In the Interest of E.C., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1918
Filed July 26, 2023
IN THE INTEREST OF E.C.,
Minor Child,
A.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Patrick C. Brau of Brau Law Office, Mt. Pleasant, for appellant mother.
Brenna Bird, Attorney General, and Ellen Ramsey-Kacena (until
withdrawal), Mary A. Triick (until withdrawal), and Mackenzie Moran, Assistant
Attorneys General, for appellee State.
Heidi D. Van Winkle of the Van Winkle Law Office, Burlington, attorney and
guardian ad litem for minor child.
Considered by Greer, P.J., and Schumacher and Badding, JJ.
2
BADDING, Judge.
A mother appeals the termination of her parental rights to her infant child
under Iowa Code section 232.116(1)(h) (2022).1 We interpret her petition on
appeal to include arguments that termination is not in the child’s best interests and
that she should have been given more time to work toward reunification.2 We
review these claims de novo. See In re L.B., 970 N.W.2d 311, 313 (Iowa 2022).
When this child was born in February 2022, the mother was already
receiving services from the Iowa Department of Health and Human Services for
her two older children with a different father. Those children had been adjudicated
as children in need of assistance the year before and removed from the mother’s
custody due to her substance-abuse, mental-health, and anger issues. Because
the mother was unable to resolve those issues, termination petitions were filed for
the older children, and the child in this appeal was removed from the mother’s
1 The child’s father was granted additional time to work toward reunification
because he was identified through paternity testing just before the permanency
hearing.
2 The mother’s petition contains one issue heading: “The Court erred in finding that
the Mother’s rights should be terminated pursuant to Iowa Code
Section 232.116(2).” But in the body of her argument, in addition to the more fully
developed claims identified above, the mother mentions, “The State has failed to
prove by clear and convincing evidence that [the child] cannot be returned to [the
mother] without subjecting him to adjudicatory harms described in
Section 232.96A.” While this seems to call the statutory ground for termination
into question, “[a] broad, all encompassing argument is insufficient to identify error
in cases of de novo review.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000); accord
Iowa Rs. App. P. 6.201(1)(d) (stating the petition on appeal shall substantially
comply with Form 5 in rule 6.1401); .1401–Form 5 (“State the legal issues
presented for appeal. . . .”). Even if we addressed the merits of this passing claim,
we would summarily affirm on that ground given the mother’s failure to address
her substance-abuse and mental-health issues, as detailed below.
3
custody the day after he was born.3 He was later adjudicated as a child in need of
assistance.
At first, the mother showed promise. She attended substance-abuse
treatment, participated in therapy, tested negative for illegal drugs, and had good
visits with the child. Based on these positive steps, the department considered
moving forward with semi-supervised visits. But things changed quickly. In May
and then twice in June, the mother tested positive for methamphetamine through
sweat-patch testing. In August, the State filed its termination petition based on
these positive tests and the mother’s inability to stabilize her mental health. Later
that same month, the mother was unsuccessfully discharged from her alcohol and
drug dependency services. Then, while the mother’s September hair-stat test was
negative for illegal substances, a contemporaneous sweat-patch test was again
positive for methamphetamine.
At the October permanency hearing, the parties stipulated to a six-month
extension for the recently identified father. But whether to grant the same for the
mother was contested, with the department and guardian ad litem recommending
termination of the mother’s parental rights. The court agreed the father should be
given more time “to fully embrace the services offered to him and determine if
placement of the child with [him] is appropriate and in the child’s best interests.”
3 The termination petitions for the other two children were later dismissed with the
entry of bridge orders that transferred jurisdiction of custody, physical care, and
visitation to the district court. See Iowa Code § 232.103A. According to the record,
termination was not necessary for the older children due to “their father’s protective
capacity to make decisions regarding the children’s contact with [the mother] in
order to keep them safe and not be exposed to [the mother’s] substance abuse.”
4
The same was not warranted for the mother, according to the court, because of
her limited progress after almost two years of services.
At the termination hearing in November, the mother testified that she
intended to resume her mental-health therapy, continue her medication
management, obtain a new substance-abuse evaluation, and get into inpatient
treatment. She was also searching for a stable residence, having just moved into
a friend’s basement. When asked, “What is it that you’re asking for today?” she
responded by requesting six more months “so [she] can get stabilized.” On cross-
examination by the State, however, the mother could not explain how the future
would be different from the past. Despite the serial positive drug tests, and her
testimony that she was looking into inpatient treatment, the mother denied being a
methamphetamine addict or using the substance in the past six months.
In its ruling, the court found the mother “continues to engage in the same
behaviors that have plagued her throughout her involvement with the department
and juvenile court,” making “very limited gains” with her substance abuse and
mental health. As a result, the court found the child could not be returned to the
mother’s custody, termination would be in the child’s best interests, and no
permissive exception to termination applied. The court did not revisit its denial of
the mother’s request for additional time.
Beginning with the mother’s best-interests challenge on her appeal from this
ruling, we “give primary consideration to the child’s safety, to the best placement
for furthering the long-term nurturing and growth of the child, and to the physical,
mental, and emotional condition and needs of the child” in determining whether
termination is in a child’s best interests. Iowa Code § 232.116(2). The mother
5
does not address how these factors weigh against termination. Instead, she points
to the resolution in her older two children’s cases—case closure with bridge
orders—and suggests the same would be possible here, avoiding the need for
termination. With the child’s father becoming involved so late in the proceedings,
waiting for that remote possibility is not in this child’s best interests. See In re M.D.,
No. 18-1659, 2019 WL 479142, at *1 (Iowa Ct. App. Feb. 6, 2019) (“Children are
not equipped with pause buttons . . . .”).
So that leaves us with the statutory best-interests factors and the mother’s
past performance. See C.B., 611 N.W.2d at 495 (“Insight for the determination of
the child’s long-range best interests can be gleaned from ‘evidence of the
parent’s past performance for that performance may be indicative of the quality of
the future care that parent is capable of providing.’” (citation omitted)). Given the
mother’s long history of substance-abuse and mental-health issues, which she did
not address during these or prior proceedings, we summarily conclude termination
of her rights is in the child’s best interests.
Turning to the mother’s request for more time, she claims the State failed
to prove the child could not be returned to her custody in six months. See Iowa
Code § 232.104(2)(b) (allowing for additional time if “the need for removal . . . will
no longer exist at the end of the additional six-month period”). But, as the State
points out, “[t]he burden is not on the State to prove an extension is not
appropriate.” In re K.G., No. 18-1187, 2019 WL 719047, at *2 (Iowa Ct. App. Feb.
20, 2019). In support of her request for an extension, the mother points to her
ability “to maintain periods of sobriety” and her “efforts to get into inpatient
treatment.” Periods of sobriety punctuated by relapse do not support an extension.
6
Rather, they show an ongoing risk of adjudicatory harm. See In re P.D., No. 19-
1824, 2019 WL 6894420, at *1 (Iowa Ct. App. Dec. 18, 2019). And the record
does not show the mother made any meaningful effort to engage in outpatient
treatment, let alone inpatient. While the mother now says that she understands
“the need and desire for treatment to prevent future relapses,” she wouldn’t even
admit that she had a drug problem at the termination hearing. On this record, we
conclude additional time is not warranted.
We affirm the termination of the mother’s parental rights.
AFFIRMED.