In the Interest of C.M., Z.M., and B.M., Minor Children ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0882
Filed July 26, 2023
IN THE INTEREST OF C.M., Z.M., and B.M.,
Minor Children,
C.M., Father,
Appellant.
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Appeal from the Iowa District Court for Delaware County, Thomas J. Straka,
Associate Juvenile Judge.
A father appeals the termination of his parental rights. AFFIRMED.
MaryBeth A. Fleming of MaryBeth Fleming Law Office, P.C., Dubuque, for
appellant father.
Brenna Bird, Attorney General, and Mary A. Triick (until withdrawal) and
Mackenzie Moran, Assistant Attorneys General, for appellee State.
Bridget Goldbeck of Hughes & Trannel, P.C., Dubuque, attorney and
guardian ad litem for minor children.
Considered by Greer, P.J., and Schumacher and Badding, JJ.
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GREER, Presiding Judge.
C.M., the father,1 appeals the termination of his parental rights to three
children—B.M., born in 2014; Z.M., born in 2018; and C.M., born in 2020. The
Iowa Department of Health and Human Services first became involved after the
parents had the oldest child, who tested positive for methamphetamine at birth,
because of allegations the parents were using and manufacturing the drug in the
home. That case was open about a year. Then, soon after the second child was
born, similar drug-related concerns arose and the department again stepped in
and provided family services for about a year. When the third child was born and
tested positive for illegal substances, the department became involved once more
for six to nine months. Each time, the children were removed from parental
custody and placed with the maternal grandmother. A 2021 substance-abuse
evaluation diagnosed the father with stimulant use disorder amphetamine-type
substance, moderate/severe and cannabis use disorder, moderate/severe.
A fourth child was born in March 2022. At that time, the department again
received allegations about drug use in the home. While investigation of the
allegations was still ongoing, the one-month-old newborn unexpectedly died.
Because of the allegations, a search warrant was executed, which resulted in the
discovery of methamphetamine and marijuana paraphernalia, as well as
methamphetamine in the home. According to the parents, because of grief over
their fourth child’s death, they relapsed. The father admitted the
methamphetamine found was his and subsequently tested positive for the
1 R.M., the mother of all three children, also had her parental rights terminated;
she does not appeal.
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substance. The mother also tested positive for methamphetamine. All three
children were adjudicated children in need of assistance (CINA) and placed with
the maternal grandmother.
In December 2022, while the children were at the parents’ home for a visit,
the father was arrested for drug charges and child endangerment. Based on the
methamphetamine and marijuana found in the home and accessible to the
children,2 a founded child abuse assessment was filed. The father remained
incarcerated until late February 2023,3 around the same time the State filed for
termination of his parental rights to the children. After his release, he reengaged
with substance-abuse treatment, mental-health counseling, medication
management, his parent partner, Family Centered Services, and SafeCare. And,
on the plus side, the father located a one-bedroom apartment the social worker
testified was appropriate and was actively looking for a job after recently being laid
off. Between his release and the April termination hearing, he provided multiple
negative drug screens both to the department and his probation officer. The social
worker also testified there was an observable bond between the children and the
father, noting that the father had not missed any visits after his release. Before his
incarceration, however, the father was less consistent with his visitation—
according to the service provider who supervised the visits—so, all in all, the father
missed twenty-seven of their eighty-three offered visits.
2 The assessment noted “various items in the home that may be indicative of
methamphetamine manufacturing.”
3 The father remains on probation until February 2024.
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At the termination hearing in April 2023, the father disputed the grounds for
termination and also asked for a six-month extension to work toward reunification.
At that time, he testified he had been sober since his last self-reported use in
October 2022; with an additional six months, he could show a year of sobriety. He
testified he intended to remain separated from the mother and find a sponsor to
help with this endeavor. Service providers testified they did not believe an
additional six months would resolve their concerns with his substance abuse
because he had previously shown an ability to be sober for periods of time but had
not maintained that sobriety. On their end, the children remained with their
maternal grandmother; though she does not intend to adopt, other family members
have begun the process to be approved as an adoptive placement.
The juvenile court terminated the father’s parental rights to the older two
children under Iowa Code section 232.116(1)(f) (2023), the younger child under
section 232.116(1)(h), and all three children under section 232.116(1)(l). He now
appeals.
On appeal, while the father does not dispute the grounds for termination; he
argues the court should have granted his request for a six-month extension or
should have utilized the permissive exception to termination found in Iowa Code
section 232.116(3)(c). We review the termination of parental rights de novo. In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). The father makes the case that things are
different now because the mother is in prison and is no longer a bad influence on
his progress. And we commend him for gains he made after his release. But we,
like the juvenile court, have concerns given this is the fourth involvement with the
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department over an almost nine-year history and because of the father’s long-
standing addiction issues.
In order to grant an additional six-months, the juvenile court must be able
to “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 the child’s home will no longer exist at the end of the additional six-
month period.” Iowa Code § 232.104(2)(b). The juvenile court here could not do
that. While the father testified he had been sober since October 2022, drugs were
found in the home shortly after that date and he was incarcerated on drug charges
until two months before the termination hearing. See In re N.F., 579
N.W.2d 338, 341 (Iowa 1998) (“Where the parent has been unable to rise above
the addiction and experience sustained sobriety in a noncustodial setting, and
establish the essential support system to maintain sobriety, there is little hope of
success in parenting.”); In re P.F., No. 15-1103, 2015 WL 5970017, at *3 (Iowa Ct.
App. Oct. 14, 2015) (recognizing that sobriety in a structured, custodial setting
does not demonstrate an ability to maintain sobriety in the community). And, while
he had been successful in the two months following his release, we agree with the
juvenile court that this short period of time, even given an extra six months, cannot
outweigh the father’s repeated, demonstrated inability to maintain long-term
sobriety. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (“[W]e look to the
parent[’s] past performance because it may indicate the quality of care the parent
is capable of providing in the future.” (citation omitted)). As the social worker
manager summarized, “We’ve been down this road so many times. These kids
can’t keep going through this. They need to be in a permanent placement.” On
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our de novo review, we agree with the juvenile court that six months will not
alleviate this concern and allow the children to be returned home.
We turn next to the permissive exception. Iowa Code section 232.116(3)(c)
allows the juvenile court to not terminate if “[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.” While the providers testified there was
a bond between the father and the children, the father bears the burden of
establishing the exception to termination. See In re A.S., 906 N.W.2d 467, 476
(Iowa 2018). And on this record, while the father has been very clear that he loves
his children, there is no indication that the bond is so strong that termination would
be detrimental to the children and overcome the need for termination.
At this point in time, the children have been in and out of their father’s
custody for their entire lives, and their need for permanency and stability is best
served by termination. We affirm the termination of the father’s parental rights.
AFFIRMED.