In the Interest of L.H., L.H., and D.W., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 22-0650
Filed July 20, 2022
IN THE INTEREST OF L.H., L.H., and D.W.,
Minor Children,
L.H., Minor Child,
Appellant,
R.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,
Associate Juvenile Judge.
A mother and her teenage daughter appeal an order terminating parental
rights. AFFIRMED ON BOTH APPEALS.
Tammy Banning of Waterloo Juvenile Public Defender, Waterloo, attorney
for appellant minor child L.H.
Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant
mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Joseph Martin, Cedar Falls, guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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TABOR, Judge.
This appeal involves three sisters: fourteen-year-old Le.H., nine-year-old
La.H., and five-year-old D.W. Two years ago, they were removed from their
mother’s care because she lived with an abusive boyfriend and used
methamphetamine. Because the mother continued to struggle with violent
relationships and substance abuse, the juvenile court eventually terminated her
parental rights.1 The mother and the oldest daughter, Le.H., separately appeal.
The mother contests the grounds for termination, argues it was not in the children’s
best interests, and invokes several statutory exceptions. She also lobbies for
placing the children in a guardianship. The daughter raises similar objections, and
adds that the juvenile court failed to consider her “self-protective” capacity.
Given the risk posed by the mother’s substance abuse and her history of
exposing the children to domestic violence, we reject the challenges in both
appeals. Like the juvenile court, we do not see a guardianship as a viable
permanency option for these children. And while we respect Le.H.’s desire to be
reunited with her mother, the risk of returning home—given the looming threat of
violence and drug abuse—would be too high even for a self-sufficient teenager.
I. Facts and Prior Proceedings
The mother’s involvement with the Iowa Department of Human Services
(DHS) reaches back to 2015, when a child protective assessment found that she
failed to properly supervise her two oldest children because she was using
methamphetamine. The family engaged in services into early 2016.
1 The court also terminated the parental rights of the father to Le.H. and La.H. and
the father to D.W. Neither father is a party to this appeal.
3
Four years later, the mother’s methamphetamine use brought the DHS back
into their lives. In March 2020, the mother entered treatment while the children
were cared for by a relative. She admitted using methamphetamine with her
paramour, Dustin. The DHS also learned that Dustin had recently assaulted the
mother, breaking bones in her face.2 Despite a no-contact order, Dustin continued
to spend time in the family’s home. That summer, the juvenile court approved the
DHS request to remove the children from their home and adjudicated them as
children in need of assistance (CINA).
That fall, the mother sought to have the no-contact order dismissed so that
she and Dustin could participate in couple’s counseling. Yet they did not engage
in consistent counseling. The mother did undergo a substance-abuse evaluation.
But her attendance at treatment was spotty. And she was unreliable for drug
testing, missing thirty-one of forty appointments.
The abuse also continued. In May 2021, Dustin again assaulted the mother,
punching her while he was driving his truck. The mother later reported the violence
to her case worker but did not call police.
Because the mother made little progress in addressing the cycle of
domestic violence or in drug testing, her visits with the children remained fully
supervised. The children were in two different placements. At first, the older girls
lived with a relative in the same community as their mother. When that did not
work out, they moved to an aunt’s home almost two hours away. Both girls, but
2 Suffering violence from intimate partners was not new to the mother. She had
been the victim of assault during two previous relationships, including abuse by
the father of her two oldest daughters.
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especially Le.H., struggled to adapt to the new home and school. The aunt
reported to the court that the mother “spent a whole lot of time” during the
visitations “trying to make [the aunt] look bad and telling lies.” Meanwhile, D.W.
stayed in a foster home with a half-sibling on her biological father’s side. The Court
Appointed Special Advocate (CASA) reported that the two placements tried to get
all three sisters together when their schedules allowed it.
In June 2021, the State petitioned for termination of parental rights. The
juvenile court held a hearing in September 2021. At that hearing, the court heard
from both Le.H. and La.H. that they did not want their mother’s rights terminated.
The record also showed that the mother was employed, participated in mental-
health and substance-abuse programming, and “faithfully” attended interactions
with her daughters. At the close of the hearing, the court ruled that it was in the
children’s best interests to defer permanency under Iowa Code section
232.104(2)(b). In a written order, the court directed the mother to seek domestic
violence counseling, deny contact between Dustin and her daughters, and
demonstrate her ability to maintain safe and stable housing for the children to
return. The order also stated: “No incidents of domestic violence shall occur.”
But the court’s expectations were not met. At the end of October 2021, the
mother went to a casino with Dustin. After returning home, they argued, and he
hit her, knocking her to the ground. The mother captured the assault on video.
Dustin faced charges for domestic abuse assault, second offense. When the DHS
case worker met with Le.H. ten days later, she said that her mother had already
shown her the recording, a decision that concerned the worker “due to the intensity
of the video footage.” On top of the ongoing trauma of domestic violence, the
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mother admitted using methamphetamine twice in November 2021 and tested
positive in early January 2022.
That same month, the court held another hearing on the State’s termination
petition. In its April 2022 ruling, the court expressed disappointment with the
mother’s conduct: “[she] has been deceitful and manipulative to the court and her
children throughout the juvenile court’s involvement. [She] has taken no
responsibility for her actions which led to the children’s removal or her failure to
make the changes necessary for the children to be safely returned to her care.”
The court terminated the mother’s parental rights under Iowa Code section
232.116(1), paragraphs (e) and (f) (2021). The court emphasized that it had “given
great weight to the requests” of the older girls to return to their mother’s care. But
it denied those requests, citing the mother’s “history of chronic substance abuse,
instability and domestic violence by [her partners].” The court was convinced that
continuing to allow the mother “any legal entitlements to the children would only
deny the children the permanency they deserve and perpetuate their childhood of
trauma.” The mother and her oldest daughter appeal.
II. Scope and Standard of Review
We review termination decisions de novo. In re W.M., 957 N.W.2d 305, 312
(Iowa 2021). “We are not bound by the factual findings of the juvenile court, though
we give them respectful consideration, particularly with respect to credibility
determinations.” Id. The State must back its petition with clear and convincing
evidence. Id. That level of proof means we harbor no “serious or substantial
doubts” about the correctness of the legal conclusions drawn from the evidence.
Id.6
III. Analysis
We analyze orders to terminate parental rights in three steps. In re L.B.,
970 N.W.2d 311, 313 (Iowa 2022). First, we consider whether the State proved
statutory grounds for termination. Iowa Code § 232.116(1). Second, we decide
whether termination is in the best interests of the children. Id. § 232.116(2). Third,
we consider whether the parent (or in this case the child) has shown that any
permissive exceptions apply. Id. § 232.116(3); see In re A.S., 906 N.W.2d 467,
476 (Iowa 2018) (explaining “once the State has proven a ground for termination,
the parent resisting termination bears the burden to establish an exception to
termination”). When raised, we also consider whether a guardianship would have
been a better permanency option than termination.
A. Statutory Grounds
The juvenile court terminated the mother’s parental rights under paragraphs
(e) and (f) of section 232.116(1). We may affirm on either ground if supported by
the record. W.M., 957 N.W.2d at 313. We focus on paragraph (f), which requires
proof of these elements:
(1) The child is four years of age or older.
(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 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.
(4) There 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.
Iowa Code § 232.116(1)(f).
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The mother contests the fourth element, contending the children could have
been returned to her care by the time of the second termination hearing. She
insists that she “consistently addressed her substance abuse and quickly regained
sobriety after two lapses in November 2021.” As for domestic violence, she
asserts that she has connected with an advocate, “escaped the relationship” with
Dustin, and has “a plan in place to keep both her and the children safe.” The child’s
petition on appeal describes the mother’s progress as “not perfect,” but
“substantial.”
While the mother made some effort to address the concerns that led to the
children’s removal nearly two years earlier, she did not achieve the stability
necessary to ensure a safe return. Even after the juvenile court gave her a second
chance at bringing the girls home, she continued her volatile relationship with
Dustin. She also continued to use methamphetamine. Her lack of progress on
those entrenched issues meant the children could not be returned home without
the risk of further harm.3 In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015)
3 Our case law offers two formulations for what it means that children “cannot be
returned” to parental custody as provided in section 232.102 (discussing transfer
of a child’s legal custody if staying in the home would be “contrary to the welfare
of the child”). Many cases cite In re M.M., 483 N.W.2d 812, 815 (Iowa 1992) which
quotes section 232.102(4)(a)(2)—then numbered section 232.102(5)(b)—for the
proposition that custody should be transferred only if the court finds “the child
cannot be protected from some harm which would justify adjudication of the child
as a child in need of assistance and an adequate placement is available.” See,
e.g., In re M.S., 889 N.W.2d 675, 680 (Iowa Ct. App. 2016). But more recent cases
observe that our supreme court often describes that element simply as the inability
to “safely return” children to their parents’ care. See, e.g., In re T.W., No. 20-145,
2020 WL 1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020) (collecting cases). Under
either articulation, we find the State met its burden of proof.
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(citing mother’s methamphetamine abuse and violent relationship as reasons that
returning child to her care would be contrary to his welfare).
One more point on safety concerns. The child’s counsel argues that
because Le.H. is fourteen, the juvenile court should have given more weight to her
ability to self-protect if returned to her mother’s custody. In a letter to the court,
Le.H. acknowledged living in a house where “people were using and fighting,” but
noted that she had “seen improvements.” She wrote, “No abuse has happened in
the household around us besides one time and [D.W.] was the only one there.”
Le.H. also minimized the impact of her mother’s drug abuse, saying that even
when “using” the mother went to work and helped the girls get ready for school
and daycare. Le.H. told the court “I know she might not have done everything you
asked but I can tell you she has been trying hard.”
We give strong consideration to Le.H.’s views. And we wish we could share
the child’s optimism about the mother’s chances of succeeding as a parent. But
the mother’s track record is not reassuring. As the DHS case manager testified,
Le.H. “has lowered her expectations of what it means to be safe in her mother’s
care to as long as [the paramour] is hitting just [the mother] and not the children,
they are safe.” True, older children may have more capacity to repel danger. But
not even a teenager should “be called to serve as her own guardian” against an
adult abuser or a parent using methamphetamine “under her own roof.” See In re
D.D., 955 N.W.2d 186, 194 (Iowa 2021). The juvenile court also found the mother
has unfairly manipulated the children into a false hope of returning to her care.
She told the children they were coming home when that was not imminently likely.
And she has threatened to “kill herself” if they are taken away from her. The
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juvenile court found, “The children continue to rely upon their mother’s false
statement to their detriment,” and she “will continue to undermine the children’s
placement and stability.” Like the juvenile court, we believe the mother’s actions
continued to place the girls at serious risk of further harm and termination was
proper under paragraph (f).
B. Best Interests
Once we find a proven ground for termination, we next ask whether severing
the legal relationship with the parent would be in the children’s best interests. In
re A.B., 957 N.W.2d 280, 300 (Iowa 2021). In doing so, we give primary
consideration to the children’s safety; to the best placement for furthering their
long-term nurturing and growth; and to their physical, mental, and emotional
condition and needs. Iowa Code § 232.116(2). We also consider whether the
children are integrated into a family foster home, the length of time they have been
in that placement, and the desirability of maintaining that environment.
Id. § 232.116(2)(b)(1). And relevant here, we factor in the children’s “reasonable
preference” if they have capacity to express those opinions. Id. § 232.116(2)(b)(2).
The mother contends termination was not in the children’s best interests.
She focuses on the trouble that La.H. and Le.H. have had in adjusting to their
aunt’s home. The mother asserts they “had not acclimated to their placement and
certainly had not integrated to be part of that family.” Le.H. reiterates her strong
desire to return to her mother’s custody. She is also unhappy that her sister D.W.
is in a different placement.
The juvenile court recognized the “difficult transition for both girls based
upon living in a new community, missing their family and friends.” But that was not
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the end of the story. As the court noted, the evidence reflected that both girls
continued to “stabilize” in their aunt’s home and were participating in “age-
appropriate activities.” As for D.W., she was thriving in the security and familiarity
of her foster home.
From our de novo review, we find the children’s safety and their prospects
for a healthy future are best served by going forward with termination. The record
shows that D.W. has been traumatized by the exposure to domestic violence,
leading to a diagnosis of PTSD and a fear of men, even male doctors. While La.H.
and Le.H. may have less obvious emotional scars from the turmoil in their mother’s
home, their welfare likewise depends on a more wholesome environment as they
mature and develop social bonds. True, it is usually in their best interest for
siblings to live together. See W.M., 957 N.W.2d at 314. But the caregivers have
been diligent in bringing all three sisters together for holidays and other events.
D.W. is also placed in a foster home with half-siblings on her father’s side. Bottom
line, we cannot deprive these children of a stable home on the hope that the mother
will someday succeed in her struggle against methamphetamine and will stop
choosing violent partners. See W.M., 957 N.W.2d at 314.
C. Exceptions to Termination
Even when termination is in the children’s best interests, an exception under
section 232.116(3) may preclude termination.4 The burden is on the objecting
4 That statute provides:
The court need not terminate the relationship between the parent and
child if the court finds any of the following:
a. A relative has legal custody of the child.
b. The child is over ten years of age and objects to the
termination.
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parties to show one of those exceptions carries the day. Both the mother and
Le.H. rely on (a) placement with a relative, (b) Le.H.’s objection to termination, and
(c) the closeness of the parent-child relationship.
Like the juvenile court, we find none of those exceptions should override the
decision to terminate the mother’s parental rights. First, the aunt did not have
“legal custody” of La.H. and Le.H. Thus, section 232.116(3)(a) does not come into
play. In re A.B., 956 N.W.2d 162, 170 (Iowa 2021). Second, while Le.H.’s
objection is undoubtedly heartfelt, honoring her wishes would undermine her
primary needs—for safety and permanency. See In re A.R., 932 N.W.2d 588, 592
(Iowa Ct. App. 2019). Third, the record indeed reflects a strong bond between the
mother and her daughters. That said, we must decide whether the children will be
disadvantaged by the termination, and whether that disadvantage overcomes the
mother’s inability to provide for their needs because of her substance abuse and
unhealthy relationships. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010). We
do not find clear and convincing evidence of an ongoing detriment to the children.
Like the juvenile court, we find the mother’s ongoing instability is more harmful to
the children than the disappointment of the termination.
c. There 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.
d. It is necessary to place the child in a hospital, facility, or
institution for care and treatment and the continuation of the parent-
child relationship is not preventing a permanent family placement for
the child.
e. The absence of a parent is due to the parent’s admission
or commitment to any institution, hospital, or health facility or due to
active service in the state or federal armed forces.
Iowa Code § 232.116(3).
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D. Guardianship
Finally, we consider the alternative request from both the mother and Le.H.
for a guardianship instead of termination. Creating a guardianship is not a “legally
preferable alternative” to terminating parental rights. See In re W.M., 957 N.W.2d
at 315. A guardianship may be appropriate if the parent has a close and conflict-
free relationship with the caregiver. See In re B.T., 894 N.W.2d 29, 34 (Iowa Ct.
App. 2017). But that was not the case here. As the juvenile court noted, the
mother worked to undermine the children’s placements and stability. She
repeatedly gave them the false hope that they would be returning to her care.
Guardianship was not a better option than termination on these facts.
AFFIRMED ON BOTH APPEALS.