In the Interest of A.E. and D.E., Minor Children, A.E., Father, D.C., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0076
Filed September 10, 2015
IN THE INTEREST OF A.E. AND D.E.,
Minor Children,
A.E., Father,
Appellant,
D.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
The mother and father separately appeal the termination of their parental
rights to their children, A.E. and D.E. AFFIRMED ON BOTH APPEALS.
Derek Johnson of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant
father.
Darren Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane
& Driscoll, P.L.C., Fort Dodge, for appellant mother.
Thomas J. Miller, Attorney General, Janet Hoffman, Assistant Attorney
General, Jennifer Benson, County Attorney, and Jordan Brackey, Assistant
County Attorney, for appellee State.
Kurt Pittner, Fort Dodge, attorney and guardian ad litem for minor children.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
VOGEL, J.
The mother and father separately appeal the juvenile court’s termination of
their parental rights to their children, A.E. and D.E. They both assert the State
failed to prove by clear and convincing evidence their rights should be terminated
pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2013). They further
assert termination is not in the children’s best interests because they share a
bond with the children and, furthermore, that they should have been granted an
additional six months to work towards reunification. The father also claims the
court erred in admitting the report of a psychiatrist because a proper foundation
was not laid. We conclude the juvenile court properly terminated both parents’
rights under paragraphs (f) and (h), that termination is in the children’s best
interests, and the parent-child bond is not an impediment to termination.
Moreover, granting the parents an additional six months would not correct the
situation; furthermore, the father did not preserve error with regard to his
evidentiary claim. Consequently, we affirm the order of the juvenile court
terminating the parental rights of the mother and father to their children.
I. Factual and Procedural Background
A.E., born February 2010, and D.E., born January 2011,1 came to the
attention of the Iowa Department of Human Services (DHS) due to an incident of
domestic violence. The mother has an older child, J.M., born May 2000, who is
1
D.E. was born testing positive for marijuana in his system.
3
fathered by another man.2 On June 24, 2013, the father assaulted the mother,
D.E., and J.M. The juvenile court’s recitation of the event is as follows:
On June 24, 2013, law enforcement was called by a neighbor
reporting that [the father] chased [the mother] down the street,
pulled her back into the family’s home and physically assaulted
[D.E.] and [J.M.]. During the altercation, [J.M.] texted [the father’s]
father, [M.E], that [the father] was assaulting [the mother]. When
[the father] discovered that [J.M.] had texted [M.E.] [the father]
wrapped his arm around [J.M.’s] neck and choked him. [J.M.]
suffered bruising and abrasions to his neck and a rug burn to his
knee and complained of jaw pain. After law enforcement arrived,
[the mother] denied that [the father] assaulted her, the children or
[J.M.] and was not willing to speak with law enforcement. [J.M.]
reported to law enforcement that [the father] chased [the mother]
down the street and told her he would hurt one of the children if she
did not return to the family home. [The father] reportedly grabbed
[D.E.], then age two years, by the back of the neck and threw him
into the house. [D.E.] had multiple scratches on his neck. [J.M.]
reported that he could see [the father] yelling at [the mother],
spitting in her face and hitting her. [The mother] took [J.M.] aside
and talked with him in private away from law enforcement. [J.M.]
then approached an officer, crying, and said everything he had
reported was a lie. [J.M.] and [M.E.] later confirmed that [the
mother] had told [J.M.] to lie.
The father was arrested and charged with two counts of child
endangerment causing bodily injury, and a no-contact order was entered in favor
of D.E. and J.M. The children were removed from the home and placed in foster
care, where they remained at the time of the termination hearing.3 A.E., D.E.,—
as well as J.M.—were adjudicated in need of assistance (CINA) on January 29,
2014. All children stated to various adults that they witnessed or were the
subject of physical abuse by the father.
2
The mother and J.M.’s father share physical custody. J.M. is not a subject of the
current termination proceedings.
3
There were two foster home placements. The first placement was unable to handle the
children’s behavioral issues. They were then moved to their current foster home, where
the parents have indicated they wish to adopt the children if parental rights are
terminated.
4
The father pled guilty to the two counts of child endangerment and was
sentenced to two years on each count, with the term of incarceration suspended.
He was ordered to enter a residential correctional facility but later escaped, and
in January 2014, he was charged with disorderly conduct and escape from a
residential facility; he was then moved to another residential facility, and he
resided there from March until the end of August, 2014.4 The father’s prior
convictions include several assault charges, harassment, probation violations,
criminal mischief, theft, interference with official acts, disorderly conduct, and
driving under the influence, among others; several of these offenses were
felonies. These convictions spanned from 2002 until 2014. According to the
district court, the mother’s criminal history includes convictions for domestic
abuse assault, theft, possession of drug paraphernalia, interference with official
acts, as well as driving-related offenses.
The June 2013 removal was the second time the children were removed
from the parents’ care. The previous incident was in March 2011, and also
involved allegations of domestic violence and drug use. Following the children’s
removal, the mother tested positive for methamphetamine and marijuana, and
the father was positive for methamphetamine. While they were initially
uncooperative with services, eventually the parents received treatment for their
substance abuse and mental health issues, and the children were returned to
their care on February 10, 2012. The underlying CINA case was closed in March
2013.
4
Following his stay in the residential facility, the DHS worker noted: “[T]here was a
noticeable difference in [the father’s] demeanor and behavior. His attitude was much
improved and he was very reasonable.”
5
Following the children’s June 2013 removal, the parents were
uncooperative with services until approximately three months before the
termination hearing. The mother cancelled several family team meetings, and
the parents only attended approximately three meetings throughout the
pendency of these proceedings. They also failed to attend consistently the
supervised visitation, and the DHS worker noted they appeared to be under the
influence of narcotics during several visits, displaying twitching, sweating, slurred
words, lack of coordination, sores, scabs, and an unkempt appearance.
Additionally, the DHS worker had concerns regarding the parenting of the
children during visitation, specifically with regard to the inappropriate discipline of
the children. The children have demonstrated maladaptive behaviors—including
self-harm, outbursts, and other behavioral issues—that grew worse after visits
with the parents, though these behaviors have reduced since the children have
been out of the parents’ care.
The parents also failed to attend many appointments for the court-
requested drug screenings and did not submit samples for testing until
September 27, 2014; while the mother attended appointments during May 2014,
she was a no-show for the rest of the scheduled testing. All drug screenings that
were submitted by the mother were negative for narcotics, though the September
27, 2013 test of the father returned positive for methamphetamine. The parents
maintain they have been drug-free since 2011. The mother attended substance
abuse treatment from May until July, 2014, and the father underwent treatment
while in the residential treatment facility. The father also received mental health
treatment there.
6
As of the time of the termination hearing, the mother and father had been
in a relationship for six years. During the pendency of these proceedings, the
parents had a third child together, born September 2014. He is residing with the
parents, and as of the termination hearing, he had not been the subject of
removal proceedings.
The following services were provided to the family during the pendency of
these proceedings: gamily team meetings; drug testing; foster care; supervised
visitation; transportation; parenting skills; family safety, risk, and permanency
(FSRP) services; parenting assessments; substance abuse evaluations; mental
health evaluations; behavioral assessments for the children; child well-being
assessments; therapy for the children; behavioral health intervention services;
and medication management.
The State filed a petition to terminate the mother’s and father’s parental
rights, and a contested hearing was held on October 1, 15, and 17, 2014, in
which the parents testified. The State introduced as one of its exhibits a DHS
report that had, as one of its attachments, the child-emotional-well-being
assessment performed by Resmiye Oral, M.D., to which the father objected on
hearsay grounds. On December 31, 2014, the juvenile court ordered the
termination of the parental rights of the mother and the father pursuant to Iowa
Code section 232.116(1)(e) as to both children, paragraph (f) as to A.E., and
paragraph (h) as to D.E. The mother and father 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
7
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 to find grounds to terminate under one of the sections cited
by the juvenile court to affirm. Id. To the extent we are reviewing evidentiary
claims, our review is for an abuse of discretion. In re N.N., 692 N.W.2d 51, 54
(Iowa Ct. App. 2004).
III. Termination
The parents both assert the juvenile court erred in terminating their rights
because the children could be returned home. Each argues evidence of drug
use or violence has not been present in the home since January 2014, and that
the evidence of previous violence was not credible; additionally, their third child is
residing with them and is not the subject of removal proceedings. They further
state they have regularly attended visits and have cooperated with all DHS
requirements.
To terminate parental rights pursuant to Iowa Code section 232.116(1)(h),
the State must establish the child is three years old or younger, adjudicated
CINA, removed from the home for six of the last twelve months, and cannot be
returned home at the present time. Iowa Code § 232.116(1)(h)(1)–(4). To
terminate rights under paragraph (f), the child must be four years of age or older,
adjudicated CINA, removed from the physical custody of the parents for at least
twelve of the last eighteen months or for the last twelve consecutive months, and
there is clear and convincing evidence that at the present time the child cannot
be returned to the custody of the parents. Id. § 232.116(1)(f)(1)–(4).
8
The record establishes the juvenile court properly concluded A.E. and
D.E. cannot be returned to the parents’ care, as defined in paragraphs (f) and (h),
respectively. Neither parent has shown much progress since their most recent
involvement with DHS in June 2013. As the juvenile court noted, the parents:
[D]id not attempt to meet any of their case plan goals or
appear motivated to cooperate with services until termination of
their parental rights was recommended, despite completion of the
parenting assessments, mental health evaluations and substance
abuse evaluations. [The mother] did not make any progress from
the removal of the children in June 2013 until late April 2014, when
she began substance abuse treatment and drug testing (even
though she claimed sobriety for three years). [The mother] began
mental health therapy with Lincoln Mental Health in July 2014. She
attended four appointments before moving to Marshalltown.
[The father] was able to obtain sobriety when he was
sentenced to the residential correctional facility in January 2014.
He was released from the residential correctional facility on August
27, 2014. He and [the mother] reside in Marshalltown, Iowa, with
their new baby, born [in September] 2014. [The father] has been
more cooperative over the past few months, attends visits once
each week and is now on medication for mental health. He has not
engaged in any substance abuse treatment, domestic violence
counseling, anger management or batterer’s education class. His
parenting skills during visits have only marginally improved.
We agree with the court that neither parent has made progress to the
point where the children can be returned to either parent’s care. Both parents
show a disturbing lack of awareness with regard to the danger the father poses
to the children—each deny that physical abuse of the mother and children
occurred, and they continue to assert that J.M. was lying about the abuse he
suffered or witnessed. They also deny drug use in the home since 2011, though
both have missed the majority of the drug screenings requested by DHS. The
professionals who evaluated the children, including Dr. Oral and the case
workers, noted that, without an acknowledgment of the domestic abuse and
9
substance abuse issues, the parents could not adequately or safely parent the
children. The record supports this assessment, particularly given the father’s
continued domestic abuse and the mother’s denial that the abuse occurs.
In determining the future actions of the parent, their past conduct is
instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). The mother and father
both deny any harm to the children resulted from the father’s perpetration of
domestic violence. This is contrary to the well-being of the children, who would
be subject to imminent harm—either physical abuse or drug use in the home—if
returned to the care of the parents. The children demonstrated significant
behavioral problems upon removal, and only after they were separated from the
parents has there been an improvement in the children’s behavior. It is also a
testament to the parents’ inadequate parenting skills that both refused to engage
in services until shortly before the time of the termination hearing. Therefore, we
agree with the juvenile court the children cannot be returned home at the present
time, and the State satisfied its burden showing both parents’ rights should be
terminated under Iowa Code section 232.116(1)(f), as to A.E., and paragraph (h),
as to D.E.
IV. Best Interests and Additional Time
The parents also argue termination is not in the children’s best interests.
They rely on the parent-child bond, and the father asserts the children should not
be separated from their sibling. They argue the considerations of Iowa Code
sections 232.111(2)(b)5 and 232.116(3)(a), preclude termination. They further
5
Iowa Code section 232.111 pertains to the filing of the petition rather than grounds to
be proved.
10
assert the juvenile court improperly declined to grant them an additional six
months to work towards reunification.
With respect to the parent-child bond consideration under 232.116(3)(a),
we agree with the juvenile court any bond is not enough to render termination of
parental rights not in the children’s best interests. Both children have exhibited
maladaptive behaviors indicating the parents have exposed the children to
violence in the home with an overlay of drug use. Additionally, neither parent has
progressed beyond fully-supervised visitation, and the DHS workers were
concerned with behaviors exhibited by the parents during visits. While we agree
that it is important for A.E. and D.E. to have a relationship with their full sibling, it
is not enough to preclude the termination of parental rights.
Moreover, we do not agree with either parent’s assertion more time would
correct the situation. They have been involved with services since 2011, and yet,
substance abuse and physical violence continue to occur while the children are
present. Dr. Oral reported, and the DHS worker agreed, that the parents would
need an additional two years of services before the children could be returned to
the parents’ care. “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.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see
also Iowa Code § 232.116(2). The parents have had ample time to address their
issues, and an additional six months would not remedy the situation;
consequently, we agree with the juvenile court it is in the children’s best interests
the parental rights of the mother and father be terminated. See Iowa Code
§ 232.116(2).
11
V. Expert Testimony
The father’s final argument claims the juvenile court erred in admitting Dr.
Oral’s report. He asserts the report was not authenticated, because Dr. Oral did
not testify, nor did the FSRP worker state she saw Dr. Oral sign the report. The
father asserts this is contrary to the mandates set forth in Rumley v. Mason City,
320 N.W.2d 648, 651 (Iowa Ct. App. 1982).
The father did not preserve error on this argument. Though he objected to
the admission of the report on hearsay grounds, he does not present that
argument on appeal; moreover, the foundational issue he does raise was not
presented with respect to Dr. Oral’s report, and the juvenile court did not address
this specific claim. Consequently, error was not preserved, and we decline to
address the merits of the father’s foundation argument. See Lamasters v. State,
821 N.W.2d 862, 864 (Iowa 2012).
For the foregoing reasons, we affirm the juvenile court’s termination of the
mother’s and father’s parental rights to their children, A.E. and D.E.
AFFIRMED ON BOTH APPEALS.