In the Interest of A.C., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1223
Filed December 16, 2020
IN THE INTEREST OF A.C.,
Minor Child,
A.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Stephen K. Allison of Stephen Allison Law, PLLC, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Jami J. Hagemeier of Hagemeier Law, P.L.C., Des Moines, attorney and
guardian ad litem for minor child.
Considered by Tabor, P.J., and May and Schumacher, JJ.
2
MAY, Judge.
A mother appeals from the termination of her parental rights to her child,
A.C., who was born in 2018.1 She claims (1) the State failed to establish statutory
grounds authorizing termination, (2) termination is not in A.C.’s best interest, and
(3) A.C.’s placement with a relative should preclude termination. We affirm.
We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,
522 (Iowa 2020). “We will uphold an order terminating parental rights where there
is clear and convincing evidence of the statutory grounds for termination. Evidence
is clear and convincing when there is no serious or substantial doubt as to the
correctness of the conclusions of law drawn from the evidence.” In re T.S., 868
N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).
We generally use a three-step analysis to review the termination of a
parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We must determine:
(1) whether grounds for termination have been established, (2) whether
termination is in the child’s best interest, and (3) whether we should exercise any
of the permissive exceptions to termination. Id. at 472–73. “However, if a parent
does not challenge a step in our analysis, we need not address it.” In re J.P.,
No. 19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020).
The mother claims the State failed to satisfy the statutory grounds
authorizing termination. The juvenile court found grounds for termination under
Iowa Code section 232.116(1)(h) (2020). Paragraph (h) authorizes termination
when:
1The juvenile court also terminated the father’s parental rights, but he does not
appeal.
3
(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.
Iowa Code § 232.116(1)(h). The mother only challenges the fourth element. It is
satisfied when the State establishes the child cannot be safely returned to the
parent at the time of the termination hearing. In re T.W., No. 20-0145, 2020 WL
1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020).
The State highlights the mother’s continual struggle with substance-abuse
and mental-health concerns. The record also shows concerns about domestic
violence and criminality. The mother came to the attention of the Iowa Department
of Human Services (DHS) when A.C. tested positive for THC at birth. DHS was
involved with A.C. from August 2018 to April 2019.2
In October 2019, A.C. was removed from the mother’s custody based on a
report to DHS that the mother was abusing methamphetamine while caring for A.C.
The child was placed with the maternal aunt. In November, the mother obtained
a substance-abuse evaluation and was diagnosed with two substance-abuse
related disorders. In December, A.C. had a hair-stat drug test that was positive for
methamphetamine by environmental exposure. DHS found the mother committed
2 The Warren County Juvenile Court closed A.C.’s child-in-need-of-assistance
case in April 2019.
4
child abuse on three separate occasions due to her substance abuse while caring
for A.C.
A few days after removal, the mother tested positive for methamphetamine.
In January 2020, she pled guilty to theft in the fifth degree. In February, she again
tested positive for methamphetamine. She admitted to relapsing in March. And
from January to May, she repeatedly missed or refused drug tests. We presume
these missed tests would have been positive for illegal substances. See In re I.J.,
No. 20-0036, 2020 WL 1550702, at *2 (Iowa Ct. App. Apr. 1, 2020) (“We presume
these missed drug tests would have resulted in positive tests.”); In re D.G., No. 20-
0587, 2020 WL 4499773, at *4 (Iowa Ct. App. Aug. 5, 2020); In re L.B., No. 17-
1439, 2017 WL 6027747, at *2 (Iowa Ct. App. Nov. 22, 2017); In re C.W., No. 14-
1501, 2014 WL 5865351, at *2 (Iowa Ct. App. Nov. 13, 2014) (“She has missed
several drug screens, which are thus presumed ‘dirty,’ i.e., they would have been
positive for illegal substances.”).
Despite various substance-abuse evaluations and treatment
recommendations, the mother has failed to consistently engage in treatment. She
has been discharged from substance-abuse and mental-health programs for lack
of compliance. In May—roughly a month before the termination hearing—the
mother entered an inpatient drug treatment program but then left the same day.
Additionally, DHS has noted concerns about domestic violence. On several
occasions, the police were called to the mother’s residence. The mother
contemplated a no-contact order against the father. But she failed to complete the
process. The mother has denied domestic violence is an issue and been
inconsistent in meeting with her domestic-violence advocate. The juvenile court
5
found the mother “continues to have a toxic, domestic violence relationship with
[the father] and [did] not want the court to know they were together.”
Even if incidents of domestic violence were not a factor, though, we could
not look past the mother’s unresolved substance-abuse issues. We repeat once
again, “[m]ethamphetamine is a scourge.” J.P., 2020 WL 110425, at *2; In re K.L.,
No. 17-0346, 2017 WL 2465817, at *1 (Iowa Ct. App. June 7, 2017). “A parent’s
methamphetamine use, in itself, creates a dangerous environment for children.”
J.P., 2020 WL 110425, at *2. Like the juvenile court, we are deeply concerned by
the mother’s methamphetamine use and her failure to engage in treatment.3 Cf.
In re J.B., No. 18-0696, 2018 WL 4361058, at *3 (Iowa Ct. App. Sept. 12, 2018)
(finding a child could not be returned to a parent when the parent had only been
sober for three months). They prevented reunification. See In re L.B., No. 18-
1017, 2018 WL 3650370, at *1 (Iowa Ct. App. Aug. 1, 2018) (collecting cases
affirming termination of a parent’s parental rights when the parent has a history of
substance abuse).
The mother suggests that her mental health suffered due to the COVID-19
pandemic and prompted her relapses. Because this hampered her progress, she
claims she should get more time to work toward reunification.4 We disagree. The
3 In June 2020, a DHS social worker reported the mother “continues to have
unresolved substance abuse concerns and has not fully engaged in treatment
services.” The termination hearing was held on June 17.
4 The mother also claims she was not “afforded the same opportunity to address
substance abuse, criminality, and domestic violence through DHS as the father.”
As a preliminary point, we reject the notion that identical services must be offered
to different parents. The mother has not cited—and we have not found—any
authority for such a requirement.
As for the general requirement of services though, we agree the State must
establish it made reasonable efforts to return A.C. to the mother’s home. See Iowa
6
mother’s substance-abuse issues came to DHS’s attention in August 2018 when
A.C. was born positive for THC. That was about a year and a half before the
COVID-19 pandemic began. The mother made little progress during that time.
Then the mother had additional opportunities after the onset of COVID-19. For
example, in May 2020—well into the pandemic—the mother went to inpatient
treatment. But the treatment provider reported to DHS that the mother “left [their]
treatment facility the same day she arrived” after telling staff “she just wasn’t ready
for residential treatment.”
So we do not see the mother as “a parent whose hard work placed her on
the threshold of reunification only to be thwarted by a once-in-a-lifetime event.” In
re E.A., No. 20-0849, 2020 WL 4498164, at *2 (Iowa Ct. App. Aug. 5, 2020).
Rather, she “is a parent who was given ample time to gain the skills necessary for
reunification but simply failed to progress, pandemic or no pandemic.”5 Id.Code § 232.102(7) (providing DHS must make “every reasonable effort to return
the child to the child’s home as quickly as possible consistent with the best
interests of the child”). But, like the juvenile court, we believe reasonable efforts
were made here. Moreover, parents must raise complaints regarding reasonable
efforts prior to the termination hearing. See In re L.M., 904 N.W.2d 835, 839–40
(Iowa 2017) (“[P]arents have a responsibility to object when they claim the nature
or extent of services is inadequate.”); In re C.H., 652 N.W.2d 144, 147 (Iowa 2002)
(“If, however, a parent is not satisfied with DHS’[s] response to a request for other
services, the parent must come to the court and present this challenge.”); In re
O.T., No. 18-0837, 2018 WL 3302167, at *2 (Iowa Ct. App. July 5, 2018) (“The
failure to request different or additional . . . services in the juvenile court precludes
[the parent’s] challenge to the services on appeal.”); In re A.A.G., 708 N.W.2d 85,
91 (Iowa Ct. App. 2005) (stating the parent has an “obligation to demand other,
different, or additional services prior” to the termination hearing or the issue is
considered waived for appeal). And we can find no instance in which the mother
requested additional services and was not provided them. So the mother did not
preserve any reasonable-efforts challenge.
5 We also note the mother does not identify a “specific” improvement that would
occur within six months. See Iowa Code § 232.104(2)(b) (emphasis added)
(stating the court may defer termination for a period of six months if it is able to
7
Like the juvenile court, we find A.C. could not have been safely returned to
the mother’s care at the time of the termination hearing. This step in our analysis
is satisfied. See Z.P., 948 N.W.2d at 524 (affirming termination where the parent
“was not prepared to assume a parenting role at the time of trial”).
Our next step centers on the child’s best interest. See Iowa Code
§ 232.116(2). We “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 P.L., 778
N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code § 232.116(2)). “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.” Id. at 41.
Like the juvenile court, we conclude termination is in the child’s best interest.
We do not question the mother’s affection for the child. Even so, we cannot ignore
her history of unaddressed substance abuse, mental-health issues, domestic
violence, and criminality. Given her history, we are not confident she will be able
to adequately meet the child’s needs in the future. See In re C.W., 554 N.W.2d
279, 283 (Iowa Ct. App. 1996). Meanwhile, A.C. is bonded to the maternal aunt
as a caregiver. The second step in our analysis is complete.
“enumerate the specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal of the child from
the child’s home will no longer exist at the end of the additional six-month period”).
Instead, she simply suggests additional time would help her achieve reunification.
This generalization does not provide a sufficient basis to postpone termination.
See id
8
Finally, we consider whether to apply a section 232.116(3) exception to
termination. The mother mentions section 232.116(3) and emphasizes that “[t]he
child has been placed in the custody of the maternal aunt.” From this, we infer she
is relying on section 232.116(3)(a). It authorizes the court to forgo termination if
“[a] relative has legal custody of the child.” Iowa Code § 232.116(3)(a). Here, the
maternal aunt had legal custody of the child at the time of the termination hearing.
But section 232.116(3) exceptions are permissive, not mandatory. In re A.R., 932
N.W.2d 588, 591 (Iowa Ct. App. 2019). And the burden of establishing a
section 232.116(3) exception rests with the parent contesting termination. See
A.S., 906 N.W.2d at 476. The mother has not presented a compelling argument
to forgo termination. Rather, as noted above, termination is in A.C.’s best interest.
So we decline to apply section 232.116(3)(a).
The juvenile court was correct in terminating the mother’s parental rights.
AFFIRMED.