In the Interest of T.M., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1933
Filed March 2, 2022
IN THE INTEREST OF T.M.,
Minor Child,
M.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Stephen A. Owen,
District Associate Judge.
A father appeals the termination of his parental rights. AFFIRMED.
Larry J. Pettigrew of Pettigrew Law Firm, P.C., Newton, for appellant father.
Thomas J. Miller, Attorney General, and Toby J. Gordon, Assistant Attorney
General, for appellee State.
Matthew Mauk, Ames, attorney and guardian ad litem for minor child.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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BOWER, Chief Judge.
A father appeals the termination of his parental rights.1 In conducting our
de novo review of the termination of the father’s parental rights, we consider three
steps: (1) whether the State’s evidence supports a ground for termination under
Iowa Code section 232.116(1) (2021); (2) whether termination is in the child’s best
interests based on the factors in section 232.116(2); and (3) whether any
exceptions to termination apply under section 232.116(3). In re M.W., 876 N.W.2d
212, 219–20 (Iowa 2016).
T.M. was born in December 2019 and was just shy of three years old at the
time of the termination-of-parental-rights hearing. The family came to the attention
of the department of human services (DHS) when the child was born and the
mother reported having used methamphetamine throughout her pregnancy; she
expected the child’s umbilical cord to test positive for the substance. The father
and mother have acknowledged methamphetamine use. In addition to substance
abuse, domestic violence and the father’s mental health were issues to be
addressed in the ensuing juvenile court proceedings and DHS services.
T.M. was adjudicated a child in need of assistance (CINA) on December 27,
2019, and was three years of age or younger. See Iowa Code § 232.116(1)(h)(1),
(2). T.M. has been removed from parental custody for at least six of the last twelve
months and could not be returned to the father’s custody at the time of the
termination hearing because the father was in jail and facing additional jail time.
See id. § 232.116(1)(h)(3), (4). Consequently, there is clear and convincing
1 The State dismissed the petition to terminate the mother’s parental rights.
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evidence to support termination of parental rights under Iowa Code
section 232.116(1)(h).
The father argues that even if grounds for termination exist, termination is
not in the child’s best interests. He seeks additional time to work toward
reunification. In determining whether termination is in the child’s best interests, we
must “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.” Id. § 232.116(2).
On our de novo review of the record, we make note of the following. For a
period in 2020, the parents appeared to be making progress and, at a March 12,
2021 permanency hearing, all parties expected closure of the CINA case on June
10.
Unfortunately, days after the permanency review hearing, motorists
reported to police they witnessed the father beating the mother in a car while he
was driving—T.M. was a passenger.
On April 21, the mother, father, and child were again in a car. “This time
witnesses called police to report a man dragging a woman with a car. She was
screaming for help. Police found the vehicle. [The father] was driving. [The
mother] was in the backseat with [T.M.] covered in pizza sauce with a wound to
her head.” The father was arrested for interference with official acts.
On April 30, the family’s DHS case manager visited the home. The mother
was wearing heavy makeup and tinted glasses in the home. She had an injury to
her eye and forehead and offered accounts of how the injury occurred ranging from
tripping over a container and hitting her eye, to being in a bar fight with another
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woman. The juvenile court concluded the mother “was assaulted by [the father] in
the home where the child resides. [The mother’s] attempt to cover up the
continuing domestic abuse is not credible but is consistent with domestic abuse
survivors who attempt to protect their abuser by hiding the abuse they have
suffered.”
On May 3, the mother went to the maternal grandmother’s home with the
child. The father came to the house and convinced the women to allow him in and
to stay the night. Then, the father began to verbally abuse the mother, and the
grandmother asked him to leave the house. He tried to take the child with him as
he left the house, but the grandmother tried to keep the child. The father pushed
the grandmother to the ground and left with T.M., driving away with the child on his
lap. The mother was seen naked running after the car. Referencing this incident,
the juvenile court found:
The circumstances leading to this event were again the result of [the
father’s] abuse of [the mother] and his attempt to manipulate a
situation to his own ends of control and dominance. The parents’
attempt to minimize and explain away this incident is not persuasive
and is not credible. [He] was verbally abusing [her] and attempting
to remove [the child] from a safe place leading to the assault of [the
maternal grandmother] as well and danger to [T.M.]
A child abuse investigation began, but the parents refused to cooperate or
produce the child. The parents then disappeared with the child and would not
inform DHS or the maternal grandmother where they were or when they would
return. There was an active arrest warrant out for the father due to his failure to
appear at a proceeding regarding the charge of interference with official acts.
5
On June 1, the father obtained a prescription for a brand name of
methamphetamine for his attention deficit hyperactivity disorder from a doctor he’d
not seen for five years in South Dakota.
DHS was able to locate the family in early June and obtained a temporary
removal order for the child.
The court’s June 15, 2021 review of the temporary removal order
concluded:
[T.M.] is not safe in her parents’ care. She has been placed in danger
by her father engaging in instances of “rolling domestic abuse” in
which he cared more about physically assaulting the mother in a
moving car than operating the car safely when [the child] is a
passenger. The parents are engaged in drug seeking. They travel
across the state and surrounding states not to vacation or look for
work but to obtain drugs. The record today—including [the father’s]
own testimony, is that the only product of their travels in May and
June was to obtain methamphetamine and avoid DHS protective
supervision. On this record the court finds that whether [the father’s]
use of methamphetamine is legal or not, it is irresponsible and
dangerous given the parental history of methamphetamine abuse by
both parents. [The father] has other pharmaceutical options, he
purposefully chose the most dangerous option in this case.
The parents’ testimony was rambling. They could not focus
and drifted off into tangents. Their demeanor was argument[at]ive
and they often claimed ignorance or faulty memory to avoid the truth
of the matter. They are not credible witnesses and their testimony is
consistent with DHS contact with them in which they seem unfocused
and avoidant.
[The child] continues to be exposed to domestic violence,
drug abuse and unstable mental health in her home. Her continued
exposure to domestic violence creates imminent risk of physical and
emotional harm to [the child] as shown by the testimony of the State’s
witnesses. The parents reference suicide. The parents’ substance
abuse and unstable mental health has seriously dim[in]ished their
ability to protect [T.M.] She is exposed to violence in vehicles and
homes by her parents.
DHS planned to place the child in the maternal grandmother’s care.
However, the mother made a threatening call to the grandmother, and the
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grandmother informed the DHS caseworker she could not provide safe care for the
child. The court thus continued the child’s placement in foster family care and
scheduled a permanency review hearing.
The parents moved to review and vacate the court’s June 15 order. The
juvenile court held a hearing on July 8 after which it rejected the motions, making
lengthy findings about the parents’ offered exhibits and determining:
[The parents’] exhibits on the whole merely reflect their rejection of
reasonable efforts and an attempt to wrest control of choosing
reasonable efforts from the court and DHS. What the record actually
ref[l]ects is [a]n ongoing and willful rejection of reasonable efforts to
substantially and meaningfully address drug use, mental health and
domestic violence. As [the case worker] astutely observes, the
parents have consistently chosen providers but have failed to fully
address child safety leading to ongoing risks of harm to [the child].
As noted, they most recently rejected a reasonable DHS offer of a
parenting evaluation.
Based on the foregoing, the court concludes that [T.M.]
imminently likely to suffer harmful effects if returned to her parents
care and custody. Domestic violence remains in [the child’s] home,
in fact it has spilled into the home of the maternal grandmother and
the streets . . . . The parents avoid ongoing child-safety issues and
their responsibility for [T.M.’s] safety.
A July 22 permanency review hearing was held. On July 23, the juvenile
court entered an order, changing the goal from reunification to termination of
parental rights. The court observed:
The parents have refused services. They see counselors of
their choosing and engage in their own drug screens. The
counselors provide letters to the court giving only superficial
information. The parents are not engaging in relevant and material
individual counseling that addresses their ongoing erratic and
dangerous behavior. The parents also seek their own drug testing
which is not random and for which the analytical processes and
collection procedures have been credibly called into question.
....
The court finds the history of this case since November 2020
to be a good indicator of future performance. It is unlikely the parents
will acknowledge or address in any substantial or meaningful way the
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ongoing harm to [T.M.] that their erratic and abusive behavior
continues to pose to her safety. This case has been open for 18.5
months. It is now again at the point where it began. The parents
refuse services or do not respond to them. Their interpersonal and
interfamily relationships cycle through chaos to harmony and back
again. A fact acknowledged in the parents’ closing argument.
[T.M.] deserves permanency in a safe and stable home where
she is not exposed to ongoing erratic, dangerous and abusive
behavior. She deserve supervision by a parent who does not
“legally” seek the very drug to which he has been addicted. She
deserves a parent who puts her safety first and does not continue
relationships with abusers.
On August 7, the father set fire to the family home, rendering it
uninhabitable. At the time of the fire, he was on probation for introduction of illegal
substances into a jail. He was arrested and jailed on charges of arson and criminal
mischief. He remained in jail awaiting trial at the time of the termination hearing
on November 18.
At the termination-of-parental-rights hearing, the State dismissed the
termination petition as to the mother. The hearing proceeded with respect to the
father’s rights only. The juvenile court addressed the father’s testimony:
As usual he demonstrated his mastery of control. He is able to call
upon any apparent outward expression of emotion at a moment’s
notice. To his credit he did admit to a history of substance abuse
and domestic violence, however, he would also attempt to minimize
or deflect responsibility onto others for individual instances of
domestic violence or drug abuse. For example, he admitted to using
methamphetamine, but claims he would do so only in social
situations when it was offered to him and he never engaged in drug
seeking behavior. This is contrary to his conviction for introducing
meth to a jail. [His] testimony is not wholly un-credible nor wholly
credible. He loves his daughter, which is not disputed. However, he
minimizes and deflects issues and occurrences surrounding drug
abuse and domestic violence. As to these issues, the truth is present
but his testimony attempts to elude the naked truth. The court
assigns only a limited degree of credibility to his testimony.
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We give weight to the juvenile court’s findings as to credibility because of its
superior position to observe the witnesses and their demeanor. See In re K.P.,
No. 13-0100, 2013 WL 1457845, at *4 (Iowa Ct. App. Apr. 10, 2013).
The following findings of the juvenile court are fully supported by our de
novo review of the record, and we adopt them here:
This case has been open for two years. Its origins lie in events
happening in the fall of 2019 with drugs and domestic violence in the
family home before [T.M.] was even born. The case commenced
when [T.M.] was born drug effected, her mother the victim of
domestic violence and her father jailed for that violence. It ends
today, with her father in jail for violence against [T.M.]’s safety and
stability and her mother a recovering survivor of multiple forms of
domestic violence perpetrated against her by [the father].
As the [guardian ad litem (GAL)] and court recognize, the
parents were given multiple opportunities for case closure from
November 2020 through June 2021. The court extended the case
closure date twice. By October 2020 and again in March 2021, it
appeared successful case closure was imminent only to be frustrated
by [the father’s] increasingly overt and dangerous acts of violence
against his family.
This case has been open for two years. [The father] was
responding to services for only a period of time from about February
2020 to October 2020. However, and this is critical for the direction
the case has ultimately taken, he never addressed domestic violence
in his relationship with the mother through individual or family
counseling. Since October 2020 he has refused every service
offered to address his substance abuse, mental health and domestic
abuse. Six more months will not change the trajectory of domestic
violence in this case.
Like the juvenile court, we conclude no additional extension of time is
warranted. See In re Z.P., 948 N.W.2d 518, 523–24 (Iowa 2020) (noting the
“legislature has carefully constructed a time frame to provide a balance between
the parent’s efforts and the child’s long-term best interests”). It is in the child’s best
interests to now be freed from the danger of violence and domestic abuse
perpetrated by the father.
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The father also contends termination should be avoided because he loves
and has a close bond with his child. Iowa Code section 232.116(3)(c) permits the
court to decline terminating a parent’s rights if “[t]here is clear and convincing
evidence that the termination would be detrimental to the child at the time due to
the closeness of the parent-child relationship.” The exceptions in section
232.116(3) are permissive, not mandatory, and the parent relying on an exception
has the burden of proving its applicability. In re A.S., 906 N.W.2d 467, 475–76
(Iowa 2018). We’ve no doubt the father loves the child. But there is not clear and
convincing evidence that termination of the father’s rights would be detrimental to
T.M. due to the closeness of the parent-child relationship.
Because grounds for termination exist, further extension of time is
unwarranted, the child needs and deserves to live in a drug- and violence-free
home, and no permissive factor weighs against termination, we affirm.
AFFIRMED.