In the Interest of B.M., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0493
Filed May 11, 2022
IN THE INTEREST OF B.M.,
Minor Child,
T.H., Mother,
Appellant,
T.M., Father,
Appellant.
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Appeal from the Iowa District Court for Linn County, Carrie K. Bryner,
District Associate Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Rebecca Williams, Cedar Rapids, for appellant mother.
Mark D. Fisher of Howes Law Firm, PC, Cedar Rapids, for appellant father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Robin Lynn O’Brien Licht, Cedar Rapids, attorney and guardian ad litem for
minor child.
Considered by Bower, C.J., Schumacher, J., and Doyle, S.J. *
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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DOYLE, Senior Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. The mother challenges the evidence establishing the grounds
for termination. Both contend termination is not in the child’s best interests or
should be avoided because of the detriment it will cause the child. We review their
claims de novo. See In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).
The child tested positive for amphetamine and methamphetamine at birth
in August 2020. Both the mother and the father denied using drugs during the
pregnancy. But within two months, both parents tested positive for amphetamine
and methamphetamine and the father was arrested on drug-related charges,
including possession of methamphetamine with intent to distribute. The child was
removed from the parents and adjudicated a child in need of assistance (CINA).
During the CINA proceedings, both parents continued to test positive for
methamphetamine. One year after the child’s birth, the State petitioned to
terminate both the mother’s and the father’s parental rights. The termination
hearing was held in December 2021. At the time, the father had been incarcerated
since May 2021 and was awaiting sentencing after pleading guilty to federal
charges involving drug trafficking; he believed he would receive a ten-year
sentence. And despite the mother’s claim she was committed to her sobriety, the
credible evidence shows she continued to use methamphetamine.
The district court terminated both the mother’s and the father’s parental
rights under Iowa Code section 232.116(1)(h) (2021). Only the mother challenges
the evidence supporting this ground for termination. Termination is appropriate
under section 232.116(1)(h) if clear and convincing evidence shows:
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(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six of the last twelve months, or for the
last six consecutive months and any trial period at home has been
less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
The only dispute concerns whether the child can be returned to the mother’s care
without exposing the child to harm amounting to a new CINA adjudication. 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).
Clear and convincing evidence shows the child cannot be returned to the
mother’s care, as required to terminate under section 232.116(1)(h). In her petition
on appeal, the mother argues that the “only articulable safety concern” is her
positive tests for methamphetamine. She argues that her test results were positive
for methamphetamine at “very low levels” and results from residual environmental
exposure. But the juvenile court expressly found the mother’s denial of ongoing
use was not credible, a finding that we give weight. See In re D.W., 791 N.W.2d
703, 706 (Iowa 2010) (noting that the appellate courts are not bound by the juvenile
court’s factual findings but give them weight, “especially in assessing the credibility
of witnesses”). The mother’s ongoing substance use prevents the return of the
child to her care.1 See In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (holding that it
1 The mother also argues the child “could be safely returned to her care with a
series of consecutively negative sweat patch results,” which had not occurred at
the time of the termination hearing. At the hearing, she admitted that the child
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is reasonable for the court to conclude “a parent’s active addiction to
methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,
mental, or social wellbeing of the children in the parent’s care”); In re A.B., 815
N.W.2d 764, 776 (Iowa 2012) (noting “an unresolved, severe, and chronic drug
addiction can render a parent unfit to raise children”); State v. Petithory, 702
N.W.2d 854, 859 (Iowa 2005) (“No parent should leave . . . small children in the
care of a meth addict—the hazards are too great.”). The grounds for termination
have therefore been proved.
Having found clear and convincing evidence to terminate parental rights
under section 232.116(1)(h), we turn to the child’s best interests. See A.S., 906
N.W.2d at 473 (stating that after a ground for termination is established, “we
determine whether the best-interest framework as laid out in section 232.116(2)
supports the termination of parental rights” (citation omitted)). In making this
determination, 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). The “defining elements” 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).
Both parents argue termination of parental rights is not in the child’s best
interests. The mother argues terminating her parental rights would be detrimental
to the child due to the closeness of the parent-child relationship. In such cases,
the statute allows the court to leave parental rights intact. See Iowa Code
could not be returned to her care at that time. She implicitly concedes that more
time is required.
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§ 232.116(3)(c) (stating that the court “need not terminate the relationship between
the parent and child” 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”). The father echoes the mother’s claim that she has a great
bond with the child and to it adds that he loves the child and plans to marry the
mother and be a family.
The decision to apply section 232.116(3)(c) to avoid termination is
permissive, not mandatory. See A.S., 906 N.W.2d at 475. Ultimately, the decision
of whether to terminate parental rights depends on the facts of the case before us
and the children’s best interests. See id. Here, we find that the child’s best interest
are served by terminating the mother’s and the father’s parental rights.
Despite the offer and receipt of services to address substance use, both
parents continued to use methamphetamine throughout the CINA proceedings.
Their methamphetamine use was the catalyst for the CINA proceedings with the
child testing positive at birth. And the parents’ unpermitted, unsupervised contact
with the child during the CINA proceedings led the child to again test positive for
methamphetamine eight months later. The mother’s methamphetamine use was
an issue before the child’s birth, with the mother being named the perpetrator in
three prior child-abuse assessments based on methamphetamine use and lack of
supervision. Based on this history and the mother’s excuses for continuing to test
positive, it will remain an issue in the future. See In re C.K., 558 N.W.2d 170, 172
(Iowa 1997) (“[W]e look to the parents’ past performance because it may indicate
the quality of care the parent is capable of providing in the future.”). And the father,
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on top of his unresolved issues with substance use, is expected to be incarcerated
for years.
Even assuming the parents have a strong bond with the one-year-old child,
who was removed from their care at two months of age, nothing in the record
suggests that severing the bond would harm the child. Neither parent can safely
provide for the child’s needs in the near future, nor is the child equipped with a
pause button. See In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (holding that the
court must not deprive children permanency on the hope that someday the parent
will be able to provide a stable home); In re A.C., 415 N.W.2d 609, 614 (Iowa 1987)
(noting that if the plan to reconcile parent and child fails, “all extended time must
be subtracted from an already shortened life for the children in a better home”).
To deny the child needed permanency would put the parents’ interests above
those of the child. The parents have been doing so for the child’s entire life, and
the child’s needs must now take precedence. See In re J.L.W., 570 N.W.2d 778,
781 (Iowa Ct. App. 1997) (stating that once the statutory limits in section 232.116
expire, “the rights and needs of the child rise above the rights and needs of the
parents”), overruled on other grounds by In re P.L., 778 N.W.2d 33 (Iowa 2010).
We affirm termination of both the mother’s and the father’s parental rights.
AFFIRMED ON BOTH APPEALS.