In the Interest of R.T., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 22-0871
Filed August 17, 2022
IN THE INTEREST OF R.T.,
Minor Child,
T.T., Father,
Appellant,
C.I., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, Clinton R.
Boddicker, Judge.
A father and mother separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Robert J. Reding of Dial & Kuckleman, Keokuk, for appellant father.
Alan Waples, Burlington, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Kendra Abfalter of State Public Defender’s Office, Burlington, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., and Tabor and Badding, JJ.
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BOWER, Chief Judge.
A father and mother separately appeal the termination of their parental
rights. Both parents challenge the denial of additional time to seek reunification
and contend the State failed to make reasonable efforts by not providing more
visits after an unsuccessful trial period at home in early 2021. Both parents also
contend grounds for termination do not exist and termination is not proper because
they are bonded with the child. In addition, the mother claims termination of
parental rights is not in the child’s best interests, and the father claims the guardian
ad litem (GAL) was biased. Because we find clear and convincing evidence to
support termination, any further extension of time is unlikely to result in
reunification, and termination will best provide the child a chance at long-term
stability and permanency, we affirm the termination of both parents’ parental rights.
I. Background Facts and Proceedings.
The child was born in 2015. Each parent has a history of substance abuse.
Methamphetamine is the mother’s drug of choice; alcohol is the father’s. During a
prior child-in-need-of-assistance (CINA) case in 2017, the mother and child were
together while the mother participated in residential substance-abuse treatment.
2019. The prior CINA case was successfully closed in March 2019. But, in
November 2019, a new child-abuse assessment was initiated upon a report the
mother was using methamphetamine and a subsequent report that the parents
were using methamphetamine and drinking heavily, leaving the child
unsupervised. The Iowa Department of Human Services (DHS) again became
involved with the family. The mother and child reentered a residential treatment
program.
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2020. By February 2020, the mother had completed the inpatient portion of
treatment, had moved into an apartment with the child, and was participating in
intensive outpatient services.
For his part, the father acknowledged his need for alcohol treatment, but
insurance issues delayed his admission into inpatient treatment until February
2020. When he was able to enter treatment, he first spent several days in the
hospital receiving detoxification services.
A February 14, 2020 case progress report noted the parents had completed
treatment before, had remained sober for a time, and had “adequate parenting
skills when their skills are not hindered by illegal substances and/or alcohol.” The
report also noted the parents and child were “strongly bonded.”
The father successfully completed the inpatient portion of his substance-
abuse treatment and moved into the apartment with the mother and child on
March 17.
But, on March 26, the mother reported to DHS that the night before the
parents relapsed on alcohol, police had been called to the home several times, the
father pushed her, and the father drew images on the child’s forehead and bare
chest. She asked for assistance. The mother agreed to a safety plan, which
included an order prohibiting contact with the father and agreeing no alcohol or
illegal substances would be in the home. On April 15, an emergency removal order
was filed, and the child was placed in a foster home. A hearing was held on April
23. The court confirmed out-of-home placement was necessary, finding:
The parents have longstanding substance abuse and alcohol
problems, as well as a history of domestic violence issues. There
are conflicting stories regarding drug and alcohol use; however, the
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child’s mother has admitted to relapsing on methamphetamine, and
the child’s father has admitted to relapsing on alcohol. Both parents
acknowledge that a domestic abuse incident occurred between them
while the child was present inside the home. Each accuses the other
of assault. The court finds that the continued substance use of the
parents, coupled with the occurrence of domestic abuse while the
child was present in the home constitutes imminent danger to the
child’s life or health, justifying continued removal. Both parents need
to demonstrate sustained sobriety and stability in order for [the child]
to be returned to their home.
(Emphasis added.) The father was ordered to wear an alcohol-monitoring device
to be funded by court-ordered monies. The parents were ordered to have no
contact with one another.
An August 31 review ruling summarized:
That since the time of last hearing: [The child] was moved
from the foster home due to discovery of another adoptive son having
boundary issues of a sexual nature with another child in the foster
home. Both parents are reported to be successful and engaged in
current treatment. [The father] graduated from both substance
abuse and mental health services. Both parents share a desire to
reunify individually with [the child] and fear of the other parent having
custody and day-to-day care [of the child]. Both parents continue to
blame the other for the current removal. [The father] resides with his
sister and brother-in-law and is maintaining his sobriety. [He] has
often been confrontational with the [DHS] caseworker and service
providers and has recently exhibited either impaired or clouded
thought processes which have included some paranoid type thinking.
[The mother] is now employed but had a relapse with alcohol in May.
Long-term stability and sobriety for both parents continues to be a
concern for the court. Both parents need to demonstrate both in
order for [the child] to be returned to either of their respective homes.
(Emphasis added.)
In October, the Foster Care Review Board (Board) issued review reports for
each parent, noting a barrier to reunification was each parent’s lack of sustained
sobriety. The Board also noted “some progress” had been made but that more
time was needed to achieve reunification. Concerning the father, the Board also
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noted he needed to address mental-health issues, obtain employment, and
continue building an appropriate relationship with the child.
For a time, each parent was maintaining sobriety and progressed to semi-
supervised and then unsupervised overnight visits.
In December, the Board review reports noted DHS hoped to have the child
“home before the next court date.” A December 29 case progress report noted the
service provider discussed relapse prevention with both parents and both parents
attended inpatient services and NA/AA meetings to help cope with maintaining
sobriety. The report indicated,
More time and assessment will be needed to see if sobriety will be
long term. Continued utilization of resources and supports will be
needed to help further both parents to maintain success. Both utilize
counseling and report that it is helpful. Both have various supports
that they can contact and work with in order to help in various
situations.
2021. In January 2021, the mother was also ordered to wear an alcohol-
monitoring device with court-ordered funding. Both parents were maintaining
sobriety, and visits were going well. The child struggled with the parents living
separately and their differing parenting styles.
A CINA review hearing was held on February 18. The court made these
findings:
The child’s parents . . . both have a long history of polysubstance
abuse and involvement in services. Both also acknowledge a
contentious relationship history. Fortunately, both parents are
presenting as sober and stable. This period of sustained sobriety on
the part of [the father] and [the mother] is a marked improvement
over where the parties were one year ago. [The child] has been
attending unsupervised, overnight visits with both parents since
October of 2020. [The mother] remains in her apartment in [XXX]
that she secured in February of 2020 following her graduation from
treatment. [The mother] participates in Family Treatment Court . . .
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and has had ongoing outpatient services . . . . [She] is full-time
employed. [The father] lives with his sister and her husband in [XXX].
[He] continues to visit with [the child] weekly. [The father] continues
to wear the [alcohol-monitoring device] and is cooperative with
services. For the majority of the case prior to his placement in foster
care, [the child] resided primarily with his mother.
The court ordered custody of the child be returned to the mother and
granted concurrent jurisdiction to litigate issues of permanent custody and
visitation in district court. The parties’ prior no-contact order was modified to allow
contact for the “limited purpose of discussing matters related to visitation and the
child.” In addition, the parents were to cooperate with all services recommended
by DHS, including random drug screening, family centered services, family team
meetings, ongoing mental-health and substance-abuse services, and AA/NA
meetings. The father’s motion to remove his alcohol-monitoring device was
granted shortly after.
Unfortunately, by March 30, both parents had relapsed, and the State
sought a review hearing.
After an April 8 review hearing, the court found:
That since the time of last hearing: A safety plan was enacted
by DHS and [XXX] Police on March 10, 2021, which resulted in the
child being placed with his father . . . . This was the result of [the
mother] being arrested recently, failing to appropriately supervise the
child while he was in her care, and relapsing by huffing dangerous
substances. A second safety plan was developed on or about March
26, 2021, when [the father] tested positive for methamphetamine for
his adult probation officer. Although the test later was verified to be
negative, [the probation officer] testified that [the father] has been
avoiding him which leads him to have concerns of substance use.
After initially refusing a drug test for DHS, [the father] eventually
submitted to a hair stat test which was positive for
methamphetamine. DHS Caseworker testified that [the father] has
recently shown signs of drug use such as slow speech and slurred
words. [He] is also reported to have attended his last scheduled visit
with [the child] while under the influence of at least alcohol, which
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was noted by [the provider]. [The child] remains in the home of his
paternal aunt and uncle in [XXX]. Due to a history of concerns for
alcohol use by [the child]’s paternal aunt and uncle, [the father’s
sister and brother-in-law], the court expressed a desire for the child
to be placed again in a foster home, if such a placement could be
made with the [former long-term foster family].
The court listed the many services that had been offered to the family, which
included inpatient and outpatient substance-abuse treatment for the mother,
substance-abuse treatment for the father, FSRP services, prior foster care
placement, Parent Partner services, mental-health evaluations, random drug and
alcohol testing, AA/NA meetings, alcohol-monitoring devices, Family Treatment
Court for the mother, and legal representation.
Shortly after the April hearing, the father was involuntarily committed for
mental-health treatment. Police had found the father in his car unconscious. His
sister reported he had been huffing, exhibiting strange behaviors, and
hallucinating. She did not, however, inform DHS of the father’s substance use until
after the committal.
In May, the DHS caseworker received threats from the father, and another
case worker was assigned.
In June, the mother submitted a urine sample that tested positive for
amphetamines, and she re-entered inpatient treatment. She completed inpatient
treatment and moved to a half-way house in July.
In early July, the father was arrested after police were called to his sister’s
home. The officers found the father intoxicated and combative, and he threatened
an officer with bodily harm. The father provided a urine sample that tested positive
for alcohol in mid-July.
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In August, the Board no longer agreed with a goal of reunification and
recommended termination of both parents’ parental rights.
The DHS caseworker submitted a report to the court, dated September 24,
with this insight:
This worker has received calls from [the father] once getting
the case where he was intoxicated, belligerent and called worker “a
monster.”
A lack of insight/understanding as to what caused DHS
involvement and how his actions caused harm to [the child] is a
serious problem and constitutes an ongoing threat to the child’s
safety. If there is no recognition for how his actions were harmful
before and no ownership to changing those behaviors, it’s highly
likely the same actions will happen again.
Due to threats of harm to the previous worker by [the father]
case was transferred to this worker at the end of May 2021. This
worker met with [the father] for the first-time face to face on [May 24,]
2021 and with [the mother] on [May 25,] 2021.
As this worker has reviewed this case and worked with the
family for the past [four] months this worker has found that both
parents are very manipulative. [The father] and [the mother] have a
substantial history of substance and alcohol abuse with underlying
mental health issues. [The father] and [the mother]’s relationship is
fraught with domestic violence and spitefulness. [The father] has a
distorted view of his role as a loving father all the while having
subjected [the child] to unsafe situations and parenting [the child]
while he is under the influence of illegal substances and/or alcohol.
This is not to say [the father] does not love [the child], he does very
much.
When this worker first met [the mother], she denied any
history of huffing and minimized her substance abuse history. Since
that time after entering [a treatment program] she has been more
honest with worker. [She] appears to do very well in treatment but
when left to her own devices she relapses. She complied with
previous requests to be able to have [the child] placed back in her
care and could not maintain sobriety placing [the child] in harm’s way.
On both occasions after completing treatment, she relapsed within
weeks of leaving treatment.
[The child] deserves permanency. He is only six years of age
and has already endured much trauma at the hands of his parents
who peppered his life with episodes of domestic violence, alcohol,
drugs, and neglect. [The child] was not the priority of these parents
at any time. Right now, he is the prize in the tug of war of which one
can one up the other.
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On September 28, the child’s GAL asked that the court set a date for a
permanency hearing, noting the child “was returned to the physical custody of his
mother in February, after three weeks he was removed from the home of his
mother and was in the physical custody of relatives before returning to foster care.”
After the first day of a hearing on the motion, the court issued an order noting the
child had been removed from his parents’ custody for 518 of 538 days, which “far
exceeded” the requirement that a permanency hearing be held within twelve
months of removal.1
The State filed a petition for termination of parental rights on October 27,
alleging termination was appropriate pursuant to Iowa Code section 232.116(1)(f).2
The termination hearing was scheduled for the same time as the CINA
permanency hearing on December 9, but the combined hearing was continued
because service of the termination petition had not been completed. The father’s
sister and brother-in-law were granted leave to intervene.
2022. A combined permanency and termination-of-parental-rights hearing
began on January 26, resumed on January 27, and was completed on February
10. Both the GAL and DHS recommended termination of parental rights. The
court concluded:
1 See Iowa Code § 232.104(1)(a)(1) (2021).
2 Under section 232.116(1)(f), a court may terminate parental rights if all the
following are true: (1) the child is four years of age or older, (2) the child has been
adjudicated CINA, (3) the child has been removed from the parents’ custody for
twelve of the last eighteen months, or for the last consecutive twelve months with
any trial home placement of less than thirty days, and (4) there is clear and
convincing evidence the child cannot be returned to the parent’s custody safely at
the present time.
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[The child] is currently four years of age or older; he was previously
adjudicated a [CINA] on January 16, 2020; he has been continuously
placed outside of his parents’ home since April 14, 2020, save
[twenty-one] days with his mother from February 18, 2021, to March
11, 2021, [fifteen] days with his father from March 11, 2021, to March
26, 2021, and [fourteen] days in the [paternal aunt and uncle’s] home
in their care from March 26, 2021, to April 9, 2021; and he clearly
cannot be returned to the care and custody of his parents at this time.
[The child] cannot be safely returned to the care and custody of [the
mother] because she has not demonstrated, and she moreover
readily admits, that she cannot remain sober and parent [the child]
simultaneously. Likewise, [the child] cannot be safely returned to the
care and custody of [the father] due to his continued use of alcohol,
his failure to address his methamphetamine use, his failure and
refusal to drug test mere weeks prior to the time of the final hearing
in this matter, his non-cooperation with services, his threatening and
hostile attitude of his caseworkers and service providers, and his
mental health concerns.
The court denied the parents’ further extensions of time and found termination of
both parents’ rights in the child’s best interests. The court observed both parents
have made some progress in this case, they are both unwilling or
unable to confront their alcohol and/or drug addiction in a way which
will ensure long-term sobriety. This is evidenced by the fact that both
of them have never been able to make it more than several months
at a time before suffering a relapse. As of the date of the
commencement of the termination of parental rights hearing in this
matter, [the child] has been out of the home of his parents for nearly
two years. It is unfair to expect [the child] to wait longer for his
parents to affirmatively choose him over their addiction to illegal
substances.
The court acknowledged the bond between each parent and the child and
observed the parents “obviously love him.” Yet, the “constant specter of continued
drug use and/or relapse renders their homes an unsafe environment.” The juvenile
court was unwilling to deny the child a chance for stability and permanency,
especially because the child was fully integrated into the pre-adoptive foster family
home. The court wrote, “A termination of parental rights allows for permanency
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without the ongoing and disruptive threat of his parents coming in and out of his
life depending on whether they are clean and sober.”
Finally, the court rejected a guardianship with the paternal aunt and her
husband, noting the child’s young age and expressing concern about the
codependent relationship between the father and his sister and the likelihood the
sister would return the child to the father.
In the court’s view, the only way to guarantee [the child] a fresh start
which is in his best interest is to allow a termination and adoption
with a permanent family, and this option far outweighs allowing [the
parents] to continue a potential on-again-off-again relationship with
him, especially given the gravity and long-term nature of the
substance abuse issues which have plagued them both.
II. Scope and Standard of Review.
“We review termination of parental rights de novo.” In re W.M., 957 N.W.2d
305, 312 (Iowa 2021). We give weight to the trial court’s findings of fact, especially
when considering the credibility of witnesses, though we are not bound by them.
Iowa R. App. P. 6.904(3)(g).
III. Analysis.
A. General principles. We use a three-step analysis to review the
termination of a parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We
consider: (1) whether grounds for termination have been established, (2) whether
termination is in the child’s best interests, and (3) whether we should exercise any
of the permissive exceptions to termination. Id. at 472–73. Step three permits the
court to apply permissive exceptions to forgo termination in certain circumstances.
See Iowa Code § 232.116(3). Yet, the burden of establishing an exception rests
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with the parent. See A.S., 906 N.W.2d at 476. We need not address an
unchallenged step of the analysis. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).
B. Reasonable efforts. We first address each parent’s contention that the
State failed to make reasonable efforts toward reunification. Iowa law requires
DHS to “make every reasonable effort to return the child to the child’s home as
quickly as possible consistent with the best interests of the child.” Iowa Code
§ 232.102(7). “[T]he reasonable efforts requirement is not viewed as a strict
substantive requirement of termination. Instead, the scope of the efforts by the
DHS to reunify parent and child after removal impacts the burden of proving those
elements of termination which require reunification efforts.” In re C.B., 611 N.W.2d
489, 493 (Iowa 2000).
The parents assert that DHS’s refusal to provide more and unsupervised
visits following the failed home trial period shows a lack of reasonable efforts. We
cannot agree. These parents have been involved with DHS and were provided
numerous services to achieve reunification for many months. After about five
months of services, the child was removed from the mother’s home because the
parents could not maintain sobriety. After more than one year of services, the child
was returned to the mother’s custody only to be removed from her home within
weeks due to her relapse by huffing air duster.
The child was moved per a safety plan to the father, who then tested positive
for methamphetamine.3 The child was then moved per a safety plan to the paternal
aunt’s home and, after a court hearing, returned to the former foster family’s home.
3The father notes this test was refuted by another test. But at the time, DHS was
well within its discretion to make the decision to move the child.
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The father, too, had relapsed and was huffing. His sister involuntarily committed
him because he was a danger to himself, but she did not inform DHS of his relapse.
Testimony shows the child does not do well without structure and consistency.
The mother stated she could not maintain sobriety and parent the child. Despite
the father’s denials, his behavior indicated to both his probation officer and the
DHS caseworker that he was not maintaining his sobriety. It was entirely
reasonable under the circumstances for DHS to try to stabilize the child’s situation
and to determine what visitation was reasonable.
C. Grounds for termination exist. Here, the court terminated both parents’
parental rights pursuant to Iowa Code section 232.116(1)(f), which has
incorporated a twelve-month limit for reunification. Under this provision, if a child
is four years of age or older, has been adjudicated CINA, has been out of parental
custody for twelve of eighteen months, and cannot be returned to parental custody
at the time of termination hearing, then termination of parental rights is appropriate.
See Iowa Code § 232.116(1)(f). Both parents focus on the final factor, whether
the child could be returned to them “at the present time.” Iowa Code
§ 232.116(1)(f)(4); see In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (interpreting
“at the present time” to mean at the time of the termination hearing).
While the parents challenge the ground for termination, the mother
acknowledged at trial that she was not asking for the child’s immediate return.
Rather, “Today I’m asking for an extension, and I want the opportunity to be
reunified with my child. I’m not asking for him to be placed in my care yet. I want
reunification, though.” She continued, “I would like to see him reunified slowly back
with me. I mean I do not want him ripped out of the [foster family]’s home right
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now.” She also admitted to DHS that she cannot maintain her sobriety and parent
at the same time.
As for the father, his testimony shows he is unable or unwilling to
acknowledge the extent of his substance abuse or its effect on the child. His
appeal is based on “some success” since the child’s trial home period, his claim
that he had not used alcohol for six months prior to the termination hearing, 4 his
recent employment, and his move to independent housing.
On our de novo review, we find clear and convincing evidence supporting
termination of both parents’ rights under section 232.116(1)(f). The juvenile court
repeatedly informed the parents that long-term stability and sobriety was required
to achieve reunification. And while the parents apparently have been able to
refrain from substance use for a few months at a time—while involved with juvenile
court and criminal court monitoring—each has relapsed on more than one
occasion. At the time of the hearing, return to either parent’s custody would have
placed the child at risk of adjudicatory harm because of unresolved substance
abuse.
D. Further extension of time is not warranted. The juvenile court may defer
termination for a period of six months if it is able to “enumerate the specific factors,
conditions, or expected behavioral changes which comprise the basis for the
determination that the need for removal of the child from the child’s home will no
longer exist at the end of the additional six-month period.” Iowa Code
§ 232.104(2)(b). But we also note, “[o]nce the limitation period lapses, termination
4Though his brief then notes he has been clean since September 2021, which was
only four months prior to the hearing.
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proceedings must be viewed with a sense of urgency.” C.B., 611 N.W.2d at 495.
This child has been out of parental custody for almost two years. And although
each parent made “some progress,” that progress is erratic and insufficient to instill
confidence either can provide safe and stable parenting in another six months.
Especially with respect to the father, we agree with the caseworker’s observation:
A lack of insight/understanding as to what caused DHS involvement
and how [the father’s] actions caused harm to [the child] is a serious
problem and constitutes an ongoing threat to the child’s safety. If
there is no recognition for how his actions were harmful before and
no ownership to changing those behaviors, it’s highly likely the same
actions will happen again.
See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[T]he statutory time
line must be followed and children should not be forced to wait for their parent to
grow up.”).
E. Best interests of the child require termination of parental rights. Because
a ground for termination exists, we must consider whether to terminate the parents’
rights. 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).
“Insight for the determination of the child’s long-range best interests can be
gleaned from ‘evidence of the parent’s past performance for that performance may
be indicative of the quality of the future care that parent is capable of providing.’”
C.B., 611 N.W.2d at 495 (citation omitted).
It is true the parents can care for their child—when sober. But each has a
long history of substance abuse that has resulted in the inability to provide
consistent and stable parenting. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990)
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(“Children simply cannot wait for responsible parenting. Parenting cannot be
turned off and on like a spigot. It must be constant, responsible, and reliable.”). “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.”
P.L., 778 N.W.2d at 41. The child has waited long enough.
F. No permissive exception will be applied. Each parent seeks to avoid
termination based on their bond with the child. Section 232.116(3)(c) allows the
court to decline to terminate parental rights when “[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.” We acknowledge the parents love
their child and the child recognizes and obviously enjoys their company when he
sees them. But that bond is challenged by instability and relapse.
The child is also bonded with the foster family and is integrated into that
home. See id. § 232.116(2)(b). There he experiences consistency and stability.
Like the juvenile court, we conclude the parents have not shown their bond with
the child outweighs the child’s need for permanency and stability.
G. Alleged conflict. The father also contends he was “uncomfortable”
because the GAL represented the father as an attorney years ago and “took a
position which appeared to him to be biased.” If the father is alleging a conflict of
interest, he waived any such claim by failing to make a timely objection.
We affirm the termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.