In the Interest of W.M. and T.M., Minor Children, D.M., Father, C.C., Mother, K.M., Grandmother, Intervenor-Appellant. ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1469
Filed December 9, 2015
IN THE INTEREST OF W.M. AND T.M.,
Minor Children,
D.M., Father,
Appellant,
C.C., Mother,
Appellant,
K.M., Grandmother,
Intervenor-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Appanoose County, William S.
Owens, Associate Juvenile Judge.
The mother and grandmother appeal the district court’s order terminating
the mother’s parental rights to the children W.M. and T.M., and placing custody
with the Department of Human Services. AFFIRMED ON BOTH APPEALS.
Robert Bozwell, Centerville, for appellant father.
Amy Montgomery of Craver & Grothe, L.L.P., Centerville, for appellant
mother.
Julie DeVries of DeVries Law Office, P.L.C., Centerville, for intervenor-
appellant grandmother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and
Kathryn K. Lang, Assistant Attorneys General, for appellee State.
Debra George of Griffing & George Law Firm, Centerville, attorney and
guardian ad litem for minor children.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2
VOGEL, Presiding Judge.
The mother and grandmother-intervenor appeal the district court’s order
terminating the mother’s parental rights to her children, W.M. and T.M., and
placing custody of the children with the Iowa Department of Human Services
(DHS), thus declining the grandmother’s request the children be placed with her
under a guardianship. The mother argues the State failed to prove by clear and
convincing evidence her rights should be terminated, pursuant to Iowa Code
section 232.116(1)(f) and (h) (2015), and the State failed to meet its burden
showing reasonable efforts were extended to reunite the family. She further
argues termination is not in the children’s best interests, given the parent-child
bond. The grandmother, as the previous custodian, asserts the district court—
citing the grandmother’s health concerns—improperly concluded guardianship
with a relative was imprudent and placed guardianship and custody of the
children with DHS, pending adoption.
We conclude the State established the mother’s rights should be
terminated under paragraphs (f) and (h), given the children cannot be returned
home due to the mother’s unresolved drug use and inability to care for them.
Moreover, the family having been in receipt of services since 2013, DHS has
made reasonable efforts to reunite the family; however, the mother’s cycle of
drug abuse renders termination in the children’s best interests despite the parent-
child bond. With regard to the grandmother-intervenor’s argument, we conclude
that, because of information disclosed during her initial home study, guardianship
and custody of the children was properly placed with DHS pending adoption.
Consequently, we affirm the order of the district court.
3
I. Factual and Procedural Background
T.M., born October 2010, first came to the attention of DHS in March 2013
due to allegations the mother and father1 were abusing substances while caring
for T.M. At that time the mother was pregnant with W.M., who was born in April
2013. On June 27, 2013, the children were adjudicated in need of assistance
(CINA)—based on the mother’s positive drug test for methamphetamine and
alcohol—and removed from the home. They resided with the maternal
grandmother until December 1, 2014, at which time they were placed in foster
care.
The mother has struggled with substance abuse since the beginning of
DHS’s involvement. While she has sporadically participated in treatment, she
has not completed a program, though she has had several chances to do so. An
inpatient program—offered shortly before the termination hearing—would have
allowed the children to reside with the mother, but she refused to take advantage
of the opportunity. With regard to the drug screens the mother provided, she did
not test positive for illegal substances, though she failed to comply with or
tampered with several tests and was observed intoxicated on several occasions.
In September 2014, the mother gave birth to a third child, L.M., who tested
positive at birth for methamphetamine, amphetamine, and alcohol.2 The baby
was life-flighted to a Des Moines hospital. At the termination hearing, the mother
testified she was nine days sober and was participating in an inpatient substance
1
The father’s parental rights were terminated as well. Though he filed a notice of
appeal, his petition was untimely, and our supreme court ordered it to be dismissed.
Therefore, he is not part of this appeal.
2
L.M.V. is not part of this termination proceeding.
4
abuse treatment program. She has never completed a mental health evaluation
or attended therapy, though she testified she was about to begin mental health
treatment.
The mother participated in supervised visitation with the children, but her
attendance waned in early 2015. All parties agree there is a bond between her
and the children, and the DHS worker opined that, if the mother were to remain
sober, she could be a good parent to the children. In part due to this bond,
following a permanency hearing on June 5, 2014, the district court ordered the
mother be granted additional time to work towards reunification.
While the children were with the grandmother, the mother repeatedly
voiced concerns that the grandmother was not a suitable placement, primarily
due to health concerns that diminished her ability to care for the children, as well
as the mother’s unconfirmed allegations of physical abuse. DHS requested to
perform a home study for pre-adoptive placement, which the grandmother
eventually declined.3 On January 8, 2015, a permanency order was entered
placing the children in the guardianship and custody of DHS, and they remained
in foster care at the time of the termination hearing.
The grandmother suffers from several medical issues, including sleep
apnea, arthritis, high blood pressure, diabetes, gout, depression, and anxiety. At
the hearing, she admitted she suffered from Crohn’s disease as well. The DHS
3
In its termination order, the district court referenced its earlier findings from January
2015, noting the grandmother was not forthcoming regarding the extent of her physical
and mental health issues during the home study. The grandmother stated at the hearing
she did not believe she had misrepresented her health problems, as she herself was not
sure which medications she was taking; she further testified she withdrew her request for
a home study because she believed her adoption request would be denied.
5
worker noted these health issues are exacerbated because the grandmother
does not take care of herself and can neglect the children, as she often does not
feel well enough to care for them.
The following services have been offered to the family during the
pendency of these proceedings: family safety, risk, and permanency services;
relative care and foster care; mental health services; substance abuse treatment,
both inpatient and outpatient; parent partner program; drug testing; supervised
visitation; and family team meetings. Shortly before the termination hearing,
another DHS worker was assigned to the case.
On February 3, 2015, the State filed a petition to terminate the mother’s
parental rights. The grandmother intervened and requested the children be
placed with her under a guardianship, stating her health concerns did not prevent
her from caring for the children.4 A hearing was held on April 16, 30, and May
14, 2015, in which the mother personally appeared. On August 26, 2015, the
district court entered an order terminating the mother’s parental rights pursuant to
Iowa Code section 232.116(1)(f)—as to T.M.—and (h)—as to W.M. It further
ordered that guardianship and custody remain with DHS for pre-adoptive
placement. The mother and grandmother appeal.
II. Standard of Review
We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,
64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear
and convincing evidence. Id. Our primary concern is the child’s best interest. Id.
4
Despite the mother’s dissatisfaction with the grandmother throughout the underlying
proceedings, she requested the children be placed with the grandmother in the event her
rights were terminated, as opposed to a pre-adoptive placement in foster care.
6
To terminate parental rights under Iowa Code section 232.116(1)(h), the
State must prove by clear and convincing evidence that the child is three years
old or younger, has been adjudicated CINA, removed from the home for six of
the last twelve months, and cannot be returned to the custody of the child’s
parents as provided in section 232.102. Iowa Code § 232.116(1)(h)(1)–(4). To
terminate pursuant to paragraph (f), the State must establish the child is four
years of age or older, has been adjudicated CINA, has been removed from the
physical custody of the parents for at least twelve of the last eighteen months,
and cannot be returned to the custody of the child’s parents as provided in
section 232.102. Id. § 232.116(1)(f)(1)–(4). The mother contests only the
finding, common to both subsections, that the child “cannot be returned to the
custody of the child’s parents as provided in section 232.102.”
III. Termination of the Mother’s Rights
The mother first asserts the State failed to prove by clear and convincing
evidence her rights should be terminated pursuant to Iowa Code section
232.116(1)(f) and (h), as she has demonstrated adequate parenting while with
the children during supervised visits and, if she is successful in completing a drug
treatment program, she could care for the children. She further argues that
reasonable efforts were not made to reunite her with the children, and
termination is not in their best interests.
As an initial matter, the record establishes since March 2013, DHS
extended a wide variety of services tailored to reunite the mother and the
children. However, she has failed to complete any substance abuse treatment,
although at the time of the termination hearing she was nine days into a four-to
7
six-month treatment program. Nor did she request during the CINA case that
she be offered more or alternative services. Consequently, her claim is not
supported by the record.
Furthermore, we conclude the State proved by clear and convincing
evidence termination was proper under paragraphs (f) and (h). In its opinion, the
district court stated:
At the time of the removal the department had concerns regarding
[the mother’s] substance abuse, and [her] supervision of [T.M.].
Based on the evidence presented the [mother is] simply no closer
to addressing those problems than when [T.M.] was first removed.
[The mother] has never successfully completed substance abuse
treatment, gave birth to a child in October 2014 that was positive for
drugs and alcohol, and testified under oath at the termination
hearing she had only nine days sober.
The record fully supports the district court’s findings. The mother has
been in receipt of services since 2013 but has yet to show any substantial
improvement. It is particularly troubling that the mother consumed alcohol and
methamphetamine shortly before her third child’s birth. In determining the future
actions of the parent, her past conduct is instructive. In re J.E., 723 N.W.2d 793,
798 (Iowa 2006). Though she had just begun treatment at the time of the
termination hearing, her behavior during the previous two years gave the district
court no assurances this most recent attempt would be successful. Moreover,
the children have been out of the mother’s care for nearly two years and are
doing well in their foster placement. Given these circumstances, we conclude
the State proved by clear and convincing evidence the children could not be
returned home and that the mother’s rights should be terminated under
paragraphs (f) and (h).
8
It is also in the children’s best interests the mother’s rights be terminated.
DHS has been extending services to the mother for nearly two years, and the
children have yet to be returned to her care. W.M. only lived with the mother for
a very short time before both children were removed from her care. While it is
clear they share a bond, the mother has not demonstrated an ability to be an
adequate parent. Furthermore, she has been granted extensions of time, but
she has not progressed beyond even supervised visitation. “We have repeatedly
followed the principle that the statutory time line must be followed and children
should not be forced to wait for their parent to grow up.” In re N.F., 579 N.W.2d
338, 341 (Iowa Ct. App. 1998); see also Iowa Code § 232.116(2). We also find it
promising the children are thriving in foster care, which was also identified as an
adoptive placement option. Consequently, we conclude termination of the
mother’s parental rights is in the children’s best interests, and we affirm the order
of the district court terminating her rights.
IV. Custody Determination
The grandmother asserts the district court did not properly consider,
pursuant to Iowa Code section 232.117(3), the impact of placing the children in
the custody of DHS, as opposed to the grandmother, a biological relative.5 She
further argues that no concern regarding her home was expressed during the
seventeen months in which the children were in her care, and guardianship and
custody with DHS is not in the children’s best interests.
5
The grandmother also urges that Iowa Code section 232.118 is not an adequate
mechanism for reviews of guardianships. However, this argument was not raised at the
district court level, and consequently, error was not preserved. See Lamasters v. State,
821 N.W.2d 856, 864 (Iowa 2012). We therefore decline to address the merits of this
claim.
9
The children have been in the foster home since December 1, 2014. The
foster parents have expressed an interest in adopting the children.6 We agree
with the district court that the guardianship and custody of the children should
remain with DHS, for purposes of determining the appropriate adoptive home.
The record establishes the grandmother’s mental and physical health issues limit
her ability to care for two very young children. Thus, placement of the children
with DHS is in their best interests. As the district court noted:
In this case . . . given the age of the children, the length of time they
have been removed, the impact on the children of the current
lengthy out of home placement, the parent’s lack of consistency in
services and visits (especially recently) a guardianship would
clearly not be appropriate. It is time for [the children] to achieve
permanency, and in these circumstances a guardianship is woefully
inadequate to achieve the sort of stable, nurturing and permanent
home they both need and deserve.
We agree with these conclusions. As stated before, the record
demonstrates the grandmother has multiple health issues, which compromise her
caretaking ability for these young children. Nonetheless, affirming the
termination of the mother’s parental rights does not rule out the possibility DHS
will select the grandmother as the most appropriate person to adopt these
children. This opinion only affirms that the children remain under the
guardianship and custody of DHS, until the termination is final, and the adoption
process can begin. Consequently, we affirm the order of the district court.
AFFIRMED ON BOTH APPEALS.
6
The foster parents have not only W.M. and T.M. in their care, but also L.M., who was
not the subject of these termination proceedings.