In the Interest of D.G., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 18-1908
Filed February 20, 2019
IN THE INTEREST OF D.G.,
Minor Child,
C.B., Mother,
Appellant,
B.A., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Phillip J. Tabor,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant
mother.
Joshua J. Reicks of Schoenthaler, Bartelt, Kahler & Reicks, Maquoketa, for
appellant father.
Thomas J. Miller, Attorney General, and Meredith Lamberti, Assistant
Attorney General, for appellee State.
William Lansing, Dubuque, guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and McDonald, JJ. Tabor, J., takes
no part.
2
MULLINS, Judge.
A mother and father separately appeal the termination of their parental
rights to their child, born in 2014. The mother argues termination of her rights is
not in the child’s best interests and the statutory exception to termination contained
in Iowa Code section 232.116(3)(a) (2018) should be applied or a guardianship
should be established with a maternal great-aunt. The father challenges the
sufficiency of the evidence concerning the statutory ground for termination cited by
the juvenile court, echoes the mother’s claims concerning the statutory exception
to termination and establishment of a guardianship, and argues he should have
been granted an additional six months to work toward reunification.
I. Background Facts and Proceedings
The parents and child came to the attention of the Iowa Department of
Human Services (DHS) in December 2016 as a result of the parents’ substance
abuse, mental health, and domestic violence. The mother, twenty-six years of age
at the time of the termination hearing, has a history of methamphetamine use
spanning roughly ten years. She is the mother to an older child not involved in
these proceedings who is under the care and guardianship of a relative. The
father, just under forty-five years of age at the time of the termination hearing, has
a significant history of drug and alcohol abuse. He began consuming alcohol at
the age of twelve, marijuana at the age of thirteen, and “about anything” around
the time he turned eighteen. The father has five other children; his parental rights
have been terminated as to other children.1
1
The record is unclear whether the father’s parental rights have been terminated as to
some or all of his other children.
3
After the initiation of DHS involvement, the parents refused to submit to drug
testing or allow the child to be subjected to the same. The parents initially declined
to participate in voluntary services. After a child-in-need-of-assistance petition was
filed, they agreed to a safety plan that would allow the child to be tested for drugs.
However, the parents evaded testing of the child. When a test was finally
administered, the child tested positive for methamphetamine, amphetamines, and
marijuana. The child was removed from the parents’ care in March 2017 and
placed with his maternal great-aunt.
Through September 2018, at which time the parents were still only allowed
fully-supervised visitation, the parents were generally non-compliant with drug-
testing requests from DHS. Domestic violence continued to be an issue, with the
mother continuously associating with an on-again, off-again boyfriend—who has
substance-abuse issues of his own and also refuses to submit to drug testing—
with several incidents of domestic violence resulting from the relationship. The
boyfriend was arrested in relation to a domestic-violence incident with the mother
roughly a month before the termination hearing in October 2018. The mother
testified that as a result of this incident, she is no longer focused on having a
relationship with this man. However, she did request that the no-contact order in
relation to the incident be lifted. Neither parent meaningfully utilized domestic-
violence services throughout the life of the case. The mother also failed to
meaningfully participate in recommended mental-health services.
As to drug testing, the parents generally declined testing facilitated by DHS.
Instead, the parents would submit to testing through Area Substance Abuse
Council (ASAC), where they both underwent substance-abuse treatment for much
4
of the case, but concerns for the parents’ continued substance abuse lingered
throughout the case in light of the parents’ refusal to submit to DHS-facilitated drug
testing and the fact that ASAC allowed for unmonitored drug testing.
Correspondence from an ASAC representative admitted into evidence indicates
ASAC drug-test results are not something the court system should rely on in child-
welfare cases, as the facility does “not follow a chain of command with the urine
sample” and many of the tests are unmonitored.
The mother tested negative for drugs in early September 2018, but, despite
being involved in substance-abuse treatment for some time, tested positive for
methamphetamine later the same month. The mother testified this was her only
drug use since February 2018. The juvenile court found this assertion to be not
credible. The mother also failed to appear for two subsequently scheduled hair-
stat tests in October. The father admitted to relapsing on methamphetamine
shortly before the termination hearing in October.
The mother was generally consistent in attending visits with the child
throughout the life of the case and was generally able to demonstrate her ability to
parent the child during those visits. The father was generally inconsistent in
attending visits, and he verbalized multiple times that the visits he did attend were
for the purpose of making a good impression on the juvenile court.
The child has been placed in the same relative care with his great-aunt
since removal, a placement in which he is thriving. The child refers to the great-
aunt as “Mom,” and the great-aunt is willing and able to adopt the child. One of
the DHS workers testified to her opinion that the establishment of a guardianship
in the great-aunt would be very confusing for the child. The great-aunt has made
5
it very clear that she has no interest in a guardianship arrangement. The record
additionally indicates the guardianship arrangement concerning the mother’s other
child has not been a positive experience for the parties involved. The great-aunt
has indicated a willingness to adopt the child upon termination of parental rights.
It is undisputed the child shares a bond with the mother. The child’s bond with the
father is limited at best.
Following a hearing, the juvenile court terminated both parents’ parental
rights pursuant to Iowa Code section 232.116(1)(h). Both parents appeal.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). “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. Sufficiency of the Evidence
The father challenges the sufficiency of the evidence to support termination
under Iowa Code section 232.116(1)(h).2 The father only expressly challenges the
State’s establishment of the final element of that provision—that the child could not
2
The mother does not specifically challenge the sufficiency of the evidence as to section
232.116(1); she only challenges the sufficiency of the evidence that termination is in the
best interests of the child under section 232.116(2). Thus, we need not consider the
sufficiency of the evidence under subsection (1) as to the mother. See In re P.L., 778
N.W.2d 33, 40 (Iowa 2010).
6
be returned to his care at the time of the termination hearing. See Iowa Code
§ 232.116(1)(h)(4) (requiring “clear and convincing evidence that the child cannot
be returned to the custody of the child’s parents . . . at the present time”); In re
D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at
the present time” to mean “at the time of the termination hearing”). A de novo
review of the record reveals the following pertinent facts. The father’s visitation
with the child was inconsistent throughout the life of the case, his visitation with the
child waned even more in the months leading up to the termination hearing, the
father has a significant history of substance abuse, and he relapsed on
methamphetamine shortly before the termination hearing. Further, at the
termination hearing, the father essentially conceded the child could not be returned
to his care at the time, noting he might be a “viable option” for placement if “given
more time.” We conclude the challenged element was established by clear and
convincing evidence, and we affirm the juvenile court’s finding of the same.
B. Best Interests of the Child
The mother argues termination is not in the best interests of the child. 3 In
determining whether termination is in the best interests of a child, we “give primary
consideration to the child’s safety, to the best placement for furthering the long-
term nurturing and growth of the child, and to the physical, mental, and emotional
condition and needs of the child.” Iowa Code § 232.116(2).
3
Likewise, the father does not argue termination is not in the best interests of the child.
Although we need not address best-interests as to the father, see P.L., 778 N.W.2d at 40,
our reasoning as to the mother is equally applicable to the father.
7
The mother points to her efforts at remedying her substance-abuse issues
and argues she is capable of parenting the child. We agree that the mother is
capable of parenting the child, but we note this ability is limited to times when she
has her substance abuse in check. We also acknowledge that relapse is often
times a part of recovery. That being said, the mother has been involved with
methamphetamine for a period spanning roughly ten years. A life of substance
abuse is all this mother knows and, as was the juvenile court, we are unconvinced
she stayed as clean during these proceedings as she alleges.
“We hold no crystal ball, and to some extent, the [best-interests]
determination must be made based upon past conduct.” In re M.M., No. 16-1685,
2016 WL 7395788, at *4 (Iowa Ct. App. Dec. 21, 2016). While we hope the mother
prevails in her battle with substance abuse, “we cannot deprive a child of
permanency after the State has proved a ground for termination” upon such
sentiments. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012). The mother has
had ample time to get her substance abuse in check, and her relapse the month
before the termination hearing shows she has been unable to do so. This child
needs permanency and stability now. See id. at 778 (“It is simply not in the best
interests of children to continue to keep them in temporary foster homes while the
natural parents get their lives together.” (quoting In re C.K., 558 N.W.2d 170, 175
(Iowa 1997))).
Further, the child has been in the same relative placement since removal.
The child is integrated into this home, he is thriving, and the relative is prepared to
adopt the child and provide continued stability and permanency. Continued
stability and permanency in this home are in this child’s best interests. See Iowa
8
Code § 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212, 224–25 (2016) (concluding
termination was in best interests of children where children were well-adjusted to
home with their foster parents, the foster parents were “able to provide for their
physical, emotional, and financial needs,” and the foster parents were prepared to
adopt the children).
We find termination of the mother’s parental rights is in the child’s best
interests.
C. Statutory Exception
Both parents argue the statutory exception to termination contained in Iowa
Code section 232.116(3)(a) should be applied to preclude termination. “The court
need not terminate the relationship between the parent and child if the court finds
. . . [a] relative has legal custody of the child.” Iowa Code § 232.116(3)(a). The
application of the statutory exceptions to termination is “permissive not
mandatory.” M.W. 876 N.W.2d at 225 (quoting A.M., 843 N.W.2d at 113). The
juvenile court considered the application of this exception and, in consideration of
the best interests of the child, decided against its application. Upon our de novo
review of the record, we agree with the juvenile court and affirm its decision.
D. Guardianship
Both parents argue the juvenile court should have forgone termination and
instead established a guardianship of the child in the great-aunt. Simply stated, “a
guardianship is not a legally preferable alternative to termination.” A.S., 906
9
N.W.2d at 477 (quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)).4 The
juvenile court expressly concluded “it is clear that the maternal great-aunt . . . is
meeting the needs of the child and that permanency in this matter demands
permanency and not guardianship . . . . The dysfunction in this family would make
a guardianship in this matter a disaster.” Upon our de novo review, we agree.
Specifically, a guardianship in the great-aunt would be very confusing for the child
and the aunt has made it very clear that she has no interest in a guardianship
arrangement. The record additionally indicates the guardianship arrangement
concerning the mother’s other child has not been a positive experience for the
parties involved. We have already determined termination of the parents’ rights is
in the child’s best interests. We further find that termination of parental rights will
provide this child with a better sense of stability and permanency than would the
establishment of a guardianship as proposed by the parents. We affirm the
juvenile court’s rejection of a guardianship with the great-aunt.
E. Extension
Finally, the father requests an additional six months to work toward
reunification. If, following a termination hearing, the court does not terminate
parental rights but finds there is clear and convincing evidence that the child is a
child in need of assistance, the court may enter an order in accordance with section
232.104(2)(b). Iowa Code § 232.117(5). Section 232.104(2)(b) affords the
juvenile court the option to continue placement of a child for an additional six
4
Both parents cite B.T. in support of their arguments that a guardianship should be
established. We note the circumstances in B.T. and the circumstances in this case are
markedly different.
10
months if the court finds “the need for removal . . . will no longer exist at the end of
the additional six-month period.”
The juvenile court was unable to make such a finding, concluding the child
could not be returned to either parent “any time in the foreseeable future.” Upon
our de novo review of the record, we are also unable to affirmatively conclude a
need for removal would no longer exist after a six-month extension.
There are a number of stern realities faced by a juvenile judge
in any case of this kind. Among the most important is the relentless
passage of precious time. The crucial days of childhood cannot be
suspended while parents experiment with ways to face up to their
own problems. Neither will childhood await the wanderings of judicial
process. The child will continue to grow, either in bad or unsettled
conditions or in the improved and permanent shelter which ideally,
at least, follows the conclusion of a juvenile proceeding.
The law nevertheless demands a full measure of patience
with troubled parents who attempt to remedy a lack of parenting
skills. In view of this required patience, certain steps are prescribed
when termination of the parent-child relationship is undertaken under
Iowa Code chapter 232. But, beyond the parameters of chapter 232,
patience with parents can soon translate into intolerable hardship for
their children.
In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). The same reasoning controls the
father’s request for an extension. We agree with the juvenile court that an
extension of time is unwarranted.
IV. Conclusion
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.