In the Interest of D.P., N.P., and T.C., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1579
Filed January 23, 2020
IN THE INTEREST OF D.P., N.P., and T.C.,
Minor Children,
J.C., Mother,
Appellant,
T.C., Father of T.C.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A father and mother separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Judy Johnson of JDJ Law Firm, PLLC, Des Moines, for appellant mother.
Andrea B. McGinn of The Law Shop by Skogerson McGinn, LLC, Van
Meter, for appellant father of T.C.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Assistant
Attorney General, for appellee State.
Lynn Vogan of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor children.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
A mother and father separately appeal the termination of their parental
rights. The children involved in this termination are D.P., age four years; N.P., age
three years; and T.C., eighteen months. The mother appeals as to her three
youngest children.1 Only the youngest child, T.C., is the biological child of the
father.2 The mother and father are married.
In this appeal, the mother argues the district court erred in finding clear and
convincing evidence existed to terminate her parental rights pursuant to Iowa Code
section 232.116(1)(f) and 232.116(1)(h) (2019),3 termination of her parental rights
1 The mother has three other children not involved in this appeal who have each
been placed with their respective fathers.
2 The father of D.P and N.P. was in custody in Anamosa for attempted murder at
the time of the termination hearing. While he timely filed an appeal of the
termination order, he voluntarily dismissed his appeal on October 11, 2019.
3 Section 232.116(1) provides:
Except as provided in subsection 3, the court may order the
termination of both the parental rights with respect to a child and the
relationship between the parent and the child on any of the following
grounds:
....
f. The court finds that all of the following have occurred:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
....
h. The court finds that all of the following have occurred:
(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
is not in the children’s best interests, and the court should have applied a
permissive exception to termination pursuant to Iowa Code section 232.116(3).
Like the mother, the father argues that clear and convincing evidence did
not exist to terminate his parental rights pursuant to Iowa Code section
232.116(1)(h), termination of his parental rights was not in his child’s best interest,
and the court should have applied a permissive exception to termination pursuant
to Iowa Code section 232.116(3).
On our independent review of the record, we affirm the termination of both
the mother’s parental rights and the father’s parental rights. The record contains
clear and convincing evidence supporting termination.4 We agree that termination
of the parental rights is in the best interest of the children, and the court did not err
by refusing to apply a permissive exception to termination.
I. Prior Proceedings
This family came to the attention of the Iowa Department of Human Services
(DHS) in November 2017 after both T.C. and his mother tested positive for cocaine
at the time of T.C.’s birth. The mother also tested positive for cocaine twice during
her pregnancy with T.C. While she initially denied use, she later admitted to
(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.
4 We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d
212, 219 (Iowa 2016). While not bound by the juvenile court’s fact-findings, we
give them weight, particularly on credibility issues. Id. The child’s best interests
remain our primary concern. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019).
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actively using cocaine during her pregnancy. The district court removed D.B.,
N.B., and T.C. from parental custody in November 2017; the children have
remained out of parental custody since that time. There has not been a trial period
at home.
The children were adjudicated as children in need of assistance in January
2018. Following a dispositional hearing and review hearing, a permanency hearing
was held over a period of two days in January 2019. The permanency order that
followed directed the State to file a termination petition, with the court finding, “The
Court does not believe it is reasonably likely the children can be returned to any of
their parents’ custody in the next six months—given the level of deceit and denial
and criminality.” The termination of parental rights hearing was held on May 22
and June 7, 2019. The district court terminated the parental rights in September
2019.
II. Legal Analysis
A. Statutory Grounds
The mother has a history of substance abuse, mental-health concerns, and
involvement with domestic violence, both as a perpetrator and a victim.
Throughout the life of the child-in-need-of-assistance case, the mother was
dishonest concerning her cocaine addiction. While she completed a substance-
abuse evaluation in November 2017, she continued to test positive for cocaine
throughout the child-in-need-of-assistance proceeding. When confronted with her
positive cocaine tests, she denied use. She was not compliant with requests for
drug screens by DHS, as she routinely failed to appear for random drug screens
and failed to cooperate with sweat patches.
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Aggressive and explosive behavior accompanied the mother’s failure to
address this cocaine addiction. In early 2018, the mother and the father were
involved in a physical altercation. During this same time, the mother was
discharged unsuccessfully from substance-abuse treatment when she touched a
treatment staff member inappropriately and made sexual remarks to a treatment
staff member. After what was reported to be an “intimidating” meeting with the
mother, the provider changed the discharge summary from “unsuccessfully
discharged” to “maximum benefits reached.” In July 2018, the mother repeatedly
spanked two-year-old N.P. during a supervised visit, remarking that the child was
“purposely getting under her skin.” On other supervised visits, the mother became
involved in escalated verbal exchanges with a librarian as well as with a
McDonald’s worker, all in the presence of her children.
Paranoid behavior of the mother also accompanied her unaddressed
substance-abuse issue. In late 2018, she became escalated with a family safety,
risk, and permanency worker and advised the worker not to talk to her. Several
minutes later, she demanded to know why the worker was not talking to her. She
insisted that there were other FSRP workers in the fast-food restaurant during a
supervised visit watching her.
Inconsistent contact by the mother has affected the children. When she
repeatedly missed visits, the children were left waiting for her. She also missed
other events for the children outside the scheduled visitation, including medical
appointments, D.P.’s birthday party, and a Mother’s Day luncheon scheduled at
the daycare, and she failed to phone the children as prearranged.
6
On appeal, the mother argues that she has overcome her cocaine addiction
by participating in outpatient treatment and, in particular, points to her recent
attendance at treatment. She further asserts that this is not a case where she
waited until the eve of an important hearing to address her behaviors. We
disagree. The mother had positive drug tests for cocaine on May 25, June 22,
June 27, and June 29, 2018. While she restarted treatment in August 2018, just
prior to the scheduled permanency hearing, she had a positive drug patch test for
cocaine in August and November 2018. She attended treatment very minimally in
November and December 2018. She failed to attend any substance-abuse
treatment in February and March 2019. She then did not reengage in substance
abuse treatment until April 2019, one month prior to the termination hearing. While
her new counselor testified that he did not feel the mother was currently abusing
cocaine, he did not request drug screens due to the mother’s self-reported period
of sobriety.
The mother further acknowledges only attending substance abuse
treatment eleven times from August 2018 until the time of her testimony at the
termination hearing in May 2019. After she started treatment in August 2018, she
failed to appear for drug screens on August 15, September 13, and December 12,
2018. The mother continued to exhibit aggressive behaviors after reengaging in
treatment. While mental-health treatment was also ordered since case initiation,
the mother began such in January 2019, sixteen months after removal, and
attended one session.
The father also has an extensive substance-abuse history. He was
imprisoned for all but several months of the child-in-need-of-assistance case. In
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April 2018, the father admitted that he and the mother used drugs together. During
the same month, he tested positive for cocaine, his federal parole was revoked,
and he was sent to prison on a 2011 cocaine trafficking conviction, serving his time
in a federal facility in Missouri. He was moved to the Newton Correctional Facility
in October 2018, and was released to a halfway house, Fort Des Moines, where
he resided from late December 2018 until April 2019.
While at Fort Des Moines, he was reported to be stumbling, incoherent, and
intoxicated. A drug test completed after this incident was negative. He was placed
on lockdown for problematic behavior, he “timed out,” and was released on April
24, 2019. The father was able to exercise some visits with his son while at Fort
Des Moines when not in lockdown. He was unable to attend any visits with his son
in April 2019, due to his lockdown status.
“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.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). D.B., N.B., and T.C.
“simply cannot wait for responsible parenting. Parenting cannot be turned off and
on like a spigot. It must be constant, responsible, and reliable.” In re L.L., 459
N.W.2d 489, 495 (Iowa 1990) (discussing the father’s lack of motivation to change
and his reversion to his old ways with respect to issues of domestic violence and
alcohol and drug abuse).
“It is simply not in the best interests of children to continue to keep them in
temporary foster homes while the natural parents get their lives together.” In re
C.K., 558 N.W.2d 170, 175 (Iowa 1997). We agree that the children could not be
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returned to parental custody at the time the termination hearing. We find clear and
convincing evidence supports termination as to the mother and the father on the
grounds contained in the district court termination order.
B. Best Interest
We further agree with the district court that termination of the mother’s and
father’s parental rights is in the children’s best interests. The best-interest
determination in relation to these children is not a close call. The youngest child
tested positive for cocaine at birth. T.C. continues to struggle with breathing
difficulties. At the time of the conclusion of the termination hearing in June 2019,
the children had been out of parental custody for a consecutive nineteen months.
T.C. has been in four separate placements since removal, while his two sisters
have been in two placements and were preparing to move to a third at the time of
the termination hearing. The lapse of time has taken a toll on the children.
Unfortunately, the parents have only begun to scratch the surface of the issues
that were present in November 2017.
In March 2019, the behavior issues for the two older children escalated
after visits. When they returned from a visit, neither D.P. nor N.P. would eat. D.P
refused to take naps. N.P. would routinely wet herself after returning from visits.
This behavior was described as “explosive” at the daycare following visits, with the
oldest child slamming a nap cot into the wall, screaming, striking a teacher in the
face, pushing over bookcases, and ripping pictures off the wall. A physical hold
was used to prevent D.P. from hurting herself or others. During this hold, the child
repeatedly attempted to bite the daycare director.
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The mother never entered inpatient treatment, despite recommendations.
The mother reenrolled in outpatient substance abuse treatment but has only
meaningfully participated for a short period prior to the termination hearing. At the
termination hearing, she could not state her mental health or substance diagnoses,
refused to discuss her addiction, and could not identify a sobriety date.
The father was out in the community briefly following the birth of T.C., but
he was imprisoned shortly thereafter. At the time of the termination hearing, he
had been released for approximately one month. T.C. has never resided in the
same home as his father. In the short period since his release from prison, the
father has had only supervised contact with T.C. Following his release from prison,
he moved into his mother’s home, who also struggles with substance abuse. We
recognize that the father started treatment following his release and is working.
The very recent efforts of the mother and the father are commendable, but
they are not enough to delay much needed permanency for these young children.
While the mother reengaged in treatment in April 2019, and the father was
released from prison at approximately the same time, the children have been out
of parental custody for a substantial period with no demonstrated period of
sustained sobriety by the parents in a noncustodial setting.
“Insight for the determination of the child’s long-range best interests can be
gleaned from ‘evidence of the parent’s past performance for that performance may
be indicative of the quality of the future care that parent is capable of providing.’”
In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In re Dameron, 306 N.W.2d
743, 745 (Iowa 1981)). In this case, the parents’ overall track records are not
conducive to safe parenting. We credit the parents for their very recent attempts
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at change. However, given the length of time the children have been out of
parental custody, the need for permanency, and the history of the parents, we
affirm the district court on the best-interest factor.
C. Exceptions to Termination
Lastly, the mother asserts her bond with the children precludes termination
and the father asserts placement of T.C. with a relative precludes termination. 5
Based on our review of the record, we cannot find either outweighs the need for
permanency, stability, and safety for these three children.
III. Conclusion
We conclude the statutory grounds for termination are satisfied. We further
find that termination of the parental rights of the mother and the father is in the
children’s best interest and that the trial court did not err in refusing to apply a
permissive exception to preclude termination.
AFFIRMED ON BOTH APPEALS.
5 Iowa Code section 232.116(3) provides:
The court need not terminate the relationship between the parent and
child if the court finds any of the following:
a. A relative has legal custody of the child.
b. The child is over ten years of age and objects to the
termination.
c. There 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.
d. It is necessary to place the child in a hospital, facility, or
institution for care and treatment and the continuation of the parent-
child relationship is not preventing a permanent family placement for
the child.
e. The absence of a parent is due to the parent's admission
or commitment to any institution, hospital, or health facility or due to
active service in the state or federal armed forces.