In the Interest of E.N., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1451
Filed January 11, 2023
IN THE INTEREST OF E.N.,
Minor Child,
P.A., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Alexandra M. Nelissen of Advocate Law, PLCC, Clive, for appellant mother.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Kayla A.J. Stratton, Juvenile Public Defender, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
2
SCHUMACHER, Judge.
A mother appeals the termination of her parental rights, claiming the State
did not establish a ground for termination. She also claims termination is not in the
child’s best interest and that the court should have applied an exception to
preclude termination. Following our de novo review, we affirm.
I. Background Facts & Proceedings
The mother has a previous history with the Iowa Department of Human
Services (DHS) concerning four biological children stemming back to 2016.1 Her
parental rights to two of those children were terminated in February 2018, and her
rights to the other two were terminated in March 2019. The concerns in those
cases were predominantly substance abuse and unstable housing.
The instant case began in November 2019 after E.N.’s birth.2 The mother
tested positive for THC and admitted to cocaine use prior to learning she was
pregnant. E.N. experienced withdrawal symptoms after birth. DHS removed the
child from the mother’s custody on November 15, 2019, and placed the child with
a foster family. E.N. was adjudicated a child-in-need-of-assistance (CINA)
pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2020).
DHS’s concerns with the mother in this case have focused on substance
abuse. The mother began treatment in July 2019 and claimed to have achieved
sobriety by September. As a result of her apparent success with treatment, the
1 The department is now known as the Iowa Department of Health and Human
Services, but because it functioned as DHS for the vast majority of this case, we
refer to it by its former name in this opinion.
2 E.N.’s biological father is unknown. The mother’s boyfriend was involved in these
proceedings as he would be a potential caretaker of the child if E.N. was returned
to the mother’s custody.
3
child was returned to the mother in March 2020.3 Difficulties followed. The
mother’s boyfriend tested positive for THC and cocaine in July, resulting in him
moving out of the home in accordance with a safety plan. And the mother’s
success with sobriety was short lived. She tested positive for marijuana in
September 2020 and admitted to her substance-abuse treatment provider that she
used un-prescribed Vicodin. Then, in October, the mother tested positive for
methamphetamine. That same month, E.N.. who was not yet one-year old, tested
positive for cocaine, methamphetamines, and amphetamines.4 E.N. was again
removed from parental custody and placed with another foster placement.
Following E.N.’s second removal, the mother achieved another period of
sobriety. As a result, E.N. was placed with the mother on a trial home placement
in May 2022. Again, the mother’s success was short lived. The mother and her
boyfriend both tested positive for cocaine. So, after just three weeks with her
mother, E.N. was placed back with her foster family. E.N. remained in this
placement for the rest of the proceedings.
The State filed a petition to terminate the mother’s parental rights in October
2021. But due to a combination of the mother obtaining new counsel and hopes
that she was making enough progress to regain custody of E.N., the proceedings
were continued. The termination hearing was held June 30, 2022. During the
hearing, the mother insisted that every positive drug test by herself, her boyfriend,
and E.N. were false positives. She claimed to have been sober since September
3 While returned in March, the dispositional order was formally modified on May
28, 2020, to reflect that custody of E.N. was returned to her mother.
4 THC was also present, but not in sufficient quantities to be confirmed.
4
2019. The DHS caseworker pointed to that belief as a primary reason for
supporting termination. The caseworker testified that a refusal to acknowledge
drug use impedes recovery. It was also recognized at trial that the mother had
made some progress from her prior cases, particularly in obtaining stable housing
and employment. Additionally, while E.N. shared some bond with her mother, she
also shared a bond with her current foster placement and another concurrent plan
family. Results from a drug test taken five days after the termination hearing
showed the mother was positive for cocaine.5
The court terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(g) and (h) (2021). The mother appeals.
II. Standard of Review
We review the termination of parental rights de novo. In re P.L, 778 N.W.2d
33, 40 (Iowa 2010). We analyze the case using a three-step process. Id. at 39.
First, we examine whether a ground for termination exists under section
232.116(1). Id. Second, we consider whether termination is in the best interest of
the child. Id.; see also Iowa Code § 232.116(2). Finally, we must decide whether
to apply an exception found in section 232.116(3) to prevent termination. In these
cases, “the first and governing consideration of the courts is the best interests of
the child.” Iowa R. App. P. 6.904(3)(o).
III. Grounds for Termination
The mother claims the State failed to establish a ground for termination.
“On appeal, we may affirm the juvenile court’s termination order on any ground
5 By agreement of the parties, the record was left open to admit the results of this
test.
5
that we find supported by clear and convincing evidence.” In re D.W., 791 N.W.2d
703, 707 (Iowa 2010). We elect to focus on section 232.116(1)(h).6
The only element the mother disputes is whether the child can be safely
returned at the present time. See D.W., 791 N.W.2d at 707 (interpreting “at the
present time” to mean “at the time of the termination hearing”). The mother
contends that while she may have been using illegal substances while the child
was in her home, she was still adequately caring for E.N.
We disagree with the mother. The mother has never acknowledged her
drug use during these proceedings.7 As the DHS caseworker testified to, a refusal
to acknowledge drug use can impede treatment and leave the issue unresolved.
A failure to treat drug addiction places the child at risk. See In re A.B., 815 N.W.2d
764, 776 (Iowa 2012) (noting that a parent’s unacknowledged, unresolved drug
use prevented the children from having a safe and stable home). That risk is
particularly evident due to E.N.’s drug test in which she tested positive for a
6 That section is met when the court finds:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
7 The mother claims all the drug positive tests in this case were false positives.
We, like the district court, disagree. While false positives are certainly possible,
the number of positive drug tests and the correlation between the mother, her
boyfriend, and E.N.’s results all suggest the validity of the testing.
6
panoply of substances. Moreover, drug use can hinder a parent’s ability to
properly supervise and care for a child, particularly when they are young. Id.The mother’s sobriety has been an issue for years—her prior CINA cases
began in 2016. And despite occasional gleams of sobriety, the mother
demonstrated throughout this case that her successes are short-lived.8 Id. at 778(explaining that we can gain insight into future parenting based on evidence of the
parent’s past performance). She tested positive for cocaine mere days after the
termination hearing. Because of the mother’s ongoing drug use, E.N. could not
safely be returned at the present time. Clear and convincing evidence supports
the ground for termination.
IV. Best Interest of Child
We turn to whether termination is in the child’s best interest. “In considering
whether to terminate the rights of a parent under this section, the court shall 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.” Iowa Code § 232.116(2).
The mother claims her close bond between herself, her family, and the child
indicates termination is not in E.N.’s best interest. She also claims “the child will
naturally age and progress in therapy,” which will prove beneficial to the child.
Further, the mother points to her cooperation with services.
We find termination is in the best interest of E.N. “It is well-settled law that
we cannot deprive a child of permanency after the State has proved a ground for
8The mother’s boyfriend has presented similar issues with maintaining sobriety,
having relapsed in the summer of 2021 and again in the spring of 2022.
7
termination under section 232.116(1) by hoping someday a parent will learn to be
a parent.” In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (citation omitted). Neither
can a child remain with a parent who achieves sobriety only to relapse over and
over again. See A.B., 815 N.W.2d at 777 (“Parenting cannot be turned off and on
like a spigot. It must be constant, responsible, and reliable.” (citation omitted)).
And, contrary to the mother’s assertion, we will not make a child stay in unstable
or dangerous conditions in the hope that therapy will address concerns in the
future. E.N. has waited two-and-a-half years for the mother to achieve sobriety.
She needs and deserves permanency.
V. Permissive Exceptions
The mother asserts the court should have prevented termination by
applying two exceptions found in section 232.116(3). First, she claims “[e]vidence
was clear that the child was placed with and in the custody of the mother
throughout this case.” See Iowa Code § 232.116(3)(a). Second, she contends the
close bond she shares with the child is sufficient to preclude termination. See id.§ 232.116(3)(c).
The mother has not preserved her claim in relation to subsection (a). “It is
a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Neither occurred in this
case. In any event, this exception does not apply. The child was in the custody of
DHS at the time of the termination hearing. She was not in the custody of her
mother.
8
The mother-child bond similarly does not preclude termination. While there
appears to be some bond between the mother and E.N., testimony indicated the
child was similarly bonded to other adult figures, including her foster placement
and the potential concurrent plan family. Regardless, the mother must present
“clear and convincing evidence that the termination would be detrimental to the
child” due to their bond. Iowa Code § 232.116(3)(c). She has not done so. As
explained above, the mother’s ongoing substance-abuse issues and the child’s
need for permanency outweigh any bond they may share and the record is void of
evidence that termination will be detrimental to the child.
AFFIRMED.