In the Interest of J.G. and Z.F., Minor Children, A.F., Mother ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1362
Filed October 28, 2015
IN THE INTEREST OF J.G. and Z.F.,
Minor Children,
A.F., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hancock County, Karen Kaufman
Salic, District Associate Judge.
A mother appeals from a juvenile court order terminating her parental
rights. AFFIRMED.
Michael Moeller of Sorensen Law Office, Clear Lake, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, and David Solheim, County Attorney, for appellee.
Crystal Ely of Young Law Office, Mason City, for father.
Theodore Hovda, Garner, attorney and guardian ad litem for minor
children.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
A mother appeals from a juvenile court order terminating her parental
rights to her two children under Iowa Code section 232.116(1)(f) and (l) (2015).1
The mother argues the State failed to prove the grounds for termination by clear
and convincing evidence and, alternatively, the court should have granted her an
additional six months toward reunification. She also contends termination is not
in the children’s best interests under section 232.116(2) and a statutory
exception existed under section 232.116(3)(c) to prevent termination. She
further claims the juvenile court erred in finding the Iowa Department of Human
Services (DHS) made reasonable efforts toward reunification. We affirm.
I. Background Facts and Proceedings
The mother has two children, J.G., born in September 2003, and Z.F.,
born in December 2006. The DHS first became involved with the family in 2006,
when J.G. was two years old. DHS provided voluntary services to the mother
and J.G. for six months. DHS again became involved with the family in early
August 2013 because of concerns regarding the mother’s substance abuse when
both she and Z.F., then six years old, tested positive for methamphetamine. The
mother participated in voluntary services, and the children remained in her care
and custody even after the mother tested positive for THC in November 2013
and methamphetamine in December 2013. In February 2014, the children were
removed from their mother’s care due to her ongoing methamphetamine use and
1
The parental rights of J.G.’s biological father were terminated pursuant to Iowa Code
section 232.116(1)(b), (e), and (f). He does not appeal. The court further ordered that
guardianship of J.G., and her care, custody, and control were transferred to Z.F.’s father,
her step-father, and she was placed in his home along with Z.F.
3
an incident in which Z.F., then age seven, was found walking alone around town
after 10:00 p.m. After the removal hearing, the mother entered into an inpatient
substance abuse treatment program for methamphetamine use. She
successfully completed the inpatient treatment program in March 2014.
In March 2014, the children were adjudicated children in need of
assistance (CINA),2 and the court placed the children in the care and custody of
Z.F.’s father.3 The court held a dispositional hearing in April 2014. During that
time, the mother was in an outpatient treatment program and consistently met
with her counselors for individual and group sessions though she continued to
abuse alcohol and prescription medication.
2
At one point in its adjudicatory order, the juvenile court stated it dismissed the
allegations under Iowa Code section 232.2(6)(c)(2) and (n) without prejudice based upon
a motion by the State. But at all other points in the adjudicatory order and in subsequent
orders, the court found the parties admitted the allegations of the petition as to Iowa
Code section 232.2(6)(n) and adjudicated the children as children in need of assistance
pursuant to paragraph (n). Thus, we determine that the dismissal of the allegations
under paragraph (n) was a scrivener’s error. The mother neither argues nor cites
authority in support of a claim that the error prejudiced her in any way. In fact, she notes
in her petition that the children were adjudicated under section 232.2(6)(n) after
randomly noting earlier in her petition that the allegations were dismissed. We therefore
consider any issue as to adjudication under section 232.2(6)(n) waived. Iowa R. Civ. P.
6.903(2)(g)(3); see also Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689
(Iowa 1994) (holding that random mention of an issue, without citing authority or offering
substantive argument to support the claim, is insufficient to raise issue for appellate
court’s consideration).
3
The mother and father of Z.F. were separated prior to DHS’s involvement but reunited
shortly after DHS became involved. The parents attempted marital counseling, but the
father left the family home in December 2013. The children continued in the mother’s
care and custody following this separation, thus requiring a removal order to place Z.F.
in his father’s care. J.G.’s biological father’s location was unknown at the time of
removal from the mother. Therefore, a removal order was required to place J.G. in her
stepfather’s care. The removal hearing was originally scheduled for February 2014, but
was waived by the parties and held in conjunction with the adjudication hearing in March
2014.
4
At the review hearing in August 2014, the mother’s visitation had been
increased to seven hours per week and the court approved semi-supervised
visits to start by September. She was participating in substance abuse
treatment, consistently engaging with her counselors, was employed, and had
had negative drug screens since late April 2014. However, by the November
2014 review hearing, there were concerns regarding the mother’s attendance in
treatment and her failure to appear for a hair stat test. She had also lost her
employment.
In January 2015, the juvenile court held a permanency hearing at which it
granted the mother an additional six months to work toward reunification with her
children. At the time, the mother was living with her grandparents on their farm
because her home was in foreclosure. She had a new job. Her visits with the
children had been increased to unsupervised visits every other weekend in
addition to visits during the week, but the court ordered that her visitation not be
expanded further until she verified her sobriety. In late January 2015, the mother
tested positive for methamphetamine. The mother again participated in an
inpatient substance abuse treatment program, but was unsuccessfully
discharged in February 2015 due to increased methamphetamine use and lack of
attendance. As a result of her ongoing substance abuse issues, as well as her
housing situation and involvement in a relationship with a man who had a history
of drug-related criminal activities, the mother’s visits returned to being fully
supervised. The mother was convicted of driving while suspended in March, and
5
failed to inform her providers of the conviction, the revocation of her driving
privileges, or her arrest for failure to appear.
In April 2015, the court held a permanency review hearing. The mother
stated she consistently attended Narcotics Anonymous meetings and spoke with
her sponsor daily. She was still living with her grandparents and had another
new job. In May 2015, the mother again tested positive for methamphetamine.
The State then filed a petition to terminate the mother’s parental rights to her two
children. The mother knew she needed help and obtained two more substance
abuse evaluations. She entered treatment, but was again unsuccessfully
discharged in June 2015 after having no contact with the agency. After the
second evaluation, the mother attended two group sessions and one individual
session. She participated in partial-day intensive outpatient services and later
full-day services until she could be admitted to inpatient services. A space
opened for her for inpatient services, and she stated she would enter but never
entered and later claimed she did not know she was going into inpatient. The
mother continued to use methamphetamine weekly and was homeless and
unemployed.
In July 2015, the juvenile court held a termination-of-parental-rights
hearing. At the time, the mother had visits with her children for two hours once a
week. The DHS worker testified that the visits went well, the mother had a strong
bond with her children, and there had never been any issues with her parenting
skills during visits. However, the mother had not attempted to contact the
children outside of her visits with them and did not inquire about their well-being.
6
She admitted she was using methamphetamine and that she had not made
progress in addressing her addiction since February 2014. She also testified that
because of her substance abuse issues, she knew her children could not safely
be returned to her care but requested an additional six months to get clean and
work toward reunification with her children. She had unresolved mental health
issues and had been off medication since April. She continued to be involved in
inappropriate relationships. She was again living with her grandfather and
supporting herself by using her savings, selling some of her household
belongings, and receiving food assistance. Following the hearing, the juvenile
court entered an order terminating the mother’s parental rights under Iowa Code
section 232.116(1)(f) and (l). This appeal followed.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re A.M.,
843 N.W.2d 100, 110 (Iowa 2014). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but are not
bound by them. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Our primary
consideration is the best interests of the child. Id. at 776.
III. Analysis
A. Statutory Grounds
The juvenile court terminated the mother’s parental rights to J.G. and Z.F.
under Iowa Code section 232.116(1)(f) and (l). When a juvenile court terminates
parental rights on more than one ground, we may affirm the order on any of the
statutory grounds supported by clear and convincing evidence. In re D.W., 791
7
N.W.2d 703, 707 (Iowa 2010). Evidence is clear and convincing when there is
no serious or substantial doubt as to the correctness of the conclusions of law
drawn from the evidence. Id. at 706.
The mother argues the State failed to prove the grounds for termination by
clear and convincing evidence.4 Specifically, she asserts that the State failed to
prove that the children could not be returned to her care at the time of the
termination hearing. She alternatively contends the juvenile court should have
granted her an additional six months toward reunification with her children.
Under section 232.116(1)(f), the court may terminate parental rights if the
court finds that the State has proved by clear and convincing evidence the child
(1) is four years old or older; (2) has been adjudicated CINA; (3) has been
removed from the parent’s physical custody “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”; and (4) cannot be returned to the parent’s
custody at the time of the termination hearing.
There is no dispute that both J.G. and Z.F. are over the age of four. The
juvenile court adjudicated both children CINA in March 2014. Both children have
been out of the mother’s physical care and custody since February 2014 and
have had no trial periods at home. The mother testified at the termination
hearing that the children could not be returned to her care at that time because of
her methamphetamine addiction. The mother testified that she last used
4
The mother argues the State failed to prove the grounds for termination under Iowa
Code section 232.116(1)(h). However, this is apparently a typographical error because
the juvenile court terminated her parental rights under paragraphs (f) and (l). We will
therefore examine the mother’s claim with respect to paragraph (f).
8
methamphetamine in early July, a few weeks before the termination hearing.
When asked if she believed her children were safe in her care, she testified that
she knew she needed help and requested additional time to work toward
reunification. The mother did not have stable housing or employment. She had
unresolved mental health issues and required medication management. For
these reasons, we find clear and convincing evidence that J.G. and Z.F. could
not be returned to the care and custody of their mother at the time of the
termination hearing and grounds for termination exist under Iowa Code section
232.116(1)(f).
Furthermore, the mother is not entitled to an additional six months
because she has not proved that the need for removal will no longer exist at the
end of that six-month period. See Iowa Code § 232.104(2)(b). The mother’s
minimal progress in addressing her methamphetamine addiction since the CINA
case was opened and the children were removed from her care and custody
indicate that another six months will only postpone the permanency and stability
these children need. We cannot ask these children to continuously wait for their
mother to become a stable parent. In re D.W., 791 N.W.2d at 707. “[A]t some
point, the rights and needs of the children rise above the rights and needs of the
parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009). Therefore, we
affirm the juvenile court’s denial of an additional six months.
B. Best Interests
Next, the mother contends that termination of her parental rights was not
in the children’s best interests as defined in section 232.116(2). Even if a
9
statutory ground for termination is met, a decision to terminate must still be in the
best interests of the child after a review of section 232.116(2). In re P.L., 778
N.W.2d 33, 37 (Iowa 2010).
We have thoroughly reviewed the record before us “giv[ing] primary
consideration to the child[ren]’s safety, to the best placement for furthering the
long-term nurturing and growth of the child[ren], and to the physical, mental, and
emotional condition and needs of the child[ren].” Iowa Code § 232.116(2). “It is
well-settled law that we cannot deprive a child 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 for the
child.” In re A.B., 815 N.W.2d at 777 (quoting In re P.L., 778 N.W.2d at 41).
The mother claims the State failed to present evidence that the mother
was using illegal substances while caring for the children and that the mother
never put the children in a situation that would likely lead to their imminent abuse
or neglect. She claims the children would be safe in her care. Although she
consistently visited her children, appropriately cared for them during visits, and
exhibited good parenting skills, she has put her children in dangerous situations
before. She testified at the termination hearing that it would not be safe for the
children to be returned to her care full time. DHS became involved with this
family in August 2013 because Z.F. tested positive for methamphetamine when
he was six years old. The children were removed from their mother’s care in
February 2014, in part because Z.F., at age seven, was found walking the streets
of town alone after 10:00 p.m. The mother has experienced unstable
10
employment and housing. “Insight for the determination of the child’s long-range
best interests can be gleaned from evidence of the parent’s past performance for
that performance may be indicative of the quality of the future care that parent is
capable of providing.” In re A.B., 815 N.W.2d at 778 (internal quotation marks
omitted). The children were doing well in their father’s care and appeared to be
happy and their needs were being met. Thus upon our de novo review of the
record, we conclude that termination of the mother’s parental rights is in the
children’s best interests.
The mother also claims it is in the children’s best interests to maintain their
relationships with the mother’s extended family—namely her grandparents with
whom she lived at different points throughout this case. The State argues the
mother failed to raise this issue before the juvenile court and therefore error was
not preserved. We apply our standard error preservation rules to termination-of-
parental-rights cases. See In re A.B., 815 N.W.2d at 773. “Even issues
implicating constitutional rights must be presented to and ruled upon by the
district court in order to preserve error for appeal.” In re K.C., 660 N.W.2d 29, 38
(Iowa 2003). The mother did not raise and the juvenile court did not rule upon
the issue of separation of the children from their maternal grandparents.
Therefore, she has not preserved error for appellate review. See Iowa R. Civ. P.
1.904(2), see also In re A.B., 815 N.W.2d at 773.
C. Exceptions or Factors Against Termination
The mother asserts that an exception under section 232.116(3) applies
because “[t]here is clear and convincing evidence that the termination would be
11
detrimental to the child[ren] at the time due to the closeness of the parent-child
relationship.” Iowa Code § 232.116(3)(c).
A court need not terminate parental rights if it finds any of the statutory
exceptions under section 232.116(3) apply. In re P.L., 778 N.W.2d at 39. “The
factors weighing against termination in section 232.116(3) are permissive, not
mandatory, and the court may use its discretion, based on the unique
circumstances of each case and the best interests of the child, whether to apply
the factors in this section to save the parent-child relationship.” In re A.M., 843
N.W.2d at 113 (internal quotation marks omitted).
Although the mother shares a strong bond with her children, who love her
in return, we agree with the juvenile court when it found that “[g]iven the depth
and length of Mother’s substance abuse issues, and the ramifications her
addiction and mental health issues have had on her life, it is more detrimental to
the children to continue a legal relationship with her than it is to terminate
parental rights.” Accordingly, we find that none of the permissive factors weigh
against termination of the mother’s parental rights.
D. Reasonable Efforts
The mother also argues the State failed to prove by clear and convincing
evidence that reasonable efforts toward reunification have been made.
Specifically, the mother claims that she was unable to gain stability and trust with
her service providers because her providers changed frequently. She also
complains that she did not receive any trial periods at home despite having
successful overnight weekend visits.
12
Following removal of a child from a parent’s care and custody, the State
must make reasonable efforts to reunify the family as quickly as possible. Iowa
Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). Reasonable
efforts are not, however, a “strict substantive requirement of termination.” In re
C.B., 611 N.W.2d at 493. Although the State has an obligation to provide
reasonable services, the parent has an obligation to demand different or
additional services the parent may require prior to the termination hearing. In re
S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999).
Here, the mother did not raise these issues regarding reasonable efforts
until closing arguments during the termination hearing when counsel made an
oral motion for a finding of lack of reasonable efforts. Because the mother did
not make her requests prior to the termination hearing, the argument that DHS
did not make reasonable efforts is waived. See In re C.H., 652 N.W.2d 144, 148
(Iowa 2002).
IV. Conclusion
On our de novo review, we find clear and convincing evidence supporting
termination of the mother’s parental rights and affirm under Iowa Code section
232.116(1)(f). The juvenile court did not err in denying the mother an additional
six months to work toward reunification. We further find termination is in the best
interests of J.G. and Z.F. and none of the permissive factors weigh against
termination of the mother’s parental rights. Therefore, we affirm the juvenile
court’s ruling terminating the mother’s parental rights to her two children.
AFFIRMED.