In the Interest of J.C. and D.H., Minor Children, S.M., Mother, T.H., Father ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0100
Filed March 26, 2014
IN THE INTEREST OF J.C. AND D.H.,
Minor Children,
S.M., Mother,
Appellant,
T.H., Father,
Appellant.
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Appeal from the Iowa District Court for Warren County, Richard B. Clogg,
Judge.
A mother of two children and the father of one of the children appeal the
termination of their parental rights. AFFIRMED IN PART AND REVERSED IN
PART.
Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellant mother.
Justin T. Rogers of Rogers Law Firm, P.L.L.C., Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John Criswell, County Attorney, and Tracie Sehnert, Assistant
County Attorney, for appellee State.
Joseph Vogel, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ. Vogel,
J., takes no part.
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VAITHESWARAN, J.
A mother of two children,1 born in 2001 and 2008, and the father of one of
the children appeal the termination of their parental rights. Both parents
challenge the evidence supporting the grounds for termination cited by the district
court and contend termination was not in the children’s best interests.
I. Mother
The twenty-nine-year-old mother began consuming alcohol when she was
twelve years old. In time, her usage increased significantly and was marked by
periodic seven-to-ten day binges and accompanying blackouts.
The department of human services first became involved with the family in
2007. Over the years, the department afforded the mother numerous services to
address her addiction, at times with the children remaining in her care and at
other times with the children removed from her care. The mother consistently
relapsed. Each time, the mother’s relatives willingly took in the children.
Following the two most recent removals, the children were placed with the older
child’s paternal grandmother. The older child wished to remain with the
grandmother.
In light of the mother’s relapses, the State petitioned to terminate her
parental rights. At a hearing on the petition, the mother acknowledged that,
despite her participation in multiple in-patient and out-patient treatment
programs, she was not in a position to have the children immediately returned to
her care. She variously stated, “I do not think I am ready,” “I am not ready for
1
The mother has a third child who is not a subject of this appeal. The father of the
younger child has not appealed the termination of his parental rights.
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them to live with me,” and “I do not think it would be wise [to have them returned]
right now.” Although she testified she had not consumed alcohol for
approximately four months, she said she did not believe she was sober enough
to have her children come home that day. When asked why, she responded, “I
would like to be more secure in my sobriety before that happens.” When asked
what action she wanted the court to take, she responded, “[N]ot to terminate my
rights so that maybe a year from now when I am stable for a little while, at least a
year, I could—be a full-time mom again.” Later, she clarified that she was not
asking for additional time to facilitate reunification but was seeking the
preservation of her parental rights subject to having the grandmother serve as
the children’s guardian. She also clarified that her older child could remain with
his grandmother, as he wished.
On our de novo review, we conclude the State proved at least one of the
grounds for termination cited by the district court. See In re S.R., 600 N.W.2d 63,
64 (Iowa Ct. App. 1999) (setting forth the standard of review and stating we may
affirm if we find clear and convincing evidence to support any of the grounds
cited by the district court); see also Iowa Code § 232.116(1)(f) (2013) (requiring
proof of several elements, including proof that children cannot be returned to
parent’s custody).
The mother also contends termination is not in the children’s best interests
because their bonds with her side of the family would be severed. See In re P.L.,
778 N.W.2d 33, 39 (Iowa 2010). The record reveals that the children previously
had a relationship with the mother’s sister, but that relationship was tumultuous.
There is scant if any additional evidence of ties with other members of the
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mother’s family. Based on this record, we are persuaded that termination of the
mother’s parental rights was in the children’s best interests.
II. Father
The district court terminated the parental rights of the older child’s father
pursuant to Iowa Code sections 232.116(1)(d), (e), (f), and (i). The father
contends the State failed to prove these grounds for termination. On our de novo
review, we agree. See S.R., 600 N.W.2d at 64.
Iowa Code section 232.116(1)(d) requires proof that the child was
previously adjudicated in need of assistance and “[s]ubsequent 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.” This provision
obligates the State to make reasonable efforts towards reunification of parent
with child. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).
Virtually all the department’s reunification efforts were directed at the
mother. The only “service” the department offered the father was a request to
have him provide a urine sample for drug testing. That request was made
despite the absence of any evidence of substance abuse or any assertion that
the father’s parenting skills were inadequate. The father did not provide the
sample, and the department made no further reunification efforts.
At the termination hearing, the department social worker overseeing the
case turned the State’s burden of proof on its head, testifying the father “has not
really proven that [the child] does not need protected from him.” She continued,
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I think . . . the first thing he could have done differently was really
right at the beginning when the children were initially removed to
drop a [urine test]. If his [test] was clean things would have
progressed in one . . . manner . . . . [I]f it was dirty, then we would
have a whole other set of issues to deal with and we would have
had a path to proceed down. But we never got to that point.
Needless to say, the father had no obligation to prove his parental fitness. The
obligation to prove he lacked fitness rested squarely on the State’s shoulders.
See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). The State failed to present
clear and convincing evidence that the father either was in need of services to
correct the circumstances leading to the child’s adjudication or that he was
afforded those services. See Iowa Code § 232.116(1)(d).
Section 232.116(1)(e) requires proof of several elements, including proof
that “the parents have not maintained significant and meaningful contact with the
child during the previous six consecutive months and have made no reasonable
efforts to resume care of the child despite being given the opportunity to do so.”
“Significant and meaningful contact”
includes but is not limited to the affirmative assumption by the
parents of the duties encompassed by the role of being a parent.
This affirmative duty, in addition to financial obligations, requires
continued interest in the child, a genuine effort to complete the
responsibilities prescribed in the case permanency plan, a genuine
effort to maintain communication with the child, and requires that
the parents establish and maintain a place of importance in the
child’s life.
Id. § 232.116(1)(e)(3). The absence of significant and meaningful contact was
not proven.
The older child’s grandmother testified that the child saw his father
“probably once a week.” She stated, “[H]e calls his dad. His dad comes over.
He—loves his dad. He does not want his dad’s right terminated in no way,
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shape, or form.” She said it was “[v]ery important” to the child that the father’s
parental rights stay intact.
The father confirmed he had been seeing the child every weekend for the
previous four years, either at his parents’ home or at his own home. He testified
that he jointly cared for the child for the first three years of the child’s life, after
which the mother left the state for approximately two years. On her return, the
father filed a petition seeking custody of the child. He was denied physical care
because of his job as an over-the-road truck driver. Pursuant to the decree, he
exercised every-other-weekend visitation for “[q]uite a while” before transitioning
to weekly visits. There is nothing to suggest he abdicated the role of non-
custodial parent. Indeed, the department social worker acknowledged that the
father “had been seeing [the child] pretty regularly.” She also agreed the child
wanted “a relationship with his father” and shared a bond with him.
The State insisted this was not enough. In it’s view, the father should
have stepped forward to seek custody of the child during the child-in-need-of-
assistance proceeding. Again, the burden was not on the father to prove
significant and meaningful contact. The burden rested with the State to prove its
absence, and the State failed to establish this element.
The State also impermissibly cited an adoption subsidy that the
grandmother stood to receive if the father’s rights were terminated. See In re
C. & K., 322 N.W.2d 76, 81 (Iowa 1982) (“We have said economic and cultural
advantages elsewhere do not tip the balance from the home of natural parents in
favor of someone else.”). The grandmother said she was unaware of the subsidy
until the termination hearing. It was clearly not a factor in her willingness to
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adopt the children if both parents’ rights were terminated. But the grandmother
stood firm in her belief that the child’s relationship with the father should not be
terminated. The father, in turn, said he was more than willing to have his monthly
child support withholdings go to his mother if the child remained in her care.
Based on this record, we conclude economic benefits did not favor termination of
the father’s parental rights.
Section 232.116(1)(f) requires proof of several elements, including proof
that the child “cannot be returned to the custody of the . . . parents.” The father
expressed a willingness to have his child placed in his custody immediately. He
noted that he had a full-time job that allowed him to support the child and was
living in a home that would accommodate him. The only evidence the State
mustered to counter these assertions was the outdated criminal history of the
father’s girlfriend. This evidence was insufficient to prove this ground for
termination.
We are left with section 232.116(1)(i), which requires proof of several
elements, including proof that “the offer or receipt of services would not correct
the conditions which led to the abuse or neglect of the child within a reasonable
period of time.” As discussed, the department did not identify conditions that
needed to be corrected with respect to this father and, for all practical purposes,
did not offer services. This ground for termination was not satisfied.
We conclude the State failed to prove any of the grounds for termination
cited by the district court. Accordingly, we reverse the termination decision as it
relates to this father. In light of our conclusion that the grounds were not proven,
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we find it unnecessary to address the best interests argument raised by the
father.
III. Disposition
We affirm the termination decision as to the mother. We reverse the
termination decision as to the father.
AFFIRMED IN PART AND REVERSED IN PART.