In the Interest of A.B., J.B., and A.B., Minor Children, G.B., Father, S.B., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0147
Filed March 26, 2014
IN THE INTEREST OF A.B., J.B., AND A.B.,
Minor Children,
G.B., Father,
Appellant,
S.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Brian L.
Michaelson, Associate Juvenile Judge.
A mother and father appeal from the termination of their parental rights to
three children. AFFIRMED ON BOTH APPEALS.
David Dawson, Sioux City, for appellant father.
Stephanie Parry of Forker & Parry, Sioux City, for appellant mother.
Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney
General, Patrick Jennings, County Attorney, and Diane Murphy, Assistant County
Attorney, for appellee State.
Michelle M. Hynes of the Juvenile Law Center, Sioux City, attorney and
guardian ad litem for minor children.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.
A mother and father appeal from the termination of their parental rights to
three children. Both argue clear and convincing evidence does not support
termination of their rights, termination is not in the best interests of the children,
and the closeness of their relationship should prevent termination of their rights.
The father also argues the court incorrectly allowed a late amendment to the
termination grounds alleged and should have allowed an additional six months
prior to termination. We affirm the termination of both parents’ rights.
I. Facts and proceedings.
The family in this case has struggled over years with drug use. Several
child abuse investigations were made dating back to January of 2009. In 2011,
two of the children tested positive for drugs—both for methamphetamine and one
also for cocaine. The mother admitted to using methamphetamine, cocaine, and
marijuana in the children’s home. The father resided (and continues to reside) in
New Mexico and has a history of domestic abuse and drug use. He has had no
in-person contact with the children since July 2011. A child in need of assistance
(CINA) petition was filed regarding the children on December 28, 2011. The
children were adjudicated CINA on February 28, 2012.
The mother participated in drug treatment, and the children continued in
her custody, though she struggled to care for the children. A review hearing was
held on July 31, 2012. The department of human services (DHS) noted the
mother’s inability to make good choices for the children, including allowing a
person who uses drugs to care for the children. In August 2012, a motion to
modify was filed. The mother voluntarily placed the children in foster care.
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Shortly thereafter, she relapsed into methamphetamine use. The next month, a
modification hearing was held and custody of the children was transferred to
DHS.
In December 2012, a home study was conducted of the father’s home in
New Mexico. The study found the father’s home was inadequate to house the
children. On December 26, the court held a dispositional review hearing. The
court continued custody with DHS and advised the parties they should make a
written request to the court for any further or different services.
In June 2013 the mother again entered inpatient treatment. She
successfully completed the inpatient program and began intensive outpatient
services in July 2013. During outpatient treatment, she tested positive several
times for marijuana use.
A second study of the father’s living situation in New Mexico was done in
July 2013 and placement was not recommended. The recommendation was
based on the father’s history of drug use, domestic abuse, limited means, living
conditions, and minimal contact with the children. The father had regularly called
the children once a week and sent gifts, but he stopped calling the children after
the study was completed.
From October 2012 to November 2013, the mother had no physical
contact with the children though she called occasionally; the children remained in
the same foster home throughout the proceedings. A petition to terminate the
parental rights of the father and mother was filed on October 25, 2013.
A hearing was held on the petition January 7, 2014. The court found
grounds for termination of the mother’s rights under Iowa Code sections
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232.116(1)(d), (e), (f), and (l) (2013). The court found grounds for termination of
the father’s rights under Iowa Code sections 232.116(1)(d), (e), and (f). The
court found termination was in the children’s best interests, and none of the
section 232.116(3) factors were applicable. Both the mother and father appeal
from the order terminating their parental rights.
II. Analysis.
Our review of termination-of-parental-rights proceedings is de novo. In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). “We are not bound by the juvenile
court’s findings of fact, but we do give them weight, especially in assessing the
credibility of witnesses.” Id.A. Mother’s appeal: Clear and convincing evidence for termination.
The mother first argues grounds for termination do not exist under Iowa
Code section 232.116(1)(d). This section allows for termination where:
(1) The court has previously adjudicated the child to be a child in
need of assistance after finding the child to have been physically or
sexually abused or neglected as the result of the acts or omissions
of one or both parents, or the court has previously adjudicated a
child who is a member of the same family to be a child in need of
assistance after such a finding.
(2) Subsequent to the child in need of assistance adjudication, the
parents were offered or received services to correct the
circumstance which led to the adjudication, and the circumstance
continues to exist despite the offer or receipt of services.
Iowa Code § 232.116(d). The mother agrees the State has proved the first
paragraph. She disagrees, however, that grounds exist under the second
paragraph. She states “if [DHS] would offer the additional requested services,
she could reunify with the children in a relatively short period of time.” However,
this is not what our statute requires. The children have already been out of the
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mother’s care for over two years. She has been offered services to correct the
situation and still the circumstances exist requiring the children’s removal. We
therefore find grounds exist for termination under Iowa Code section
232.116(1)(d), and do not consider the mother’s arguments under the remaining
three sections. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999) (“When the
juvenile court terminates parental rights on more than one statutory ground, we
need only find grounds to terminate under one of the sections cited by the
juvenile court to affirm.”).
B. Mother’s appeal: Best interests and closeness of relationship.
The mother next argues termination is not in the children’s best interests
of the children, and the court should find the closeness of her relationship with
the children is a factor weighing against termination.
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. [The children]
simply cannot wait for responsible parenting. Parenting cannot be
turned off and on like a spigot. It must be constant, responsible,
and reliable. It is simply not in the best interests of children to
continue to keep them in temporary foster homes while the natural
parents get their lives together. 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 764, 777-78 (Iowa 2012) (internal citations and quotation
marks omitted). The mother has struggled with drug use throughout these
proceedings and has not shown adequate parenting abilities. These children
have been removed from her care for over two years, and she failed to have
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physical contact with the children for a full year. They require permanency.
Termination is in the children’s best interests.
Next, the mother argues the closeness of her relationship with the children
should warrant application of an exception to termination. The children have
been out of her custody for over two years, she did not have any contact with the
children for over one year of that time period, and communication from the
mother has been limited. We do not find an exception should apply here.
C. Father’s appeal: Six more months for reunification.
The father argues the court should have allowed him six more months
before terminating his parental rights. “In order to continue placement for six
months, the statute requires the court to make a determination the need for
removal will no longer exist at the end of the extension.” In re A.A.G., 708
N.W.2d 85, 92 (Iowa Ct. App. 2005). The father argues the mother could make
such a showing given an extension of six months. The father does not have
standing to assert such an argument on the mother’s behalf in an effort to
ultimately gain a benefit for himself, that is, the reversal of the termination of his
parental rights. See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007). He
makes no argument that his own home would be adequate and that he would be
prepared to take care of the children at the end of six months. We therefore find
his argument without merit.
D. Father’s appeal: Amendment of petition for grounds of termination.
The father next argues the court improperly allowed the State to amend
the grounds for termination from Iowa Code section 232.116(1)(h) (child is age
three or younger) to section 232.116(1)(f) (child is age four or older) to reflect the
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age of the youngest child accurately. The father was aware of his child’s age,
and that he would be asked to answer to nearly identical grounds for termination
(the removal time which is shorter for subsection (1)(h) was not at issue). “Leave
to amend, including leave to amend to conform to the proof, shall be freely given
when justice so requires.” Iowa R. Civ. P. 1.402. Further, we find clear and
convincing evidence supports termination under section 232.116(1)(d)—a section
named in the original petition. We find the father’s argument is without merit.
E. Father’s appeal: Clear and convincing evidence for termination.
The father’s rights were terminated under Iowa Code sections
232.116(1)(d), (e), and (f). We need only find grounds for termination under one
section to affirm. S.R., 600 N.W.2d at 64. The father argues the court erred in
terminating his rights under 232.116(1)(d) because he was not offered and did
not receive services to correct the circumstances leading to adjudication. “In
general, if a parent fails to request other services at the proper time, the parent
waives the issue and may not later challenge it at the termination proceeding”
much less for the first time on appeal. In re C.H., 652 N.W.2d 144, 148 (Iowa
2002). The father states, “No efforts were made by DHS or the State to help [the
father] move from New Mexico, and thus [the father] was never offered and never
received appropriate services.” The father points to nothing in the record
showing any request for assistance with moving to Iowa. Two interstate compact
home evaluations were made of the father’s New Mexico home. There is nothing
to show the father even considered moving to Iowa before this appeal.
Termination was appropriate under this section.
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F. Father’s appeal: Best interests and closeness of relationship.
The children have resided outside the mother’s home since September
2011. The father has not seen the children since before the removal. The
children need and deserve permanency for the same reasons discussed in the
mother’s appeal above. Termination is in the children’s best interests.
The father next argues he is closely bonded to the children and we should
apply an exception to termination under Iowa Code section 232.116(3). His
phone communication with the children has been sporadic. He argues his close
bond with the children’ is proved by the fact the children’s bad behavior started
when he stopped calling. We are not persuaded this bond outweighs the
children’s need for a consistent, permanent home with responsible parents. In re
N.F., 579 N.W.2d 338, 34–42 (Iowa Ct. App. 1998).
AFFIRMED ON BOTH APPEALS.