In the Interest of R.W. and D.F., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 18-1652
Filed February 6, 2019
IN THE INTEREST OF R.W. and D.F.,
Minor Children,
M.J., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Charles D.
Fagan, District Associate Judge.
The mother appeals the termination of her parental rights to her children.
AFFIRMED.
Kyle J. McGinn of McGinn, Springer & Noethe, P.L.C., Council Bluffs, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Roberta Megel of State Public Defender’s Office, Council Bluffs, guardian
ad litem for minor children.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
2
POTTERFIELD, Presiding Judge.
The mother appeals the termination of her parental rights to her children,
D.F., born in 2012, and R.W., born in 2017.1 The mother’s parental rights were
terminated pursuant to Iowa Code section 232.116(1)(d), (e), (f),2 (h),3 (i), and (l)
(2018). On appeal, the mother challenges the statutory grounds for termination
and argues a permissive factor weighs against terminating her parental rights.
We review the juvenile court’s decision to terminate parental rights de novo.
In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). “Grounds for termination must be
proven by clear and convincing evidence.” In re J.E., 723 N.W.2d 793, 798 (Iowa
2006).
We begin by considering the statutory grounds. “When the juvenile court
terminates parental rights on more than one statutory ground, we may affirm the
juvenile court’s order on any ground we find supported by the record.” In re A.B.,
815 N.W.2d 764, 773 (Iowa 2012). Paragraphs (f) and (h) include similar elements
but apply to children of different ages. Compare Iowa Code § 232.116(1)(f), with
id. § 232.116(1)(h). Paragraph (f) applies to children who are age four or older,
have been adjudicated a child in a need of assistance (CINA), and have been out
of the home the required time. Id. § 232.116(1)(f)(1)–(3). Paragraph (h) applies
to children three and under who have been adjudicated CINA and out of the home
the required time. Id. § 232.116(1)(h) (1)–(3). The mother does not contest these
elements as they apply to D.F. and R.W., respectively. However, she challenges
1
The parental rights of the unknown biological fathers and D.F.’s legal father were also
terminated. No father appeals.
2
As to D.F. only.
3
As to R.W. only.
3
the fourth element of both subsections—whether the children could be returned to
her care at the time of the termination hearing. See id. § 232.116(1)(f)(4), (h)(4);
see also In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting “at the present
time” in the statutory language to mean “at the time of the termination hearing”).
The mother argues the children could have been returned to her care at the
time of the termination hearing. She faults the department of human services
(DHS) for not conducting a home study on the shelter at which she was living
before the termination hearing. We acknowledge the testimony that a home study
would need to be—and was not—conducted, but this alone is not what prevented
the children from returning to their mother’s care.
D.F. was originally removed from the mother’s care in July 2016 due to
concerns about domestic violence being perpetrated against the mother in front of
D.F. and the mother’s serious mental-health concerns, including untreated anxiety
and bipolar disorder.4 There were also reports the mother was smoking marijuana
while caring for D.F. (and pregnant with R.W.).
R.W. was born in late May 2017 and was removed from the mother’s care
on June 1 due to issues of domestic violence between the mother and a different
romantic partner. The mother reported the man shook her, slapped her, and bit
her on the neck while she was holding R.W.; D.F., who was also present,5 tried to
stop the man and was pushed into a folding chair. The man had been arrested a
month before for perpetrating domestic violence against the mother.
4
The mother had previously been involved with services through the state of Nebraska
before moving to Iowa.
5
At the time, the mother was having semi-supervised visits with D.F. and R.W. remained
in her care.
4
The mother was able to make a number of positive changes, and both R.W.
and D.F. were returned to her custody in January 2018. However, they were
removed again approximately thirty-five days later for a number of reasons. First,
DHS received a report the mother was using methamphetamine and leaving
R.W.—still an infant—home alone. The mother eventually completed a hair-stat
test, which returned a positive result for methamphetamine. It was reported by
D.F.’s school that he missed six days of class during the time period he was in his
mother’s care, with only a couple of absences being considered excused.
Additionally, R.W. suffered from two abscesses during the time period, which may
have been prevented if the mother had not failed to pick up and administer
medication R.W. was prescribed.
After the children were removed at the end of February 2018, the mother
completed a substance-abuse evaluation, which recommended she attend
inpatient substance-abuse treatment. She did not do so. Additionally, although it
was a recommendation throughout the pendency of the cases, the mother never
completed a class on domestic violence. From the end of February until the
termination hearing—in late August 2018—the mother resided in a number of
places. She spent approximately three weeks in shelter before being hospitalized
and placed in a psychiatric ward for a number of weeks for mental-health
treatment. She was then discharged to what the mother referred to as a mental-
health respite, where she remained until July 25. The mother then moved into a
shelter for women and children fleeing domestic violence; she remained there at
the time of the termination hearing. It is for this final place, where she had been
5
staying for approximately one month, the mother claims DHS should have
conducted a home study.
Although the mother testified that she is not using drugs and the positive
hair-stat test was not a result of her personal use of methamphetamine, we are not
convinced of the mother’s sobriety. She testified she has had many negative drug
tests since the positive test in February 2018, but the mother did not provide any
results from the shelter—where she states she is being tested—and has failed to
complete most of the testing through DHS. Her testimony explaining her failure to
comply with DHS testing is inconsistent, at best. The mother originally denied
knowing she was supposed to be testing through DHS—claiming nobody had
asked her to do so lately. However, when it was pointed out that a person came
to her home and asked her to test, she acknowledged that was true and claimed
she must not have been home at the times the person came. Reports from DHS
show there were seven times the tester attempted to reach the mother, where they
“knocked, [and got] no answer.” However, she answered the door and refused to
test in April 2018, reporting she did not have time; tested negative for all
substances in May; and then did not test when asked in August, claiming she was
unable to provide a urine sample.
The mother’s testimony about substance-abuse treatment was also
inconsistent. She first testified that when she completed her substance-abuse
evaluation, she was told to “only do mental health” but then the evaluator changed
their mind, saying the mother had “to do drug treatment because [she] was
pregnant. She said that’s the only reason why she recommended it.” The mother
testified she called for residential treatment but was told they would not take her
6
because she “didn’t have any dirty UAs.” Later, when she was again asked about
substance-abuse treatment, the mother testified, “No, because they didn't want to
take me because I didn't have any dirty UAs. And, apparently, nobody has asked
me to do a UA for I don't know how long.” Yet, when asked, the mother testified
she had been honest with the treatment provider about her February test that was
positive for methamphetamine. The mother claimed she had not completed any
other type of substance-abuse treatment because “nobody told [her] to,”
maintaining “[she] asked what [she] was supposed to do [but she] ha[d]n’t heard
from [the social worker] in months.” However, at another point, the mother testified
that when she was denied residential treatment, she was instructed “to go to
treatment classes,” which she did not do because she “had already moved back
to Omaha.”
The mother did not recommit to services after her children were removed
from her care for a second time. Because of her lack of involvement, there is little
in the record to support the mother’s assertions she is sober and stable in her
mental health. The inconsistent nature of her testimony did little to convince us of
the credibility of her claims. For these reasons, we agree with the juvenile court’s
conclusion the children could not be returned to their mother’s care at the time of
the termination hearing, as children cannot be returned to their parent’s care if
doing so would cause the children to be exposed to any harm resulting in a new
CINA adjudication. See In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016).
Next, the mother conflates the best-interests argument, see Iowa Code
§ 232.116(2), and the permissive-factors argument, see id. § 232.116(3). She
maintains, “The juvenile court erred in holding that there is not clear and convincing
7
evidence to show that the termination of the parent-child relationship would be
detrimental to R.W. and D.F. and not in their best interest due to the strength of
their bond with their mother.” The mother has the burden to prove an exception to
termination applies. See In re A.S., 906 N.W.2d 467, 476 (Iowa 2018) (“[O]nce the
State has proven a ground for termination, the parent resisting termination bears
the burden to establish an exception to termination under Iowa Code section
232.116(3)[].”). In support of her claim, the mother relies upon “multiple” reports
from DHS that state “D.F. clearly has a strong bond with his mother.” But claiming
there is a strong bond between the oldest child and his mother is not sufficient to
establish that termination would be detrimental to D.F. See Iowa Code
§ 232.116(3)(c); see also D.W., 791 N.W.2d at 709 (recognizing that while the
parent loves their child, “our consideration must center on whether the child will be
disadvantaged by the termination, and whether the disadvantage overcomes [the
parent’s] inability to provide for [the child’s] developing needs”). Moreover, as the
mother recognized at trial, she has spent little time in a maternal role to R.W.
Under these circumstances, no permissive factor weighs against the
termination of the mother’s parental rights. We affirm.
AFFIRMED.