In the Interest of S.B., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 18-0891
Filed July 18, 2018
IN THE INTEREST OF S.B.,
Minor Child,
M.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan F. Flaherty,
Associate Juvenile Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Kristin L. Denniger, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and John B. McCormally, Assistant
Attorney General, for appellee State.
Angela M. Railsback of Railsback Law Office, Cedar Rapids, guardian ad
litem for minor child.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.
M.B. appeals the termination of her parental rights to her child S.B., born in
February 2017.1 She challenges the grounds for termination found by the juvenile
court, and she contends termination of her parental rights is not in the child’s best
interests. Upon our review, we affirm.
I. Standard of Review and Statutory Framework.
Parental rights may be terminated under Iowa Code chapter 232 (2017) if
the following three conditions are true: (1) a “ground for termination under section
232.116(1) has been established” by clear and convincing evidence, (2) “the best-
interest framework as laid out in section 232.116(2) supports the termination of
parental rights,” and (3) none of the “exceptions in section 232.116(3) apply to
preclude termination of parental rights.”2 In re A.S., 906 N.W.2d 467, 472-73 (Iowa
2018). Our review is de novo, which means we give the juvenile court’s findings
of fact weight, especially the court’s credibility assessments, but we are not bound
by those findings. See id. at 472. “For evidence to be ‘clear and convincing,’ it is
merely necessary that there be no serious or substantial doubt about the
correctness of the conclusion drawn from it.” Raim v. Stancel, 339 N.W.2d 621,
624 (Iowa Ct. App. 1983); see also In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
1
The parental rights of the child’s father, S.F., were also terminated at that time, and he
does not appeal. We note that both the mother and the father have other children from
previous relationships, and although the mother’s and the father’s parental rights with
respect to those children are not at issue here, circumstances involving the father’s other
children are relevant to this case. We will identify those children as such when referring
to them, but we note our reference to “the mother” refers only to M.B.
2
Because the mother does not challenge the juvenile court’s determination that none of
the exceptions in section 232.116(3) apply to preclude termination of her parental rights,
we need not discuss that consideration. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
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II. Discussion.
A. Grounds for Termination.
The juvenile court found the State proved the grounds for termination set
forth in Iowa Code section 232.116(1) paragraphs (h) and (l), which the mother
contests on appeal. When the juvenile court finds more than one ground for
termination under section 232.116(1), “we may affirm . . . on any ground we find
supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We focus
our analysis on paragraph (h).
With regard to section 232.116(1)(h), the mother challenges the sufficiency
of the evidence supporting the fourth element of the paragraph—that the child
could not be returned to her custody at the time of the termination hearing. See
Iowa Code § 232.116(1)(h)(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.”). To satisfy its burden of proof, the State must
establish “[t]he child cannot be protected from some harm which would justify the
adjudication of the child as a child in need of assistance.” Id. § 232.102(5)(a)(2);
accord In re A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). “At the present time” refers
to the time of the termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa
2014). The mother argues the State failed to prove that element, explaining she
“indicated at trial that her wish for the case was to have [the child] returned to her
care and to continue to address the [Iowa Department of Human Services’s
(Department)] concerns by attending a residential treatment center designed for
mothers with children.” (Emphasis added.)
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The mother admitted the child could not be returned to her care at the time
of the hearing. At the hearing, she was asked, “Would you agree that you are not
in any position to have custody of your daughter returned to you today?” She
responded, “Returned to me today, no.” The mother admitted she had not met all
of the Department’s requirements needed to be completed before the child’s
custody could be returned to her. Given the circumstances, we believe this is
sufficient evidence for the establishment of element four of section 232.116(1)(h).
See In re Z.G., No. 16-2187, 2017 WL 1086227, at *4 n.5 (Iowa Ct. App. Mar. 22,
2017) (collecting cases in which termination of parental rights was affirmed
because a parent admitted the child or children could not be returned to the
parent’s care at the time of the termination hearing).
In any event, there is scant evidence in the record showing the mother made
any real attempts to address the Department’s concerns during the pendency of
the case. The child tested positive for illegal substances at birth, so the mother
knew from the start that addressing substance abuse was critical to reunification
with the child. At the termination-of-parental-rights hearing on December 1, 2017,
the mother admitted she had used methamphetamine in August 2017, but she
maintained no other usage since the birth of S.B. Yet, she had not submitted to
any drug testing since April 2017, and she gave implausible excuses for her failure
to follow through with the tests as directed by the juvenile court. She admitted she
had no valid reason for not drug testing from April 2017 to the time of the hearing,
even though she was aware it was crucial she show the court that she was clean
and sober in order to have any hope of the return of her child or even unsupervised
time with the child. The mother also claimed she was attending one-on-one
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substance abuse treatment sessions with a counselor, but the Department’s
caseworker learned she had been discharged from that treatment in November
2017 after missing numerous appointments. She and the father lived together, but
she maintained she was not aware of whether the father was using illegal
substances. The mother trivialized the fact that police had been called to her and
the father’s residence numerous times during the year. Ultimately, the mother did
not evidence any dedication to tackling her substance abuse issue at the
December 2017 hearing.
Then, a week after that hearing, the child’s guardian ad litem (GAL)
requested the juvenile court reopen the record because the GAL had “been
presented with new and critically important information that ha[d] significant
bearing on the court’s determination of the issues before it in this case.” The court
granted the GAL’s request, and a continuation of the termination-of-parental-rights
hearing was held January 10, 2018. Evidence presented that day showed police
had responded to a call concerning injuries to the father’s three-year-old child on
November 26, 2017, just days before the other hearing. The responding officer
learned the father’s three children had a visit with the father at the father and the
mother’s residence. The three-year-old child returned from the visit covered in
bruises, and the father and the mother gave conflicting and inconsistent stories as
to how the three-year-old child was injured while in their care. Neither the father’s
nor the mother’s story accounted for all of the injuries and bruises the three-year-
old child sustained, and the three-year-old child’s evaluating doctor concluded the
injuries had been inflicted rather than occurring accidentally. Additionally, two of
the father’s three children tested positive for methamphetamine at high levels
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following the visit. The mother claimed that, while doing construction in the home,
one of the walls had been opened up, and there had been methamphetamine in
the walls and in the vents. The Department’s social worker did not find that
plausible and opined that to have tested positive at such high levels, the children
would have had to, somehow, ingested the methamphetamine. The social worker
believed the father and the mother had actively used methamphetamine in the
presence of those children.
Given the mother’s failure to provide drug tests, coupled with her inaccurate
reporting of her participation in the substance-abuse treatment program and her
improbable claims of how the father’s children were exposed to high levels of
methamphetamine while in her and the father’s home, the mother’s
“enthusiasm . . . and pledge[] to follow the treatment recommendations” now is
simply not credible. There is no question the child could not be returned to the
mother’s care at the time of the termination-of-parental-rights hearing.
Consequently, we find clear and convincing evidence that grounds for termination
of the mother’s parental rights were established under section 232.116(1)(h).
B. Best Interests.
The mother also argues termination of her parental rights was not in the
child’s best interests, pointing out that she and the child share a strong bond. That
bond cannot overcome the child’s need for permanency when the mother has not
put her child’s needs first and made a real effort to achieve sobriety.
Time “is a critical element” in termination proceedings, see in re C.B., 611
N.W.2d 489, 495 (Iowa 2000), and parents have a limited time frame, based upon
the child’s age, to demonstrate their ability to be parents. See A.S., 906 N.W.2d
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at 474. For children aged three and under, the legislature has determined that
time frame is six months. See Iowa Code § 232.116(1)(h)(3); A.S., 906 N.W.2d at
473-74. After the statutory time period for termination has passed, termination is
viewed with a sense of urgency. See C.B., 611 N.W.2d at 495. “Importantly, . . . it
is well-settled law that we cannot deprive a child of permanency after the State has
proved a ground for termination under section 232.116(1) by hoping someday a
parent will learn to be a parent and be able to provide a stable home for the child.”
A.S., 906 N.W.2d at 474 (cleaned up).3 Children are not equipped with pause
buttons; delaying permanency in favor of the parents is not in a child’s best
interests. See In re A.C., 415 N.W.2d 609, 614 (Iowa 1987) (“The crucial days of
childhood cannot be suspended while parents experiment with ways to face up to
their own problems.”).
Here, the mother did not take responsibility for her failure to submit to drug
testing. She was less than candid in her testimony describing her efforts and
involvement in substance abuse treatment. She did not honestly explain how the
father’s three-year-old child was seriously injured while at her and the father’s
residence. She also related an implausible story to explain why the father’s
children were exposed to methamphetamine while at her and the father’s
residence. Her actions or lack thereof in these instances and others demonstrate
the mother’s unwillingness to attend to the issues that led to the Department’s
3
“Cleaned up” is a new parenthetical used to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations. See United States v.
Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack Metzler, Cleaning Up Quotations, 18
J. App. Prac. & Process 143 (Fall 2017).
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involvement, as well as her inability to put the child’s needs before her own to
ensure the child’s safety and wellbeing.
The child is doing well in foster care, and the child is adoptable. Considering
“the child’s safety,” “the best placement for furthering the long-term nurturing and
growth of the child,” and “the physical, mental, and emotional condition and needs
of the child,” P.L., 778 N.W.2d at 37, we agree with the juvenile court that
termination of the mother’s parental rights is in the child’s best interests.
C. Relative Placement, Additional Time, and Guardianship.
Finally, we note that in her argument contesting the grounds for termination,
the mother also alternatively requests to have the child “placed in the care of a
relative . . . and that a concurrent goal of permanent guardianship be explored
while allowing [the mother] additional time to complete her treatment and get [the
child] safely home.” Before the court can grant a parent additional time, there must
be an assurance that the need for removal will no longer exist at the end of that
time period. See Iowa Code § 232.104(2)(b). Considering the mother’s lack of
progress in treatment, as well as the other reasons stated above, there can be no
assurance that the need for removal would no longer exist following an extended
time period. Consequently, insofar as the mother seeks additional time for
reunification, we find the evidence insufficient to warrant an extension of time.
III. Conclusion.
Because we find clear and convincing evidence that grounds for termination
of the mother’s parental rights were established under section 232.116(1)(h),
termination of the mother’s parental rights is in the child’s best interests, and an
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extension of time for reunification is not supported under the facts of the case, we
affirm the juvenile court’s order terminating the mother’s parental rights.
AFFIRMED.