In re N.D. & D.B.

IN THE COURT OF APPEALS OF IOWA
No. 17-1670
Filed January 10, 2018
IN THE INTEREST OF N.D. & D.B.,
Minor Children,
V.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother appeals an order terminating her parental rights. AFFIRMED.
Robb D. Goedicke of Cooper, Goedicke, Reimer & Reese Law Firm, P.C.,
West Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Brent M. Pattison of Drake Legal Clinic, Des Moines, guardian ad litem for
minor children.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
A mother appeals a juvenile court order terminating her parental rights to
her two children, N.D. and D.B., born in 2007 and 2010, respectively. She
contends (1) the State failed to prove the statutory grounds for termination by
clear and convincing evidence; (2) termination was not in the best interests of the
children; and (3) a statutory exception should have precluded termination.
I. Background Facts and Proceedings
The mother came to the attention of the Iowa Department of Human
Services (DHS) in November 2014 upon information that her paramour was
using methamphetamine (meth) in the home and had cared for the children while
under the influence of the same. The mother also tested positive for meth. It
was also determined that the children’s maternal grandmother was supervising
them while under the influence of meth.
The mother continued to have a relationship with her paramour despite
signing a safety plan in which she agreed to ostracize her paramour from her
children. The State filed child-in-need-of-assistance (CINA) petitions as to both
children and applied for removal. On January 22, 2015, the juvenile court
ordered the children be placed in the legal custody of DHS. In February, the
court modified its removal order and placed the children with their maternal
grandfather. In March the children were adjudicated CINA. In June, due to the
mother’s progress in sobriety and cooperation with services, the State moved to
have the children returned to their mother under DHS supervision. The court
granted the motion on June 18. Less than a month later, however, the State
moved to have placement of the children returned to their maternal grandfather,
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noting, among other things, the mother’s recent positive test for meth and her
lack of involvement in therapy. Following a contested modification hearing, the
mother was allowed to retain custody of the children but was subjected to
additional restrictions and required to comply with additional services.
In September 2015, the State again moved for modification of placement
due to another positive test for meth use. On September 3, the juvenile court
granted the motion, removed the children from the mother’s custody, and
returned them to the custody of their maternal grandfather. As a result of the
maternal grandfather’s struggles in transporting the children, the children were
subsequently placed with a family friend, B.F. Following a permanency hearing
in January 2016, the juvenile court granted the mother a six-month extension to
address her substance-abuse issues through treatment, demonstrate an ability to
maintain a sober lifestyle, and make healthy relationship choices. Three days
later, it was discovered the mother tested positive for meth. In April, the mother
again tested positive for meth. Later in April, the juvenile court modified
placement of the children, placing them with another family friend, M.B. On July
8, the juvenile court returned the children to the mother’s custody.
In November 2016, there was a suspicious explosive fire at the family
home that burned down the garage. The mother was present at the home at the
time of the fire but did not call the fire department or law enforcement. During a
subsequent search of the home, police officers found a glass pipe with white
residue and a plastic bag containing what was believed to be meth. The mother
admitted those items belonged to her. A “friend” of the mother’s, K.K., was
injured during the fire, and while being treated at the hospital, he tested positive
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for meth. At this time, K.K. was also the subject of two arrest warrants. K.K.
referred to the mother as his wife while being treated. In a subsequent interview
with law enforcement, the mother conceded K.K. used to cook meth. Officers
also observed signs of recent drug use on the mother’s person. Law
enforcement believed the garage fire resulted from a meth-lab explosion, but
because the explosion destroyed the scene, evidence was unavailable to verify
the same. The mother was subjected to a subsequent hair-stat drug test and
provided negative results. The juvenile court, however, noted its concern that the
mother had just colored her hair, which could cause a false-negative result. The
mother agreed to stay away from K.K. and re-engage in services. The juvenile
court allowed the mother to maintain custody of the children but subjected her to
additional restrictions.
In January 2017, DHS issued a founded child-abuse report in relation to
the mother allowing K.K. to supervise the children alone. Later that month, the
mother was arrested and charged with interference with official acts and aiding
and abetting a fugitive from justice. That day, she resisted and obstructed United
States Marshalls and local law enforcement in their effort to execute an arrest
warrant on K.K. by refusing to allow them into her home, where K.K. was located.
On January 18, the juvenile court removed the children from the mother’s care
and placed them with M.B. The next day, the mother tested positive for meth.
The mother continued to have contact with K.K. in jail. Many of their discussions
concerned their future relationship together.
In June 2017, DHS amended its permanency goal to termination of the
mother’s parental rights followed by adoption of the children by M.B. The
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juvenile court adopted the same as its primary permanency goal. The State
subsequently petitioned to terminate the mother’s parental rights. At the
subsequent termination hearing in September, the mother conceded the children
could not be returned to her custody at that time, as she needed to take care of
some “underlying issues” before that could happen. She also acknowledged
violating DHS and court directives and lying about her substance abuse and
relationships with dangerous men throughout the proceedings. She asked the
court for additional time to resolve her issues. The juvenile court ultimately
terminated the mother’s parental rights pursuant to Iowa Code section
232.116(1)(f) (2017). The mother appeals.
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, especially in assessing the
credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). Our primary consideration is the best interests of the child. In re J.E.,
723 N.W.2d 793, 798 (Iowa 2006).
III. Analysis
A. Grounds for Termination
The mother argues, the juvenile court “erred when it determined there
were sufficient grounds to terminate [her] parental rights.” Under section
232.116(1)(f), the juvenile court may terminate parental rights if it finds the State
has proven by clear and convincing evidence the children (1) are four years of
age or older; (2) have been adjudicated CINA; (3) have been removed from the
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physical custody of the parent for at least twelve of the last eighteen months; and
(4) cannot be returned to the parent’s custody at the time of the termination
hearing.
In reviewing the mother’s brief, we are unclear as to which of the four
elements she challenges, as her argument under this issue solely concerns
alternatives to termination. It is undisputed that both children are four years of
age or older and have been adjudicated CINA. Also, the mother did not argue
below, or specifically in this appeal, that the children have not been removed
from her physical custody for at least twelve of the last eighteen months, so any
possible challenge to that element was not preserved and is also waived on
appeal. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (waiver); In re J.B.L.,
844 N.W.2d 703, 704–05 (Iowa Ct. App. 2014) (preservation of error). Finally,
the mother’s admission that the children could not be returned to her custody at
the time of the hearing due to her “underlying issues” is sufficiently clear and
convincing evidence to establish the final element. See In re M.R., No. 14-1642,
2014 WL 7343520, at *2 (Iowa Ct. App. Dec. 24, 2014) (concluding a parent’s
admission that the child cannot currently be returned to their custody is sufficient
for termination).
In reviewing the issues properly before us, we find sufficient evidence to
support the termination of the mother’s parental rights under Iowa Code section
232.116(1)(f).
B. Bests Interests of the Children
We next consider whether “termination of parental rights would be in the
best interest of the child under section 232.116(2).” M.W., 876 N.W.2d at 224.
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In support of her argument that termination is not in the children’s best interests,
the mother cites her strong bond with the children. It is undisputed that the
mother shares a strong bond with the children; she has continued to care for
them periodically throughout these proceedings, and the children want to be with
her. It is problematic, however, that in the more than two-year span of this case,
the mother repeatedly placed her substance abuse and desire to surround
herself and her children with dangerous men before the well-being of her
children. It is only happenstance that the children never suffered physical harm
from the mother’s behavior. The mother has been given opportunity after
opportunity to put her children first and get clean, but she has repeatedly
prioritized her vices, knowing full well of the consequences.
The evidence does not show when or if the mother will be able to become
a suitable parent by conquering her drug addiction and avoiding relationships
with dangerous men. The trend thus far, however, reveals the opposite. “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.” In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (quoting In re P.L., 778
N.W.2d 33, 41 (Iowa 2010)). “[A]t some point, the rights and needs of the
children rise above the rights and needs of the parent.” In re C.S., 776 N.W.2d
297, 300 (Iowa Ct. App. 2009).
The children’s potential adoptive parent has cared for them significantly
throughout this case, and both children share a bond with him. Contrary to the
mother, he provides them a stable and wholesome environment and is able to
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tend to all of their physical and emotional needs on a consistent basis. We
conclude termination is in the children’s best interests. Cf. M.W., 876 N.W.2d at
224–25 (concluding termination was in best interests of children where children
were well-adjusted to home with their caregivers, the caregivers were “able to
provide for their physical, emotional, and financial needs,” and the caregivers
were prepared to adopt the children).
C. Statutory Exceptions to Termination
“Once we have established that the termination of parental rights is in the
children’s best interests, the last step of our analysis is to determine whether any
exceptions in section 232.116(3) apply to preclude termination.” Id. at 225. The
application of these exceptions is “permissive, not mandatory.” Id. (quoting A.M.,
843 N.W.2d at 113).
First, the mother argues “termination is not required when a relative has
legal custody of the child.” See Iowa Code § 232.116(3)(a). Problematic with
this argument, however, is the fact that the child’s current caregiver is not a
relative. Although it was initially assumed M.B. was the children’s paternal
grandfather, the mother subsequently revealed M.B.’s son is not the father of one
of the children in interest. DNA testing confirmed this revelation.
Next, the mother argues “because of the bond between [her] and her
children, the [c]ourt need not terminate parental rights.” We recognize the bond
between the mother and children. We repeat our conclusion above that despite
this bond, termination is in the best interests of the children. We therefore affirm
the termination of the mother’s parental rights.
AFFIRMED.