In the Interest of L.T. and L.T., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0154
Filed April 26, 2023
IN THE INTEREST OF L.T. and L.T.,
Minor Children,
K.C., Mother,
Appellant,
K.T., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Brent Pattison, District
Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Lisa K. Pendroy, Des Moines, for appellant mother.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
Richelle M. Mahaffey, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Chicchelly, P.J., Buller, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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VOGEL, Senior Judge
A mother and father separately appeal the termination of their parental
rights to La.T. and Li.T., born in 2012 and 2014 respectively. The mother argues
the State did not prove the statutory ground for termination, termination is not in
the children’s best interests, and the court should provide her with additional time
for reunification. The father argues the court should grant him additional time for
reunification or establish a guardianship in lieu of termination. Due to the parents’
limited progress and the children’s behavioral and mental-health concerns, we
reject the parents’ arguments and affirm the juvenile court.
I. Background Facts and Proceedings
The Iowa Department of Health and Human Services (DHHS) has
repeatedly been involved with this family since 2018 due to concerns over
supervision, domestic violence, physical abuse, and substance abuse. Most
recently, in January 2021, DHHS investigated reports the parents and a family
friend were using methamphetamine while caring for the children. The children
subsequently tested positive for amphetamine and methamphetamine exposure.
DHHS reported the mother largely refused to cooperate with their investigation,
but the father admitted he and the mother were active methamphetamine users
and recently used while caring for the children. The children were removed from
the parents in February, and adjudicated as being in need of assistance in March.
The father has an extensive criminal history with several convictions for
drug-related charges and violent conduct. Shortly before removal, he was arrested
and jailed for threatening family members and destroying property. He has been
incarcerated for most of these proceedings and continuously since December 1,
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2021. He admittedly was not fully engaged with services even when not
incarcerated.
Both children have shown behavioral and mental-health concerns
throughout these proceedings. After removal, both children were placed with the
maternal grandfather until April 2021. At that time, Li.T. moved to a foster family,
while La.T. was placed with the mother as she was engaged with services and
beginning therapy. However, the mother missed drug tests and various services,
so La.T. was again removed from her care less than three months later. The
children have continued living in separate residences due to their behaviors since
leaving the grandfather’s home. Li.T. has resided with his current foster family
since May 2022. La.T. has had multiple placements throughout these
proceedings, including time at a Psychiatric Medical Institution for Children, and
he has resided with his current foster family since October 2022.
In July 2022, the juvenile court found the mother was again largely
complying with services. At this time, the court granted an additional three months
for reunification with the expectation the mother would “continue to work with her
[mental-health] therapist and substance abuse treatment providers to maintain
sobriety and wellness,” “continue to provide negative drug screens,” and
“demonstrate the ability to manage the children’s basic and special needs.”
With a lack of progress by either parent in the services offered, the State
filed the petition to terminate parental rights in October 2022. The matter
proceeded to a hearing in December. At the hearing, the mother acknowledged
she largely failed to comply with the juvenile court’s expectations for granting the
prior extension: she last provided a sample for drug testing in April, she was
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unsuccessfully discharged from substance-abuse treatment in June, and she did
not meet with her therapist between July and November. The father, serving a
five-year prison sentence, testified he hoped to be paroled in January 2023. Upon
consideration of the testimony and exhibits, the court issued an order terminating
both parents’ rights. Both parents appeal.
II. Standard of Review
“We review proceedings to terminate parental rights de novo.” In re Z.K.,
973 N.W.2d 27, 32 (Iowa 2022). We may review the facts as well as the law and
adjudicate the parents’ rights anew. Id. “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
III. Analysis
“We generally apply a three-step analysis to review termination of parental
rights.” In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). “First, we consider whether
there are statutory grounds for termination.” Id. “Second, we determine whether
termination is in the best interest of the child.” Id. “Third, we consider whether we
should exercise any of the permissive exceptions for termination.” Id. We need
not discuss any step that neither parent raises. In re P.L., 778 N.W.2d 33, 40 (Iowa
2010).
A. Statutory Ground for Termination
The mother argues the State failed to prove a statutory ground for
termination. The juvenile court terminated the mother’s parental rights under Iowa
Code section 232.116(1)(f) (2022), which allows the court to terminate parental
rights if the State proves all of the following:
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(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.
The mother challenges the fourth element, that the children could not be
returned to her custody at the time of the termination hearing. See D.W., 791
N.W.2d 707 (finding the statutory language “at the present time” means “at the
time of the termination hearing”). She asserts the children could be returned to
her custody, as shown by her claim of maintaining sobriety and consistently
attending visitation.
The children were removed from the mother’s custody due to her
methamphetamine use. She provided several positive drug tests during this
proceeding—most recently in January 2022. Her April drug test was negative, but
she has refused to submit to drug testing since that time, making it impossible to
verify her claims of recent sobriety. She was unsuccessfully discharged from
substance-abuse treatment in June 2022, and her claim that she voluntarily left
treatment one week before completion also lacks any verification. She failed to
meet with her mental-health therapist for approximately four months leading up to
the termination hearing, and her explanation that she needed to focus on caring
for the children is unpersuasive considering her visitation remained fully
supervised. While the mother recently resumed meeting with her therapist and
attending substance-abuse treatment, her efforts are too little too late. See In re
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C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“A parent cannot wait until the eve of
termination, after the statutory time periods for reunification have expired, to begin
to express an interest in parenting.”). The two children have serious behavioral
and mental-health concerns that require stable placements in separate foster
homes. The State proved neither child—much less both children—can be safely
returned to the mother at the time of the hearing, thus satisfying the statutory
ground.
B. Best Interests
The mother also argues termination is not in the best interests of the
children. In evaluating the best interests of the children, we “give primary
consideration to the child[ren]’s safety, to the best placement for furthering the
long-term nurturing and growth of the child[ren], and to the physical, mental, and
emotional condition and needs of the child[ren].” Iowa Code § 232.116(2).
The mother asserts the children are not yet integrated into their foster
families after being placed with them for only a few months. See id.§ 232.116(2)(b) (considering “whether the child has become integrated into the
foster family to the extent that the child’s familiar identity is with the foster family”).
Despite their short time with their foster families, the record shows both children
are thriving in their current placements. This is especially encouraging in light of
their behavioral and mental-health concerns. The mother notes the children have
expressed a desire to return to her care. See id. § 232.116(2)(b)(2) (directing the
court to consider “[t]he reasonable preference of the child, if the court determines
that the child has sufficient capacity to express a reasonable preference”).
However, the record shows the children truly crave stability. As explained above,
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the mother’s unaddressed mental-health and substance-abuse issues prevent her
from providing this stability.
The mother also asserts that separating the children into different foster
homes is not in their best interests. See In re T.J.O., 527 N.W.2d 417, 420 (Iowa
Ct. App. 1994 (“[W]herever possible brothers and sisters should be kept
together.”). While not ideal in many cases, the State showed separation is in these
children’s best interests to address their behavioral and mental-health concerns.
Again, the children are thriving in separate foster homes. Furthermore, both foster
families have facilitated contact between the children as well as the grandparents
and expressed a willingness in the future to facilitate contact between the children
and the mother and father, if they are sober. Considering the mother’s continuing
inability to safely care for the children and their growth in separate foster families,
we agree termination is in the children’s best interests.
C. Additional Time for Reunification
Both parents request additional time for reunification.1 See Iowa Code
§ 232.104(2)(b) (allowing the juvenile court “to continue placement of the child for
an additional six months”). To grant an extension, the juvenile court must
“enumerate the specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal of the child from
1 We note the termination order only addresses the father’s request for additional
time. The juvenile court ordinarily must consider and rule upon a parent’s
argument to preserve the issue for our review. See In re A.B., 815 N.W.2d 764,
773 (Iowa 2012). Despite our concerns with error preservation, we choose to
address the mother’s request for additional time alongside the father’s request.
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the child’s home will no longer exist at the end of the additional six-month period.”
Id.The children had been removed from the parents’ custody for over twenty-
two months at the time of the termination hearing. Importantly, the juvenile court
already granted one extension of time during these proceedings. The DHHS
worker testified the uncertainty around permanency is contributing to the children’s
already significant behavioral and mental-health concerns.
Specific to the mother, the prior extension required her to engage with
substance-abuse treatment and testing, attend mental-health therapy, and show
an ability to care for the children’s needs. As explained above, she failed to meet
these expectations as she did not complete treatment or testing, meet with her
therapist, or progress beyond fully supervised visitation. Due to her failure to
comply with the prior expectations, we cannot conclude she would address these
expectations with another extension.
Specific to the father, he testified he has engaged with substance-abuse
and mental-health treatment while incarcerated. However, nothing in the record
verifies his hope that he would be paroled soon after the termination hearing. Even
if we accept that he would be paroled into a setting where he could take custody
of the children before the end of a six-month extension, he has shown no ability to
remain sober and engage with treatment outside of incarceration.
“We will not gamble with [children’s] future by asking [them] to continuously
wait for a stable biological parent, particularly at such a tender age.” In re D.S.,
806 N.W.2d 458, 474 (Iowa Ct. App. 2011). Considering the length of these
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proceedings, the children’s special need for permanency, and the parents’ limited
history of progress, another extension of time for reunification is not appropriate.
D. Guardianship
The father asks that we place the children in a guardianship in lieu of
termination. Again, the children’s uncertainty about their future is already
contributing to their behavioral and mental-health issues, and a guardianship
would continue this uncertainty. Furthermore, “a guardianship is not a legally
preferable alternative to adoption.” In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App.
2017). The juvenile court found that “guardianship would continue the limbo the
children have experienced in recent months.” We agree and reject the father’s
request for a guardianship.
IV. Conclusion
The State proved the statutory ground for termination, and termination of
parental rights is in the children’s best interests. Moreover, additional time for
reunification with either parent is not appropriate, and we reject the request for a
guardianship in lieu of termination.
AFFIRMED ON BOTH APPEALS.