In the Interest of H.B. and Z.R., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1796
Filed December 18, 2019
IN THE INTEREST OF H.B. and Z.R.,
Minor Children,
T.R., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
A mother appeals the termination of her parental rights to two children.
AFFIRMED.
Sara Strain Linder of Bray and Klockau, Iowa City, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Christopher Foster of Foster Law Office, Iowa City, attorney and guardian
ad litem for minor children.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
2
TABOR, Judge.
A mother, Tamika, appeals the juvenile court order terminating her parental
rights to two children, five-year-old H.B. and two-year-old Z.R. She raises four
issues. First, she contends the court should have granted a continuance to give
her attorney more time to prepare. Second, she alleges the State did not offer
clear and convincing evidence supporting the statutory grounds for termination.
Third, she contends termination will be detrimental to H.B. and Z.R. because of the
strong parent-child bond. And fourth, she asks for more time to reunify. Looking
independently at the entire record, we find no basis for reversal.1
I. Facts and Prior Proceedings
A mid-summer drug raid at Tamika’s home in 2018 resulted in the
emergency removal of H.B. and Z.R. Authorities found she and her husband,
Matthew, were under the influence of methamphetamine while caring for the
children.2 In the wake of this raid, Tamika pleaded guilty to child endangerment
and possession of methamphetamine; she received a deferred judgment.
That summer, Tamika obtained a substance-abuse evaluation that
assessed her with amphetamine dependence. She failed to complete the
recommended substance-abuse treatment and missed more than twenty of the
randomly requested drug tests.
1
We review this appeal de novo, which means we examine both the facts and law and
adjudicate anew those issues properly preserved and presented. See In re L.G., 532
N.W.2d 478, 480 (Iowa Ct. App. 1995). The factual findings of the juvenile court do not
bind our decision, but we give them weight. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
The State’s proof must be clear and convincing, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the evidence.”
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
2
This event marked the second time the Iowa Department of Human Services (DHS) took
custody of H.B. because of Tamika’s substance abuse; his first removal was in 2015.
3
At the end of August, the court adjudicated H.B. and Z.R. as children in
need of assistance (CINA). Showing no progress in addressing her addiction,
Tamika never regained custody of the children. During his time in foster care, H.B.
demonstrated “fairly significant behavioral and learning issues,” according to the
report of the guardian ad litem. His younger sister, Z.R., adapted well to foster
care, developing a strong attachment to her foster mother. The DHS tried to obtain
an area education agency evaluation for Z.R. but could not do so because of
Tamika’s lack of cooperation.
Between August and November 2018, Tamika attended only half of the
thirty-two visitations offered with her children. Her visitation with H.B. caused him
emotional harm. The DHS reported his behavior would decline after each
interaction “and even more so when his mother did not show up for the
interactions.” To DHS, “[i]t became clear that Tamika’s sporadic attendance was
causing her child distress.” H.B. expressed fear of his mother and frequently
revisited the trauma of the police raid on their home.
At the recommendation of his therapist, the juvenile court suspended H.B.’s
visitation with his mother. The court made clear Tamika could resume interactions
with H.B. if she obtained a psychological evaluation and a substance-abuse
evaluation and followed up on their respective recommendations. But she did not
do so. Tamika’s visitations with Z.R. continued.
Tamika resisted other services recommended by the DHS and missed five
appointments scheduled with the caseworker in November and December 2019.
When Tamika finally attended a family team meeting in early January 2019, she
was uncooperative and swore at the caseworker. The DHS continued to reach out
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to Tamika through February and March 2019, but she remained unreceptive to
complying with the case plan.
The State filed a petition to terminate parental rights on March 11, 2019. At
the April 25 hearing, Tamika testified she was “clean and sober” and had no mental
health issues. In its order terminating her parental rights, the juvenile court found
those claims incredible. Tamika now appeals.3
II. Analysis
A. Motion to Continue
Tamika argues the juvenile court should have continued the April 25
termination hearing because her attorney, Sara Linder, did not have time to
prepare against the allegations in the State’s petition. Linder represented Tamika
in the CINA case. See Iowa Code § 232.89(1) (2019) (authorizing appointment of
counsel in CINA cases). But the court did not enter the order of appointment in
the termination case until 2:19 p.m. on April 24—less than twenty-four hours before
the start of the hearing. See Iowa Code § 232.116(1) (authorizing appointment of
counsel in termination cases).
At the start of the termination hearing, Linder sought a continuance, arguing
she needed more time “to properly prepare and present the appropriate defense”
for her client. Linder acknowledged attending a pretrial conference on April 4,
where the parties talked about a “conditional appointment order, which was not
entered.” Counsel noted she “was not able to even see the grounds in the petition
3
The court also terminated the parental rights of H.B.’s father, Phillip, and Z.R.’s legal
father, Matthew. Neither of them appeals.
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until yesterday.” She further noted the State offered some exhibits that were not
included in the underlying CINA file.
The juvenile court agreed the timing placed attorney Linder “in a difficult
position.” But the court denied the continuance, finding Tamika at fault for the
delay in seeking court-appointed counsel. “[Linder] would have had more time to
review the petition more thoroughly with her client, as well as those exhibits, if her
client had timely applied for an attorney.” The court explained that the State filed
a summons on March 12, notifying Tamika of the April 25 hearing date and her
right to be represented by counsel. That summons included this message:
The sheriff served the summons on Tamika on March 22. But she did not filed her
request for counsel until April 24, more than one month later.
On appeal, Tamika argues the denial of her motion to continue violated her
right to due process. No question, “[w]e have procedural safeguards in our CINA
and [termination of parental rights] statutes to adequately accord fundamental
fairness to parents.” In re M.D., 921 N.W.2d 229, 243 (Iowa 2018) (citing section
232.113 as one such safeguard). But Tamika did not raise a due process claim
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before the juvenile court. Thus, we consider only whether the court abused its
discretion in denying the motion to continue. See id at 234.
Tamika’s case is unlike In re E.J.C., where the juvenile court denied a
parent’s eleventh-hour request for court-appointed counsel. 731 N.W.2d 402, 404
(Iowa Ct. App. 2007). There, we noted “section 232.113(1) does not set forth any
time frame in which a request for court appointed counsel must be made.” We
acknowledged the parent “should have been more attentive to her legal needs and
applied for counsel earlier,” but we found her delay should not deprive her of
counsel absent a statutory time limitation. Id.By contrast, Tamika was not denied the right to counsel. Rather, she had
the same well-prepared counsel who represented her in the CINA proceedings.
But we are concerned by the short turnaround afforded counsel in these
termination proceedings. We are less ready than the juvenile court to blame the
mother for her belated application. Parents or any lay persons could
understandably read the language in the summons highlighted above and not
realize they would need to reapply for counsel when they have already been
represented in the CINA case. See In re J.B., No. 18-1807, 2018 WL 6706266, at
*2 (Iowa Ct. App. Dec. 19, 2018) (finding juvenile court abused its discretion in
“plowing forward in the termination proceeding without appointing counsel, at least,
to assist the parents on a temporary basis in explaining the need to again apply
for court-appointed counsel”). We would strongly recommend such notices be
revised to expressly notify parents that they must submit a new request for court-
appointed counsel in the termination proceeding even if the court appointed
counsel in the CINA case. We also believe it would be best practice to notify the
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attorneys appointed in CINA cases when a termination petition has been filed so
counsel can advise their clients of the need to apply for court-appointed counsel in
that new proceeding. Even with those suggestions, under the instant
circumstances, we cannot find the juvenile court abused its discretion in denying
the motion to continue. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996)
(“Denial of a motion to continue must be unreasonable under the circumstances
before we will reverse.”).
B. Statutory Grounds
The juvenile court terminated Tamika’s parental rights to Z.R. under Iowa
Code section 232.116(1), paragraphs (e), (h), and (l). The court terminated her
rights to H.B. under paragraphs (e) and (l). Tamika contests all grounds on appeal.
“When the juvenile court terminates parental rights on more than one statutory
ground, we may affirm the juvenile court’s order on any ground we find supported
by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We choose to
address paragraph (h) for Z.R. and paragraph (e) for H.B.
Termination under section 232.116(1)(h) requires showing:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
a 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 the child cannot be
returned to the custody of the child’s parents as provided in section
232.102 at the present time.
Tamika concentrates on the last point, asserting Z.R. could have been
placed in her custody at the time of the hearing. Tamika argues the State failed to
8
show harm would befall the two-year-old girl if returned to her care. She questions
the record proof of her continued methamphetamine use.
Contrary to her argument, the record reveals Tamika has not addressed her
substance abuse. The juvenile court did not believe her claim she was “clean and
sober” finding her failure to comply with random drug tests was “a strong indicator
of continued drug use.” Our courts have recognized the hazards of leaving young
children in the care of methamphetamine users. See State v. Petithory, 702
N.W.2d 854, 859 (Iowa 2005). The fact Tamika has not successfully sought
treatment heightens our concern. See A.B., 815 N.W.2d at 776 (explaining “an
unresolved, severe, and chronic drug addiction can render a parent unfit to raise
children”). The record contains clear and convincing evidence it is not safe to place
Z.R. in Tamika’s care at the present time.
Termination under section 232.116(1)(e) requires showing:
(1) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(2) The child has been removed from the physical custody of
the child’s parent for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents
have not maintained significant and meaningful contact with the child
during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given
the opportunity to do so.
Tamika focuses on the third point, asserting she has maintained “significant
and meaningful contact” with H.B. That phrase “includes but is not limited to the
affirmative assumption by the parents of the duties encompassed by the role of
being a parent.” Iowa Code § 232.116(1)(e)(3). On top of financial obligations,
this affirmative duty “requires continued interest in the child, a genuine effort to
complete the responsibilities prescribed in the case permanency plan, a genuine
9
effort to maintain communication with the child, and requires that the parents
establish and maintain a place of importance in the child’s life.” Id.Tamika argues “it should not be held against [her] that visitation was not
allowed with H.B.” That argument tells only part of the story. The court suspended
visitation for H.B.’s therapeutic benefit. In its January 2019 order, the court set
clear expectations for Tamika to meet before interactions could resume. She did
not try to meet those expectations. We also agree with the juvenile court’s
conclusion that Tamika did not make affirmative efforts to comply with the
mandates of the case permanency plan so she could assume the role of parent to
H.B. The record contains clear and convincing evidence that termination of her
rights to H.B. is proper under section 232.116(1)(e).
C. Parent-Child Bond
Tamika contends termination of her parental rights would be detrimental to
H.B. and Z.R. because of the closeness of the parent-child relationship. See Iowa
Code § 232.116(3)(c). But she falls short of showing that detriment. See In re
A.S., 906 N.W.2d 467, 476–77 (Iowa 2018) (holding parent resisting termination
has burden to prove permissive factors under section 232.116(3)). When the DHS
offered visitation, Tamika’s attendance was lackluster. Her inconsistency triggered
aggressive behaviors in H.B. And both children are benefitting from the stability
offered by their foster home. On these facts, section 232.116(3)(c) does not weigh
against termination.
D. Additional Time
Tamika contends that given a little more time she could resolve the situation
that led to the children’s removal. To grant an extension of six months under Iowa
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Code section 232.104, the court must determine the need for removal will dissipate
at the end of that time. See In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).
We cannot make such a determination here. Tamika has a long history of
substance abuse and refuses to address it head on. The record gives us no reason
to believe her addiction and instability will be resolved in six months. The extension
is not warranted.
AFFIRMED.