In the Interest of E.N. and J.N., Minor Children, M.N., Mother, A.N., Father ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0656
Filed July 9, 2015
IN THE INTEREST OF E.N. and J.N.,
Minor Children,
M.N., Mother,
Appellant,
A.N., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Franklin County, Peter B. Newell,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to two children. AFFIRMED ON BOTH APPEALS.
Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellant-mother.
Barbara J. Westphal, Belmond, for appellant-father.
Thomas J. Miller, Attorney General, Kathryn S. Miller-Todd and Kathryn
Lang, Assistant Attorneys General, Dan Wiechmann, County Attorney, and Brent
J. Symens, Assistant County Attorney, for appellee.
Alesha M. Sigmeth Roberts of Elbert Law Office, P.L.C., Clarion, attorney
and guardian ad litem for minor children.
Considered by Vogel, P.J. and Tabor and McDonald, JJ.
2
TABOR, J.
Melissa and Arthur challenge the order terminating their parental rights to
their two children, E.N. (born in 2007) and J.N. (born in 2008). The parents are
married, but separated. In May 2012, Melissa moved to the state of New York
with the children, but Arthur brought them back to Iowa where they have
continued to reside.
E.N. and J.N. came to the attention of the Iowa Department of Human
Services (DHS) on December 31, 2012, following a founded incident of child
abuse involving Arthur’s failure to supervise. The DHS had concerns for the
children’s health and safety in Arthur’s home, which was filled with garbage.
Dirty dishes and laundry piled up and cockroaches were prevalent in the house.
The children had poor hygiene and head lice.
The DHS removed the children and the juvenile court adjudicated them as
children in need of assistance (CINA) on March 4, 2013. Arthur participated in
visitation, including overnight visits and transports to and from school. Arthur
advanced in his parenting skills and the housing situation improved. As a result,
in December 2013 the juvenile court granted Arthur an additional six months to
reunify with the children. The children remained in foster care until March 2014,
when they were returned to Arthur’s care.
But their return home was short-lived. At a review hearing on June 16,
2014, the court viewed a video showing Arthur hitting E.N. in the back of the
head and knocking her to the ground. The condition of the household had also
deteriorated again. The children were removed a second time on June 30, 2014,
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and have been out of the father’s care since then. Arthur has continued with
supervised visitation since the second removal.
Since the children left New York, they have not had visitation with their
mother, though they have spoken with her two or three times a week on the
telephone. Melissa has not provided any financial support for the children.
On October 19, 2014, the State filed a petition to terminate the rights of
both parents—citing Iowa Code sections 232.116(1)(f) and (i) (2013). The
juvenile court originally scheduled the termination hearing for November 13,
2014, but continued the hearing three times to accommodate requests by
Melissa and her attorney. The court eventually held the termination hearing,
without Melissa’s presence, on March 12, 2015. The State and guardian ad litem
(GAL) presented several witnesses. Arthur also testified at the hearing.
On April 13, 2015, the juvenile court issued an order terminating the rights
of Melissa and Arthur under paragraph (f) of section 232.116(1). Both parents
now appeal. The GAL recommended termination in the juvenile court and joins
the State’s brief in support of termination on appeal.
We review termination proceedings de novo. In re A.M., 843 N.W.2d 100,
110 (Iowa 2014). We will uphold an order terminating parental rights if the
juvenile court’s findings are supported by clear and convincing evidence. See In
re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”
when a reviewing court has no serious or substantial doubts as to the
correctness of the conclusions of law drawn from the proof. Id.We address the appeals by Melissa and Arthur separately.
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I. Melissa’s appeal
Melissa has not had in-person contact with the children since the initiation
of the CINA proceedings.1 She did maintain regular telephone contact with the
children, though case workers testified the children did not look forward to the
calls. Melissa did not attend the termination hearing. Her attorney appeared and
told the court that Melissa had started a new job in New York and was unable to
participate in the hearing even by telephone.
At the beginning of these proceedings, authorities determined Melissa was
living in New York with a registered sex offender. In December 2013, the Iowa
DHS asked its New York State counterpart to conduct a “parent home study”
regarding Melissa through the Interstate Compact on the Placement of Children
(ICPC).2 In February 2014, the New York State office recommended “placement
not be made.” A letter from the department of social services in Tomkins County,
New York stated Melissa had moved out of the house she had been renting from
her mother and stepfather. Melissa’s boyfriend indicated to the New York case
worker that they had not been paying their rent and did not plan to return to that
1
According to the record, Melissa has not seen the children since November 2012.
2
The ICPC states, in pertinent part:
The child shall not be sent, brought, or caused to be sent or brought into
the receiving state until the appropriate public authorities in the receiving
state shall notify the sending agency, in writing, to the effect that the
proposed placement does not appear to be contrary to the interests of the
child.
Iowa Code § 232.158(3)(d). Courts in other states appear to be split as to whether the
ICPC applies to out-of-state, noncustodial parents. See In re Emoni W., 48 A.3d 1, 15
n.5, 6 (Conn. 2012) (McLachlan, J., dissenting) (collecting cases). Since this issue is not
squarely before us, we decline to address it.
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residence. The letter stated Melissa would need to locate stable housing before
a home study could be completed in New York.
The home study issue is the basis of Melissa’s petition on appeal. She
does not challenge the ground under which her rights were terminated. She
argues only that the State did not make a concerted effort to reunify her with the
children. She claims the DHS did not make reasonable efforts because the
agency failed to arrange a “successful home study.”
The DHS is required to make every reasonable effort to return children
home—consistent with their best interests. Iowa Code § 232.102(7); C.B., 611
N.W.2d at 493. But the reasonable-efforts requirement is not a strict substantive
condition for termination. C.B., 611 N.W.2d at 493. Rather the requirement
affects the State’s burden of proving the children cannot be safely returned to the
care of a parent. Id. The DHS is only required to supply those services that are
reasonable under the circumstances. In re S.J., 620 N.W.2d 522, 525 (Iowa Ct.
App. 2000).
In this case, presuming an ICPC home study falls into the category of
reasonable efforts, we conclude Melissa failed to preserve error on her appellate
claim. The juvenile court did not rule on her reasonable-efforts argument.
Melissa did not file a motion under Iowa Rule of Civil Procedure 1.904(2) asking
for resolution of that claim. A rule 1.904(2) motion is essential to preservation of
error when a trial court does not resolve an issue. In re A.M.H., 516 N.W.2d 867,
872 (Iowa 1994). Moreover, nothing in the termination record shows that Melissa
requested any other services to facilitate reunification with her son and
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daughter.3 Because the issue is not preserved, we decline to grant relief on her
reason-efforts claim.
II. Arthur’s appeal
Arthur raises four issues in his petition on appeal. He first challenges the
ground for termination under section 232.116(1). He also argues termination
was not in the children’s best interest under the framework in section 232.116(2)
and the court should have declined to terminate under section 232.116(3)(c)
because of the children’s strong bond with him. He finally claims he should have
been granted an additional six months to work towards reunification. We will
address each of his claims in turn.
A. Ground for termination
Arthur’s parental rights were terminated under section 232.116(1)(f), which
requires the court to find:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(3) The child has been removed from the physical custody of the
child's parents for at least twelve of the last eighteen months, or for
the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present time
the child cannot be returned to the custody of the child’s parents as
provided in section 232.102.
Arthur argues the children can be returned to his care at the present time.4
We disagree. After engaging in our de novo review of the record, we find clear
3
Melissa only completed a mental health evaluation a few months before the State filed
the termination petition. And she did not provide the Iowa DHS case worker with
updated mental health reports as she had agreed to do.
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and convincing proof that Arthur cannot, over the long term, provide a safe and
stable home for the children despite more than two years of DHS involvement.
We acknowledge Arthur has taken some steps toward maintaining a cleaner
home and addressing his anger issues. But we share the concern of the juvenile
court that Arthur is “still unable to meet the very basic needs of his children.”
The children were originally removed because of the deplorable conditions
in Arthur’s home. After fifteen months, the children were returned to Arthur’s
care because the situation had improved, most likely due to help he received
from his paramour at the time. Case workers’ visits to his residence in Chapin
revealed the home decreased in cleanliness each month following the children’s
return. The children were removed again in June 2014 and Arthur was evicted in
July 2014. Following his eviction, the children’s foster mother went into the home
to retrieve some of the children’s belongings. She testified the house was
extremely dirty, the toilet was unusable, and the smell from the children’s room
was unbearable. The children’s clothes were dirty and covered in cockroaches.
The record indicates E.N. had a serious case of lice and J.N. had to be re-potty
trained. Both of the children’s behavior had regressed.
Arthur argues he has now “located suitable housing for him and his
children.” The cases workers acknowledged at the termination hearing that
Arthur’s apartment was satisfactory, but they also worried it was getting cluttered
4
“At the present time” means the time of the termination hearing. See A.M., 843 N.W.2d
at 111.
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again and that he was allowing two friends to keep their belongings and pets
there, as well as occasionally staying there themselves.
While the reports of Arthur’s new residence are generally positive, we gain
insight into the children’s prospects “by reviewing evidence of the parent’s past
performance—for it may be indicative of the parent’s future capabilities.” In re
M.S., 519 N.W.2d 398, 400 (Iowa 1994). Twice the children have been removed
from Arthur’s care because they lived in sub-standard conditions. During the life
of this case, Arthur has been unable to incorporate DHS recommendations into
his care taking or follow through with the services provided. At the termination
hearing, he minimized the deteriorating condition of his current apartment,
saying: “it is cluttered. . . . Guys just don’t get into cleaning houses, you know.”
We lack confidence Arthur would be willing and able to provide a sanitary and
stable home environment the children if they were returned to his care.
The termination testimony also reflected serious concerns about Arthur’s
temper. Domestic abuse occurred in the relationship between Arthur and
Melissa. Arthur also directed abuse toward his children. The juvenile court
witnessed Arthur “exploding in anger” toward E.N. in a video recorded by Arthur’s
adult daughter, who testified she was concerned for the safety of her half-
siblings. Arthur often made verbal threats toward the children. Arthur also
directed threats toward the foster mother, which resulted in the children being
relocated and the identity of the new foster family being withheld from Arthur.
While Arthur expressed a willingness to engage in anger management classes,
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he did not start that process until late in the CINA case and did not attend many
sessions.
Given his past performance and inability to respond to services provided,
we conclude the State proved the ground for termination by clear and convincing
evidence.
B. Best Interests
Even with the statutory basis proved, the decision to terminate must be in
the best interests of the children under section 232.116(2). In re P.L., 778
N.W.2d 33, 37 (Iowa 2010). In determining the children’s best interests, we give
primary consideration to the children’s safety, to the best placement for furthering
their long-term nurturing and growth, and to their physical, mental, and emotional
conditions and needs. See Iowa Code § 232.116(2). Arthur challenges the
termination as not being in the best interest of the children under 232.116(2) as
he has attained suitable housing and made improvements in his parenting skills.
As discussed above, Arthur has had opportunities to show improvement,
and has done so, only to backslide into subjecting the children to an unsuitable
living situation. We conclude it is not in the children’s best interest to prolong
their wait for a consistent and stable environment. The children have regressed
when in their father’s care. When with her father, E.N. falls into a pattern of
being “very parentified” and tries to control the household, because it fell to her to
do so when her father did not assume a strong parenting role. J.N. is at times
fearful of his father and acts aggressively toward peers. The GAL believed the
children would go into “survival mode” if placed back into Arthur’s custody.
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The children’s safety, as well as their long-term nurturing and emotional
growth, is best served by terminating Arthur’s parental rights and giving them a
chance at permanency.
C. Strength of Bond
Arthur argues there is clear and convincing evidence that termination will
be detrimental to the children because of the closeness of their relationship with
him. See Iowa Code § 232.116(3)(c). The evidence presented at the termination
hearing indicated the existence of a bond between Arthur and the children, but
did not show severance would result in long-term harm to E.N. and J.N.
Although J.N. and his father have a close relationship, at times the boy
has expressed fear of his father. The DHS worker also testified the bond
between E.N. and Arthur is less one of father and daughter and more one of co-
parents. Given the unhealthy dynamic that has developed between them, we do
not find clear and convincing evidence that severing ties with their father will be
detrimental to these children.
The factors in section 232.116(3) are permissive. Courts may use their
discretion in deciding whether the strength of the bond signals that termination is
not in the best interest of the child. See A.M., 843 N.W.2d at 113. We find the
following testimony from the social worker to be persuasive: “Given a consistent
environment with positive input and structure, [J.N.] and [E.N.] will do very
well. . . . They would, of course, miss Art. . . . But I believe they would thrive and
they would be able to move on.”
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D. Additional Time
Finally, alleging he has shown significant progress in his housing and
parenting skills, Arthur asks for an additional six months to work toward
reunification. The juvenile court may grant more time only if the judge finds
whatever prompted removal of the children will be resolved at the end of the six
months. In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). Arthur has
already been granted one six-month extension and, in fact, received another five-
month reprieve by virtue of the continuances of the termination hearing. Arthur
has received services from DHS for more than two years, yet has been unable to
engrain the parenting and daily living skills needed to properly maintain a home
for the children. Arthur—who was fifty-six years old at the time of the termination
hearing—admitted his skills were a “work in progress.”
“A parent does not have an unlimited amount of time in which to correct
his or her deficiencies.” In re H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App.
1997). We have repeatedly held fast to the principle that statutory time limits
should be followed and children not forced to wait for parents to fix the problems
in their own lives. In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998). While
Arthur’s efforts do not go unnoticed, the children need permanency, and given
his history, we do not believe extra time would resolve the need for removal. See
Iowa Code § 232.104(2)(b).
AFFIRMED ON BOTH APPEALS.