In the Interest of D.G., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0450
Filed July 13, 2023
IN THE INTEREST OF D.G.,
Minor Child,
A.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Joseph L. Tofilon,
District Associate Judge.
A mother appeals the termination of her parental rights to her three-year-
old daughter. AFFIRMED.
Douglas Cook of Cook Law Firm, Jewell, for appellant mother.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney
General, for appellee State.
Alesha M. Sigmeth Roberts of Sigmeth Roberts Law, PLC, Clarion, for
father.
Gregory H. Stoebe, Humboldt, attorney and guardian ad litem for minor
child.
Considered by Bower, C.J., and Tabor and Greer, JJ.
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TABOR, Judge.
A mother appeals the termination of her parental rights to her three-year-
old daughter. She contends the juvenile court erred in denying her request for a
six-month extension; termination was not in the child’s best interests; and the court
should have applied a permissive exception for a close parent-child relationship.
Despite showing promise at points in the proceedings and receiving three previous
extensions, the mother’s progress stalled. Like the juvenile court, we find another
delay was unwarranted. And rejecting the mother’s other claims, we affirm.
I. Facts and Prior Proceedings
This case began in December 2019 when concerns arose that Annette and
William1 were using illegal drugs around their four-month-old daughter, D.G.
Annette’s probation officer reported to the Iowa Department of Health and Human
Services that she assaulted William and appeared to be impaired. Both admitted
using methamphetamine, so the department determined the child abuse allegation
was founded. D.G. remained in the home until April 2020. That month, she went
with Annette to a residential drug treatment program. But Annette left in June
without completing the program because she was worried about the COVID risk.
She continued to attend substance-abuse and mental-health services. William had
not yet obtained a substance-abuse evaluation. They rented a home together, and
the department had no safety concerns.
1William, who received a six-month extension rather than a termination of his
parental rights, did not appeal. He did file a “joinder” to the mother’s appeal.
Generally, “one parent cannot assert facts or legal positions pertaining to the other
parent because the juvenile court makes a separate adjudication as to each
parent.” In re S.O., 967 N.W.2d 198, 206 (Iowa Ct. App. 2021) (emphasis omitted).
William’s “joinder” has no legal effect, and we don’t address it further.
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Then, in July, William was jailed on felony charges. That same month,
Annette admitted to her substance-abuse counselor that she had been using. The
department also learned that Annette left D.G. in the care of a man who had a
warrant out for his arrest. Both parents signed a voluntary removal order, and D.G.
was placed in foster care.
After the removal, Annette had twice a week visitation with D.G. The social
worker noted Annette’s home was safe and appropriate, and visits went well.
Mother and daughter had “a very good relationship.” In October 2020, Annette
reported that she had been sober since August. She participated in outpatient
substance-abuse treatment. Eventually she progressed to semi-supervised visits.
In November 2020, Annette began another outpatient treatment program. Her
progress was promising. But in January 2021, a drug test for her probation officer
came back positive for methamphetamine. She was also discharged from her
treatment program and had no place to live.2 Yet things improved again that spring
when Annette submitted negative drug tests, completed a substance-abuse
evaluation, attended therapy, and was employed.
Although D.G. had been out of her care for a year, in May, the court granted
Annette six more months to reunify. Sadly, things soon fell apart: Annette was
arrested and sent to a residential correctional facility. She absconded and was
arrested again. She missed many visits. Then, she reentered the residential
facility. She regained employment, reestablished visitation, attended substance-
abuse treatment, attended therapy, and was generally doing well.
2 William remained in jail awaiting trial.
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Given her renewed progress, in November, the court granted her a second
extension. But the next month, she reported relapsing on methamphetamine. In
January 2022, she relapsed again. Yet by May, her social worker reported she
had “steadily made progress.” She completed an inpatient substance-abuse
program and entered a halfway house for long-term treatment. The social worker
noted a “remarkable change” in Annette. She found housing and work,
participated in treatment, and attended therapy. So the department allowed semi-
supervised visitations with D.G.
And Annette received a third six-month extension. In June 2022, she had
overnight visits with D.G. And the department planned to transition D.G. back to
her custody. But that month, Annette relapsed and left treatment. A search of her
belongings turned up methamphetamine, and her recent drug test was positive for
MDMA, methamphetamine, and amphetamines. She tried inpatient treatment at
the YWCA in July, but left after two days. Over the next six months, Annette had
repeated relapses. Her visits with D.G. were fully supervised. In November, the
social worker reported that Annette was having trouble staying sober. The
department changed its recommendation from reunification to termination, and the
State petitioned to terminate in December 2022.
After a January 2023 hearing, the court granted William another six months
to work toward reunification. The court found William was likely to be paroled in
the next two months. He obtained a welding certificate in prison, had a job lined
up, and would have income after his release to promptly secure housing for himself
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and D.G. On top of that, he had shown he could safely parent D.G. in visits and
that the two shared a bond.3
At the same time, the juvenile court found clear and convincing evidence to
terminate Annette’s rights under Iowa Code section 232.116(1)(h) (2022). But it
held another hearing to decide whether granting Annette yet another extension
would be in D.G.’s best interests. After that supplemental hearing, in February
2023, the court declined to give her more time. It found termination was in D.G.’s
best interests, and no permissive exception applied. Annette appeals.4
A. Extension
Annette first argues the court erred in denying her more time to reunify. She
claims to understand “her issues” and insists “[s]ubstance abuse was the only
significant factor preventing her from regaining custody and could easily be
remedied in the next few months.” Courts may delay permanency for six months
only if the need for removal will be resolved in that time. See In re W.T., 967
N.W.2d 315, 323 (Iowa 2021) (discussing section 232.104(2)(b)). Annette
received three such reprieves, when the juvenile court saw her making progress.
But each time the promising signs disappeared. Now, after D.G. has been
3 The court acknowledged that William was the “secondary beneficiary” of all the
extensions given Annette. Still, it determined D.G.’s best interests were served by
giving him more time. He does not appeal, and we do not disturb that decision.
4 We review termination decisions de novo. In re P.L., 778 N.W.2d 33, 40 (Iowa
2010). We will uphold an order when there is clear and convincing evidence of the
statutory grounds for termination. In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App.
2015). We give careful consideration to the juvenile court’s factual findings and in-
person observations, but we are not bound by them. See In re W.M., 957 N.W.2d
305, 312 (Iowa 2021). Our top priority is the child’s best interests. See In re J.E.,
723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially) (identifying
safety and the need for a permanent home as the “defining elements” in the best-
interests determination).
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removed from Annette’s custody for more than two years, we cannot find that she
could resolve the need for removal this time.
Indeed, the record shows the reasons for optimism present during the
previous extensions were gone when Annette requested a fourth extension. She
fell into a cycle of relapses and had used methamphetamine just days before the
initial termination hearing. She was not engaged in treatment. And the home she
offered D.G. was not appropriate because her roommate smoked marijuana. To
merit more time, Annette would need to show more substantial progress.
Considering her recent drug use, her insistence that she could “easily” remedy that
issue in six months rings hollow. Despite showing promise at points, Annette’s
progress stalled, and D.G.’s need for permanency was urgent. See In re C.B., 611
N.W.2d 489, 495 (Iowa 2000). These facts do not support an extension.
B. Best Interests
Annette next argues termination was not in D.G.’s best interests. We
determine best interests using the framework described in section 232.116(2).
See In re A.H.B., 791 N.W.2d 687, 690–91 (Iowa 2010). We give “primary
consideration” to D.G.’s safety, to the best placement for furthering her long-term
nurturing and growth, and to her physical, mental, and emotional condition and
needs. Iowa Code § 232.116(2). The “defining elements” of the best-interests
analysis are the child’s safety and “need for a permanent home.” In re H.S., 805
N.W.2d 737, 748 (Iowa 2011) (citation omitted).
Those “defining elements” do not favor Annette’s position. Since the last
extension, her situation has worsened. She admitted to relapsing more than
twenty times since June 2022. She has been unable to complete a substance-
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abuse treatment program. And she has not attended therapy consistently, though
she had reengaged by the supplemental hearing.
Yet she points to the preservation of William’s rights, contending since he
received more time, she should have too. She argues, “If William fails in the next
six months, additional time granted to Annette will not delay permanency.” True,
it is unusual to grant an extension for one parent and not the other. But in the end,
each parent’s rights are assessed separately. See S.O., 967 N.W.2d at 206
(“[O]ne parent cannot argue for preservation of their rights based on the situation
of the other parent.”).
After two-and-a-half years, Annette has been unable to become a reliable
parent. Most of that time, D.G. has lived with the same foster parent, who is willing
to adopt her if William is not a safe option. We recognize Annette is intelligent and
self-reflecting. And when sober she is, by all accounts, an attentive and loving
mother. But she has been unable to control her addiction. So D.G.’s short- and
long-term nurturing and growth are best served by terminating Annette’s rights.
C. Permissive Exception
Finally, Annette argues their strong bond should have precluded
termination. Section 232.116(3)(c) allows the court to forgo termination when
“[t]here 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.”
Annette bears the burden to persuade us to apply this factor. In re A.S., 906
N.W.2d 467, 475–76 (Iowa 2018). She has not done so. Granted, workers
reported that visitation went smoothly; Annette and D.G. enjoyed each other’s
company; and Annette was an attentive parent during visitation. That said, we find
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little evidence of a bond so strong that D.G. would suffer harm from termination.
In fact, D.G. has said she does not want to go to visitation and has had night terrors
after visits. We find Annette did not carry her burden to prove we should apply a
permissive exception to termination. So we affirm.
AFFIRMED.