In the Interest of K.W., E.W., Q.W., J.W., and M.K., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1260
Filed December 16, 2020
IN THE INTEREST OF K.W., E.W., Q.W., J.W., and M.K.,
Minor Children,
C.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Clarke, Judge.
A mother appeals the termination of her parental rights to her children.
AFFIRMED.
Michelle Jungers of Iowa Legal Aid, Waterloo, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Tammy L. Banning, of Juvenile Public Defender’s Office, Waterloo, attorney
and guardian ad litem for minor children.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
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VAITHESWARAN, Judge.
A mother appeals the termination of her parental rights to five children, born
in 2010, 2011, 2014, 2017, and 2019.1
The department of human services began investigating the mother in 2018
after she left the children home alone. She eventually pled guilty to three counts
of child endangerment and received a deferred judgment.2
In time, other concerns surfaced, including physical injuries sustained by
one of the children. The district court ordered the children removed from the
mother’s custody. The children were adjudicated in need of assistance.
In 2019, the district court returned the children to the mother under the
department’s protective supervision. Ten days later, the department applied to
have the children removed again after the mother tested positive for cocaine. The
district court granted the application.
The mother continued to receive reunification services, including individual
therapy and substance-abuse treatment. She was also followed by her probation
officer, and she participated in family treatment court. Despite this umbrella of
services and oversight, the mother submitted another positive cocaine test.
In late 2019, the mother gave birth to the fifth child named in the termination
petition. The mother and the child tested positive for cocaine. The newborn was
1 A sixth child, born in 2009, was the subject of child-in-need-of-assistance
proceedings but was ultimately placed with her father and was not named in the
termination petition.
2 The child born in 2009 was one of the children left alone. The youngest child had
yet to be born.
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removed from the mother’s custody, and all five children remained out of her
custody through the remainder of the proceedings.
The State filed a petition to terminate the mother’s parental rights to the five
children. The district court granted the petition.
On appeal, the mother contends the district court should have afforded her
six additional months “to demonstrate her safe lifestyle.” In that context, she also
asserts “this termination is not in the best interests of the children” and “the
evidence does not definitively show that ‘the children will not be able to be returned
to the custody of a parent within a reasonable period of time’ Iowa Code
§ 232.116(1)(k)(3)” (2020). We will begin with her last contention.
The district court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(f) and (h), not (k). However, the termination element set
forth in section 232.116(1)(k)(3) is similar to the fourth element of section (f) and
(h). That element requires proof the “child cannot be returned to the custody of
the child’s parent[].” The language has been construed to require parental fitness
“at the time of the termination hearing.” In re A.S., 906 N.W.2d 467, 473 (Iowa
2018). The children could not have been returned to the mother at the time of the
termination hearing because she was housed at a residential correctional facility
that disallowed them.
We turn to the crux of the mother’s appeal—whether the district court should
have given her six additional months to work toward reunification. See Iowa Code
§ 232.104(2)(b). The mother’s probation and parole officer testified the mother
had “not successfully completed the program” at the residential facility, had
“incurred numerous reports . . . for different rule violations,” and would not
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complete supervised probation before January 2022. Although one of the mother’s
therapists spoke highly of her progress and opined she would be “very successful”
at living a sober lifestyle, the mother’s compliance with drug testing suggested
otherwise. For example, the mother failed to appear for all but one of the twice-
weekly tests scheduled in February 2020, did not appear for five of the tests in
March, and provided a dilute sample in April, which the department deemed
positive. Given the length and breadth of services provided up to the termination
hearing and the mother’s inability to maintain a sustained period of sobriety, a six-
month extension was not warranted.
We are left with the mother’s contention that termination was not in the
children’s best interests. See id. § 232.116(2). The court appointed special
advocate reported that the mother “repeatedly ma[de] promises she fail[ed] to
keep.” At the termination hearing, she discussed one of the older children’s lack
of trust in the face of these broken promises. The department employee
overseeing the case similarly stated that the children were “really struggling . . .
emotionally and mentally.” She cited the mother’s receipt of “services for over two
years” and her relapses after “a short period of time.” In her view, the mother was
“able to maintain herself only when she [was] in a controlled environment” and,
even then, she had a relapse. She testified, “[I]f she can’t maintain her behavior
and her uses when she’s in a controlled environment it’s going to make it even
more difficult for her to stay clean and sober when she’s not in a controlled
environment.” On our de novo review, we conclude termination of the mother’s
parental rights was in the children’s best interests.
AFFIRMED.