In the Interest of S.W., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 18-1767
Filed December 19, 2018
IN THE INTEREST OF S.W.,
Minor Child,
P.W., Father,
Appellant,
H.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
The mother and father appeal the termination of their parental rights to their
child. AFFIRMED ON BOTH APPEALS.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant
father.
David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Paul L. White of the Des Moines Juvenile Public Defender’s Office, Des
Moines, guardian ad litem for minor child.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Presiding Judge.
The father and mother separately appeal the termination of their parental
rights to S.W., born in July 2015. The father argues the State failed to prove by
clear and convincing evidence that grounds for termination exist under Iowa Code
section 232.116(1)(h) (2018). Both argue the district court should have granted a
six-month extension and should have found termination was not in S.W.’s best
interests. We find the State has proved the grounds for termination by clear and
convincing evidence, a six-month extension would not have extinguished the need
for removal, and termination is in S.W.’s best interests.
I. Background Facts and Proceedings
The family first came to the attention of the Iowa Department of Human
Services (DHS) in April 2017 after the mother reported a domestic assault to law
enforcement. On April 19, the mother and father, who are not married, visited the
home of a known drug dealer with S.W. in their vehicle. As the father drove away
from the home, he and the mother began to argue. According to a report from law
enforcement, the father “became very aggressive and started driving erratically
and at high speeds,” even “driving so fast his jeep went onto 2 wheels while making
turns.” Additionally, the mother stated the father held a knife to her throat as they
returned home. The next day, the mother contacted law enforcement to report the
incident and stated she waited to report because she did not want to upset the
guests in her home. Law enforcement referred the case to DHS because S.W.
was in the car during this incident. The mother and father admitted they were
under the influence of methamphetamine at the time.
3
S.W. was adjudicated as a child in need of assistance (CINA) on June 22,
2017. After more than one year of offered services, the State filed a petition to
terminate parental rights on July 26, 2018. A hearing was held on September 13.
On September 27, the district court found the State had proved by clear and
convincing evidence the grounds for termination under Iowa Code section
232.116(1)(h). The mother and father appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight . . . .” In re D.W., 791 N.W.2d 703,
706 (Iowa 2010). “We will uphold an order terminating parental rights if there is
clear and convincing evidence of grounds for termination under Iowa Code section
232.116.” Id.; accord Iowa Code § 232.117(3) (“If the court concludes that facts
sufficient to sustain the petition have been established by clear and convincing
evidence, the court may order parental rights terminated.”). “‘Clear and convincing
evidence’ means there are no serious or substantial doubts as to the correctness
[of] conclusions of law drawn from the evidence.” In re C.B., 611 N.W.2d 489, 492
(Iowa 2000).
III. Grounds for Termination
The father argues the State failed to prove by clear and convincing evidence
that his parental rights should be terminated under Iowa Code section
232.116(1)(h). Specifically, he challenges the State’s establishment of the fourth
requirement, which provides the child could not be returned to the father’s custody
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“at the present time.”1 Iowa Code § 232.116(1)(h)(4). In his petition, the father
asserts “[i]t is clear from the evidence that [he] is not in the same position as he
was at the time of removal.” He claims he has completed substance-abuse
treatment and that he has remained sober following the treatment.
At the termination hearing, neither parent testified the child could be
returned at the present time. In addition, a social worker opined the child could not
be returned to the parents at the present time; all visits remained fully supervised.
With regard to the father, the social worker further stated the father has not
sufficiently engaged in substance-abuse services because he has not been honest
about his drug use and has relapsed a few times. On June 8, 2018, about one
year after S.W. was removed from the home, the father and mother provided sweat
patch tests that were positive for methamphetamine, indicating they were still
using. Both parents deny drug use and have stated the positive sweat patch drug
test could have come from bed sheets that had not been washed since their last
relapse or from exposure to a guest’s methamphetamine use in their home. The
father’s results indicated he had 269 nanograms per milliliter of methamphetamine
1 Paragraph (h) provides termination is warranted if,
The court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(3) The child has been removed from the physical custody of the
child’s parents for at least six months 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.
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in his system2 and the test cutoff level was ten nanograms per milliliter. Despite
the high results, the father continued to deny drug use. The record clearly supports
the father’s continued methamphetamine use. Therefore, we find the State proved
by clear and convincing evidence that the child could not be returned to the father’s
custody at the present time and thus, the father’s challenge to the statutory
grounds for termination is denied.
IV. Additional Time
Both parents argue the district court should have granted an additional six
months before termination. Iowa Code section 232.104(2)(b) provides the court
may authorize a six-month extension of time if it finds “the need for removal of the
child from the child’s home will no longer exist at the end of the additional six-
month period.” In June 2017, S.W. was adjudicated as a CINA and the parents
were given fifteen months to work towards reunification. Both parents continue to
be deceptive about their drug use, and neither have properly addressed their
domestic violence issues. In a report to the court, DHS notes the mother has
engaged in services but “displays codependent features within her relationship and
has presented with impaired insight related to the unhealthy patterns” of the
relationship between her and the father. The report further notes that the parents
“maintain that the incident that brought them to DHS’ attention was an isolated
incident and [was] a result of using drugs”; however, the report concluded the two
parents are unaware of their unhealthy relationship dynamics and are attempting
2
The mother’s sweat patch drug test results were 150 nanograms per milliliter of
methamphetamine.
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to minimize their issues rather than address them. In the ruling, the district court
stated:
Ultimately, at termination, [the mother] and [the father] present
themselves as a couple and they do present as two people who are
co-dependent and unable to separate from each other. They have
not created an environment where a three year old child can be
safely placed in their care and custody on a full time basis where it
could predictably be believed the child would not be subject to
adjudicative harm and they could be minimally capable in the short
or long term of meeting [S.W.]’s needs.
The district court noted this is “sad and tragic,” but it concluded that “given [S.W.]’s
age and the amount of time this CINA has been open, we can’t wait any more.”
Accordingly, the district court found termination appropriate.
Despite receiving more than twice the time required by statute before
termination, the parents have failed to make sufficient progress towards
reunification. See Iowa Code § 232.116(1)(h)(3) (requiring the child to be removed
from the parents’ custody “for at least six months of the last twelve months, or for the
last six consecutive months and any trial period at home has been less than thirty
days”); see also In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“We have
repeatedly followed the principle that the statutory time line must be followed and
children should not be forced to wait for their parent to grow up.”). “We will not
gamble with a child’s future by asking him [or her] to continuously wait for a stable
biological parent, particularly at such a tender age.” In re D.S., 806 N.W.2d 458,
474 (Iowa Ct. App. 2011). Therefore, we find the record does not support the
notion that additional time would extinguish the need for removal. See Iowa Code
§ 232.104(2)(b).
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V. Best Interests of the Child
Both parents claim termination is not in S.W.’s best interests due to their
bond with S.W.3 “A strong bond between parent and child is a special
circumstance which mitigates against termination when the statutory grounds have
been satisfied.” N.F., 579 N.W.2d at 341; see Iowa Code § 232.116(3)(c).
However, this “is not an overriding consideration, but merely a factor to consider.”
N.F., 579 N.W.2d at 341.
While both parents have engaged in Child Parent Psychotherapy to work
on maintaining a relationship with S.W., the parents continue to maintain an
unhealthy relationship with each other. “[O]ur consideration must center on
whether the child will be disadvantaged by termination, and whether the
disadvantage overcomes [the parents’] inability to provide for [the child]’s
developing needs.” D.W., 791 N.W.2d at 709. Therefore, we agree with the district
court termination is in S.W.’s best interest and the bond between the parents and
S.W. is insufficient to preclude termination.4 See Iowa Code § 232.116(2), (3)(c).
3
While the parents rely on their bond with S.W. to argue termination is not in the best
interests of the child, this argument is misplaced. This argument is more appropriate under
the permissive factors of Iowa Code section 232.116(3). See Iowa Code § 232.116(3)(c)
(stating the court need not terminate parental rights if it finds “[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”).
4
The father also asserts termination is a violation of his due process and equal protection
rights under the United States and Iowa Constitutions. These assertions were not raised
below, and we decline to address them for the first time on appeal. See State v. Joss,
211 N.W.2d 320, 321 (Iowa 1973) (“We have repeatedly held that ordinarily matters not
raised in the trial court, including constitutional questions, cannot be effectively asserted
for the first time on appeal.”).
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VI. Conclusion
We find the State proved by clear and convincing evidence the grounds for
termination of the father’s parental rights. Additionally, we find an additional six
months would not extinguish the need for removal. Finally, termination is in S.W.’s
best interests and any bond between the parents and child does not preclude
termination.
AFFIRMED ON BOTH APPEALS.