In the Interest of A.B., A.B., and A.W., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0235
Filed May 10, 2023
IN THE INTEREST OF A.B., A.B., and A.W.,
Minor Children,
K.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,
District Associate Judge.
The mother appeals the termination of her parental rights to three children.
AFFIRMED.
Mark D. Fisher of Howes Law Firm, P.C., Cedar Rapids, for appellant
mother.
Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Kimberly A. Opatz of Linn County Advocate, Cedar Rapids, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., and Tabor and Greer, JJ.
2
GREER, Judge.
The juvenile court terminated the mother’s parental rights to A.B. (born in
2019), A.B. (born in 2019), and A.W. (born in 2021) under Iowa Code
section 232.116(1)(h) (2022).1 The mother appeals, arguing (1) the children could
have been returned to her custody at the time of the termination trial; (2) the loss
of her rights is not in the children’s best interests; and (3) termination will be
detrimental to the children based on the closeness of the parent-child relationships,
so a permissive factor should preclude termination. Alternatively, the mother
requests additional time to work toward reunification. We review termination
proceedings de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022).
We begin by considering whether the State proved the statutory ground for
termination. In re P.L, 778 N.W.2d 33, 40 (Iowa 2010). The juvenile court
terminated the mother’s parental rights to all three children under paragraph (h),
which requires proof of several elements not at issue here and that the children
cannot be returned to the parent’s custody at the time of the termination trial. See
Iowa Code § 232.116(1)(h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)
(considering whether the child could be returned home “at the time of the
termination hearing” when reviewing termination under section 232.116(1)(h)(4)).
The mother focuses on progress she made in the month before the January 2023
termination trial, noting she recently obtained a new job, was leasing a three-
bedroom home, and was actively engaged with Alcoholics Anonymous. But she
ignores her longstanding and apparently ongoing issues with methamphetamine.
1The father’s parental rights were also terminated to all three children; he does
not appeal.
3
The two oldest children—A.B. and A.B.—were previously removed from the
mother’s care in April 2020 and adjudicated children in need of assistance (CINA)
due to substance-abuse issues and domestic violence in the mother and father’s
relationship. A.B. and A.B. were returned to the mother’s care in July 2021—a few
months after the birth of A.W.—and the CINA case closed in February 2022. The
present case was opened just a couple months later, again with concerns the
mother was using methamphetamine and, this time, also with concerns that A.W.
was being physically abused. All three children were removed in April 2022 and
then drug tested; the results showed all three children had ingested
methamphetamine. Between May and October, the mother returned seven sweat
patches that were positive for methamphetamine and a urine sample collected in
September also tested positive.2 After that, the mother quit participating in drug
testing. But even by her own testimony, the mother used methamphetamine in
late November. The mother did not engage in substance-abuse treatment
between her last admitted use on Thanksgiving 2022 and the January 13, 2023
termination trial, although she testified she expected to begin a dual mental-health
and substance-abuse program in February. The mother has not established any
period of sobriety since this second CINA case opened in April 2022.3 And she
cannot safely parent these children while using methamphetamine. See, e.g., In
re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A] juvenile court could reasonably
2 The mother provided a few urine samples that were negative.
3 We recognize that, while admitting to using methamphetamine in April and
November 2022, the mother generally denies the accuracy of her numerous
positive drug tests. Like the juvenile court, we are not persuaded by the mother’s
testimony.
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determine that a parent’s active addiction to methamphetamine is ‘imminently
likely’ to result in harmful effects to the physical, mental, or social wellbeing of the
child[] in the parent’s care.”). We agree with the juvenile court that the children
could not be returned to the mother’s care at the time of the termination trial. See
In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016) (noting a child cannot be
returned to the custody of the parent if doing so would expose the child to any
harm amounting to a new CINA adjudication).
Next, the mother argues termination of her rights is not in the children’s best
interests because of the bond each child shares with her and the bond the children
share with each other. In considering the best interests of the children, we are
required to use the best-interests framework set out by our legislature. See P.L.,
778 N.W.2d at 37. And that framework does not include the word “bond.”4 See
Iowa Code § 232.116(2). Rather, as mandated, our “primary considerations are
‘the child[ren]’s safety,’ ‘the best placement for furthering the long-term nurturing
and growth of the child[ren],’ and ‘the physical, mental, and emotional condition
and needs of the child[ren].’” P.L., 778 N.W.2d at 37 (quoting Iowa Code
§ 232.116(2)). The mother is still in the throes of addiction. She testified she had
not used the drug for approximately six weeks, but the mother’s testimony is not
supported by any other evidence due to her refusal to participate in drug testing.
At trial, the social worker for the Iowa Department of Health and Human Services
testified she has concerns the mother continues to use because of
4 Consideration of the bond or close relationship between the parent and children
is more appropriate under step three of the analysis, when the court considers
permissive factors that may preclude termination. See Iowa Code § 232.116(3)(c).
5
[the mother’s] lack of drug testing. Typically, if a parent is not using
substances they like to demonstrate that through negative drug test
results. Her lack of communication in regard to not participating in
her Family Treatment Court hearings, being very distant when she
does reach out or send texts, it’s very demanding behavior. Her
withdrawing and being absent is usually an indicator of use for
someone who is involved with the [d]epartment, they don’t want the
professionals involved to see them.
And the mother apparently recognized the need for further treatment, as she
testified she would begin the dual diagnosis program in the near future.
Additionally, we note both A.B. and A.B. were socially and developmentally
delayed when they were removed from the mother’s care in April 2022, which the
social worker suggested was a result of their basic needs not being met. And, as
of yet, the mother has not shown progress in the romantic relationships she
chooses. The first CINA case was opened due, in part, to domestic violence in the
relationship between the mother and the children’s father. After that, the second
CINA case was opened with allegations A.W. was physically abused by the
mother’s new boyfriend; the mother initially refused to give the man’s information
to the department because he had an active arrest warrant. And, at the termination
trial, the mother testified about a different boyfriend, whom she acknowledged the
department would not approve to be around the children. Overall, termination is
in the best interests of these children based on both their immediate and long-term
interests, as the mother cannot keep the children safe or be relied upon to
consistently meet their physical, mental, and emotional needs.
The mother asks us to apply the permissive factor in section 232.116(3)(c)
to foreclose termination. Section 232.116(3)(c) allows the court to forego
termination when “[t]here is clear and convincing evidence that the termination
6
would be detrimental to the child at the time due to the closeness of the parent-
child relationship.” The mother has the burden to convince us to apply the
permissive factor. See In re A.S., 906 N.W.2d 467, 475–76 (Iowa 2018) (holding
that “the parent resisting termination bears the burden to establish an exception to
termination” and recognizing that it is up to the court’s discretion whether to apply
a factor). When asked at trial to describe her relationship with the children, the
mother testified, “Good.” When asked if the children would be harmed by the
termination of her rights, the mother testified, “Absolutely” because “[i]t’s another
trauma, and I just didn’t think about this and that and—and I mean, that has caused
me so much pain.” The mother gave testimony that she shares a “strong bond”
with the children; the social worker agreed the mother shares a bond with the
oldest two children and a lesser bond with the youngest. But the existence of a
bond is not enough. See id. at 476 n.3 (acknowledging “there is evidence of
bonding between the mother and the child” but concluding section 232.116(3)(c)
did not apply because “nothing in the record . . . provides ‘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.’” (quoting Iowa Code
§ 232.116(3)(c)). And the mother failed to provide clear and convincing evidence
that the children will be disadvantaged by termination and that any disadvantage
overcomes the mother’s inability to provide for the children’s developing needs,
see D.W., 778 N.W.2d at 709, so we do not apply the permissive factor.
Finally, the mother asks for more time to work toward reunification.
Additional time is appropriate only if we can conclude “the need for removal . . . will
no longer exist at the end of the additional six-month period.” Iowa Code
7
§ 232.104(2)(b). We hope the mother gains a great deal from participating in the
dual-diagnosis program. But, at the time of the termination trial, the mother was
still at square one. We will not ask the children to wait longer for permanency on
the mere hope that this time will be different and the mother will achieve long-
lasting sobriety. See In re J.S.-M., No. 21-0927, 2021 WL 4304213, at *3 (Iowa
Ct. App. Sept. 22, 2021) (affirming the juvenile court’s refusal “to delay
permanency ‘on the mere hope’ that the father would soon learn to become a self-
sufficient parent”); see also In re B.A., No. 11-1507, 2011 WL 5868301, at *2 (Iowa
Ct. App. Nov. 23, 2011) (affirming termination when the father’s “progress was not
sufficient to show more than a mere hope that he might eventually be able to parent
the child safely and consistently”).
We affirm the termination of the mother’s parental rights to all three children.
AFFIRMED.