In the Interest of A.M., L.M., T.M., and K.M., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1685
Filed March 3, 2021
IN THE INTEREST OF A.M., L.M., T.M., and K.M.,
Minor Children,
M.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Christopher Kemp,
District Associate Judge.
A mother appeals the termination of her parental rights to four children.
AFFIRMED.
Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Tabitha J. Gardner, Assistant
Attorney General, for appellee State.
Charles Fuson of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
A mother appeals the termination of her parental rights to her four children,
born in 2007, 2016, 2018, and 2019. The juvenile court terminated the mother’s
parental rights pursuant to Iowa Code section 232.116(1)(f) (2020) as to the two
oldest children and section 232.116(1)(h) as to the two youngest children. In
introduction, she argues the juvenile court erred
in not granting additional time for reunification when [she] was
actively addressing her substance abuse issues through inpatient
treatment; the children were bonded to [her] and wanted to return to
her care; one of the children was over age 10 and objected to
termination; the children were placed with maternal relatives; and the
father’s rights were not terminated.
Interpreting the mother’s ensuing arguments is a somewhat nebulous task, but we
read her arguments to suggest that the court should have either applied one of the
permissive exceptions to termination contained in section 232.116(3)(a) through
(c), established a guardianship in the maternal grandparents in lieu of termination,
transferred sole custody to the father followed by the entry of a bridge order and
closure of the child-welfare proceedings, or allowed her additional time to work
toward reunification.1
I. Background
This thirty-two-year-old mother began using illegal substances at the age of
sixteen. The family came to the attention of the Iowa Department of Human
Services (DHS) in April 2018, when the parents’ third child was born and tested
1 The mother does not specifically argue the State failed to meet its burden to
establish the statutory grounds for termination or claim that termination is contrary
to the children’s best interests, so we need not address the first two steps of the
three-step termination framework. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
3
positive for THC and methamphetamine.2 The parents admitted using marijuana
almost daily during the pregnancy but denied methamphetamine use. The State
sought and obtained an order for temporary removal, and the children were placed
in the temporary legal custody of the maternal grandparents. The parents
stipulated to continued removal at a subsequent removal hearing. The children
were adjudicated as children in need of assistance (CINA) in June.
In July, the mother tested negative for all illegal substances. Thereafter, the
mother did not display any behavioral indicators of substance abuse for a number
of months. In December, given the parents’ participation in treatment and
demonstration of sobriety, DHS recommended the children be returned to the
parents’ care. The court ordered the children be returned to the parents’ legal
custody in its ensuing dispositional-review order. Then, in March 2019, the mother
gave birth to the youngest child. At the time of the child’s birth, the mother admitted
to using marijuana three times per day during the pregnancy. The mother and
child tested positive for amphetamines, and the child tested positive for
methamphetamine. The State moved for modification of placement as to the older
three children, and the court returned custody of the children to the maternal
grandparents. The State also sought and obtained an order for temporary removal
of the youngest child, which was followed by a petition and ensuing order for CINA
adjudication as to that child.
2The parents’ second child also tested positive for THC at birth in 2016. During
an ensuing assessment, it was learned the mother previously tested positive for
methamphetamine during a prenatal appointment.
4
Thereafter, the mother continued to use illegal substances, but she denied
the same and largely avoided detection by the father and DHS. She also failed to
meaningfully participate in substance-abuse treatment. As a result of continuing
substance-abuse concerns, the State instituted termination proceedings as to the
youngest three children in October 2019 and as to the oldest child in March 2020.
The matter proceeded to trial over two days in October 2020. 3 At the time
of the termination hearing, the mother was about five months pregnant and had
been residing in an inpatient-treatment facility for roughly one month. She testified
her last use of drugs was just before she entered treatment. She admitted she
entered inpatient treatment in part because it was a condition of her probation
resulting from drug-possession charges and her probation officer advised her she
would go to jail if she did not complete inpatient treatment. Our de novo review of
the record discloses the mother’s placement in inpatient treatment was not
voluntary. The DHS worker testified he was advised by the mother’s counselor
that the mother would need to be in inpatient treatment for six months. However,
the mother had reported to her counselor her desire to leave inpatient treatment
shortly after the termination hearing. While the mother testified she was willing to
stay in treatment, the counselor reported staff recommended the mother stay in
inpatient treatment but the mother “verbalized that she is ready to leave and that
there is little that can be done to keep her here.”
At the termination hearing, the DHS worker opined the establishment of a
guardianship would be contrary to the children’s need for permanency and their
3 The hearing was originally scheduled for March but was continued multiple times,
largely because of the COVID-19 pandemic.
5
best interests. He was also against placing the children in the father’s sole legal
custody due to the father’s inability to set boundaries with the mother, his
continuous relationship with the mother despite her drug use and resulting
continued need for the children’s removal, and his lack of history in serving as the
primary caretaker of the children.
In its termination ruling, the juvenile court highlighted the mother’s
continuous substance abuse over five years and four pregnancies and lack of
meaningful insight about how her substance abuse affects her children. The court
also homed in on the father’s lack of protective capacity and the fact he puts his
relationship with the mother over the children. The court concluded the children
could not be returned to the mother’s care. As to the father, the court concluded
he “should be given the opportunity to parent these children as a sole caretaker
before his rights are irreversibly terminated.” The court looked to the mother’s past
performance and children’s need for permanency in determining termination of the
mother’s parental rights is in the children’s best interests. The court declined to
apply a permissive exception to termination. The court did not specifically address
the potential for establishing a guardianship in lieu of termination or transferring
guardianship and sole custody to the father followed by the entry of a bridge order
and closure of the child-welfare proceedings. The mother appeals.
II. Standard of Review
Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our
primary consideration is the best interests of the children, In re J.E., 723 N.W.2d
793, 798 (Iowa 2006), the defining elements of which are the children’s safety and
need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
6
III. Analysis
As noted, we interpret the mother’s arguments to suggest that the court
should have either applied one of the permissive exceptions to termination
contained in section 232.116(3)(a) through (c), established a guardianship in the
maternal grandparents in lieu of termination, transferred sole custody to the father
followed by the entry of a bridge order and closure of the child-welfare
proceedings, or allowed her additional time to work toward reunification.
A. Permissive Exceptions
Iowa Code section 232.116(3) allows the court to decline to terminate
parental rights under certain circumstances. We first note the application of the
statutory exceptions to termination is “permissive, not mandatory.” In re M.W., 876
N.W.2d 212, 225 (Iowa 2016) (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa
2014)). Iowa Code section 232.116(1)(a) allows the court to forego termination
when “[a] relative has legal custody of the child.” Upon our de novo review, we
find applicable the principle that “[a]n appropriate determination to terminate a
parent child relationship is not to be countermanded by the ability and willingness
of a family member to take the child.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997).
The children have long been in the care and custody of the maternal grandparents,
during which the mother has continued to use illicit substances. If this dynamic
remains intact, the children will remain in the care of the grandparents, but the
mother’s track record shows she will also continue to use illegal drugs, the need
for removal from her care will continue, and the children’s permanency status will
remain in limbo. We decline to apply this exception to termination.
7
Section 232.116(3)(b) allows the court to not terminate parental rights when
“[t]he child is over ten years of age and objects to termination.” The oldest child is
over ten years of age. While there was some evidence that the children wish to
be in their mother’s care, there was no specific evidence that the oldest child
objects to termination. Even if the child did object and given that “[p]references of
minor children while not controlling are relevant and cannot be ignored,” “[t]he best
interests of a child is not always what ‘the child wants.’” In re A.R., 932 N.W.2d
588, 592 (Iowa Ct. App. 2019) (citation omitted). We do consider a number of
factors when weighing a child’s preference, including (1) age and education level,
(2) strength of preference, (3) intellectual and emotional make-up, (4) relationship
with family members, (5) rationale for the decision, (6) advisability of honoring the
child’s desire, and (7) recognition that the court is not aware of all factors
influencing the child. Id. Upon our de novo review of the record, we conclude the
mother failed to meet her burden to show consideration of these factors weighs in
favor of applying the exception. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018)
(noting parent bears burden to establish an exception to termination). The mother
presented no evidence on these factors, and she does not address their weight on
appeal. We decline to apply this exception.
Iowa Code section 232.116(3)(c) allows the juvenile court to forego
termination when “[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.” We certainly acknowledge the children (at least the oldest two)
are bonded to the mother, and we recognize that the children may suffer negative
consequences as a result of termination. The question is “whether the child[ren]
8
will be disadvantaged by termination, and whether the disadvantage overcomes
[the mother’s] inability to provide for [their] developing needs.” In re D.W., 791
N.W.2d 703, 709 (Iowa 2010). While we agree termination will pose
disadvantages, we are unable to conclude severance of the parent-child bond will
be detrimental to the children. We also decline to apply this exception.
B. Guardianship
The mother also suggests establishment of a guardianship in the maternal
grandparents in lieu of termination is appropriate. See Iowa Code § 232.117(5)
(authorizing the court, following a termination hearing, to enter an order in
accordance with section 232.104 in lieu of terminating parental rights); see also id.§ 232.104(2)(d)(1) (allowing for transferring of “guardianship and custody of the
child to a suitable person”). However, the juvenile court did not rule on any request
for the establishment of a guardianship in lieu of termination. Rather than raise
the complaint for the first time on appeal, the proper procedure to preserve error
was to file a motion raising the court’s alleged oversight prior to appealing. See
Lamasters v. State, 821 N.W.2d 856, 863 (Iowa 2012). In any event, on the merits,
we would begin with the principle that “a guardianship is not a legally preferable
alternative to termination.” A.S., 906 N.W.2d at 477 (quoting In re B.T., 894
N.W.2d 29, 32 (Iowa Ct. App. 2017)). Although section 232.104(2)(d)(1) allows for
the establishment of a guardianship as a permanency option, such an option can
only be ordered if the court first finds that termination of the parent’s rights is not
in the children’s best interests. See Iowa Code § 232.117(5) (permitting the option
of entering a permanency order pursuant to section 232.104 if the court does not
terminate parental rights); see also id. § 232.104(4) (setting forth the requirements
9
needed before a permanency order pursuant to section 232.104(2)(d) can be
ordered); see also B.T., 894 N.W.2d at 32–33. Determining the best permanency
plan for children is a best-interests assessment. A guardianship, rather than
termination, would not promote stability or provide permanency to the children and
would be contrary to their best interests. See In re R.S.R., No. 10-1858, 2011 WL
441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So long as a parent’s rights remain
intact, the parent can challenge the guardianship and seek return of the child to
the parent’s custody.”).
C. Transfer of Sole Custody
Next, the mother appears to argue the juvenile court should have
transferred sole custody of the children to the father in lieu of termination.
However, transfer of custody to the other parent is one of the permanency options
set forth in section 232.104(2)(d), so it has the same statutory prerequisites as the
guardianship option. In other words, when the request for such transfer is made
as part of a termination proceeding, there must first be a determination not to
terminate rights, which can then spur a permanency analysis under
section 232.104. Iowa Code § 232.117(5). As part of the permanency analysis,
before the permanency options in section 232.104(2)(d) can be considered, the
court must first determine termination of parental rights is not in the children’s best
interests, services were offered to correct the situation that led to removal, and the
children cannot be returned home. Id. § 232.104(4). Only then can the
permanency options in section 232.104(2)(d) be considered. Id. Upon our de novo
review, we are unable to conclude that termination should not have been granted
or transfer of custody to the father was the best permanency option. The father
10
had yet to demonstrate he could individually care for the children and set up
appropriate boundaries to protect the children from the mother’s ongoing
substance abuse outside of a controlled setting. We reject the mother’s request
for implementation of this permanency option.
D. Additional Time
To the extent the mother requests additional time to work toward
reunification, we deny her request. If, following a termination hearing, the court
does not terminate parental rights but finds there is clear and convincing evidence
that the children are in need of assistance, the court may enter an order in
accordance with section 232.104(2)(b). Id. § 232.117(5). Section 232.104(2)(b)
affords the juvenile court the option to continue placement of children for an
additional six months if the court finds “the need for removal . . . will no longer exist
at the end of the additional six-month period.” While the mother began inpatient
treatment shortly before the termination hearing, given her track record, she has a
long way to go before these children can be returned to her care. She has a long
history of use of methamphetamine and other drugs that has been fraught with
relapse, dishonesty, and successful evasion of detection. The mother would need
to spend at least another four or five months in treatment and then demonstrate
her ability to maintain sobriety in the community for an extended period of time
before the children could be returned to her care, which we conclude would
collectively take longer than six months. We are unable to conclude “the need for
removal . . . will no longer exist at the end of the additional six-month period,” and
we therefore affirm the juvenile court’s denial of the mother’s request for an
extension. Id. § 232.104(2)(b).
11
IV. Conclusion
We affirm the termination of the mother’s parental rights.
AFFIRMED.