In the Interest of L.A. and O.A., Minor Children ( 2024 )

IN THE COURT OF APPEALS OF IOWA
No. 24-1442
Filed November 13, 2024
IN THE INTEREST OF L.A. and O.A.,
Minor Children,
S.A., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb, Judge.
A mother appeals the termination of her parental rights to her two
daughters. AFFIRMED.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant
mother.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney
General, for appellee State.
Donna M. Schauer of Schauer Law Office, Adel, attorney and guardian ad
litem for minor children.
Considered by Greer, P.J., and Buller and Langholz, JJ.
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LANGHOLZ, Judge.
A four-year-old girl wandered out of her home three times without her
mother noticing—once she was found four blocks away at a police station, another
time in a nearby Dollar General store, and yet another time under the covers in a
neighbor’s home. The girl and her older sister were removed from their mother’s
custody and adjudicated in need of assistance. During the juvenile proceeding,
the mother had two more children, did not regularly visit the girls, and struggled to
remain sober. After more than a year elapsed without progress, the State
petitioned to terminate the mother’s parental rights to the daughters. The juvenile
court agreed, terminating the mother’s parental rights under Iowa Code section
232.116(1)(f) (2024).
Despite not testifying at the hearing, not contesting any evidence about the
daughters through counsel, and taking “no formal position” on termination during
the hearing, the mother now appeals. She challenges only whether the State
proved the girls could not be returned to the mother’s custody at the time of the
termination hearing as required under the statutory ground for termination relied
on by the juvenile court. Assuming without deciding that the mother’s passivity
during the hearing does not foreclose appellate review, we affirm termination. The
State proved by clear and convincing evidence the girls could not be returned to
the mother’s custody at the time of the termination hearing. Indeed, in nearly a
year and a half, the mother never completed substance-use treatment and tested
positive for methamphetamine a month before the hearing. And her neglect and
substance use has caused difficulties for the girls—requiring reliable care and
support that the mother is unable to provide. We thus affirm the juvenile court.
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I.
The mother has five children—two daughters and three sons. This appeal
concerns the two daughters, born in 2016 and 2018.1
The mother first became involved with the department of health and human
services (“HHS”) after the younger daughter was born in 2018—she tested positive
for marijuana at birth. The mother later admitted using cocaine, and HHS imposed
a safety plan. The mother then completed substance-abuse treatment and kept
custody of the girls.
But the mother struggled to supervise her children, resulting in several
instances of neglect. Once, she left her middle son (then one year old) in daycare
and did not come pick him up. When the daycare contacted her, she said she was
out of town and could not come get him. Yet law enforcement observed her arrive
back at her apartment later that evening with friends and shopping bags. Three
times, the younger daughter (then four years old) left the home without the mother
noticing. One time, she wandered four blocks away to the local police station.
Another time, she escaped the home and was found at a nearby Dollar General
store alone. Yet another time, she was discovered over an hour later hiding under
the covers in a neighbor’s home.
Based on these events, HHS issued a founded child-abuse assessment and
the State petitioned to adjudicate the daughters as children in need of assistance.
1 None of the sons—all of whom are younger than the daughters—currently live
with their mother. The oldest son lives in another state with his father. The juvenile
court terminated her rights to the middle son in this same proceeding, but she does
not appeal that termination. And the newborn son was adjudicated in need of
assistance—also in the same order—after being removed from her custody.
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The girls were removed from their mother’s custody and placed with their maternal
grandmother in March 2023, and they were adjudicated in need of assistance two
months later.
After removal, the mother’s visits with the girls were infrequent and did not
go well. The grandparents reported the mother did not engage with the girls or
help with mealtime or bedtime. Instead, the mother usually spent the visits on her
phone. And when she did engage, she would often yell or swear at the girls or the
grandparents, which upset the daughters, especially the younger daughter.
Indeed, the younger daughter’s behavior would worsen or intensify after
visits with the mother. Eventually, the younger daughter’s therapist recommended
no further visits with the girls until the mother consistently attended therapy to
better understand the younger daughter’s needs. The therapist recommended that
the mother and younger daughter could reintroduce contact during therapy
appointments and then ultimately transition back into regular visits. The mother
attended one appointment but did not return, so the regular visits remained
suspended.
The mother also struggled to stay sober. The mother gave birth to a baby
boy in July 2023, and the boy’s cord blood test was positive for methamphetamine,
amphetamine, and cannabinoids. The mother did not consistently attend family
services appointments or enroll in treatment. In January 2024, the mother was
arrested for possessing marijuana and methamphetamine, and she spent over a
month in jail. After her release in February, the mother showed willingness to
remain sober and engage with services, as she was now pregnant with her fifth
child. And she indeed began participating in a substance-abuse treatment
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program in February. But then she backslid, infrequently attending appointments
and ignoring two in-patient programs who contacted her with availability. In July,
she tested positive for methamphetamine—two months after giving birth to another
son.
The State petitioned to terminate her rights to the daughters and the juvenile
court held a hearing in August. The mother attended the hearing but did not testify
or offer any evidence. The mother was represented by counsel and the attorney
briefly cross-examined the two HHS workers who testified, though the questions
exclusively focused on the newborn son.2 And at the close of evidence, the
mother’s attorney took “no formal position” on terminating her parental rights to the
girls and instead asked the juvenile court to make “the appropriate decision that
the court feels is in the children’s best interest.”
The juvenile court terminated the mother’s parental rights to the daughters
under Iowa Code section 232.116(1)(f). The court found the girls were both over
four years old, had been removed from the mother’s custody since March 2023,
were adjudicated in need of assistance, and could not be returned to the mother’s
custody. The juvenile court also found terminating the mother’s parental rights
best served the girls, as the daughters had been removed for over a year, both
girls wished to remain with their grandmother, and the grandmother could provide
the permanency and support they need.
The mother now appeals.
2 At the same hearing, the district court also considered whether to adjudicate the
newborn son in need of assistance. The mother does not appeal that adjudication.
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II.
Our three-step termination framework is well-established. See In re L.B.,
970 N.W.2d 311, 313 (Iowa 2022). When a parent does not challenge one or more
of those steps, we need not consider them. In re P.L., 778 N.W.2d 33, 40
(Iowa 2010). Here, the mother only disputes the first step—whether the State
proved a statutory ground for termination by clear and convincing evidence. See
L.B., 970 N.W.2d at 313. And while we consider this issue de novo, we will give
weight to the juvenile court’s factfinding and credibility determinations as
appropriate. Id.
To begin, we acknowledge the anomaly of the mother declining to take a
position on whether the district court should terminate her rights, yet on appeal
asserting an unequivocal position against termination. The State argues the
mother’s inaction during the termination hearing forecloses appellate review, as
she did not offer any evidence, declined to testify, and vocalized “no formal
position” on termination. And we agree it is questionable whether the mother can
make an about-face on appeal to challenge the grounds for termination after her
seeming assent to whatever the court felt was best for the children during the
hearing. Compare In re M.F., No. 18-0289, 2018 WL 3057772, at *1 & n.2 (Iowa
Ct. App. June 20, 2018) (holding that the parent waived or did not preserve error
by only cross-examining the State’s witness and not introducing her own evidence
or objecting to the any of the State’s exhibits), with In re A.R., 316 N.W.2d 887,
888–89 (Iowa 1982) (holding parent may challenge sufficiency of the evidence for
statutory ground of termination on appeal when issue was not raised in the district
court). Still, we elect to affirm on the merits.
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The mother’s parental rights were terminated under section 232.116(1)(f),
and she does not dispute the first three prongs of paragraph “f”—the children were
over four years old, were adjudicated in need of assistance, and had been
removed from her custody for over twelve straight months. See Iowa Code
§ 232.116(1)(f)(1)–(3). So we focus on the last prong—whether the children could
have been returned to her custody at the time of the termination hearing. Id.§ 232.116(1)(f)(4).
The mother argues that ongoing substance use alone is not enough to
terminate her parental rights. She argues that without a “nexus” between her
substance use and “appreciable adjudicatory risk of harm to the child,” the children
should be returned to her custody. See In re M.S., 889 N.W.2d 675, 682 (Iowa Ct.
App. 2016). The mother’s reliance on M.S. is misplaced. There, a father was
working to achieve sobriety from cannabis but continued using “for at least some
period of time while the” juvenile case was pending. Id. at 678. Yet the father
never interacted with the child while under the influence, the department had no
concerns the father might supervise the child while impaired, and the department
ultimately had “no concerns regarding the safety of the child while in” the father’s
care. Id. The father also attended every visitation with the child and each visit
went well. Id. at 677–78.
Here, conversely, the mother has not shown she is working toward sobriety.
The mother was expected to attend substance-use treatment twice a week until an
in-patient program had an opening. But she did not attend most of those
appointments. When two in-patient programs had openings the month before the
termination hearing, the mother did not respond or request placement. During this
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time, the mother tested positive for methamphetamine. The mother chose not to
testify at the hearing and she offered no evidence showing she has since
reengaged with treatment. So unlike the recovering father in M.S., we have no
basis to find the mother’s substance use will improve in the near future.
And contrary to the mother’s assertions, her conduct has harmed the girls.
As the HHS worker explained, the younger daughter “has especially suffered from
her mother’s substance use and neglect over the years.” Because of her
upbringing, the younger daughter has mental health needs that require consistent
care and support—and her behaviors intensify after visits with the mother. So
unlike the speculative harms rejected in M.S., the State showed the mother’s
neglect and substance use has harmed her daughters. See id. at 678.
We are also mindful of the initial reason the girls were removed from the
mother’s custody. Since removal, the mother has not shown she has worked to
assure the girls would be safe and secure under her watch. In fact, an HHS worker
reported the mother and children were “possibly in a worse position than in the
initiation of the [child-in-need-of-assistance] proceedings.” Termination under
paragraph “f” asks whether the girls could be immediately returned to their
mother’s custody, not whether they could someday be returned. See In re A.M.,
843 N.W.2d 100, 111 (Iowa 2014). On our review, we agree with the juvenile court
that the daughters could not be safely returned to their mother’s custody at the
time of the termination hearing. Thus, we affirm termination under section
232.116(1)(f). Because the mother does not challenge any other step of our
statutory framework, we affirm the juvenile court’s termination order.
AFFIRMED.