In the Interest of L.N. and L.S., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0702
Filed August 31, 2022
IN THE INTEREST OF L.N. and L.S.,
Minor Children
C.B., Mother,
Appellant,
D.S., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III,
District Associate Judge.
Parents appeal the termination of their parental rights. AFFIRMED ON
BOTH APPEALS.
Joseph W. Kertels of the Juvenile Law Center, Sioux City, for appellant
mother.
Teresa A. O’Brien, Sioux City, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Molly Vakulskas Joly, Sioux City, attorney and guardian ad litem for minor
children.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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AHLERS, Presiding Judge.
This case involves the termination of parental rights of parents of three-
year-old and two-year-old children. The juvenile court terminated the rights of the
mother of both children and the father of the younger child.1 Both the mother and
father appeal.
I. Background
The family came to the attention of the Iowa Department of Human Services
(DHS) in 2019 (before the younger child was born) following reports that the
mother used methamphetamine while caring for the older child. The child was
removed from the mother’s custody and was adjudicated a child in need of
assistance (CINA) later that year. At the time of disposition, custody remained with
the DHS for placement with a relative, which could include the mother. The mother
struggled, including testing positive for methamphetamine, but she was permitted
to remain a placement option while DHS retained custody of the child.
The father was convicted of and incarcerated for possession of
methamphetamine while the mother was pregnant with the younger child. Shortly
after the younger child was born in early 2020, the child was adjudicated a CINA,
but remained in the mother’s custody. In May, at the time of disposition in the
younger child’s case, custody of the younger child remained with the mother and
custody of the older child was returned to the mother.
1 The parental rights of the father of the older child were terminated by separate
order of the juvenile court in this proceeding. The father of the older child is not a
party to this appeal. So all future references to “father” in this opinion refer to the
father of the younger child.
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Custody with the mother did not last. Later in 2020, during two separate
traffic stops, law enforcement found marijuana and methamphetamine in the same
vehicle as the mother. Following those stops, the DHS conducted drug testing on
the mother and both children. All three came back positive for methamphetamine.
As a result, in September, custody of both children was changed from the mother
to the DHS.
Thereafter, the mother remained generally unemployed, failed to attend
many of her group treatments, and regularly refused to participate in drug testing.
She continued to socialize with known drug users and relapsed on both marijuana
and methamphetamine. She had two mental-health hospitalizations in the six-
month period before the termination hearing.
The State filed a petition to terminate parental rights in June 2021. The
hearing on the petition was held on two dates in August. The father participated
in the hearing by phone from prison.
Shortly after the hearing, but before the court ruled, the father was released
from prison. He moved to a town one and one-half hours away from where the
child was living. The mother joined him. The parents’ decision to reside so far
away from the child impeded their contact with the child.
The juvenile court issued a ruling in November. Rather than terminating
parental rights, the court gave the parents an additional six months to work toward
reunification pursuant to Iowa Code section 232.104(2)(b) (2021). In the order
granting additional time, the court set a joint hearing for a CINA dispositional review
and on the petition for termination of parental rights for February 2022. The
hearing was later continued to March. The hearing was held as scheduled, and
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the juvenile court terminated the parents’ rights to the children. Both parents
appeal.
II. Issues Presented
On appeal, both parents challenge the statutory grounds authorizing
termination. They also object to the fact that the second termination hearing took
place less than six months after the juvenile court’s ordering granting them an
additional six months to work toward reunification. The mother raises two
additional issues, namely that termination was not in the children’s best interests
and a permissive exception should be applied to avoid termination.
III. Standard of Review
Appellate review of orders terminating parental rights is de novo. In re Z.K.,
973 N.W.2d 27, 32 (Iowa 2022). This permits us to review the facts as well as the
law to adjudicate the dispute anew. Id. In doing so, we give weight to the juvenile
court’s fact findings, especially as to witness credibility, but we are not bound by
them. Id.IV. Discussion
Review of orders terminating parental rights follows a three-step process.
In re A.B., 957 N.W.2d 280, 294 (Iowa 2021). First, we determine whether a
statutory ground for termination under Iowa Code section 232.116(1) has been
established. Id. If it has, we determine whether termination is in the children’s
best interests, applying the principles spelled out in section 232.116(2). Id. If the
first two steps are satisfied, we decide whether any exception in section 232.116(3)
should be applied to preclude termination. Id. Then we address any additional
claims raised by the parents. In re K.M., No. 19-1637, 2020 WL 110408, at *1
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(Iowa Ct. App. Jan. 9, 2020). However, if a parent does not challenge a step, we
do not address that step. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). As the mother
has challenged all three steps, we will address them all with respect to her. As to
the father, we will only address the step he challenged—the first step. Then we
will address their remaining claim regarding their reduced additional time to work
toward reunification.
A. Statutory Grounds
The juvenile court terminated the mother’s rights under
section 232.116(1)(h), (i), and (l), and the father’s rights under
section 232.116(1)(h) and (i). Both parents challenge termination on all grounds,
but when the juvenile court terminates on more than one ground, we are not
required to assess all grounds, as we may affirm on any ground supported by the
record. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). Consistent with that
principle, we choose to limit our discussion to section 232.116(1)(h).
Termination under section 232.116(1)(h) requires proof that (1) the child is
three years of age or younger; (2) the child has been adjudicated a CINA; (3) the
child has been removed from the physical custody of the child’s parents for at least
six of the last twelve months; and (4) the child cannot be safely returned to the
custody of the child’s parents at the time of the termination hearing. In re A.S.,
906 N.W.2d 467, 473 (Iowa 2018) (interpreting section 232.116(1)(h)(4)’s use of
the phrase “at the present time” to mean at the time of the termination hearing).
The first three elements have been established by clear and convincing evidence,
and the parents raise no challenge to them. Their challenge is to the proof of the
fourth element. Both claim the child could have been returned to their custody.
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The mother contends that she maintains housing, is enrolled in a high-school
equivalency program, regularly participates in therapy, and has remained sober.
The father argues he has complied with everything the DHS and service providers
have asked of him.
While the parents have made some progress to better themselves and
began following the directions of service providers, by the time of the second
termination hearing they did not have a consistent track record that would suggest
either can provide a stable home for these children. In the months leading up to
the second termination hearing, the mother was generally unemployed, relapsed
on both marijuana and methamphetamine, and was hospitalized twice for mental-
health issues. Though the father appears to be working hard at his new job, he
also relapsed on methamphetamine only three months before the termination
hearing. And, it is important to note that both parents relapsed after the juvenile
court gave them an additional six months to work toward reunification. Continued
drug use after being offered services is evidence that parents are unable to provide
“a safe and nurturing home.” In re D.M.J., 780 N.W.2d 243, 246 (Iowa Ct. App.
2010); cf. In re J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9,
2020) (recognizing a parent’s methamphetamine use creates a dangerous
environment for children). We find that the children cannot be returned to either
parent’s custody, so the statutory grounds for termination are satisfied under Iowa
Code section 232.116(1)(h) as to both parents.
B. Best Interests
The mother also argues termination is not in the best interests of the
children. “Even after we have determined that statutory grounds for termination
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exist, we must still determine whether termination is in the children’s best
interests.” A.B., 815 N.W.2d at 776. “[W]e ‘give primary consideration to the child’s
safety, to the best placement for furthering the long-term nurturing and growth of
the child, and to the physical, mental, and emotional condition and needs of the
child.’” In re Z.P., 948 N.W.2d 518, 525 (Iowa 2020) (quoting P.L., 778 N.W.2d at
39).
These children were two and three years old at the time of the second
termination hearing, and, by the time of that hearing, they had been removed from
their mother’s custody for eighteen consecutive months. The mother has had
multiple relapses with drug use. She has been unable to maintain gainful or regular
employment, and, in the six-month period leading up to the termination hearing,
she had two hospitalizations for mental-health issues. She is unable to provide a
stable and nurturing home for her children. As the juvenile court accurately
described it, the mother has been on a “merry-go-round” of dysfunction, with the
mother only making “eleventh hour” efforts at participating in substance-abuse and
mental-health treatment. See In re D.M., 516 N.W.2d 888, 891 (Iowa 1994)
(finding efforts “of very recent origin” to be an unpersuasive “eleventh hour attempt
to prevent termination”); In re K.A., No. 20-0979, 2020 WL 5946114, at *2 (Iowa
Ct. App. Oct. 7, 2020) (“[E]leventh hour attempts do not warrant an extension of
time or prevent termination of [parental] rights.”).
In contrast, the children are doing well in their foster home and are having
all of their developmental needs met. Following our review, we agree termination
of the mother’s parental rights is in the children’s best interests.
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C. Permissive Exception Based on Parent-Child Bond
The mother contends the children’s bond with her is so great that it is
detrimental to them to terminate her rights. Iowa Code section 232.116(3)(c)
permits the court not to terminate parental rights if “[t]here is clear and convincing
evidence that the termination would be detrimental to the child at the time due to
the closeness of the parent-child relationship.” But, the exceptions in
section 232.116(3) are permissive, not mandatory, and the burden to prove the
exception is on the parent challenging termination. See A.S., 906 N.W.2d at 475–
76. Here, the evidence confirms that the mother has a bond with the children, but
the mere “existence of a bond is not enough.” See In re A.B., 956 N.W.2d 162,
169 (Iowa 2021). It must be a closeness that, if severed, would be detrimental to
the child. Id. There is no persuasive evidence that severing the relationship would
be detrimental to the children. Given the young ages of the children, the length of
time they have been outside the mother’s custody, and the other circumstances,
we decline to apply section 232.116(3)(c) to block termination. See In re M.W.,
876 N.W.2d 212, 225 (Iowa 2016) (declining to apply section 232.116(3)(c) where
a parent-children bond existed but the children were young and out of the care of
their mother for nearly two years).
D. Timing of Second Hearing in Relation to Six-Month Extension
As previously noted, after the termination hearing held in August 2021, the
juvenile court issued its ruling in November 2021. In that ruling, the court declined
to terminate parental rights, gave the parents an additional six months to work
toward reunification pursuant to Iowa Code section 232.104(2)(b), and set a
second termination hearing for February 2022 (later continued to March). Both
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parents contend that it was improper for the court to hold the second hearing and
terminate their rights before receiving the full benefit of the six-month extension
granted by the November 2021 order.
We reject the parents’ challenges. First, we note that “the court has
jurisdiction to consider a petition to terminate parental rights during the six-month
review period.” In re R.C., 523 N.W.2d 757, 760 (Iowa Ct. App. 1994). The six-
month period provided by section 232.104(2)(b) is not “a minimum period which
must run before review or modification.” Id. If the court could not terminate before
the end of the six-month period, it would lead to “absurd results” by depriving “the
court of jurisdiction to protect the best interests of the child, which is our primary
concern.” Id. Second, because of the delay between the first termination hearing
in August 2021 and the ruling issued in November, the parents had over six months
between the time of the first and second hearings to demonstrate their ability to
provide a safe home. The parents squandered that opportunity by relapsing on
methamphetamine and generally continuing their same pattern of conduct with
only minimal improvement. Under these circumstances, the juvenile court acted
properly in holding the second termination hearing before the end of the six-month
period.
V. Conclusion
Finding the juvenile court acted appropriately in terminating both parents’
rights, we affirm as to both parents.
AFFIRMED ON BOTH APPEALS.