In the Interest of D.G., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 20-0994
Filed November 4, 2020
IN THE INTEREST OF D.G.,
Minor Child,
L.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,
District Associate Judge.
The mother appeals the termination of her parental rights to her child.
AFFIRMED.
David R. Fiester, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Julie F. Trachta of Linn County Advocate, Inc., Cedar Rapids, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., Ahlers, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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BLANE, Senior Judge.
The mother, L.W., appeals the termination of her parental rights to her child,
D.G., born in 2013.1 The juvenile court terminated her rights based on Iowa Code
section 232.116(1)(f) and (g) (2020). As to paragraph (f), the mother concedes the
State met its burden on the first three elements but claims it failed to meet its
burden regarding the remaining element, that D.G. could not be returned to her
care at the time of the termination hearing. Based upon our de novo review, we
find the State established by clear and convincing evidence that L.W.’s parental
rights should be terminated.
Our review is de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our
primary consideration is the best interests of the child, In re J.E., 723 N.W.2d 793,
798 (Iowa 2006), the defining elements of which are the child’s safety and need
for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). Appellate
courts are “not bound by the juvenile court’s findings of fact, but [they] do give them
weight, especially in assessing the credibility of witnesses.” In re A.M., 843 N.W.2d
100, 110 (Iowa 2014) (quoting In re D.W., 791 N.W.2d 703, 106 (Iowa 2010)). The
appellate court “will uphold an order terminating parental rights if there is clear and
convincing evidence” of a ground for termination under Iowa Code section
232.116(1). D.W., 791 N.W.2d at 706. We focus on Iowa Code section
232.116(1)(f).
A parent’s rights may be terminated under section 232.116(1)(f) if: (1) the
child is four years of age or older; (2) the child has been adjudicated a child in need
1 D.G.’s biological father, D.R., consented to and had his parental rights
terminated. He has not appealed.
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of assistance; (3) the child has been removed from the physical custody of their
parents for twelve of the last eighteen months, or the previous twelve consecutive
months and any trial periods at home have been less than thirty days; and (4)
“[t]here is clear and convincing evidence that at the present time the child cannot
be returned to the custody of the child’s parents.” L.W. contests only the last of
these elements, claiming D.G. could have been returned to her care at the present
time. In this context “at the present time” means at the time of termination hearing.
A.M., 843 N.W.2d at 111.
L.W. married D.W. in 2018. The marriage has been marked throughout by
substance abuse and domestic violence on the part of both parties. On April 1,
2018, D.W. assaulted L.W. and she suffered physical injury. D.W. was arrested,
charged with domestic assault causing injury, and jailed. The police reported the
incident to the Iowa Department of Human Services (DHS), and DHS confirmed a
child-abuse assessment due to D.G. witnessing the domestic abuse.
On June 29, 2018, a second incident occurred in Lisbon, Iowa. Both parties
were intoxicated and engaged in an altercation that required police to be called,
with D.W. eventually pleading guilty to domestic abuse. On November 14, 2018,
police were called due to an intoxicated D.W. physically and sexually assaulting
L.W. with D.G. present. He was charged with domestic abuse, third offense, and
was held in custody.
On January 30, 2019, a safety plan for D.G. was implemented, which
included that, upon D.W.’s release from custody, he would not visit or reside in the
family home; L.W. would not allow D.W. to have visits with D.G.; and L.W. would
insure that D.G. had a safe, appropriate and sober caretaker at all times. In
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February, L.W. dropped the no-contact order she had against D.W. She also
requested DHS approval for her to take D.G. to visit D.W. in jail, which was denied.
On April 4, 2019, D.W. was released from jail. He provided his probation
officer with the address where he would reside as the family home with L.W. and
D.G. DHS filed a child-in-need-of-assistance (CINA) petition and sought removal
of D.G. from the home. D.G was removed on April 5, 2019 and was placed with
his maternal grandmother. At a hearing on April 11, 2019, all parties stipulated
that D.G. was a CINA.
On May 10, 2019, the police investigated a report by D.W. that L.W. had
stabbed him with a knife and she was arrested. Both were intoxicated. Although
L.W. denied the allegation, she pled guilty to the assault in July. At the time of the
termination hearing, L.W. and D.W. were still married. The no-contact ordered had
been lifted. L.W. indicated she was planning to divorce D.W. but had not initiated
proceedings.
Throughout the proceedings, L.W. denied knowing the identity of D.G.’s
biological father, telling DHS that he was conceived as a result of a one-night stand
with a man she met in a bar. On May 15, 2019, the court terminated the unknown
father’s parental rights. In July 2019, DHS learned that D.R., an individual L.W.
had known, acknowledged being D.G.’s father and had been paying L.W. $600 a
month since D.G. had been born.2 L.W. had also maintained contact with D.R.’s
mother (D.G.’s paternal grandmother) and had allowed her to take D.G. to church
on Sunday mornings. D.R. complained to DHS about L.W.’s mental instability.
2 D.R.’s paternity of D.G. was confirmed by a DNA test in March 2014.
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In July 2019, a DHS worker met with L.W. and her mother. DHS had
learned of L.W.’s criminal charges for stabbing D.W. and that D.W. was having
contact with L.W. and D.G. despite the safety plan, which L.W. and her mother had
agreed to. At the meeting, the DHS worker also determined that both L.W. and
her mother had been drinking. DHS requested court approval to remove D.G. from
the maternal grandmother’s care and place him with a foster family, which the court
granted.
During the proceedings, L.W. was to complete substance-abuse treatment
and a mental-health assessment. She started four different substance-abuse
treatments, both inpatient and outpatient, and failed to successfully complete any
of them. Shortly before the termination hearing, L.W. attended a fifth outpatient
treatment, which she completed, but the success of the treatment is in doubt.
In August, DHS moved for waiver of reasonable efforts pursuant to Iowa
Code section 232.102(14). Following hearings, the court granted the application
on December 2, 2019. On December 6, 2019, a petition to terminate L.W.’s
parental rights was filed. The termination hearing was held on July 9, 2020. During
the lead-up to the hearing, L.W.’s visits with D.G. were tapered to once a month
and were supervised.
Following the termination hearing, the juvenile court summarized the
evidence and the reasons D.G. could not be returned to his mother’s care and why
termination was appropriate. Our de novo review of the record supports each of
these findings and we set out the pertinent portion here:
During the course of the case [L.W.] attempted substance abuse
treatment 5 times. She first got an evaluation on June 13, 2019. She
was recommended to participate in outpatient treatment. She was
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unsuccessfully discharged from treatment. [L.W.] then went to St.
Luke’s Chemical Dependency for an evaluation on July 24, 2019. At
that time intensive outpatient treatment was recommended. Due to
her lack of accountability and continuing to drink, the
recommendation was changed to residential treatment. [L.W.] was
again discharged on October 21, 2019 without successfully
completing treatment. She admitted herself into the hospital on
October 30, 2019 to detox and entered ASAC residential on
November 1, 2019. [L.W.] was discharged unsuccessfully on
November 12, 2019. She then entered residential treatment at
Prelude on approximately November 20, 2019 and was again
unsuccessfully discharge[d] on December 3, 2019. At trial [L.W.]
testified that she later went back to ASAC and completed extended
outpatient treatment. Mother’s Exhibit C, a letter, dated April 6, 2020,
from ASAC indicated [L.W.] entered treatment on February 11, 2020
and successfully completed treatment on April 6, 2020. During the
course of the case, [L.W.] tested positive for alcohol and
methamphetamine. She was discharged from her employment at St.
Luke’s due to reporting for work intoxicated. She was observed
drinking alcohol in a bar while wearing a drug testing patch. She did
not show any insight into her own substance abuse issues and their
impact on [D.G.] and her ability to parent him. She finally managed
to complete an outpatient treatment program beginning months after
the state filed its petition for termination of parental rights. [L.W.]’s
lack of honesty throughout the case makes it impossible to determine
if she is actually sober even at the current time. In addition to the
substance abuse issues, [L.W.]’s parenting skills have been a
concern throughout the case. At the onset she reported that she and
[D.G.] were still showering together. [L.W.] seems to treat [D.G.] like
a friend or playmate, rather than a normal parent-child relationship.
She bought them matching “best friend” necklaces and insisted that
[D.G.] wear his at all times, even when he complained that it would
not be safe to wear it to bed. Service providers have documented
many troubling instances such as lingering kisses on the lips, [D.G.]
sucking [L.W.]’s neck during visits, and thrusting his hips toward
[L.W.]’s backside while holding his genitals. Clearly, [D.G.] could not
be returned to the custody of his mother now or in the near future
without being considered a Child in Need of Assistance.
Our review has also confirmed the juvenile court’s finding that L.W. was not a
credible witness and could not be trusted with D.G.’s care. We find D.G. could not
be returned to his mother’s care and L.W.’s parental rights were properly
terminated. We also conclude termination is in the child’s best interest and
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termination should not be averted due to the closeness of the parent-child bond.
See Iowa Code § 232.116(2), (3)(c).
AFFIRMED.