In the Interest of T.G., T.G., S.G., and M.G., Minor Children, C.G., Mother ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1986
Filed January 27, 2016
IN THE INTEREST OF T.G., T.G., S.G., and M.G.,
Minor Children,
C.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
A mother appeals from a juvenile court order terminating her parental
rights to her four children. AFFIRMED.
Michelle M. Jungers of Iowa Legal Aid, Waterloo, for appellant.
Thomas J. Miller, Attorney General, and Kathryn S. Miller-Todd and
Charles K. Phillips, Assistant Attorneys General, for appellee.
Christina M. Shriver of Coonrad Law Firm, Hudson, attorney and guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
The mother appeals from a juvenile court order terminating her parental
rights to her four children: T.G., born in July 2000; T.G., born in March 2006;
S.G., born in April 2008; and M.G., born in May 2011. She contends termination
was not in the children’s best interests because they are in the care of their
maternal aunt and uncle, who are also their foster parents, and the court should
have ordered “another planned permanent living arrangement” (APPLA) under
Iowa Code section 232.104(2)(d) (2015). Upon our de novo review, we find
termination is in the children’s best interests and affirm.
I. Background Facts and Proceedings
The family came to the attention of the Iowa Department of Human
Services (DHS) in February 2014, due to allegations of domestic violence
between the parents and allegations the parents were using methamphetamine
while caring for the children. A child protection assessment revealed the oldest
child had witnessed domestic violence between his parents and also knew his
parents were using drugs. Drug paraphernalia, including burnt spoons and
needles, were found in the children’s rooms. The children, who were then
already living with their maternal aunt and uncle, were removed from the parents’
care and custody, and placed in relative care with their aunt and uncle.
In March 2014, the State filed a child-in-need-of-assistance (CINA) petition
for all four children. In May 2014, the parents stipulated to the children being
adjudicated CINA. The juvenile court held dispositional and review hearings in
July and August 2014, confirming the CINA adjudication and placement with the
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children’s maternal aunt and uncle. In December 2014, the aunt and uncle
became licensed foster care providers, and the court modified the dispositional
order to allow for placement of the children in family foster care instead of relative
care. The modification allowed the aunt and uncle to receive a foster care
payment for the children.
In March 2015, the juvenile court held a permanency hearing and
determined the children should continue to be placed with their aunt and uncle.
The father was incarcerated and therefore unavailable to provide care for the
children. The mother had been released from jail but had failed to participate
consistently in services provided by DHS, including drug testing and attending
appointments with mental health providers and child welfare workers. There was
a no-contact order in place between the parents due to their history of domestic
violence. The court noted the children were anxious about the uncertainty in
their lives and the oldest child especially struggled to deal with his parents’ failure
to make changes that would allow for the children to return to their care. The
court found the children appeared to be well-adjusted and were thriving in their
aunt and uncle’s care. The court concluded it was in the children’s best interests
to move toward permanency and directed the State to file a petition to terminate
the parents’ parental rights.
In August 2015, the juvenile court held a combined permanency and
termination hearing. Neither parent was present at the termination hearing,
though both appeared through their respective attorneys. Although the parents’
attorneys contested the termination petition, no witnesses were called to testify
4
against termination at the hearing. The father was still in prison, having been
incarcerated since October 2014. He had an expected release date of 2019.
The mother was also unavailable due to criminal activity as she was avoiding an
outstanding bench warrant.
At the hearing, all witnesses agreed the children love their mother and are
well-bonded to her. However, the Court Appointed Special Advocate (CASA)
expressed that everyone had worked toward reunification in the case except for
the parents. Both of the DHS social workers and the CASA stated the mother
had failed to make any progress in the services offered to her. In fact, the CASA
testified she believed the mother was further away from reunification with the
children than when the case was opened. For these reasons, the DHS social
workers, the CASA, the State, and the guardian ad litem (GAL) all believed
termination of the parents’ parental rights was in the children’s best interests.
The three caseworkers agreed it would be their preference that the
maternal aunt and uncle would adopt all four children. However, all also agreed
that termination was in the children’s best interests even if the aunt and uncle
chose not to adopt the children, so long as the children are adopted as a sibling
unit. The caseworkers agreed the children should not be separated because a
separation could be “extremely traumatic” for the children.
The children’s maternal aunt and foster mother provided a post-
evidentiary statement in which she stated APPLA was “the best scenario” for
them “from a financial standpoint.” She discussed their desire to retain daycare
reimbursement, child support payments, and respite care, none of which would
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be available if the parents’ parental rights were terminated. She stated the
parents shared a strong bond with their children and the children would always
consider their mother and father their parents. Both the aunt and uncle stated
that regardless of whether they decided to adopt the children, they intended to
keep the children in their home and care for them indefinitely.
The State, the GAL, and the caseworkers all disagreed with the APPLA
option, stating it was not the most permanent option for the children and that
permanency should be the primary concern for these children.1 The GAL
informed the court of the recent changes to federal law regarding APPLA2 and
stated she believed APPLA was not in the children’s best interests. She stated
she had completed APPLAs in other cases and had observed that children in
APPLAs experienced “no sense of belonging.” She believed that if APPLA were
ordered in this case, the children would continue to exist in “limbo . . . hoping
some day they can return to their mother’s home.” The caseworkers all
acknowledged there would be more financial support available to the aunt and
uncle under APPLA but also recognized the family would be eligible for an
adoption subsidy.3
1
The GAL stated that due to the financial considerations in this case, guardianship was
not a viable option.
2
The U.S. Congress recently modified 42 U.S.C. § 675(5)(C) to restrict the application of
APPLAs to children age sixteen and older. Preventing Sex Trafficking and
Strengthening Families Act, Pub. L. No. 113-183, sec. 112, § 475(5)(C)(i), 128 Stat.
1919, 1926 (2014). The amendment became effective September 29, 2015, following
the termination hearing in this case but prior to the court’s written ruling. We note Iowa
law has generally followed federal law in this respect, and although it is anticipated the
Iowa legislature will make changes to the permanency options available under Iowa
Code section 232.104 corresponding to the amended federal law, it is unknown when or
how such changes will be made.
3
One DHS worker testified that if the aunt and uncle were to adopt the children, financial
assistance for daycare would no longer be an available option and the parents would no
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In its November 2015 order, the court discussed the mother’s history of
domestic violence with the father, substance abuse problems, criminal activity,
and mental health issues. The court also pointed to the mother’s lack of
transportation, employment, and stable housing for the children, having lost the
family home to foreclosure. The court noted as recently as three weeks before
the termination hearing, the mother had tested positive for methamphetamine
and morphine despite having undergone three substance abuse evaluations, two
sessions of inpatient treatment, and one session of outpatient treatment.
Further, it found the mother had completely stopped visiting her children two
weeks before the hearing. The court noted the various services that had been
offered to the family and determined the children could not be returned to their
parents’ care at the time of the termination hearing. The court considered the
aunt and uncle’s request for APPLA but concluded termination was in the
children’s best interests. Pursuant to the Iowa Code, the court terminated the
mother’s parental rights to her four children under section 232.116(1)(e), (f), and
(l).4 The mother appeals.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but are not
longer be required to pay child support. However, the worker also testified the father
had a tentative prison release date of 2019 and the mother was unemployed, and thus,
neither would be in a position to fulfill their child support obligation for the foreseeable
future anyway.
4
The court also terminated the father’s parental rights to the four children under Iowa
Code section 232.116(1)(e), (f), and (l). The father does not appeal.
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bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interests of the children. See id. at 776.
III. Analysis
On appeal, the mother does not challenge the statutory grounds for
termination, and we do not address the issue any further. See In re P.L., 778
N.W.2d 33, 40 (Iowa 2010). Instead, the mother claims termination of her
parental rights was not in the children’s best interests under Iowa Code section
232.116(2) and the court should have ordered APPLA pursuant to section
232.104(2)(d).5
5
Under Iowa Code section 232.117(5), if a court does not order termination, it may enter
an order in accordance with section 232.104. Section 232.104 provides in pertinent part:
2. After a permanency hearing the court shall do one of the
following:
a. Enter an order pursuant to section 232.102 to return the child to
the child’s home.
b. Enter an order pursuant to section 232.102 to continue
placement of the child for an additional six months at which time the court
shall hold a hearing to consider modification of its permanency order. An
order entered under this paragraph shall 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.
c. Direct the county attorney or the attorney for the child to
institute proceedings to terminate the parent-child relationship.
d. Enter an order, pursuant to findings required by subsection 3, to
do one of the following:
(1) Transfer guardianship and custody of the child to a suitable
person.
(2) Transfer sole custody of the child from one parent to another
parent.
(3) Transfer custody of the child to a suitable person for the
purpose of long-term care.
(4) If the department has documented to the court’s satisfaction a
compelling reason for determining that an order under the other
subparagraphs of this paragraph would not be in the child’s best interest,
order another planned permanent living arrangement for the child.
3. Prior to entering a permanency order pursuant to subsection 2,
paragraph “d”, convincing evidence must exist showing that all of the
following apply:
8
Under Iowa law, even if a statutory ground for termination is met, a
decision to terminate must still be in the children’s best interests. In re P.L., 778
N.W.2d at 37; see also Iowa Code § 232.116(2). We do not deprive a child of
permanency when the State has proved a ground for termination “by hoping
someday a parent will learn to be a parent and be able to provide a stable home.”
In re A.M., 843 N.W.2d at 113. Termination followed by adoption is the preferred
method of establishing permanency for a child who cannot be safely returned
home. In re R.L., 541 N.W.2d 900, 903 (Iowa Ct. App. 1995) (“Long-term foster
care is not preferred to termination of parental rights.”). Whenever possible,
siblings should be kept together. In re L.B.T., 318 N.W.2d 200, 202 (Iowa 1982).
The mother contends her strong bond with the children, and their
placement with their maternal aunt and uncle, necessitate an order for APPLA
rather than termination. She praises her sister’s care of the children and credits
the aunt and uncle as the “source of their stability and wellbeing.” She claims
that due to the financial circumstances of the aunt and uncle, they may not adopt
the children and the children will then likely be adopted by strangers and may
even be separated from each other. For these reasons, she argues termination
is not in the children’s best interests.6
a. A termination of the parent-child relationship would not be in the
best interest of the child.
b. Services were offered to the child’s family to correct the
situation which led to the child’s removal from the home.
c. The child cannot be returned to the child’s home.
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The mother also contends the juvenile court erred in determining APPLA was not an
available option to the court. We decline to address this issue because we agree with
the juvenile court that termination of the mother’s parental rights is in the children’s best
interests.
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Where, as here, statutory grounds for termination have been proved to
exist, the needs of the child are promoted by termination, and placement of the
child with a relative pursuant to a permanency order is not a preferential
alternative to termination. In re L.M.F., 490 N.W.2d 66, 67–68 (Iowa Ct. App.
1992). Termination is the appropriate solution when a parent is unable to regain
custody within the timeframes of chapter 232. See In re C.K., 558 N.W.2d 170,
174 (Iowa 1997) (“An appropriate determination to terminate a parent-child
relationship is not to be countermanded by the ability and willingness of a family
relative to take the child.”). Furthermore, “the anticipated loss of [financial
support] . . . as a result of termination should not be part of the section
232.116(2) best-interests analysis.” In re H.S., 805 N.W.2d 737, 746 (Iowa
2011). Instead, when considering 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). Both the long-term
and immediate interests must be considered. See In re J.E., 723 N.W.2d 793,
798 (Iowa 2006).
The mother has an unfortunate history of domestic violence, substance
abuse problems, criminal activity, and mental health issues. She also lacks
transportation, employment, and any stable housing for the children. She has
failed to make any progress in the services available to her and is further from
reunification with her children than when the CINA case began over twenty
months ago. Although we recognize the financial concerns of the aunt and
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uncle, we cannot deprive these four children, ranging in age from four to fifteen,
of the permanency and stability they deserve. See In re A.B., 815 N.W.2d at
777. Thus, upon our de novo review, we conclude termination of the mother’s
parental rights is in the children’s best interests and affirm the juvenile court’s
order.
AFFIRMED.