In the Interest of R.N., Minor Child, S.N., Father, S.Y., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0659
Filed December 24, 2014
IN THE INTEREST OF R.N.,
Minor Child,
S.N., Father,
Appellant,
S.Y., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Steven J.
Holwerda, District Associate Judge.
The mother and father separately appeal the juvenile court’s termination of
their parental rights to their daughter, R.N. AFFIRMED ON BOTH APPEALS.
Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant
father.
Kate Strickler, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Michael K. Jacobsen, County Attorney, and Scott W.
Nicholson, Assistant County Attorney, for appellee State.
Larry Pettigrew of Pettigrew Law Firm, P.C., Newton, attorney and
guardian ad litem for minor child.
Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2
VOGEL, P.J.
The mother and father separately appeal the juvenile court’s termination of
their parental rights to their daughter, R.N. They both argue the State did not
prove by clear and convincing evidence grounds to terminate their rights under
Iowa Code section 232.116(1)(f) and (l) (2013), asserting R.N. will be able to be
returned to their care within a reasonable period of time. Alternatively, the
mother requests she be granted an additional six months to work towards
reunification. They further argue termination was not in R.N.’s best interests and,
due to the parent-child bond, Iowa Code section 232.116(3)(c) precludes
termination.
We conclude the juvenile court properly terminated the mother’s and
father’s parental rights pursuant to Iowa Code section 232.116(1)(f), given their
persistent substance abuse issues and unwillingness to cooperate with the
Department of Human Services (DHS). Additionally, the fact they have been
involved in substance abuse treatment for many years and have neither
consistently attended treatment nor made significant, lasting progress, indicates
additional time will not serve to correct the situation. Furthermore, due to the
father’s physical abuse of R.N. and the mother, in addition to the mother’s
inability to overcome her twenty-year addiction, termination of their parental
rights is in R.N.’s best interest, and the parent-child bond does not counsel
against termination. Consequently, we affirm the order of the juvenile court.
I. Factual and Procedural Background
R.N., born March 2003, first came to the attention of DHS upon her birth,
having tested positive for methamphetamine in her system. She was returned to
3
the parents’ care following their cooperation with DHS. She again came to the
attention of DHS on August 1, 2011, when authorities discovered a
methamphetamine pipe in the home. Both parents admitted to using
methamphetamine while caring for R.N., and the mother further admitted to using
marijuana. R.N. was adjudicated a child in need of assistance (CINA) on
September 9, 2011, pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (n)
(2011),1 but was allowed to remain in the home with the requirement the parents
cooperate with services.
During a family team meeting on October 18, the mother admitted to using
methamphetamine less than two weeks prior and opiates the day of the meeting.
She agreed to move out of the home and allow the father to parent R.N. A
disposition hearing was held on November 3, 2011, which neither parent
attended. Due to the parents’ missed drug screens in addition to a general lack
of cooperation with services, R.N. was removed from the home. She was placed
with her maternal aunt. On November 18, 2011, a removal hearing was held,
and R.N. was allowed to return to the father’s care under the supervision of DHS.
Following the mother’s completion of inpatient substance abuse treatment, R.N.
was under both parents’ care as of February 3, 2012.
The father tested positive for methamphetamine on April 9, 2012, despite
reporting neither he nor the mother were drinking or using drugs. DHS required
him to move out of the home in order for R.N. to remain, to which both parents
1
The paragraphs under which R.N. was adjudicated CINA state the child shall be
considered in need of assistance if the parent has physically abused or neglected the
child (or is imminently likely to do so), the child is likely to suffer harm due to the parent’s
neglect in failing to supervise the child, and the child has not received adequate care
due to the parent’s drug abuse. Iowa Code § 232.2(6)(b), (c)(2), & (n).
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ostensibly agreed. After DHS requested a mental health evaluation, treatment,
and substance abuse treatment, the father sporadically attended services and
attended a few supervised visits. The father did not contact DHS or the family
safety, risk, and permanency service providers from June 2012 until January
2013. Pursuant to the father’s testimony at the termination hearing, after a
relapse on methamphetamine in April 2013, he successfully completed a
residential treatment program and has been sober since June 2013. 2 He further
testified he had been sober for longer periods of time, but that he had relapsed.
On June 29, 2012, R.N. reported to the police her father had slapped her
and was threatening her. She further told the officer her father was staying in the
home even though he was not allowed to be there. The police contacted the
DHS caseworker, who informed the officer the father was only allowed
supervised visitation, and R.N. was again removed from the home. However,
R.N. was returned to the mother’s care following a review hearing on July 13,
2012.
When DHS workers went to the home at various times between July and
December 2012, the father was occasionally there, but because this was
technically not a violation of DHS requirements, given R.N. was not present, R.N.
remained in the home. The parents missed all requested drug screenings during
this time, but on January 1, 2013, the DHS worker transported the mother to a
drug screen, and she tested positive for methamphetamine. A removal notice
was served at the home, and it was discovered the father was living there. R.N.
2
The day before the termination hearing, the mother’s sister left a message at DHS
requesting both parents be drug tested because they had stolen her hydrocodone. No
tests were entered into evidence.
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stated she was told to lie about the father’s presence in the home or she would
“get a whooping.” She further reported the parents would sleep for long periods
of time and she would be responsible for feeding herself, but sometimes there
was no food in the home. She was also responsible for getting herself to school
because the parents would not wake up in time to help her. Consequently, R.N.
was removed from the home and placed in foster care, where she remained at
the time of the termination hearing.
The mother’s history of substance abuse is significant. She has been
using methamphetamine since 1993 and reports only minimal instances of
sobriety. In her testimony at the termination hearing, she stated: “I’ve been sober
for a year. I’ve been sober for six months this time . . . . [I]t’s very sporadic.”
With regard to her treatment during the pendency of this case, she successfully
completed inpatient treatment and was discharged in December 2011, with the
recommendation she follow through with outpatient services. However, she was
discharged unsuccessfully from services on March 26, 2012, given she only
attended two appointments in the beginning of February. Following various
relapses, she attempted to attend inpatient and outpatient treatment programs
but never successfully completed a program. She last tested positive for illegal
substances on October 10, 2013. At the termination hearing, she testified R.N.
could not presently be returned to her care, and that she would need an
additional six to eight months to work towards reunification.
The record also indicates the father physically abused both R.N. and the
mother. A DHS worker’s report, dated March 7, 2013, stated:
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[R.N.] states that she is afraid of her dad but not right now at visits
because someone is there to watch them. At visits right now he is
being nice. She stated that if a worker was not there he would start
to say things. She is more afraid of her dad when they are alone
together. She states her dad does bad things to her, I asked if she
could tell me what she means by bad things and she replied that he
hurts me, slams me into things, yells at me, tells me to go die and
tells me nobody cares about me. He has been doing this for a long
time, even before DHS became involved. She was upset after her
visit yesterday because her dad keeps lying and saying she will be
home soon. She states that she has some text messages on her
phone, she is sure one is from dad that is bad. When I asked about
this she stated that she knows there is a message asking why she
is telling us stuff. She states that at the visits her dad will tell her
that he will give her $5 to come and sit on his lap. She is very
afraid of what her dad will say or do to her when he finds out that
she has told what has been going on in the home. I asked her
about when she said her dad hurt her, what she meant by hurt, she
stated that he will hit her in the arm and legs, push her into the
corners of walls, and kick her.
R.N. further told DHS workers the father would break things like mirrors
and punch holes in the wall, and that on occasion her mother would throw her.
When asked if she felt safe in the home, she responded “sometimes she feels
safe at home but not when she has to lie or when dad has a bad temper.” With
regard to the mother’s abuse, R.N. reported to DHS workers that the father had
hit the mother but she was instructed to lie about those incidents.3 Additionally,
on February 12, 2013, the father’s adult daughter reported to DHS the father had
abused her, he had not changed, and it was in R.N.’s best interest to be placed
out of the father’s care.
The following services were offered to the parents during the pendency of
this proceeding: relative placement; supervised visitation; family safety, risk, and
3
The mother reported to DHS the father “got into her face,” but did not choke her, which
refers to one instance of abuse in January 2013. However, on another occasion she
stated the father had been domestically violent but that only happened “very rarely.”
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permanency services; family team meetings; substance abuse evaluations;
inpatient and outpatient substance abuse treatment; drug screens; mental health
services; and safety planning.
On January 13, 2014, the State filed a petition requesting the juvenile
court terminate the parental rights of the mother and father. A contested hearing
was held on March 6, 2014, in which two DHS workers, the mother, the father,
and the foster mother testified. Pursuant to an order dated April 7, 2014, the
juvenile court terminated the mother’s and father’s parental rights under Iowa
Code section 232.116(1)(f) and (l) (2013). The mother and father separately
appeal.
II. Standard of Review
We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,
64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear
and convincing evidence. Id. Our primary concern is the child’s best interest. Id.
When the juvenile court terminates parental rights on more than one statutory
ground, we only need find grounds to terminate under one of the sections cited
by the juvenile court to affirm. Id. To terminate parental rights under Iowa Code
section 232.116(1)(f), the State must prove by clear and convincing evidence the
child is four years of age or older, she has been out of the home for twelve of the
last eighteen months, and she cannot be returned to the parents’ care at this
time.
III. Termination Pursuant to Iowa Code section 232.116(1)(f)
The parents first argue the State did not prove by clear and convincing
evidence their rights should be terminated under either section cited by the
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juvenile court, that is, Iowa Code section 232.116(1)(f) and (l). Though the
mother admitted at the termination hearing she could not care for R.N. at the
present time, she asserts she will be able to care for R.N. given another six
months in which she can work towards reunification. Concomitantly, the father
argues R.N. can be returned to his care if he does not live with the mother, and
therefore paragraph (f)’s requirement that the child cannot be returned to the
parent’s care at the present time has not been met.
We begin by noting the district court’s careful observation of the
framework of this case, before it made its ultimate findings:
The overall history of this case is neither uncommon nor unusual
for a drug-related case; with periods of sobriety followed by periods
of relapse, and periods of compliance followed by periods of
noncompliance. The Court is left to decide whether this is an
inevitable cycle that cannot or will not change despite the parents’
best efforts or whether the parents have finally succeeded in
breaking that cycle.
Given this framework, we do not agree with the father’s argument R.N.
can be returned to his care at the present time. While, like the juvenile court, we
commend the father for his period of sobriety, as evidenced from his past
behavior it is clear he will not comply with DHS’s requirement he not live with the
mother. He was advised to leave the family residence during the initial few
months of the case; however, he lied to DHS, informing the department he had
moved, but then over the course of several months would hide in the basement
during home visits. He also instructed R.N. to lie about his presence in the
home, which she did on several occasions. Additionally, testimony at the hearing
indicated he has been in a relationship with the mother for the past twelve years
and has no desire to discontinue the relationship. In determining the future
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actions of the parent, his past conduct is instructive. In re J.E., 723 N.W.2d 793,
798 (Iowa 2006). It is very likely, then, that despite his sobriety, the father would
remain with the mother, who admitted she cannot presently care for R.N. due to
her issues with substance abuse.
We also find particularly disturbing R.N.’s multiple statements the father
physically abused her and the mother, in addition to the adult daughter’s report to
DHS the father abused her as well.4 On our de novo review of the record, this
evidence, combined with the father’s unwillingness to cooperate consistently with
DHS, demonstrates R.N. cannot be returned to his care.
We also conclude the State proved by clear and convincing evidence R.N.
cannot be returned to the mother’s care within a reasonable period of time.
Though, again, we commend the mother for her period of sobriety, her continued
use of methamphetamine since 1993, her multiple failed attempts at remaining
sober, as well as her inability to act in the best interest of R.N., shows R.N.
cannot be placed in the mother’s care within a reasonable period of time. See In
re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“Where the parent has been
unable to rise above the addiction and experience sustained sobriety in a
noncustodial setting, and establish the essential support system to maintain
sobriety, there is little hope of success in parenting.”). Consequently, we
conclude the State proved by clear and convincing evidence the mother and
father’s parental rights should be terminated pursuant to paragraph (f).
4
In the termination hearing the father admitted there was a founded child abuse report
regarding his physical abuse of this daughter.
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IV. R.N.’s Best Interests and the Parent-Child Bond Consideration
The parents further claim termination is not in R.N.’s best interest. They
assert the parent-child bond consideration in Iowa Code section 232.116(3)(c)
precludes termination.5
It is undisputed the parents share a bond with R.N. However, they have
been receiving services—without substantially complying with those services—
since August 2011. There have been repeated relapses following successful
completion of inpatient and outpatient treatment, and the mother requests more
time to address this issue. Though the father cites his continued sobriety, it is
evident from his past behavior it is unlikely he will comply with any requirement
he not live with the mother, who, it has been established, cannot care for R.N.
“We have repeatedly followed the principle that the statutory time line must be
followed and children should not be forced to wait for their parent to grow up.”
N.F., 579 N.W.2d at 341; see also Iowa Code § 232.116(2). It is unfair to R.N. to
prolong the instability in her life, particularly after the parents have been given
services since August 2011 but still cannot provide an adequate home.
Furthermore, the physical abuse by the father, and the mother’s complicity
in this abuse, indicates termination of their parental rights is in R.N.’s best
interest. We also find it reassuring that R.N. is thriving in her foster home, and
the foster mother testified she would like to adopt R.N. Therefore, the parent-
5
The State argues error was not preserved on this issue. Specifically, it asserts the
juvenile court did not address paragraph three, the parents filed no motion to amend or
enlarge, and therefore error was not preserved. However, the juvenile court must
address all three paragraphs set forth in Iowa Code section 232.116 when determining
whether parental rights should be terminated, and we review those findings de novo.
See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Consequently, we will address the
merits of this argument, regardless of the error preservation issue.
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child bond consideration in paragraph three does not preclude the termination of
parental rights.
Having considered the parents’ arguments, we affirm the juvenile court’s
termination of the mother and father’s parental rights.
AFFIRMED ON BOTH APPEALS.