In the Interest of L.H., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1339
Filed September 26, 2018
IN THE INTEREST OF L.H.,
Minor Child,
D.M., Mother,
Appellant,
T.H., Father,
Appellant.
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Appeal from the Iowa District Court for Pottawattamie County, Craig M.
Dreismeier, District Associate Judge.
A mother and father appeal the termination of their parental rights to a child.
AFFIRMED ON BOTH APPEALS.
Amanda J. Heims of Amanda J. Heims, PC, Council Bluffs, for appellant
mother.
Kyle J. McGinn of McGinn, Springer & Noethe, PLC, Council Bluffs, for
appellant father.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Roberta J. Megel of State Public Defender Office, Council Bluffs, guardian
ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A mother and father appeal the termination of their parental rights to a child,
born in 2016. The mother contends (A) the State failed to prove the grounds for
termination cited by the district court, (B) the termination hearing should have been
postponed, and (C) the district court should have declined to terminate her parental
rights based on the closeness of the parent-child bond. The father contends
(A) the State failed to prove the grounds for termination cited by the district court
and (B) termination was not in the child’s best interests given the closeness of the
parent-child bond.
I. Mother
A. Grounds for Termination
The district court terminated the mother’s parental rights under three
statutory grounds. We may affirm if we find clear and convincing evidence to
support any of the grounds. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
Iowa Code section 232.116(1)(h) (2017) requires proof (1) the child is three
years of age or younger, (2) the child was adjudicated in need of assistance,
(3) “the child has been removed from the physical custody of the child’s parents
for at least six months of the last twelve months, or for the last six consecutive
months and any trial period at home has been less than thirty days,” and (4) the
child cannot be returned to the parents’ custody. Our de novo review of the record
reveals the following facts.
The mother has a fourteen-year history of methamphetamine abuse and a
seventeen-year history of marijuana abuse. The child was born with marijuana in
his system. He was removed from the mother’s care shortly after the birth.
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The mother progressed with reunification services, and the child was
returned to her custody. In July 2017, just two months after the return, the child
was removed again when the department of human services discovered the
parents were using methamphetamine while caring for him. The child was
adjudicated in need of assistance.
Preliminarily, the mother maintains the six-consecutive-month removal
period was not satisfied because she had unsupervised visits with the child in
December 2017. See Iowa Code § 232.116(1)(h)(3). She cites no authority for
the proposition that unsupervised visits would disrupt the removal time frame. Be
that as it may, section 232.116(1)(h)(2) was satisfied. The subsection contains
two alternatives: (1) removal for at least six of the last twelve months or (2) removal
for the last six consecutive months with a home trial period of less than thirty days.
See In re E.M., No. 17-1398, 2017 WL 6026721, at *3 (Iowa Ct. App. Nov. 22,
2017). Under the first alternative, the child was removed in July 2017, and the
termination hearing took place in June 2017. The child was out of the home for at
least six of the twelve months up to and including the month of the termination
hearing. Under the second alternative, the child was out of the home for at least
six consecutive months. There was no trial home placement in December 2017 or
at any time following the July 2017 removal.
We turn to the fourth element—whether the child could be returned to the
mother’s custody. The mother was in prison at the time of the termination hearing,
and her tentative discharge date was in 2021. When asked whether it was true
the child could not be returned to her custody at the time of the termination hearing,
she responded, “That is true.” She went on to state, “I’m just asking that [the
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department] not terminate my rights, allow [the child] to stay with [the foster parent]
until I can, maybe, possibly be paroled, and to just extend this for, maybe, another
six-month period due to the fact that I’m not able to be there right now.” Her
request implicates the next two issues rather than the cannot-be-returned element.
The State proved the child could not be returned to the mother’s custody
B. Continuance
The mother contends the district court should have postponed the
termination hearing to allow her to pursue reunification services in prison. Our
review of a ruling on a motion for a continuance is for an abuse of discretion. In re
R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013).
The mother admitted the prison lacked a substance abuse treatment
program. But even if one were available, the mother’s history with treatment did
not bode well. Before her incarceration, the department offered treatment and
other reunification services for approximately two years. Three drug patches
applied just before she went to prison were positive for methamphetamine, a patch
requested of her in late 2017 was refused, and the mother failed to appear for
application of a patch in the week preceding the refusal. Given this history, we
conclude the district court did not abuse its discretion in denying her motion to
continue the termination hearing.
C. Bond with Child
The mother contends the district court should have declined to terminate
her parental rights due to the closeness of the parent-child relationship. See Iowa
Code § 232.116(3)(c). The department case manager acknowledged the mother
was “bonded with” the child. But, as the district court pointed out, the child spent
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the lion’s share of his young life out of her care and there was little likelihood the
mother would be in a position to resume his care in the imminent future. Under
these circumstances, we conclude the termination was warranted.
II. Father
A. Grounds for Termination
The department terminated the father’s parental rights to the child on the
same statutory grounds as the mother. Again, we focus on Iowa Code section
232.116(1)(h).
The father also had a long-term addiction to methamphetamine. Although
he tested negative for several months, he refused to appear for six consecutive
drug tests preceding the termination hearing. Because his failure to maintain
sobriety while caring for the child was the impetus for the child’s removal, we agree
with the district court that his refusal to undergo drug testing could be viewed as a
return to drug use, which foreclosed a return of the child to his custody.
B. Closeness of Parent-Child Bond
Like the mother, the father points to the parent-child bond as reason to
reverse the termination decision. The bond was not sufficient to overcome the
significant health and safety risks to the child. As the department case manager
stated,
A reunification period had happened with a case closure that
resulted in a new case opening with the exact same concerns not
even two months later. There’s a concern that we could not reunify
today. There’s no estimate that we could reunify in the near future.
[The child] deserves permanency. He deserves a stable life, and the
indicators from the past roughly 22 months of his life just show that
he’s not going to be able to achieve a safe, stable permanency with
his parents in the foreseeable future and that we have nothing to
indicate that’s coming soon.
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We affirm the termination of the parents’ rights to the child.
AFFIRMED ON BOTH APPEALS.