In the Interest of M.S., Minor Child, D.K., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0837
Filed July 9, 2015
IN THE INTEREST OF M.S.,
Minor Child,
D.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
A mother appeals from the juvenile court order terminating her parental
rights. AFFIRMED.
Michelle Marie Jungers of Iowa Legal Aid, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Stephen Halbach,
Assistant County Attorney, for appellee.
Linda Hall of Linda Hall Law Firm & Mediation Services, P.L.L.C., Cedar
Falls, for father.
Timothy Baldwin of Public Defender Office, Waterloo, attorney and
guardian ad litem for minor child.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
MULLINS, J.
The mother appeals from the juvenile court order terminating her parental
rights to M.S., pursuant to Iowa Code section 232.116(1)(e), (g), (h), and (l)
(2013). The mother contends it was not in M.S.’s best interest to terminate her
parental rights, and the court should have given her an additional six months,
pursuant to section 232.104(2)(b), to work toward reunification. We affirm.1
There have been two previous child-in-need-of-assistance cases involving
M.S., beginning when she was born testing positive for cocaine in January 2013.
The present case began when the mother was using methamphetamine while
caring for M.S., and M.S. tested positive for methamphetamine. In its termination
order filed in April 2015, the juvenile court found the following:
[The mother] has a lengthy history of substance abuse,
unavailability and unmet mental health needs . . . . [She] has had
her parental rights terminated in regard to three of her five older
children . . . . [She] has been arrested approximately 22 times for
theft, forgery and drug related charges. [She] has violated her
probation and parole multiple times resulting in 17 years of
incarceration . . . . [She] testifies to participating in inpatient or
outpatient substance abuse programming on at least nineteen
different occasions. [She] was most recently discharged from the
Covenant Horizons program on March 9, 2015, for being
noncompliant and non-amenable to treatment . . . .
[The mother] is diagnosed with Anxiety Disorder and
Depression. [She] has not followed through with mental health
counseling. [She] met with her mental health counselor one time in
March 2015. No further appointments have been scheduled. [She]
is not believed to be taking her prescribed medications . . . .
[She] has been unable to obtain employment, maintain a
stable residence and demonstrate that she could care for a
child . . . .
[She] has demonstrated that she is barely able to care for
herself and clearly unable to meet the needs for her child.
1
The juvenile court terminated the father’s parental rights with his consent, pursuant to
Iowa Code section 232.116(1)(a). The father’s rights are not a subject of this appeal.
3
The DHS worker reported the mother attended visitation inconsistently
and that she occasionally demonstrated erratic behavior and smelled of alcohol
at visitations. The mother continued to use alcohol and methamphetamine. The
court found that clear and convincing evidence supported termination of her
rights under four different grounds: section 232.116(1)(e), (g), (h), and (l). The
court found it was in the child’s best interest to terminate her parental rights and it
was not appropriate to defer permanency for an additional six months. The
mother appeals.
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
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interest of the child. Id. at 776.
The mother argues it was not in the child’s best interest to terminate her
parental rights. Under Iowa Code section 232.116(2),2 in considering whether to
terminate parental rights, 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.”
“Insight for the determination of the child’s long-range best interests can be
2
The mother does not cite whether she is arguing under Iowa Code section 232.116(2)
or (3)(c). Although the mother’s best-interest argument cites the parent-child bond, we
assume the mother is arguing under Iowa code section 232.116(2), rather than section
232.116(3)(c), because she does not further argue how the termination would be
detrimental to the child, as that section requires. If she intended to assert section
232.116(3)(c) we deem her failure to argue the “detrimental” prong as a waiver of the
issue.
4
gleaned from evidence of the parent’s past performance for that performance
may be indicative of the quality of the future care that parent is capable of
providing.” Id. at 778 (internal quotations and citations omitted). The juvenile
court found:
Because of the child’s age, the parents’ lack of participation in
services, history of substance abuse, lack of basic parenting skills,
chaotic lifestyle choices and unavailability, the Court finds that it is
clearly in the child’s best interests and the community’s best
interests that the Petition for Termination of Parental Rights is
granted.
Although we do not consider the community’s best interests, on our de novo
review, we agree with the juvenile court that it is in M.S.’s best interest to
terminate the mother’s parental rights.
The mother’s failure to address her substance abuse and mental health
issues has made it impossible for her to provide M.S. even the most basic
parental care. By not challenging any of the four grounds for termination, she
concedes clear and convincing evidence exists to terminate her parental rights,
including evidence that she has failed to maintain significant and meaningful
contact with the child,3 she lacks the ability or willingness to respond to services
which would correct the situation,4 the child cannot be returned to her care at this
time,5 and that she has a severe substance-related disorder and presents a
danger to herself or others.6 Under these circumstances, we find M.S.’s safety,
long-term nurturing and growth, and needs are best met by terminating the
3
See Iowa Code § 232.116(1)(e).
4
See id. § 232.116(1)(g).
5
See id. § 232.116(1)(h).
6
See id. § 232.116(1)(l).
5
mother’s parental rights and pursuing a permanent home for her. We affirm the
juvenile court’s finding that termination is in M.S.’s best interest.
The mother further argues the juvenile court should have given her an
additional six months to work toward reunification, pursuant to 232.104(2)(b). In
order to extend a child’s placement for an additional six months, the juvenile
court must find that the need for removal will no longer exist at the end of six
months. See Iowa Code § 232.104(2)(b). The juvenile court found the mother’s
request for an additional six months was “clearly not in the child’s best interests.”
The court further explained, “[B]ased upon the mother’s minimal progress and
history of services through the Department of Human Services, the court finds
that it would be very unlikely that the child could be returned to the care of [the
mother] in six months.” The mother argues her visitation has been more
consistent and she sought treatment for her substance abuse and mental health
issues. On our de novo review of the record, we agree with the juvenile court
that there is nothing in the record to indicate the mother—given her long history
with DHS and her failure to utilize services—would be ready to resume care of
M.S. in six months, or any time thereafter. Accordingly, we affirm the juvenile
court’s conclusion.
AFFIRMED.