In the Interest of N.L.-s., A.L.-s., I.L.-s., I.L.-s., D.L.-s., and D.L.-t., Minor Children, G.s, Father, D.L., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-2045
Filed February 11, 2015
IN THE INTEREST OF N.L.-S., A.L.-S., I.L.-S., I.L.-S., D.L.-S., AND D.L.-T.,
Minor Children,
G.S, Father,
Appellant,
D.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Julie A.
Schumacher, District Associate Judge.
Parents appeal separately the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Daniel P. Vakulskas of Vaskulkas Law Firm, P.C., Sioux City, for appellant
father.
Joseph Flannery of Law Office of Joseph W. Flannery, P.C., Le Mars, for
appellant mother.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Patrick Jennings, County Attorney, and Dewey Sloan, Assistant County
Attorney, for appellee State.
Joseph Kertels of the Juvenile Law Center, Sioux City, attorney and
guardian ad litem for minor children.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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PER CURIAM.
A mother and father appeal separately the termination of their parental
rights—the mother to her six biological children and the father to his five, of the
six, biological children. The mother argues the court failed to consider her
positive progress in the case and that she should have been given additional
time for reunification. The father challenges the grounds for termination and
asserts termination was not in the children’s best interests. Upon our de novo
review of the record, we affirm.
I. Background Facts and Proceedings.
D.L., born in 1991, is the mother of six children, of which D.L.-T. is the
oldest, born in 2008, and N.L.-S., born in 2014, is the youngest. G.S. is the
biological father the five youngest children, but he served as a father to eldest
child as well.1 Both parents have limited cognitive abilities that have affected
their parenting skills. The father also has a history of substance abuse, as well
as unsavory affiliations, including gang involvement.
The family first came to the attention of the Iowa Department of Human
Services (Department) in December 2010 after it was reported the father was
using and selling methamphetamine and marijuana. It was also alleged the
mother had punched the eldest child, then two-years old, in the back. At that
time, the mother only had two children, and the parents were living with and
receiving significant support from the father’s parents. The parents denied ever
hitting the child; no bruises were observed, and the child was too young to be
interviewed. The abuse report was not confirmed, but the father did test positive
1
D.L.-T.’s father’s parental rights are not at issue in this appeal.
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for methamphetamine. The parents agreed to participate in voluntary services,
and the father attended and ultimately successfully completed substance abuse
treatment. The case was closed in 2011, when the mother was pregnant with
her third child.
The family again came to the Department’s attention in 2013, after the
school reported the oldest child, then five, came to school with bruising,
puffiness, and redness in his left eye. The child told a school administrator the
father had struck him in the eye with a spoon for playing soccer in the house. A
Department worker went to the house and saw the child had a red, puffy eye.
The child reported to her the father hit him with a belt. Beyond the red eye, the
worker did not see any injuries and scheduled an appointment at the hospital for
ultraviolet photographs to be taken. There were also reports of drug use by the
parents.
A few days after the incident, the child told the interviewer at the advocacy
center that he “got a bruise and felled on [his] head” because he “didn’t get [his]
socks on.” The child initially stated no one hurt or hit him, but he amended his
answer to “When I be naughty.” He stated that when he is naughty his paternal
grandmother spanks him, but he asked the interviewer not to tell his mother. The
ultraviolet and white-light photographs taken indicated the child had some
bruising and discoloration of the skin on his face, back, and leg, and the
reviewing doctor opined the bruised areas were not in areas normal for
accidental injury. Thereafter, the father admitted that, in disciplining the child, he
would hold the child down while the paternal grandmother struck the child two or
three times over clothing. He denied any physical abuse.
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The mother was then interviewed. At that time, she was pregnant with her
sixth child. The mother admitted she and the paternal grandmother had
disciplined the oldest child by spanking, either by hand or belt. She stated the
father usually held the child down rather than giving the spanking because it was
believed the father would hit too hard. She denied any physical abuse, including
the child’s report about his eye injury, at first claiming the child ran into something
and later that the child got into a fight at school. The grandmother gave a
different “accidental” account of the child’s eye injury. All five children were then
removed from the parents’ care and placed in foster care, where they have since
remained.
After the removal, hair-stat tests were performed on four of the children,
and all four tested positive for methamphetamine. Additionally, one child tested
positive for ingestion of methamphetamine. Both parents tested positive for
methamphetamine. Several of the children were found to have developmental
and social delays, and two of the children were not receiving regular nebulizer
treatments for their asthma as directed. The children were subsequently
adjudicated children in need of assistance (CINA). The sixth child was
adjudicated a CINA after her birth in February 2014.
The parents continued to live with the father’s family and were completely
dependent on them for shelter, transportation, and financial management, as well
as assistance parenting the children. However, there were numerous concerns
raised about the environment of the family’s home, including drug usage, gang
activity, and physical abuse in the home. Additionally, it was reported the
children lacked developmental opportunities because they were isolated within
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the family home and the family lacked knowledge of age-appropriate discipline.
There were also ten people living in the home. It was determined the children
could not be returned to that residence because of safety concerns, and it was
recommended the parents obtain their own residence.
Numerous services were offered to the parents, including substance
abuse and mental health evaluations, and the parents were generally
cooperative with the recommendations following their evaluations. Following her
evaluation, the mother’s mental health evaluator opined that, “[c]onsidering [the
mother’s] intellectual level and personality makeup, the expectation that [she] can
provide a truly healthy, nurturing environment with responsible parenting seems
unlikely. Close supervision and services would likely be needed.” The
assessment following the father’s evaluation was similar, concluding his
“responses often revealed very poor insight into problem situations that might be
relevant for parenting.”
The parents were particularly open to services and recommendations
concerning their visits with and parenting of the children. They attended every
visit, arrived on time, brought dinner, and provided the basic necessities for the
children and their foster families. The parents were motivated to learn new
parenting skills and techniques, and they attended parenting classes. The
parents eventually moved into their own apartment, and visits were held there.
Yet, despite the continued supervised visits, receipt of parenting
information, and the parents’ overall motivation and love of the children, the
parents never progressed to a point that the Department felt the children could
be transitioned into semi-supervised visits with just the parents without the
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possibility of some adjudicatory harm to the children. The service provider
reported the parents lacked follow through on parenting skills, discipline
techniques, and assignments given to them. The provider also reported she
continually worked with the parents on time outs, planned ignoring, staying calm,
non-violent discipline techniques, and appropriate parenting skills. The parents
did not believe the children’s safety or welfare were at risk, stating the children
“are the world to us and [the Department is involved] because of one big mistake
that we did [and our children] are paying.”
The provider noted the children’s initial developmental delays, such as the
older children’s very minimal vocabulary and the oldest child’s inability to follow
simple directions like putting on or taking it a seat belt off. The provider believed
all three older children had lacked proper structure or routine, and they continued
to struggle with following rules or listening. After placement in foster care, the
children began to thrive. The three boys were initially placed together in one
home, and the twin girls were placed together in a different home. All five
children made developmental gains in the areas of speech, behavior, physical
health, affect, and personality. The children responded well to the structure and
consistency provided by the foster parents. The sixth child was placed in the
foster home with the twins after her birth.
In July 2014, the State filed a petition for termination of the parents’
parental rights. At the hearing, the case worker testified the parents loved their
children very much, but she explained the parents’ progress was stagnant and
continued services would not aid their parenting ability. She admitted the parents
had asked the Department to transition a few children to their care at a time, to
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see if the parents could handle it. However, she explained she did not believe
that was an available option, noting the children were not “guinea pigs,” there
would be stress on the children as to whom they picked, and ultimately, the
parents had six children to care for, not just a few. Following the hearing, the
court entered its order terminating the parents’ parental rights pursuant to Iowa
Code subsections 232.116(1)(d) and (h) (2013).
The parents now appeal, separately.
II. Discussion.
In determining whether parental rights should be terminated under chapter
232, the juvenile court “follows a three-step analysis.” In re D.W., 791 N.W.2d
703, 706 (Iowa 2010). Step one requires the court to “determine if a ground for
termination under section 232.116(1) has been established” by the State. Id. If
the court finds grounds for termination, the court moves to the second step of the
analysis: deciding if the grounds for termination should result in a termination of
parental rights under the best-interest framework set out in section 232.116(2).
Id. at 706-07. Even if the court finds “the statutory best-interest framework
supports termination of parental rights,” the court must proceed to the third and
final step: considering “if any statutory exceptions set out in section 232.116(3)
should serve to preclude termination of parental rights.” Id. at 707. We review
the parents’ claims on appeal de novo. See In re A.M., 843 N.W.2d 100, 113
(Iowa 2014).
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A. The Father’s Appeal.
1. Grounds for Termination.
The grounds for termination must be proved by clear and convincing
evidence. Iowa Code § 232.116(1) (2013); see also D.W., 791 N.W.2d at 706.
When the juvenile court terminates parental rights on more than one statutory
ground, we may affirm on any ground we find supported by the record. D.W.,
791 N.W.2d at 707; In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995). We
choose to focus on subsection 232.116(1) paragraph (h), which requires the
State to prove by clear and convincing evidence that (1) the child is three years
of age or younger, (2) has been adjudicated a CINA, (3) has been removed from
the physical custody of the child’s parents for at least six months of the last
twelve months, and (4) there is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents at the present time.
Here, there is no question the first three elements were established: the father’s
five biological children were age three or under, were adjudicated CINA in 2013,
and removed from his care for the requisite time period. The only debatable
issue is the fourth element, and, upon our de novo review, we find the State has
met its burden on this element as to both parents.
As we have stated many times, children lack pause buttons. Their crucial
days of childhood cannot be suspended while waiting for a parent to remedy a
lack of parenting skills. “At some point, the rights and needs of the child rise
above the rights and needs of the parents.” In re J.L.W., 570 N.W.2d 778, 781
(Iowa Ct. App. 1997), overruled on other grounds by In re P.L., 778 N.W.2d 33,
40 (Iowa 2010); see also P.L., 778 N.W.2d at 39-40. At the time of the
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termination hearing, these young children had been out of the father’s care for
over six months. And, despite the receipt of numerous services, the father was
unable to progress to a point where he could resume care of his five children
without exposing the children to the risk of adjudicatory harm. While lower
mental functioning alone is not sufficient grounds for termination, it is a relevant
consideration where it affects the child’s well-being. See A.M., 843 N.W.2d at
111. Here, the father hit a five-year-old in the eye for playing soccer in the
house, and he never accepted responsibility for his actions. These children
suffered developmental delays for which he and the mother did not seek
assistance. His children tested positive for methamphetamine—one had even
ingested it—yet he did not think his children were at risk. Moreover, although the
father was attending substance abuse treatment, his recent marijuana relapse,
coupled with his continued unsavory social associations, make his continued
commitment to sobriety at this time or for the foreseeable future unlikely. While
the father was making an effort to participate in services, there was simply not
evidence he understood, internalized, or retained the information necessary to
parent successfully and keep safe five young children. Upon our de novo review,
we agree with the juvenile court that the evidence presented at the termination-
of-parental-rights hearing clearly established the children could not be returned to
the father’s care at that time. We therefore agree the State established
termination of the father’s parental rights was appropriate under Iowa Code
section 232.116(1)(h).
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2. Best Interests.
Our legislature has constructed a time frame to balance a parent’s efforts
against the children’s long-term best interests. In re C.B., 611 N.W.2d 489, 494
(Iowa 2000). We measure best interests by the statutory language, giving
primary consideration to the children’s safety, and to the best placement for
promoting their long-term nurturing and growth and their physical, mental, and
emotional conditions and needs. Iowa Code § 232.116(2). “The mental capacity
of a parent and the existence of a preadoptive foster family in the life of a child”
are relevant considerations in the statutory best-interest analysis. D.W., 791
N.W.2d at 708. Consequently, “the termination analysis considers the ability of
the parent to properly care for the child and the presence of another family to
provide the care.” Id. “[W]e cannot deprive [children] 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.”
A.M., 843 N.W.2d at 113. Termination is the appropriate solution when a parent
is unable to regain custody within the time frames of chapter 232. See In re C.K.,
558 N.W.2d 170, 174 (Iowa 1997) (“An appropriate determination to terminate a
parent-child relationship is not to be countermanded by the ability and willingness
of a family relative to take the child.”). Upon our de novo review, we agree with
the juvenile court that the considerations guiding the decision support
termination.
Here, despite ongoing services from the Department, the father failed to
show the kind of progress during this case while the children have been out of his
care to merit prolonging the uncertainty. The case progress reports and the case
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worker’s testimony indicate the father has difficulty overcoming his intellectual
impairment to provide an adequately safe and reliable home for the children
without relying heavily on service providers or his parents. As his five children
continue to grow and develop, their need for physical, mental, and emotional
guidance, as well as financial support, will only become more challenging. The
children have made significant developmental gains in their preadoptive foster
homes, and all evidence suggests that they will continue to do so. We are simply
not convinced that the father has developed the skills necessary to cope with the
critical needs of five young children in the statutory time frame allotted to him and
accordingly find the factors of section 232.116(2) support termination.
B. The Mother’s Appeal.
The mother makes a passionate argument asserting the juvenile court
ignored the positive reports and accomplishments the mother made during the
duration of the case, including her commitment to attending mental health and
substance abuse treatment. She essentially asserts she deserved, based upon
her efforts, additional time for reunification and a trial-visitation period with a few
of her children so she could demonstrate she could safely parent them. While
we applaud her efforts, we disagree for the same general reasons stated
addressing the father’s appeal.
Here, the mother’s mere participation in services was not enough to
evidence she could safely care for six young children. Her children tested
positive for methamphetamine, but she did not believe her children were at risk,
stating she only believed the Department was involved because of the one
incident concerning the child’s eye, and she minimized that incident. These
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children suffered developmental delays in her care. While she went through the
motions in cooperating with the services provided, she, like the father,
demonstrated no real progress or follow through to show she understood the
risks to her children and why the services were necessary. We do not “‘gamble
with the children’s future’” by asking them to wait continuously for a stable
biological parent, particularly at such tender ages. In re D.W., 385 N.W.2d 570,
578 (Iowa 1986) (citation omitted). There is no question the mother loves her
children, but unfortunately, that was not enough to keep them safe prior to the
Department’s most recent involvement, and it is still not enough now. Upon our
de novo review, we find the juvenile court appropriately considered the mother’s
progress and participation in services in the case in its determination that
termination of her parental rights was in their best interests. We, like the juvenile
court, find the children’s need for permanency outweigh the mother’s limited
progress, and the children should not have to wait any longer. The children are
doing well in their preadoptive placements, and all evidence suggests the
children will continue to thrive in their foster families’ care. Taking into account
the relevant factors, we agree with the juvenile court that the children’s best
interests are served by severing their legal tie with the mother.
III. Conclusion.
For the foregoing reasons, we affirm the juvenile court’s order terminating
the parents’ parental rights.
AFFIRMED ON BOTH APPEALS.