In the Interest of S.K., Minor Child, S.K., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-039 / 13-1961
Filed March 12, 2014
IN THE INTEREST OF S.K.,
Minor Child,
S.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Deborah Farmer
Minot, District Associate Judge.
A mother appeals from the order terminating her parental rights.
AFFIRMED.
Rachel C.B. Antonuccio of Iowa City Public Defender’s Office, Iowa City,
for appellant mother.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant
Attorney General, Janet M. Lyness, County Attorney, and Patricia A. Weir,
Assistant County Attorney, for appellee State.
Anthony Haughton of Linn County Advocate, Inc., Cedar Rapids, for minor
child.
Considered by Doyle, P.J., Bower, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.
I. Background Facts & Proceedings.
Stacey is the mother of a child born in September 2007. In April 2011, the
child was discovered wandering around outside a hotel unsupervised while
Stacey was engaged in a domestic dispute. Stacey was arrested, and the child
was removed from her care and placed with relatives. The following month, the
child was adjudicated as a child in need of assistance (CINA) pursuant to Iowa
Code sections 232.2(6)(c)(2) and 232.2(6)(n) (2011) following stipulation of the
parties.
Stacey has a history of involvement in relationships marked by domestic
abuse. At the time the family came to the attention of the Iowa Department of
Human Services (DHS), Stacey admitted to a history of physical and sexual
abuse in her relationship. She also admitted to abusing prescription medication.
Stacey has mental health issues and, following a substance abuse evaluation,
was diagnosed with alcohol dependence.
In February 2012, the court ordered the State to file a petition to terminate
Stacey’s parental rights. But before the May termination hearing, Stacey began
making progress in addressing her issues, and the termination hearing was
continued. The court authorized a trial home placement, and custody was
returned to Stacey in August 2012. Although concerns about Stacey’s return to a
volatile relationship began to surface as early as November 2012, by April 2013 it
was hoped that her progress would continue and the CINA case could be closed
in July 2013. These hopes were extinguished in May 2013 when Stacey was
arrested on a felony domestic abuse assault charge.
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On May 20, 2013, the State filed a motion to modify prior orders. A
hearing was held on July 17 and August 28, 2013. On September 18, 2013, the
juvenile court entered its order modifying its prior orders to place the child in the
care of the relatives who had cared for her during her first removal. The court
also waived the reasonable efforts requirement and scheduled a permanency
hearing the next month. Following the permanency hearing, the court ordered
the State to file a petition to terminate Stacey’s parental rights.
The State filed its termination petition on October 14, 2013, and the case
proceeded to a hearing on November 20, 2013. In its November 22, 2013, order,
the juvenile court found that despite Stacey’s claims, “it is highly likely” that she
had resumed “her unhealthy, dysfunctional, and sometimes violent relationship”
as evidenced by “her lack of employment . . . , her failure to take steps to keep
the no contact orders in place, and her diminished participation in services.” The
court found the child “has experienced considerable loss, trauma, and
abandonment” and “was physically mistreated by the mother.” It further noted
the “significant concerns” that the child “has experienced some form of sexual
abuse, either directly or by exposure to sexual activity and/or pornography” given
the child’s expressed knowledge of sexual activity and her inappropriate,
sexualized behaviors. The court concluded Stacey’s parental rights should be
terminated under sections 232.116(1)(g) (child adjudicated CINA, parental rights
to another child terminated, parent continues to lack the ability or willingness to
respond to services which would correct the situation, and additional time would
not correct the situation) and (h) (child is three or younger, CINA, removed at
least six months, and cannot be safely returned home) (2013).
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II. Standard of Review.
The scope of review in termination cases is de novo. In re R.E.K.F., 698
N.W.2d 147, 149 (Iowa 2005). Clear and convincing evidence is needed to
establish the grounds for termination. In re T.P., 757 N.W.2d 267, 269 (Iowa Ct.
App. 2008). Our primary concern in termination cases is the best interests of the
child. In re A.S., 743 N.W.2d 865, 867 (Iowa Ct. App. 2007).
III. Modification of the Dispositional Order.
Stacey first contends the juvenile court should not have been modified its
prior orders in the September 2013 order because there was no material and
substantial change in circumstances as they existed at the time of the prior
dispositional orders. See Iowa Code § 232.103 (allowing the court to modify any
dispositional order prior to expiration); In re J.F., 386 N.W.2d 149, 152 (Iowa Ct.
App. 1986) (stating a material and substantial change in circumstances is
required for modification).
Clear and convincing evidence establishes a material and substantial
change in circumstances occurred between the April 11, 2013 order continuing
the prior dispositional orders without change and the September 18, 2013 order.
In May 2013, Stacey was arrested for felony domestic abuse assault, and the
DHS learned of the escalating conflict in her relationship, which the child
witnessed. The child was removed from her care.
The child reported witnessing physical violence in the home and her
mother striking her in the face and bottom and pulling her hair—claims
substantiated by Stacey’s domestic partner. The child also graphically described
sexual acts she claimed Stacey engaged in with her and exhibited inappropriate,
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sexualized behavior in foster care, which indicated she has been exposed to
sexual acts or had been sexually abused. The child’s therapist described the
child as “sad and anxious” at her May 2013 therapy session.
Because the evidence shows a material and substantial change in
circumstances warranted modification of the prior dispositional orders, we affirm
on this issue.
IV. Waiving Reasonable Efforts.
Stacey also challenges the portion of the court’s September 18, 2013
order waiving the reasonable efforts requirement. When a child is removed from
the home, the State is normally required to make reasonable efforts to make it
possible for the child to return safely to the home. Iowa Code § 232.103(5)(b),
(7). However, the reasonable efforts requirement may be waived if the court
finds the circumstances described in section 232.116(1)(i) are applicable. Id.§ 232.103(12)(b). There are three circumstances described in this section:
(1) The child meets the definition of child in need of
assistance based on a finding of physical or sexual abuse or
neglect as a result of the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or
receipt of services would not correct the conditions which led to the
abuse or neglect of the child within a reasonable period of time.
Id. § 232.116(1)(i). Stacey argues there is not clear and convincing evidence of
a significant risk or imminent danger to the child or the conditions that led to the
abuse or neglect of the child could not be corrected within a reasonable period of
time.
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We find the evidence supports the conclusion that abuse or neglect posed
an imminent danger to the child. The child expressed knowledge of sex acts well
in advance of her years, which indicated she witnessed such acts or was
subjected to them. As a result, the child engaged in inappropriate, sexualized
behavior. The evidence also shows the child was the victim of physical abuse at
Stacey’s hands. The child has already suffered mental and emotional trauma
and distress as a result of this abuse or neglect.
The evidence further shows the offer or receipt of services would not
correct the conditions that would lead to the abuse or neglect within a reasonable
time. Two years after the CINA adjudication, and in spite of the services she had
been offered and participated in, Stacey was again arrested for domestic abuse
assault. In her testimony at the modification hearing, Stacey positioned herself
as the victim of domestic abuse rather than acknowledging her role in it. She
pointed the blame at her partner and at the court system, refusing to accept any
responsibility for the escalating conflict in the home. She also lacked insight into
how her involvement in an abusive relationship impacts the child, claiming the
child would “take something minor and make it into something big.”
Clear and convincing evidence shows the circumstances described in
section 232.116(1)(i) existed at the time of modification. Accordingly, we affirm
the waiver of reasonable efforts.
V. Grounds for Termination.
Stacey also contends the State failed to prove the grounds for termination
by clear and convincing evidence. Although she challenges both statutory
grounds for termination, we need only find grounds to terminate under one of the
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sections cited by the juvenile court to affirm. See In re S.R., 600 N.W.2d 63, 64
(Iowa Ct. App. 1999). Specifically, she disputes the sufficiency of the evidence
the child could not be safely returned to her custody as provided in section
232.102, as required under section 232.116(1)(h), and the offer or receipt of
services would not correct the conditions that led to the abuse or neglect of the
child within a reasonable time, as required under section 232.116(1)(i).
In its termination order, the juvenile court noted “nothing has changed for
the better” since the modification order was entered on September 18, 2013.
Stacey was awaiting trial on felony domestic abuse assault charges, was
unemployed, and was less involved in services. Despite Stacey’s claim she was
ending her relationship, the juvenile court found it was “highly likely” the
relationship had resumed. The evidence supports this finding, as does Stacey’s
past behavior. See In re M.H., 367 N.W.2d 275, 278 (Iowa 1985) (“[N]ot only
may the court look at the past behavior of the parent, but . . . it is an important
factor.”). There is no doubt the child cannot be safely returned to Stacey’s care
at this time.
VI. Exceptions.
Once a ground for termination has been proved under section 232.116(1),
and the factors under section 232.116(2) favor termination, the court should then
decide whether it need not terminate the relationship for any of the reasons set
forth in section 232.116(3). In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).
Stacey contends her parental rights should not be terminated because the child
is in the custody of a relative and because there is clear and convincing evidence
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that termination would be detrimental to the child due to the closeness of the
parent child relationship. See Iowa Code § 232.116(3)(a), (c).
There is no evidence to substantiate Stacey’s claim that termination would
be detrimental to the child due to their close bond. The evidence establishes that
Stacey has had no contact with the child since her removal in May 2013 and that
the child harbors anxiety and anger toward her mother. Although the child’s
therapist testified that even children who are badly abused by their parents long
for contact, the child never stated a desire to see Stacey or stated she loved her.
Instead, she told the therapist Stacey was mean and indicated she wished to
remain in her foster home.
The child is in the care of a relative, and therefore the factor necessary to
avoid termination under section 232.116(3)(a) has been met. However, an
appropriate determination to terminate a parent-child relationship is not to be
countermanded by the ability and willingness of a family relative to take the child.
In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). “The child’s best interests always
remain the first consideration.” Id.We find the child’s best interests require termination. The child’s therapist
noted the child’s life had been “full of chaos” and that the child “needs a healthy
and stable environment with support for caregivers as she recovers from her
many traumas and develops a sense of safety and security.” The child’s foster
family provides her with this stability. This stability will be threatened if Stacey’s
parental rights are not terminated given the tension between Stacey and the
relatives the child is placed with. After considering the foster family’s suitability
as an adoptive placement, the child’s need for permanence, and the child’s lack
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of bond with her mother, we find termination is in the child’s best interests;
termination will not be avoided simply because the child was placed with
relatives.
For the foregoing reasons, we affirm the order terminating Stacey’s
parental rights.
AFFIRMED.