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

IN THE COURT OF APPEALS OF IOWA
No. 22-1984
Filed May 10, 2023
IN THE INTEREST OF S.T. and T.R.,
Minor Children,
B.R., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
A mother appeals the termination of her parental rights to two children.
AFFIRMED.
Mark D. Reed of Marberry Law Firm, P.C., Urbandale, for appellant mother.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Bo Woolman, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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VAITHESWARAN, Presiding Judge.
A mother appeals the termination of her parental rights to two children, born
in 2012 and 2015. She contends (1) the record lacks clear and convincing
evidence to support the grounds for termination cited by the district court;
(2) termination was not in the children’s best interest; and (3) the district court
should have granted exceptions to termination.
The district court terminated the mother’s parental rights under two statutory
grounds. We may affirm if we find clear and convincing evidence to support either
of those grounds. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We will
focus on Iowa Code section 232.116(1)(f) (2022), which requires proof of several
elements, including proof that the children could not be returned to parental
custody.
The department of health and human services intervened in mid-2021 “due
to concerns that [the mother] was smoking marijuana cigarettes dipped in
embalming fluid . . . while she was taking care of her children.” The district court
ordered the children be removed from her custody. The younger child was placed
with her father. The older child was placed with that father’s sister. The children
were later adjudicated in need of assistance.
Meanwhile, the mother was convicted and sentenced to two crimes and
received suspended sentences and probation. In the fifteen months following the
children’s removal, the mother made some effort to engage in treatment services.
She underwent two substance-abuse evaluations, participated in recovery court
on a weekly basis, and submitted to drug testing. At the same time, she tested
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positive for PCP on several occasions, consumed alcohol in violation of probation
rules, and failed to appear for scheduled visits with her probation officer.
The district court revoked the mother’s probation and ordered her to serve
thirty days in jail. In combination with another sentence, the mother admitted she
was jailed a total of “[a]bout 90 days” out of the fifteen months between removal
and termination. As a result of the probation-revocation sentence, the mother was
unable to pursue an extended outpatient treatment program recommended by the
second substance-abuse evaluator.
To her credit, the mother began the program after discharging her sentence
days before the termination hearing. She had her first “one-on-one session[ ] with
the counselor” and started “group [sessions] twice a week.” She also expressed
an intent to return to recovery court following the termination hearing. And she
appeared to move a step closer to internalizing the consequences of her drug use
when she testified that “[s]ometimes [PCP] [could] cause [her] to be irrational and
make bad decisions.”
But the mother juxtaposed that acknowledgment with a categorical denial
of alcohol or PCP abuse. She also suggested her recent positive drug tests
reflected accidental ingestion of PCP. Most concerning were the department’s
reports of her “erratic, and aggressive behavior[s],” including a fraught interaction
with a service provider and an apparent vehicle break-in and self-injury. At the
time of the termination hearing, the mother had not sufficiently engaged in services
to address this type of conduct. The department case manager testified, “there
had never been mental health services provided, other than . . . medication
management.” The mother agreed, stating she did not have “individual therapy
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throughout this case” other than occasional chats with a service provider. She had
yet to attend Alcoholics Anonymous or Narcotics Anonymous. While she stated
there was nothing that would prevent her from safely parenting the children on the
date of the termination hearing, her visits with them remained fully supervised due
to her “unresolved substance abuse and unresolved mental health concerns.” On
our de novo review, we conclude the State proved that the children could not be
returned to her custody.
Termination must also be in the child’s best interests. See Iowa Code
§ 232.116(2). The guardian ad litem filed a report stating the risk of harm to the
children if returned to the mother outweighed the traumatic impact of their removal.
The report also stated the children were “doing very well and” were “healthy” and
“excelling at school.” While they “wish[ed] to live with their mother,” the guardian
ad litem concluded they were “not of a sufficient age” or maturity level “to make an
informed decision in this matter.”
The mother conceded the older child was “in good hands” and his
“behavioral issues” at school had “gotten better.” As for the younger child, the
mother testified she was “fine with her father.”
On our de novo review, we agree with the district court’s determination that
the mother “remain[ed] largely in denial about the extent of her substance use and
mental health and the negative impact on her children” and “[h]er actions
present[ed] ongoing risk of disruptive behavior.” Termination of her parental rights
was in the children’s best interests.
We are left with the mother’s reliance on the relative custody exception to
termination. See id. § 232.116(3)(a). The district court granted the younger child’s
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father legal custody of the child. While the district court could have declined to
terminate that child’s rights in light of the custody award, the court was not
obligated to do so. See In re A.S., 906 N.W.2d 467, 475 (Iowa 2018) (stating the
exceptions are “permissive, not mandatory”). We agree with the court that there
was “a risk of ongoing disruption to the child[ ] if [the mother’s] parental rights
remain[ed] intact.” As for the older child, he was placed in the custody and
guardianship of the department rather than a relative. But assuming without
deciding the “relative custody” exception applied, the child showed a marked
improvement in his behaviors following his removal. The mother was not in a
position to help the child maintain that trajectory.
The mother also argues termination was not warranted given the strength
of her bond with the children. See Iowa Code § 232.116(3)(c). The same reasons
supporting the district court’s denial of the relative custody exception support the
court’s refusal to apply this exception, notwithstanding the children’s desire to live
with the mother.
We affirm the termination of the mother’s parental rights to the children.
AFFIRMED.