In the Interest of M.H., Minor Child ( 2024 )

IN THE COURT OF APPEALS OF IOWA
No. 24-0546
Filed June 5, 2024
IN THE INTEREST OF M.H.,
Minor Child,
A.H., Mother,
Appellant,
J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Joan M. Black,
Judge.
Parents separately appeal the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.
Kristin L. Denniger, Mount Vernon, for appellant mother.
Deborah M. Skelton, Tiffin, for appellant father.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney
General, for appellee State.
David R. Fiester, Cedar Rapids, attorney and guardian ad litem for minor
child.
Considered by Schumacher, P.J., and Ahlers and Badding, JJ.
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BADDING, Judge.
In separate appeals from the termination of their parental rights to their third
child, a mother and father try to overcome the juvenile law maxim, “What’s past is
prologue.” In re K.F., No. 14-0892, 2014 WL 4635463, at *4 (Iowa Ct. App. Sept.
17, 2014). We agree that past conduct is not always determinative of future
conduct. See In re C.M., No. 14-1140, 2015 WL 408187, at *5 (Iowa Ct. App.
Jan. 28, 2015). But it is probative, see id., especially when the statutory ground
for termination is section 232.116(1)(g) (2024), as it is here. Both parents
challenge the sufficiency of evidence supporting that ground for termination, along
with the juvenile court’s waiver of reasonable efforts, and they argue termination is
not in the child’s best interests because of their strong bond. We affirm upon our
de novo review of the record.
I. Background Facts and Proceedings
The parents’ past starts with their two older children,1 who were born
in 2020 and 2021. The Iowa Department of Health and Human Services
intervened after the second child was born in July 2021. The mother admitted
using methamphetamine the day he was born. She tested positive for that
substance, as well as marijuana and amphetamines. The child also tested positive
for methamphetamine and amphetamines, as did the father. During the
department’s investigation, the mother left the older child—who was only ten
months old—alone and unattended in the mother’s room at a homeless shelter.
1 Going back further in time, the father has two other children with different
mothers. One of those children was the subject of a child-welfare proceeding that
started in August 2019. The father did not participate in that proceeding.
3
The children were removed from their parents’ custody, and the parents were
ordered to participate in substance-use evaluations, treatment, and testing.
Despite reunification efforts over the next year, the parents continued to test
positive for methamphetamine and other drugs, even though they mostly denied
use. They did not complete substance-use treatment and struggled to maintain
housing. The only bright spot was the parents’ participation in visits. But that
wasn’t enough for reunification. In July 2022, the juvenile court terminated the
parents’ rights to both children under Iowa Code section 232.116(1)(h), finding
neither had a “safe residence for the children” or “adequately addressed their
severe substance abuse problem.”
At the time of the earlier termination, the mother was pregnant with the third
child, who was born in November 2022. Less than one year later, in September
2023, the family came to the department’s attention again for similar issues. The
parents were living with the child in a rundown trailer without running water. And
there were concerns they were using methamphetamine again. When a child
protection worker visited the trailer, it was not habitable and had drug
paraphernalia scattered about. The State obtained an ex parte order for temporary
removal and filed a child-in-need-of-assistance petition. Both parents showed up
at the removal hearing with shaved heads, which the juvenile court found was done
to avoid drug testing. Meanwhile, the child’s hair tested positive for
methamphetamine and amphetamines. The child was adjudicated in need of
assistance in early October.
Ten days later, on October 19, the State moved to waive reasonable efforts.
See Iowa Code § 232.102A(4)(c). The motion was considered at the dispositional
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hearing in early December. By the time the juvenile court issued its ruling in
January 2024, the parents had tested positive for methamphetamine and other
drugs multiple times—most recently a December 27, 2023 sweat test for the father
that was positive for methamphetamine and cocaine and a January 3, 2024 sweat
test for the mother that was positive for methamphetamine.2 They had also
completed substance-use evaluations. The father’s evaluation recommended
extended outpatient treatment, while the mother’s recommended relapse
prevention. The mother, however, was not honest with the evaluator about her
drug use, setting her sobriety date in November 2021.
In its combined ruling on disposition and waiver of reasonable efforts, the
court granted the State’s motion to waive reasonable efforts because the same
issues in the prior proceeding—housing instability and ongoing drug use—still
existed. The court considered but rejected the parents’ argument that “it is too
early in the process of the case to waive reasonable efforts” because the parents
“continue to deny that they have addiction issues. They deny use completely.
They claim to have been drug free since November 2021. It is impossible to guess
how long it might take them to address an issue that they do not acknowledge
exists.” The court accordingly concluded “that clear and convincing evidence
exists to believe that the offer or receipt of services would not likely resolve the
current situation in a reasonable period of time.” See id.2 There were some negative tests interspersed with the positive tests but not with
any consistency. And some of those negative tests were urinalyses that did not
test for methamphetamine.
5
Despite the waiver, the State continued to offer some services to the
parents, like drug testing and families first services. Although the parents declined
the latter services, they completed drug tests on January 15. But after the mother’s
test was positive for methamphetamine and the father’s for marijuana, they
stopped participating in drug testing too.
The State filed its termination petition in late January, and a hearing on the
petition was held in February. Neither parent had started substance-use treatment
by then. The mother had completed a psychiatric evaluation and was taking
medicine to treat her attention deficit hyperactivity disorder. But she was not
engaged in any other mental-health treatment for her history of depression and
post-traumatic stress disorder. The caseworker, who was also involved with the
past termination, testified that more time was not “going to be the answer on this
case because . . . we’ve had the same circumstances for the last several years
with both of them, and it hasn’t changed.”
Although the father did not testify at the hearing, the mother did. She told
the court that she ended her relationship with the father after reasonable efforts
were waived: “I have voiced my opinion to him that I figured it would be in our best
options to not continue to be together because when we are together, we use, and
I don’t see us being able to be sober and getting [the child] back while being
together.” Yet she maintained that apart from a relapse in March 2023, which
landed her in the hospital, she had been sober since November 2021. The mother
also testified that she had signed a lease on a new apartment at the beginning of
February, and she was employed full-time.
6
Even so, the juvenile court determined the State met its burden under
section 232.116(1)(g), finding clear and convincing evidence that
the parents continue to lack the ability or willingness to actively
participate in services that would correct the situation. They give lip
service by saying they have plans, but they have demonstrated over
and over again that their actions do not match their stated intentions.
It is the conclusion of the Court that an additional period of time will
not correct the situation.
The court also determined termination was in the child’s best interests and none
of the permissive exceptions to termination applied. Both parents appeal.
II. Analysis
We review terminations of parental rights de novo, applying a three-step
analysis that asks whether (1) a statutory ground for termination is satisfied, (2) the
child’s best interests are served by termination, and (3) a statutory exception
applies and should be exercised to preclude termination. See In re L.B., 970
N.W.2d 311, 313 (Iowa 2022); see also Iowa Code § 232.116(1)–(3).
A. Ground for termination
Both parents claim the State failed to prove the final two elements of Iowa
Code section 232.116(1)(g), that “[t]here is clear and convincing evidence that the
parent continues to lack the ability or willingness to respond to services which
would correct the situation” and “an additional period of rehabilitation would not
correct the situation.” Iowa Code § 232.116(1)(g)(3), (4). Wrapped up in their
challenges to this statutory ground are their claims that the State rushed to waive
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reasonable efforts under section 232.102A(4)(c). 3 On our de novo review of the
record, we find no error in the waiver of reasonable efforts.4
Under section 232.102A(4)(c), “the court may waive the requirement for
making reasonable efforts” upon “clear and convincing evidence that aggravated
circumstances exist,” which is shown by a combination of (1) a prior termination
“to another child who is a member of the same family” and (2) “clear and convincing
evidence to show that the offer or receipt of services would not be likely within a
reasonable period of time to correct the conditions which led to the child’s
removal.” The parents do not dispute the prior termination. Instead, the mother
contends the waiver was unwarranted because “there was not enough time to
determine whether” the second condition was met, while the father simply argues
3 The enactment of section 232.102A took effect on July 1, 2022. See 2022 Iowa
Acts ch. 1098, § 49. Its predecessor was previously codified at Iowa Code
section 232.102(12)(c). In her petition on appeal, the mother references
section 232.57, which is similar to section 232.102A. However, section 232.57
falls under subchapter II of chapter 232, which governs delinquency proceedings.
Section 232.102A falls under subchapter III, governing child-in-need-of-assistance
proceedings.
4 The State contends that the parents cannot challenge the ruling waiving
reasonable efforts because it was a final order appealable as a matter of right that
the parents did not appeal. We disagree. See, e.g., In re A.W., No. 04-1468, 2005
WL 67766, at *2 (Iowa Ct. App. Jan. 5, 2005) (characterizing appeal of waiver of
reasonable efforts as interlocutory and finding, “the issue of the waiver of
reasonable efforts may be reviewed on appeal from any subsequent termination
of parental rights order”). While some of our court’s cases have considered such
challenges immediately appealable when part of a dispositional order, see, e.g., In
re R.B., No. 19-0347, 2019 WL 2524104, at *2 (Iowa Ct. App. June 19, 2019), in
another one of our cases, the supreme court characterized such an appeal as
interlocutory before granting the appeal and transferring it to us, see In re N.T.J.,
No. 11-2073, 2012 WL 1067075, at *1 n.1 (Iowa Ct. App. Mar. 28, 2012). True,
the court’s ruling on waiver in this case was combined with its dispositional order,
but those severable issues were disposed of in the same order for convenience.
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that he “did not receive the full measure of time to work toward reunification that
the statutes allow.” We reject these arguments.
“Using the past as the best predictor, we agree with the juvenile court’s
finding of aggravated circumstances.” In re R.B., No. 22-1346, 2022
WL 16631199, at *3 (Iowa Ct. App. Nov. 2, 2022). The parents had their rights
terminated in a prior proceeding that was plagued by the same problems present
in this one. See In re J.H., 952 N.W.2d 157, 167 (Iowa 2020) (“[T]he parents’
history of past terminations—especially when those terminations were under
similar circumstances—is highly relevant in proving the parents lack the ability or
willingness to respond to services.” (footnote omitted)). They were once again
consistently testing positive for drugs while denying use and failing to take
meaningful steps toward sobriety.
Under these circumstances, the presence of aggravating circumstances
was supported by clear and convincing evidence.5 See, e.g., R.B., 2022
WL 16631199, at *3 (affirming waiver where mother’s methamphetamine use
continued across cases because offer or receipt of services “would not correct the
longstanding . . . lack of follow through exhibited by the mother towards addressing
her substance abuse problem”); In re I.W., No. 12-1602, 2012 WL 5356192, at *1–
2 (Iowa Ct. App. Oct. 31, 2012) (finding aggravated circumstances where parents’
5 We note that when the reasonable-efforts waiver provisions were moved to new
section 232.102A, a caveat was added: “Prior services the state provided to the
family shall not be considered in making a determination as to whether a waiver of
reasonable efforts is appropriate.” Iowa Code § 232.102A(5). Neither parent
mentioned this provision in the juvenile court or on appeal. In any event, the statute
only prevents consideration of prior services, not the parents’ prior and current
behavior and tendencies like we are considering here.
9
rights were previously terminated due to substance use and same issues
“continued to exist” in subsequent proceeding); In re D.S.R., No. 01-1042, 2002
WL 100668, at *1–2 (Iowa Ct. App. Jan. 28, 2002) (affirming waiver of reasonable
efforts at adjudication where parents had history of substance abuse and prior
terminations, “both tested positive for illegal drugs on several occasions, [and] both
denied any recent drug use”); cf. In re A.H., No. 14-1049, 2014 WL 7339457, at
*16 (Iowa Ct. App. Dec. 24, 2014) (disagreeing with juvenile court’s waiver of
reasonable efforts because “the mother’s four-month sobriety at that time, coupled
with her job, her home, and lack of safety concerns during her visits with the child
clearly show the mother was on track for reunification”).
Aside from complaining about the waiver of reasonable efforts, the parents
do not otherwise challenge the State’s proof. They imply that because reasonable
efforts were improperly waived, the State did not show reasonable efforts as part
of its ultimate proof that the child could not be safely returned to parental custody.
See In re L.T., 924 N.W.2d 521, 527 (Iowa 2019) (noting section 232.116(1)(g)
invokes the reasonable-efforts requirement). But, where the juvenile “court has
ordered the requirement waived, the State need not show reasonable efforts.” In
re T.G., No. 12-1405, 2012 WL 5356135, at *2 (Iowa Ct. App. Oct 31, 2012). Both
parents stopped participating in the services the State still offered, and neither
identifies what other services would have helped them. See In re C.E.,
No. 22-1179, 2022 WL 4362094, at *1 (Iowa Ct. App. Sept. 21, 2022) (declining to
provide relief on reasonable-efforts claim where parent did “not explain what
services she should have received . . . ‘or how they would have fostered
reunification.’” (citation omitted)).
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In any event, based on the record before us, we find the evidence clear and
convincing that the parents continued “to lack the ability or willingness to respond
to services which would correct the situation” and “an additional period of
rehabilitation would not correct the situation.” Iowa Code § 232.116(1)(g)(3), (4).
The parents’ performance in this proceeding mirrors their performance in the prior
proceedings, although we commend the mother for obtaining a job and housing.
Still, both parents continuously used drugs, refused to acknowledge their use, and
took no meaningful steps toward changing that serious issue. Cf. A.H., 2014
WL 7339457, at *20 (reversing termination under section 232.116(1)(g) where the
mother “held a full-time job for many months, had maintained a stable and safe
residence, had regular visitation with her child, and had maintained mental health
and substance abuse treatment” with an extended period of sobriety). The
evidence was sufficient for termination under section 232.116(1)(g).
B. Best Interests
Both parents argue termination is contrary to the child’s best interests. In
considering that question, 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.” Iowa
Code § 232.116(2). Neither parent addresses these best-interest factors. Instead,
they argue termination is contrary to the child’s best interests because of the
closeness of the parent-child bonds. “Consideration of the parent-child bond is not
a part of our best-interests analysis.” In re E.S., No. 23-0590, 2023 WL 4104126,
at *2 (Iowa Ct. App. June 21, 2023). This claim is more properly addressed under
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the third step for permissive exceptions, discussed below. In re L.L.,
No. 24-0431, 2024 WL 2045335, at *3 (Iowa Ct. App. May 8, 2024).
C. Statutory Exception
The parents’ arguments about their strong bond with the child implicates the
permissive exception to termination in section 232.116(3)(c), which authorizes the
court to forgo termination when it “would be detrimental to the child . . . due to the
closeness of the parent-child relationship.” While the mother believes that
“irreparable harm will be done to M.H.’s mental health if that bond is now
permanently severed,” she presented no evidence to support that belief or a
conclusion that termination would be detrimental to the child. See In re A.S., 906
N.W.2d 467, 476 (Iowa 2018) (“[T]he parent resisting termination bears the burden
to establish an exception.”). And neither did the father. While the record showed
a bond between the child and her parents, it was limited given her young age. And
a bond is not, by itself, enough to avoid termination. See In re A.B., 956
N.W.2d 162, 169 (Iowa 2021). We accordingly conclude this exception does not
apply.
III. Conclusion
We affirm the termination of both parents’ rights.
AFFIRMED ON BOTH APPEALS.