In the Interest of K.K., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1965
Filed February 8, 2023
IN THE INTEREST OF K.K.,
Minor Child,
G.K., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,
District Associate Judge.
A father appeals the termination of his parental rights to his child.
AFFIRMED.
Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for
appellant father.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Julie Gunderson Trachta of Linn County Advocate, Cedar Rapids, attorney
and guardian ad litem for minor child.
Considered by Bower, C.J., and Badding and Buller, JJ.
2
BOWER, Chief Judge.
A father appeals the termination of his parental rights to his child, K.K.,
asserting the juvenile court minimized his efforts toward reunification and erred in
concluding termination was in the child’s best interests. He contends the child was
removed due to the mother’s behavior—not his,1 and argues the court should have
either returned the child to his care immediately or granted him additional time to
achieve reunification. In addition, the father contends his bond with the child
should have been recognized as an exception to termination. We conclude there
is clear and convincing evidence the child cannot be returned to the father’s care
without risk of adjudicatory harm, termination and adoption are in the child’s best
interests, and the father did not meet his burden to establish an exception to
termination under Iowa Code section 232.116(3) (2022). We thus affirm.
I. Background Facts and Proceedings.
The mother’s and father’s parental rights to two older siblings were
terminated on July 16, 2019, due to unresolved substance-abuse, mental-health,
and domestic-violence issues. See In re A.K. and O.S., No. 19-1271, 2019 WL
4678262, at *3 (Iowa Ct. App. Sept. 25, 2019) (noting the father “did not complete
substance-abuse or mental-health treatment and continued to assault” the
mother).
When born in September 2019, K.K.’s umbilical cord tested positive for
THC. The department of health and human services (DHHS) began a child-abuse
assessment, which resulted in juvenile court proceedings and a finding K.K. was
1 The mother’s rights to the child were also terminated; she did not appeal.
3
a child in need of assistance (CINA) due to substance abuse by the parents, their
unstable mental health, and domestic violence. Services to address these issues
were offered to the family from October 2019 until September 2020, when the
juvenile case was successfully closed.2
Unfortunately, on September 11, 2021, DHHS began another child-abuse
assessment concerning allegations the mother was using methamphetamine while
caring for K.K. and was acting erratically, the father was also using
methamphetamine and had assaulted the mother in July, causing her a broken
nose, swollen lip, and two black eyes. The final assessment report noted
concerns are related to drug use and domestic violence. There was
a no contact order in place however the mother dropped the order
and [K.K.] is back with [the father]. The mother . . . is considering
reconciling with [the father] despite no evidence that he has changed
his ways. Threats of maltreatment remain high.
The child-abuse assessment was founded against the father for denial of critical
care (“[the child] was present in the home and in direct proximity to [the] father
when he struck the mother in the face”) and founded against both parents for
2 The September 14, 2020 guardian ad litem (GAL) report to the court noted the
father had received his medical marijuana card and had assured the GAL he does
not smoke or use marijuana around the K.K., and K.K.’s mother denied use of
marijuana but tested positive for the substance. The GAL reported:
[T]here are no indications that either parents’ use of marijuana
creates safety or neglect issues in the home. The home is always
very clean and picked up. There have not been concerns of
paraphernalia being accessible to [K.K.] and no reports the home
has smelled of marijuana. [K.K.] attends daycare regularly with no
concerns reported. [The parents] ensure [the child] attends medical
appointments as needed, and those providers do not report
concerns. [The father] is able to work on a limited basis which he
reports he could not accomplish without his use of marijuana. This
case has been open for nearly one year without any safety concerns
noted. It does not appear the family is in need of further court
oversight.
4
dangerous substances (“[the mother] acknowledges she used meth with [the
father]” in the shed while child was asleep in the home).
K.K. was temporarily removed from parental custody by ex parte order on
October 8, 2021.
On October 11, DHHS requested the county attorney file a CINA petition,
asserting:
The ex parte [order] was requested based on [grounds the mother]
sought a no contact order in Linn Co. on or around 09/07/20 due to
concerns that [the father] was violent towards her in the presence of
[K.K.] and that he is using methamphetamine. [The mother] came to
Davenport in order to be with family and escape [the father]. She
received assistance . . . for housing. [The father] alleged [the mother]
was using meth as well. Both parents denied meth use. Neither
parent drug tested. [The mother] dropped the no contact order on
09/20/21, returned to Cedar Rapids and is back with [the father]. She
was not honest with D[H]HS about this arrangement. There is no
way to ensure either parent is sober or that they have addressed
concerns of domestic violence.[3]
On October 21, the juvenile court entered an order confirming the child’s
removal upon finding the “return of the child to his parents would place the child at
imminent risk of adjudicatory harm.” And, on November 19, K.K. was again
adjudicated a CINA. Both parents were ordered to comply with urinalysis or patch
drug testing at least four times per month, obtain substance-abuse evaluations and
follow all treatment recommendations, and continue attending couples counseling.
The juvenile court authorized a trial-home placement.
On January 11, 2022, a dispositional hearing was held, and all present
agreed with the recommendation that the child be placed in foster care.4 The court
3 On October 14, both parents tested positive for marijuana.
4 The father and mother were represented by counsel. The parents did not attend
the hearing.
5
placed the child in DHHS’s custody, continued the trial home placement unless
terminated by DHHS, and again ordered both parents to obtain a substance-abuse
evaluation and follow all treatment recommendations, cooperate with at least four
drug tests per month,5 and participate in counseling deemed appropriate.
At a January 12 supervised visit, the mother reported to the service provider
that earlier in the day the father had hurt her and broken the vacuum. The father
came into the room holding K.K. and yelled at the mother to get out of the house
and at the worker to “get [her] out.” The FSS worker noted he was “yelling quite
loud and becoming agitated.” The mother called police, who responded, but left
after speaking with the parents and determining “the current situation did not call
for emergency removal of the child.”
On January 13, the father was arrested for domestic abuse assault with
injury to the mother. A police officer reported to DHHS that law enforcement had
been called to the home numerous times “over the last several months due to both
parents and were extremely concerned for the child.” The trial home placement
was ended, and the child was placed in family foster care.
A February 3 progress report noted the parents had yet to attend drug
testing. A no-contact order was in effect. A March 3 progress report noted neither
parent had completed a substance-abuse evaluation or attended a drug test.
A March 15 review hearing was held. The court ordered custody of the child
remain with DHHS for purposes of continued family foster care, found reasonable
5 They had yet to test.
6
efforts to reunify the family were being made, and no additional services were
requested. The juvenile court also ordered the following:
–the father was to obtain a copy of his substance-abuse evaluation and
provide a copy to the court, obtain a mental-health evaluation and follow all
treatment recommendations.
–the mother was to obtain a substance-abuse evaluation, mental-health
services, and domestic-violence services.
–the mother and father were to cooperate with drug testing, either urinalysis
or patch testing, at a minimum of four times per month.
–the father and the mother were to abide by the terms and conditions of the
no contact order for as long as it is in effect, “focus on themselves and not
what the other person is or is not doing,” and participate consistently and
separately in visitation with K.K.
The mother had filed a petition for relief from domestic abuse in February,
and on April 18, a district court found the father had assaulted the mother in June
2021, October 2021, and January 2022. The court specifically found the father’s
testimony not credible and stated it appeared he “engages in manipulation, lying,
and misremembering.” A permanent domestic-abuse protective order was
entered.6
The Foster Care Review Board’s June 21 report noted the father had not
completed any drug testing, had not provided proof he had obtained a court-
ordered substance-abuse evaluation, and was not participating in any mental-
health services, though he “would benefit from having open and honest dialogue
with a therapist about issues that cause him distress. Through the work with a
6The permanent protective order was lifted in June 2022, at which time the parents
resumed interactions.
7
therapist he could identify and understand how his stressors are impacting his life,
plus develop strategies to manage any symptoms he is experiencing.”
The GAL provided a report to the juvenile court in advance of the June 28
permanency hearing and recommended the filing of a petition to terminate parental
rights. After the permanency hearing, the juvenile court ordered the filing of a
petition to terminate parental rights.
In August, the father provided the court a substance-abuse evaluation that
listed February 4, 2022, as the date of service. The evaluation contains a number
of statements attributed to the father that indicate he was not particularly
forthcoming with the evaluator. For example, the father told the evaluator K.K. was
removed due to the mother’s conduct and “not a result of his actions.” He also
reported he was completing four urinalysis tests a month and was compliant with
all DHHS requirements. The evaluator recommended no substance-abuse
treatment based on the father’s own analysis and his reported substance use.
The father also provided to the juvenile court a mental status evaluation that
had been conducted via tele-health for purposes of a disability determination in
April 2021—more than a year earlier. The evaluator’s summary and impressions
include the following:
[Tthe father] identifies a number of medical problems and chronic
pain as his primary disability. He said ADHD has been a lifelong
condition that continues to adversely affect his focus and
concentration. [He] identified other behavior patterns, including lack
of ability to self-regulate his emotions and self-restraint, which are
often associated with ADHD as well. He identified an agitated type
of depression and anxiety; he attributes this to chronic pain, a sense
of being treated unfairly throughout his life, and the loss of his
children in recent years. [He] reports these problems at times
interfere with his ability to sleep and that he will stay up for a couple
of days at a time. There can be some overlap between behavior
8
patterns and symptoms associated with ADHD and Bipolar Disorder.
At the present time, Bipolar Disorder does not appear to be an
accurate diagnosis, however, it is being retained as a rule out, since
this could not be conclusively determined during the current
evaluation. The diagnosis of Unspecified Depressive Disorder is
being utilized. [The father] appears capable of remembering and
understanding instructions and procedures. He seems to have some
difficulty in maintaining concentration; this will be a problem as
demands increase. This seems to stem from ADHD. [The father]
was cooperative throughout the evaluation. He acknowledges
typically being angry and non-trusting of others. [He] has a history
of interpersonal conflict and will likely have trouble interacting
appropriately with peers and supervisors. His ability to adapt to
changes in the workplace will depend on his familiarity with these
responsibilities. He insists that most of the type of work he is
qualified for requires physical demands that he can no longer meet.
[His] anger, his difficulty regulating his emotions, and impulsivity will
also create complications in this area. It was suggested to [the
father] that he may benefit from pursuing therapy. He made it clear
that he has no interest in pursuing any further psychotropic
medication, since his bad experience years ago.
Laura Palumbo, the social worker case manager, provided the court with a
letter update in advance of a scheduled August 17 review hearing. Palumbo noted
the father continued to struggle with managing his emotions and will swear and
yell at the service provider in the child’s presence. She also noted the parents
continued to have a “toxic relationship” and had not followed through with
counseling. Palumbo wrote the mother had recently called the police because the
father was destroying things in her apartment; the father had been arrested on
July 5 for theft, criminal mischief, and disorderly conduct; and neither parent had
participated in court-ordered drug testing.
The juvenile court issued a permanency review order on August 17
following the hearing. It continued its previous order that the parents participate in
drug testing four times per month. It also ordered the father to obtain a new
9
substance-abuse evaluation and obtain a mental-health evaluation and follow all
treatment recommendations.
On September 7, the mother obtained a temporary domestic-abuse
protective order against the father; it was dismissed on September 20 at the
mother’s request. The father obtained a temporary domestic-abuse protective
order on October 4, which the court dismissed after a hearing on its finding the
father had not met his burden of proof.
The father finally had a sweat patch applied on October 16, 2022. The
results of that drug test were not provided to the court at the time of the
November 7 termination trial.
The child’s GAL filed a report to the court on November 4, which reads in
part
[K.K.] continues to do well with a stable routine and is a good sleeper.
He loves to give hugs and is observed to be very comfortable in the
foster home and around his foster parents. . . . [K.K.] has been
observed to have difficulty expressing his fears and feelings. He can
become [] prone to tantrums and acting out aggressively when he is
frustrated. He is also likely not to react to other stimuli such as yelling
by his parents whether directed at each other or professionals. He
is too young to communicate his feelings and too young to
understand and process his conflicting emotions. The foster parents
are very supportive of [the child] and enjoy having him in their home.
The foster parents have been communicative with the parents and
supportive of the reunification goal and want what is best for [K.K.]
They are willing to be considered a potential permanent placement
for [K.K.] if reunification cannot occur.
The case progress report notes the parents[’] struggles to
engage effectively in case plan services. Concerns remain regarding
the parents’ honesty about their current situation, their relationship,
the level of domestic violence, substance use, their employment,
housing, and willingness to address the safety concerns that resulted
in [K.K.’s] removal from their care. [K.K.] is a very young child. From
his reactions, and at times his lack of reaction, it is clear that this child
has been exposed to significant trauma in his life. The parents have
10
been less consistent in attending their interactions during this review
period. Both parents remain on fully supervised interactions.
The GAL recommended termination of parental rights and adoption.
Both parents met with their respective attorneys before the November 7
termination hearing, but neither attended the trial. The only testimony presented
was by Palumbo, who testified she started working with the family on October 28,
2021, and had reviewed the prior CINA case file and communicated with the prior
case manager; the issues remained the same. Palumbo testified she had
reviewed two prior family assessments and six child-abuse assessments and
concluded that after more than four years of DHHS services, there was little to no
change or improvement in the father’s ability to safely parent a child. She
recommended termination of parental rights.
On November 15, the juvenile court issued its ruling terminating the father’s
parental rights pursuant to pursuant to Iowa Code sections 232.116(1)(g) and (h).7
7 Under those paragraphs, a court may terminate parental rights if:
g. The court finds that all of the following have occurred:
(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The court has terminated parental rights pursuant to
section 232.117 with respect to another child who is a member of the
same family or a court of competent jurisdiction in another state has
entered an order involuntarily terminating parental rights with respect
to another child who is a member of the same family.
(3) There is clear and convincing evidence that the parent
continues to lack the ability or willingness to respond to services
which would correct the situation.
(4) There is clear and convincing evidence that an additional
period of rehabilitation would not correct the situation.
h. The court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
11
The court noted Palumbo reported there were over forty calls for service for law
enforcement to the father’s residence from January 1 to November 7, 2022.
Ms. Palumbo testified that [K.K.] could not be returned to
either parent at the time of trial without being a child in need of
assistance. Further, considering the length of time that the parents
have been provided services of the various child in need of
assistance cases . . . . two with [K.K.]—additional time would not
likely result in the issues being adequately addressed to allow him to
return to a parent within a reasonable amount of time.
The father’s appeal, while listing only one issue—the court erred in finding
no exception was applicable—also asserts the court “fail[ed] to give [the father]
due credit for his accomplishments and . . . inaccurately fault[ed] him for ‘not
participating’ in his substance abuse recommendation.” He asserts the court
should not have ruled on the termination petition before the results of the father’s
October patch test were available and argues Palumbo’s testimony shows the
actual concern was with the “mercurial and potentially violent nature” of the
parents’ relationship. He argues that, because the mother’s rights were
terminated, the court could have returned the child to the father or given him an
additional six months to achieve reunification. In addition, he contends the
“evidence failed to establish sufficient ground for termination as well as
unequivocally established that the termination of [his] parental rights would be
detrimental to the child.”
(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.
(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.
12
II. Scope or Review and Analysis.
We review termination-of-parental-rights proceedings de novo. In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010). We (1) “determine if a ground for termination
exists under [Iowa Code] section 232.116(1)”; (2) consider the best-interests
factors under section 232.116(2); and (3) “decide if any exceptions to termination
exist under section 232.116(3).” Id. at 40–41. The father disputes the finding the
child could not be returned to him at the time of the termination hearing.
The father’s characterization of the circumstances of this child’s removal
from parental custody minimizes his anger issues, domestic violence, and lack of
cooperation with the juvenile court’s orders and expectations. He wants credit for
participating in a substance-abuse evaluation, which he did not make available to
the juvenile court until after the petition to terminate his rights was ordered.
Moreover, a review of that evaluation discloses the father inaccurately reported he
was participating in drug-testing four times per month when the record shows he
did not test until October 2022. So his claim that he complied with the court-
ordered substance-abuse evaluation has little weight.
He also points out he obtained a mental-health evaluation—but the “mental
status” evaluation he obtained for other purposes was not provided to the juvenile
court until after the termination petition was filed. That evaluation noted the father’s
anger issues and stated he could “benefit from pursuing therapy.” He did not do
so throughout the course of the juvenile proceedings. The record also indicates
the father was physically violent with the child’s mother and with neighbors, and
he could not or did not have the ability to control his anger even in the child’s
presence.
13
There is clear and convincing evidence the child could not be returned to
him at the time of the termination hearing, supporting termination under both
section 233.116(1)(g) and (h). A court may only grant an extension of time if it is
able to “enumerate the specific factors, conditions, or expected behavioral
changes which comprise the basis for the determination 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). The father has had more than four
years of involvement with services, an additional period is not warranted.
For the second-step of our analysis, we consider “the child’s safety, . . . the
best placement for furthering the long-term nurturing and growth of the child, and
. . . the physical, mental, and emotional condition and needs of the child.” Iowa
Code § 232.116(2). “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.” P.L., 778 N.W.2d at 41.
We adopt the juvnenile court’s findings here:
[The parents] have been involved with Child Welfare Services for a
number of years. They have had their parental rights terminated to
two older children. They each have another child, in addition, which
is not in their custody. The issues present in the current case have
remained constant throughout their involvement with DHHS with no
apparent improvement. [K.K.] is very young but it is evident that he
has been involved in so much chaos and violence that he no longer
shows any emotional response when his parents’ emotions are
heightened and they engage in yelling and screaming at each other
or the providers. His behaviors have improved markedly with the
structure, calmness, and routine found in his foster home. He
deserves permanency in a calm, stable, violence-free, substance-
free home.
14
Termination and adoption will best provide K.K. with the opportunity to find
permanency.
“[T]he last step of our analysis is to determine whether any exceptions in
section 232.116(3) apply to preclude the termination.” In re M.W., 876 N.W.2d
212, 225 (Iowa 2016). The father relies on his bond with the child. Section
232.116(3)(c) allows the court not to terminate where the parent establishes “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.” See In re A.S., 906
N.W.2d 467, 476 (Iowa 2018) (stating the parent bears the burden to prove the
permissive exception). The providers who supervised visits did note the father had
a bond with K.K., but there is not clear and convincing evidence termination would
be detrimental to the child.
Because grounds for termination exist, termination is in the child’s best
interests, and the father has failed to prove the parent-child bond weighs against
the termination of his parental rights, we affirm.
AFFIRMED.