In the Interest of T.B. and A.B., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 19-0060
Filed June 5, 2019
IN THE INTEREST OF T.B. and A.B.,
Minor Children,
C.B., Father,
Appellant,
V.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A father and a mother separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Sarah E. Dewein of Cunningham & Kelso, P.L.L.C., Urbandale, for appellant
father.
Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
Kimberly Ayotte of Youth Law Center, Des Moines, attorney and guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., Tabor, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.
A father1 and a mother separately appeal the termination of their parental
rights to two children: A.B., born in August 2010; and T.B., born in January 2015.
The parents challenge the findings of the juvenile court that grounds for termination
exist, termination is in the children’s best interests, and no permissive reason
warrants the preservation of parental rights. On our de novo review, we affirm on
both appeals.
I. Background Facts and Proceedings.
The family came to the attention of the department of human services (DHS)
in January 2017, due to the mother’s use of methamphetamine in the residence
the parents shared with the children. It was alleged the mother was also selling
methamphetamine from her home. On February 16, the children were removed
due to domestic violence by the father against the mother, which caused a risk of
harm to the children. A domestic-abuse protective order was issued prohibiting
the father from contacting the mother. On March 23, the children were adjudicated
children in need of assistance (CINA).
On April 12, 2017, the father was arrested for violating the protective order
and attempted burglary. The father was incarcerated for the next several months
and had little contact with the children.
The mother entered a residential treatment facility. She was participating
in substance-abuse and mental-health services. In October 2017, the juvenile
court ordered the children to be returned to the mother’s care, but before the
1
The father is the putative father of T.B. However, his name is not on T.B.’s birth
certificate, and paternity is not established.
3
children were fully reunified, the mother left the treatment facility. She reported
she panicked, struggling with feeling the inability to care for her children. The
mother admitted relapsing on methamphetamine.
In December 2017, the mother was admitted to a treatment facility but was
discharged the next day.
In January 2018, the mother was again admitted to a residential treatment
program but was asked to leave for non-compliance after two weeks. The mother
has not been consistent with substance-abuse treatment throughout the juvenile
proceedings and has failed to take advantage of the services offered.
The father completed anger-management classes while incarcerated and
was released from prison on February 21. A permanency-review hearing was held
on February 28 but was continued with the anticipation the State would be filing
termination-of-parental-rights petitions as to both children. Termination petitions
were filed on March 5.
After his release from custody, the father obtained a substance-abuse and
mental-health evaluation. He also obtained full-time employment, insurance, and
was fixing up a residence. The father was participating with DHS services and
was engaged with the children. His visits progressed to overnights.
A status conference hearing was held on April 3, at which the parties agreed
to continue the termination-of-parental-rights hearing until April 24.
In an April 4 permanency order, the court noted the “parents are engaged
(now, finally) in [substance-abuse] treatment and working to put themselves in a
place of well-being and stability they can be minimally adequate. They are not at
this time.” The court granted the parents an additional six months to reunify
4
pursuant to Iowa Code section 232.104(2)(b) (2018). The court stated the mother
was to stay the course with in-patient treatment and the father was to continue with
out-patient treatment. Both parents were to avoid relapse and remain in recovery.
A June 13 case progress report from the family safety, risk, and
permanency services (FSRP) provider noted A.B. was diagnosed with attention
deficit hyperactivity disorder and oppositional defiance disorder with aggressive
behaviors. A.B. and T.B. were both seeing a therapist. The FSRP provider also
noted the mother “stopped keeping in contact with FSRP. She missed many visits
and it has been said that she possibly has left the state.” The father had started
overnight visits with the children “but had to stop due to letting [the mother] drive
[T.B.] to daycare one morning.” The father had resumed visiting the children every
night at his mother’s house.
A June 26 report to the court by the DHS social worker outlined the five
placements the children had been through since February 2017 and indicated the
children were currently living with the paternal grandmother, where they had been
since April 27, 2018. The children were both seeing therapist Caron Wedeking
weekly for oppositional behaviors, and the father was attending weekly family
sessions instead of individual therapy. The report noted the mother had not seen
the children since May 29, a visit she had cut short; she was not participating in
substance-abuse treatment; she had failed to provide drug screens on three
occasions; and her whereabouts were unknown. With respect to the father, the
report stated:
[The father is] always willing to provide drug screens and does so
immediately upon being asked. [He] continues to meet with his
therapist and work on codependency issues and setting healthy
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boundaries with [the mother.] [He] contacts this worker frequently
and keep[s] this worker informed. He appears to be dedicated to
caring for his kids and maintain his sobriety and mental health. He
is open to new ideas and is doing better about asking for help.
[The father] is employed but is not able to work full time due
to meeting the needs of the children. He is working on getting his
driver’s license back but has since sold his truck because he stated
it was too much of a temptation to drive without a license.
[The father] has struggled with addiction on and off throughout
his life. The threat of relapse is a real possibility.
On July 16, 2018, after a permanency review hearing, the court entered an
order finding the children had been removed from the parents for about seventeen
months, the children remained CINA, and the children could not be returned to the
mother safely. The court placed the children in the father’s care, who had obtained
a three-bedroom trailer he was fixing up and furnishing. Pursuant to DHS
recommendations adopted by the juvenile court, the mother was to engage in
residential substance-abuse and mental-health treatment and follow all
recommendations of providers. The father was to follow through with therapy and
medication management for anxiety and depression. Both parents were to provide
drug screens.
Approximately five weeks after the children were placed with the father, the
father reported he was being evicted because the person from whom he had
purchased the trailer was not paying the lot rent. The father and children moved
in with the paternal grandmother.
On August 20, DHS filed a motion to modify placement, alleging the father
had left the children in the mother’s care despite her being authorized for
supervised visits only. Additionally, there was an arrest warrant issued for the
father for violation of the no-contact order resulting from the mother reporting the
6
father had physically and sexually assaulted her. The father acknowledged having
allowed the mother to supervise the children. He asserted she was living with him
at the time. He denied he assaulted her.
On August 23, the court modified the children’s placement, finding a return
to the mother was contrary to the children’s welfare “due to the mother’s
unaddressed issues with [substance abuse] and [mental health] and the current
allegations against the father.” The father later relapsed on methamphetamine.
A termination-of-parental-rights petition was filed in September. The
children were moved to a new pre-adoptive foster home in September after having
spent time in an emergency shelter. Neither parent appeared at the permanency
review and termination hearing on October 23, 2018.
An October 10 letter from the children’s therapist was entered into evidence.
The therapist indicated the children had a September 26 telephone contact with
the parents in which each parent was to address: “(1) taking responsibility and
apologizing for their actions which led to the children being removed again, . . . (2)
assure the kids that the parents are doing well, and (3) give the kids permission to
talk to the therapist about the family and parents—i.e. no secrets.” It was the
therapist’s recommendation the children
at this time . . . be permanently placed and not have to move again.
These two children are extremely resilient, but even resiliency has
its limits. Whether that be with their biological parents or in an
adoptive home, they deserve to have a forever home where they feel
they are safe and are consistently cared for by the same nurturing
caretaker(s).
Wedeking also noted the father reported joining Narcotics Anonymous.
A DHS October 19 report to the court provided:
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This worker received a call from Youth Law Center Case Worker,
Mandy Clauson who reported that she visited the [B.] children on
[October 17, 2018]. Mandy reported that the foster mother Julie,
informed her that since the children had phone contact with their
parents [T.B] has been wetting the bed, and more defiant. This
worker contacted Julie and she did report that [T.B] and [A.B] did
exhibit defiant behaviors after the phone call. The foster mom also
stated that [A.B.] has continued to ask her if she is going home or
staying with the family. Julie reports that [A.B] did have a session
with her therapist Caron Wedeking, a week after and did seem to be
doing better. However, [T.B.] continues to wet himself during the day
and at night. Julie reported that he screams and clenches his fists
when he does not get his way. These are all behaviors that began
after the phone call with his parents. Julie did report as time has
passed she is beginning to see [T.B.] settle back in and the behaviors
lessen.
The father’s attorney submitted a letter from a substance-abuse counselor
indicating the father had an evaluation scheduled for September 12, 2018.
On December 26, 2018, the court terminated both parents’ parental rights
pursuant to Iowa Code section 232.116(1)(f), (h), and (l).2 The court found
termination is in the children’s best interests and the bond between parent and
child did not preclude termination.
The parents separately appeal.
II. Scope and Standard of Review.
We review de novo the termination of parental rights. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “There must be clear and convincing evidence of the
grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219 (Iowa
2016); see also In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (noting there is clear
2
Paragraph (f) is applicable to termination of parental rights to A.B., (h) is applicable to
T.B., and (l) is applicable to both children.
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and convincing evidence if “there are no serious or substantial doubts as to the
correctness [of] conclusions of law drawn from the evidence” (citation omitted)).
III. Grounds for Termination Exist.
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. D.W., 791 N.W.2d at 707. Section 232.116(1)(f) and (h)
allow the court to terminate parental rights if a child of a certain age,3 has been
adjudicated CINA, has been out of the parents’ custody for the requisite statutory
period, and “[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 as provided in section
232.102.” At the time of the termination hearing, the children had been removed
from their parents’ custody for all but five weeks of a twenty-month period—far
longer than the requisite period under either paragraph. We find termination was
proper under section 232.116(1)(f) and (h).
A. Father’s Appeal. The father disputes the children have been out of his
custody for the requisite statutory period and that the children cannot be returned
to him at the present time.
(1) Removal time. Section 232.116(1)(f) applies to children four
years of age or older and sets a time period of removal: “The child has been
removed from the physical custody of the child’s parents for at least twelve of the
last eighteen months, or for the last twelve consecutive months and any trial period
at home has been less than thirty days.” When a child is three years of age or
3
Paragraph (f) governs a child four years of age or older, and paragraph (h) is for a child
three years of age or younger.
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younger, the statutory time frame of removal is shorter: “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.” Iowa Code § 232.116(1)(h)(1), (3).
The father maintains the verbiage “and any trial period at home has been
less than thirty days” applies to the clause before the “or,” as well as the clause
thereafter. He argues because the children were returned to him for more than
thirty days, termination is not proper. This argument has been rejected previously.
“Given the presence of a comma in the statute before the word ‘or,’ we think it is
reasonable to conclude that the subsequent language ‘and any trial period at home
has been less than thirty days’ applies to and qualifies only the language after the
comma.” In re D.M.J., 780 N.W.2d 243, 246 (Iowa Ct. App. 2010).
(2) Children cannot be returned at present. The father states there is
nothing in the record that shows he “did not have ability to care for the children or
that he was not engaged in services to be able to be protective of the minor
children.” However, the record indicates the father had been evicted from his
residence and had admitted a drug relapse after the children were removed. In
addition, the juvenile court found the mother’s allegations of assault by the father
credible. Consequently, the same issues present in March 2017 when the juvenile
proceedings began—substance abuse and domestic violence—remained
concerns in October 2018.
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B. Mother’s Appeal.4 The mother contends the juvenile court should have
granted her a six-month extension to “continue down the corrective path.” We
emphasize a six-month extension was given in April 2018. Six months later, the
mother has barely begun down that corrective road and has failed to achieve
sobriety or stability. The statutory time frame—including an extension—has
passed and we find no further extension is warranted. See In re C.B., 611 N.W.2d
489, 495 (Iowa 2001) (“Once the limitation period lapses, termination proceedings
must be viewed with a sense of urgency.”).
IV. Termination is the Children’s Best Interest.
Both parents argue termination is not in the children’s best interest. We
adopt the juvenile court’s findings here:
To delay permanency any longer and prevent the children
from having the environment necessary to heal would not be in their
best interests. Both children have been through multiple
placements. Both children have been exposed to unsafe
environments and caretaking by their parents. The brevity of the
Summer 2018 return to their father along with the circumstances to
which the kids were exposed during that time were harmful, and
further time or services do not at all appear capable of making things
better for them if they were returned to either parent.
The court is concerned at the strength of the concurrent plan
and level of commitment, given that this is not a relative placement
and it was new as of approximately three and a half months ago.
However, this concern is not strong enough for it to find termination
is not in the best interest of the children. The therapist’s most recent
letter, which is of record in the underlying CINA, emphasizes the
need for these children to have permanency and certainty and
stability. It needs to be provided now. Every effort to bring peace to
these children’s lives needs to be made by the child welfare system,
the foster parents, and all involved.
4
The State erroneously contends the mother’s appeal was dismissed and does not
address her claims. When the appellee fails to file a brief, we “handle the matter in a
manner most consonant with justice and [our] own convenience.” Bowen v. Kaplan, 237
N.W.2d 799, 801 (Iowa 1976).
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V. No Permissive Reason Warrants Avoiding Termination.
Both parents also assert the closeness of the parent-child bond should
preclude termination. See Iowa Code § 232.116(3)(c) (stating a court need not
terminate parental rights if “[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”). The considerations in subsection (3) allowing the
court to avoid termination “are permissive, not mandatory.” In re A.M., 843 N.W.2d
100, 113 (Iowa 2014) (quoting In re D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App.
2011)). “We may use our discretion, ‘based on the unique circumstances of each
case and the best interests of the child, whether to apply the factors in this section
to save the parent-child relationship.’” M.W., 876 N.W.2d at 225 (citation omitted).
We agree with the juvenile court that the closeness of the parent-child
relationships is not so strong as to prevent termination of parental rights here. We
therefore affirm the termination of parental rights.
AFFIRMED ON BOTH APPEALS.