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

IN THE COURT OF APPEALS OF IOWA
No. 20-0314
Filed June 17, 2020
IN THE INTEREST OF A.J.,
Minor Child,
T.J., Mother,
Appellant,
C.J., Father,
Appellant.
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Appeal from the Iowa District Court for Polk County, Romonda D. Belcher,
District Associate Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Britt Gagne, Gagne Law Office, Des Moines, for appellant mother.
Ryan R. Gravett of Gravett Law Firm, Clive, for appellant father.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Michael Sorci of Youth Law Center, Des Moines, attorney for minor child.
Karl Wolle of Juvenile Public Defender, Des Moines, guardian ad litem for
minor child.
Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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DOYLE, Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. The events leading to termination of parental rights began
when the mother physically assaulted the fifteen-year-old child in November 2018.
A five-year no-contact order was entered against the mother, both parents
consented to the child’s removal from the home, and the juvenile court adjudicated
the child to be in need of assistance (CINA).
One year after the child’s removal, the juvenile court noted that “very little
had changed.” Referencing its November 2019 permanency order, the juvenile
court found in its termination order,
[T]he mother continued to struggle with her mental health and taking
accountability for her actions that led to court involvement and the
removal. The mother was frequently observed to be dysregulated
and hysterical and becoming very agitated and inconsolable. She
was discharged from therapy in February 2019, and reengaged in
therapy in April 2019. The No Contact Order continued to be in effect
but allowed in-person therapeutic contact and telephone contact.
The child was doing well in the current foster home and wished to be
adopted, despite having had positive interactions with the father.
The father intended to remain with the mother, and he lacked
protective capacity . . . .
Because the child would soon be seventeen and the five-year no-contact order
would remain in effect, the juvenile court ordered the State to institute termination
proceedings.
At the termination hearing, both parents asked the court to establish a
guardianship for the child rather than terminate their parental rights. But the
juvenile court found that termination was in the child’s best interests, noting the
“significant trauma” the child had experienced in the parents’ care and the child’s
wish that parental rights be terminated to allow adoption. The court terminated
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both parents’ rights under Iowa Code section 232.116(1)(f) and (i) (2019). On
appeal, our review is de novo. See In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).
I. Reasonable Efforts.
First, we address the mother’s claim that the State failed to make
reasonable efforts to return the child to the home. See Iowa Code § 232.102(7)
(requiring the State to “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”).
The reasonable-efforts requirements is not a “strict substantive requirement of
termination” but is “part of [the State’s] ultimate proof the child cannot be safely
returned to the care of a parent.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000);
see also Iowa Code § 232.116(1)(f)(4) (requiring proof by clear and convincing
evidence that the child cannot be returned to the parent’s custody). Although the
Iowa Department of Human Services (DHS) must “make every reasonable effort”
to return a child to the child’s home “as quickly as possible consistent with the best
interests of the child,” C.B., 611 N.W.2d at 493 (citation omitted), the DHS has to
supply only those services that “are reasonable under the circumstances.” In re
S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000) (citation omitted).
The mother argues the DHS failed to ensure that a Court Appointed Special
Advocate (CASA) was appointed as ordered in September 2019. The purpose of
a CASA is “to represent the interests of a child” in judicial proceedings. Iowa Code
§ 232.2(9). The mother testified she requested appointment of a CASA because
someone she knows who works as a CASA told her it would help, but the mother
offered no further explanation of why or how a CASA would help in her case. In
contrast, the DHS worker who testified at the termination hearing stated she did
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not believe appointment of a CASA would have changed the outcome of the
proceedings because “objectively the mother has not gained insight into the issues
in this case.”
The mother also complains that, despite the CINA order directing that
“[v]isits with the parents shall be therapeutic and transition with therapeutic input,”
the DHS never provided family therapy or therapeutic visits. Again, the DHS
worker testified the mother had achieved no insight from individual therapy, and
that with no insight into the issues that prompted the CINA adjudication, family
therapy would not be productive. Rather, she believed “that family therapy would
potentially be more harmful” to the child because of the mother’s history of conflict
with and blaming of the child.
We agree that the State made reasonable efforts to return the child to the
mother’s home to the extent that those efforts were in the child’s best interests.
Even if the services the mother sought had been offered, the proceedings would
have still led to termination of the mother’s parental rights.
II. Best Interests.
We then turn to the mother’s and the father’s claim that termination conflicts
with the child’s best interests. See In re D.W., 791 N.W.2d 703, 706-07 (Iowa
2010) (requiring that the court “apply the best-interest framework set out in section
232.116(2) to decide if the grounds for termination should result in a termination of
parental rights”). In determining best interests, our primary considerations are “the
child’s safety,” “the best placement for furthering the long-term nurturing and
growth of the child,” and “the physical, mental, and emotional condition and needs
of the child.” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code
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§ 232.116(2)). The “defining elements” we consider in making this determination
are the child’s safety and “need for a permanent home.” In re H.S., 805 N.W.2d
737, 748 (Iowa 2011) (citation omitted).
On our de novo review, we agree with the juvenile court that termination is
in the child’s best interests because of concerns for the child’s safety if returned to
the care of either parent:
The child cannot be safely returned to the mother due to the No
Contact Order. Even if the No Contact Order were lifted, the child
could not be returned to the mother due to her unresolved mental
health issues. Despite having maintained some relationship with the
father, the child cannot be safely returned to the father who resides
with the mother given the No Contact Order and his lack of protective
capacity. The best interests of the child is the primary concern, both
long-range and immediate. The child needs a long-term commitment
to be appropriately nurturing, supportive for her growth and
development, and that appropriately meet her physical, mental and
emotional needs. The child’s foster care placement is meeting these
criterion and has made a long-term commitment to the child.
(Internal citations omitted.) The child was nearly seventeen years old at the time
of termination and wanted both parents’ rights terminated to allow adoption. See
In re A.R., 932 N.W.2d 588, 592 (Iowa Ct. App. 2019) (noting a child’s custody
preferences cannot be ignored in dissolution cases and applying the framework
for weighing those preferences to termination cases); cf. Iowa Code
§ 232.116(3)(b) (stating the court need not terminate parental rights if the child is
over the age of ten and objects to termination).
The father argues the child’s best interests would be better served by
establishing a guardianship rather than terminating his parental rights. For the
previous reasons stated, we disagree. The child is in a pre-adoptive placement
capable of meeting the child’s immediate and long-term needs, and the child
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requested that the court terminate parents’ rights to allow adoption. Guardianship
is not preferred over termination. See A.S., 906 N.W.2d at 477. The child needs
and wants a permanent home, and we are not persuaded to deny her one.
We affirm the termination of both the mother’s and the father’s parental
rights.
AFFIRMED ON BOTH APPEALS.