa Ct. App. 2007) (holding that a parent lacks standing to assert an argument
on behalf of the other parent).
Turning to the mother’s appeal, we agree with the juvenile court that the
children could not be returned to the mother’s care at the time of the termination
hearing. The issues the State sought to address in the current CINA proceedings
have existed for years.3 The juvenile court found that “despite years of services,
no meaningful change in behavior or thought processes has occurred. [The
mother] does not recognize the problems in the home and takes no accountability
3 The State entered into evidence a 2014 order adjudicating the children’s half-
siblings as CINA. One of the concerns listed in the order was the mother’s
“exposure of her children to unknown, dangerous individuals,” including a man who
was killed during an exchange of gunfire with police at her apartment while the
children were present.
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for them. She does not appear capable of identifying people who are inappropriate
to be around.” We agree with its assessment. The mother failed to satisfactorily
address her mental health, issues with domestic violence, or substance use.
Returning the children to her care would place them at risk of further adjudicatory
harm.
Clear and convincing evidence establishes the grounds for terminating the
mother’s and the father’s parental rights under Iowa Code section 232.116(1)(h).
B. Reasonable Efforts.
The mother and the father also contend the State failed to “make every
reasonable effort to return the child[ren] to the . . . home as quickly as possible
consistent with the best interests of the child[ren].”4 Iowa Code § 232.102(7). But
reasonable efforts are not a strict substantive requirement for termination. See In
re L.T., 924 N.W.2d 521, 527 (Iowa 2019). The mandate instead impacts the
State’s ultimate burden of proving the children cannot be returned to the parent’s
care. See id. As our supreme court has recognized, “the nature of that obligation
depends on the best interests of the children.” Id. at 530. As always, the chief
concern is the children’s health and safety. See id. at 528. When returning the
children to a parent’s care is not appropriate, “reasonable efforts shall include the
efforts made in a timely manner to finalize a permanency plan for the child.” Id.
(quoting Iowa Code § 232.102(10)(a)).
4 The mother challenges the reasonable efforts the State made for both herself
and the father. As stated above, the mother cannot assert this argument on the
father’s behalf.
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The father argues the State failed to make reasonable efforts after his
February 2021 incarceration. It is unclear what services the father alleges the
State should have offered, though he appears to complain that he was not afforded
visitation with the children. But even if the father had received visitation while in
prison, it would not have lessened the State’s proof that the children could not be
returned to his care at the time of the termination hearing due to his ongoing
incarceration.
The mother makes a similarly vague challenge to the State’s efforts to
reunite her with the children, claiming that the DHS determined early on that the
children would not be returned to her care. The record, however, contradicts her
claim, showing that the State offered services to address the issues that led to the
CINA adjudication, but the mother failed to participate consistently in the offered
services. As a result, the mother never made any substantial progress in resolving
the concerns about her ability to protect the children from adjudicatory harm.
The mother also complains that the DHS “gave her no opportunities for
additional visitation with the children” despite her repeated requests. As we
determined with the father, more visitation would have no bearing on whether the
children could be returned to the mother’s care at the time of the termination
hearing. It is the mother’s inability to protect the children from adjudicatory harm
through exposing them to domestic violence and substance use, not the mother’s
bond with the children, that led to the termination of her parental rights.
C. More Time.
As an alternative to termination, both parents ask for more time. Iowa Code
section 232.104(2)(b) allows the court to continue the child’s placement for another
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six months if doing so will eliminate the need for the child’s removal. But to delay
permanency, the court must “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). Based on the
parents’ history, we cannot find the need for removal will no longer exist if the
parents are granted six more months to attempt to remedy their deficiencies. See
B.H.A., 938 N.W.2d at 233 (noting a parent’s past performance shows the quality
of the future care that parent can provide).
D. Best Interests.
Finally, both the mother and the father contend termination is not in the
children’s best interests. In determining the children’s best interests, we look to
the framework described in section 232.116(2), see In re A.H.B., 791 N.W.2d 687,
690-91 (Iowa 2010), which requires that 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).
Weighing the factors set forth in section 232.116(2), we agree that
termination of both the mother’s and the father’s parental rights is in the children’s
best interests. The children at issue are all three years old or younger and have
been removed from the parents’ care for over a year. The incident that led to the
juvenile court’s involvement and subsequent CINA adjudication occurred over
twenty months ago. Domestic violence has occurred in the home for even longer.
The DHS has been offering the parents services to address the safety concerns in
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the home since late 2019. But the parents have not been consistent in engaging
with those services, and the issues have continued unabated.
Given the children’s young ages, the statutory timeframe for termination is
shortened. Compare Iowa Code § 232.116(1)(f) (allowing termination of parental
rights to children age four and older if removed from the parent’s care for at least
twelve months), with id. § 232.116(1)(h) (allowing termination of parental rights to
children age three and younger if removed from the parent’s care for at least six
months). The Iowa Supreme Court long ago recognized the importance of
observing these limited timeframes “because patience on behalf of the parent can
quickly translate into intolerable hardship for the children.” In re R.J., 436 N.W.2d
630, 636 (Iowa 1989); accord In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) (“It is
unnecessary to take from the children’s future any more than is demanded by
statute.”). We will not deprive children of permanency on the hope that someday
the parent will be able to provide a stable home. See In re A.M., 843 N.W.2d 100,
112 (Iowa 2014). If the plan to reconcile parent and child fails, “all extended time
must be subtracted from an already shortened life for the children in a better
home.” A.C., 415 N.W.2d at 614. Because the parents have exhausted the
statutory timeframe without making meaningful or even modest change, the
children’s best interests require termination.
AFFIRMED ON BOTH APPEALS.