In the Interest of N.W., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 20-0426
Filed June 17, 2020
IN THE INTEREST OF N.W.,
Minor Child,
T.N., Mother,
Appellant,
D.W., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka,
Associate Juvenile Judge.
A mother and father separately appeal the termination of their parental
rights to one child under Iowa Code chapter 232 (2019). AFFIRMED ON BOTH
APPEALS.
Gina L. Kramer of Reynolds & Kenline, L.L.P., Dubuque, for appellant
mother.
William A. Lansing of William A. Lansing, P.C., Dubuque, for appellant
father.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Patricia Reisen-Ottavi, Dubuque, attorney and guardian ad litem for minor
child.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
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GREER, Judge.
A mother and father separately appeal the termination of their parental
rights to one child under Iowa Code chapter 232 (2019). After considering the
parties’ arguments, we affirm the order terminating parental rights.
I. Background Facts and Proceedings.
D.W. is the father and T.N. is the mother of N.W., born in March 2019. The
parents, as a result of their substance-abuse issues, have a history of involvement
with the Iowa Department of Human Services (DHS) for all of their children. Two
weeks before N.W. was born, the parents did not contest the termination of their
rights to another child, born in 2017. That child, who was born with
methamphetamine in her system, was adopted by the mother’s sister. The father
has an eight-year-old child from a previous relationship who lives with the child’s
mother and visits the father on some weekends. The mother has four older
children who live with their father in Elgin, Iowa, who she visits twice monthly.
In early March 2019, DHS received a report that the parents were using
illegal substances while caring for the father’s then seven-year-old child. This child
reported that T.N. was “going crazy” and he could not wake his father. This
resulted in a founded child-abuse assessment for denial of critical care against
both D.W. and T.N. This incident did not lead to any juvenile court proceedings.
DHS most recently became involved with this family after N.W. was born.
The child was born prematurely after the mother experienced a stroke at thirty-two
weeks pregnant. The stroke left the mother vision impaired. The mother tested
positive for methamphetamine at the hospital, but the child tested negative.
Because of her prematurity, the child remained hospitalized for over a month. As
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the child was nearing the discharge date, the hospital, after being unable to contact
the parents for two weeks, contacted DHS. DHS then began removal proceedings.
The child was removed from the parents’ custody on April 22 and placed in
a maternal cousin’s care about 120 miles from the parents’ home in Dubuque. The
child was adjudicated in need of assistance in May.
Throughout the case, the overarching challenge was the parents’ struggle
with sobriety. The mother denied using methamphetamine before N.W.’s birth but
acknowledged a relapse in April, after the child was born. She tested positive for
methamphetamine in July. Also in July, the mother started substance-abuse
treatment. She successfully completed the program three months later. But the
mother tested positive for methamphetamine in August and September. The
mother claimed all of the positive results were false positives resulting from her
blood-pressure medication. To further complicate matters, the parents have also
tested positive for THC during this case. The father acknowledged his use of
marijuana; the mother denied ever using marijuana but acknowledged being
around others using it.
On a positive note, the parents participated in weekly four-hour supervised
visits with the child, and by all accounts the visits have gone well. But the parents
were given the opportunity to have additional visits with the child by contacting the
relative placement directly, yet the parents did not set up those visits. The parents
never progressed beyond supervised visits, and the child never returned to the
parents’ care, even on a trial basis, because of the parents’ ongoing substance-
abuse concerns.
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The State filed the termination petition on October 7. Both parents tested
positive for THC in early January 2020. The court held the termination hearing on
January 30, 2020.
At the termination hearing, the court received deposition testimony from two
experts about whether it was possible the mother was having false positive results
for methamphetamine on her drug tests because of her blood-pressure
medication. Both experts testified that there are two kinds of methamphetamine,
the “D” form, which is illegal methamphetamine, and an “L” form, which can appear
on a drug test when a person uses certain over-the-counter substances, such as
Vicks inhalers ingested in large quantities.
The mother’s expert, Dr. Lee Berman, was her treating psychiatrist. Dr.
Berman opined that in his clinical experience he has seen people with false
positive drug screens while taking the same blood pressure medication as the
mother. Dr. Berman generally referenced peer-reviewed studies showing the
possibility for false positives, but he could not cite or produce any of this literature
by name.
The State’s expert, Dr. David Kuntz, is the executive director for analytical
toxicology and the laboratory director at Clinical Reference Laboratory in Kansas.
Dr. Kuntz has a master’s degree and doctorate degree in pharmaceutical sciences,
has specialized training in forensic toxicology, is a fellow of the American Board of
Forensic Toxicologists, and has over thirty years of experience in the field of
forensic toxicology. Dr. Kuntz opined the mother’s blood pressure medication was
not a “drug[] of concern to create any type of false positive for methamphetamine,
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either as a D isomer or L isomer.” He was unaware of any studies linking the
blood-pressure medication to a false positive for methamphetamine.
The court noted that the test used in the mother’s earlier positive results did
not differentiate between “D” and “L” forms of methamphetamine. Because the lab
had retained the samples and they could be retested, the court authorized more
specific drug testing. The results of the retesting of samples were still pending at
the time of the hearing. The court, by agreement of the parties, left the record
open after the termination hearing to receive the results of the testing. The results
came back positive for the “D” form of methamphetamine, proving the mother was
using illegal substances.
On February 24, the court entered an order terminating both the mother and
father’s parental rights under Iowa Code section 232.116(1)(g), (h), and (l). Both
the mother and father appeal.
II. Standard of Review.
We review termination-of-parental-rights proceedings de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). “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.” In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). Our primary concern
is the best interests of the child. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).
III. Father’s Appeal.
On appeal, the father does not contest any of the grounds for termination.
Instead, he claims it violated his due process rights under the United States and
Iowa Constitutions to require him to file the petition on appeal prior to receiving
and reviewing the transcript of the termination hearing; DHS did not make
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reasonable efforts toward reunification; and the court should have granted him an
extension of time to reunify with the child. We will address his claims in turn.
A. Due Process. The father first argues it violates his due process rights
under the United States and Iowa Constitutions to require him to file a petition on
appeal before receiving a transcript of the termination hearing. Our court has
previously considered and rejected this argument. See In re T.S., 868 N.W.2d
425, 432–34 (Iowa Ct. App. 2015); In re R.K., 649 N.W.2d 18, 20–22 (Iowa Ct.
App. 2002). The Iowa Supreme Court reached a similar conclusion about the lack
of full briefing in termination appeals. See In re C.M., 652 N.W.2d 204, 212–13
(Iowa 2002). We likewise reject the father’s due process challenge.
B. Reasonable Efforts. The father next argues DHS failed to provide him
with resources for anxiety medication and inpatient substance-abuse treatment.
The father raised this argument for the first time at the termination hearing. “[T]he
State has the obligation to provide reasonable reunification services,” but the
parent “ha[s] the obligation to demand other, different, or additional services prior
to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999).
“Where a parent ‘fails to request other services at the proper time, the parent
waives the issue and may not later challenge it at the termination proceeding.’”
T.S., 868 N.W.2d at 442 (citation omitted). The father’s failure to raise a
reasonable-efforts complaint before the termination hearing waives the issue on
appeal.
C. Extension of Time. Finally, the father argues he should have been
granted six more months to pursue reunification with the child. Iowa Code section
232.117(5) allows the court to grant an extension of time if parental rights are not
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terminated following the termination hearing. But to continue placement for six
more months, the juvenile court must determine that “the need for removal will no
longer exist at the end of the extension.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa
Ct. App. 2005). “The judge considering [the extension] should however constantly
bear in mind that, if the plan fails, all extended time must be subtracted from an
already shortened life for the child[] in a better home.” Id. at 92–93 (citation
omitted).
Here, the court declined to grant the father an extension of time because it
could not determine that the need for removal would no longer exist at the end of
the extension. The court pointed to the parents’ lack of progress throughout the
case, and it noted that it had granted continuances for discovery and depositions
during the termination case and the parents did not make any progress in spite of
the additional time allowed. The parents never progressed beyond fully supervised
visits, did not exercise any additional visitation the child’s caregiver offered, and
continued to use illegal substances. We conclude the juvenile court properly
declined to grant the father an extension of time to reunify with his child. Finding
all the father’s arguments without merit, we affirm the juvenile court order
terminating his rights to N.W.
IV. Mother’s Appeal.
On appeal the mother claims the State failed to prove grounds for
termination and DHS failed to make reasonable efforts toward reunification.
A. Grounds for Termination. The court terminated the mother’s parental
rights under Iowa Code section 232.116(1)(g), (h), and (l). “On appeal, we may
affirm the juvenile court’s termination order on any ground that we find supported
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by clear and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
As for section 232.116(1)(h),1 the mother challenges only the final element: that
“[t]here is clear and convincing evidence that the child cannot be returned to the
custody of the child’s parents as provided in section 232.102 at the present time.”
Iowa Code § 232.116(1)(h)(4).
The mother has a long history of DHS involvement as a result of her
methamphetamine use. She continued to test positive for methamphetamine and
THC throughout this case despite her successful discharge from substance-abuse
treatment. Even more troubling is her denial of her substance-abuse issues. She
instead blames her positive drug screens for methamphetamine on her blood
pressure medication, even after the more specific drug testing dispelled that claim,
and her positive tests for THC on other people. The court found the “mother’s
claims that her positive test results were due to her medications to be lacking in
credibility and scientific support.”
Together with the mother’s drug use, concerns about the father’s drug use
and paternal grandfather’s criminal activities involving drugs also prevented the
child’s return to the mother’s care. The mother and father continue to live together,
1 Iowa Code section 232.116(1)(h) permits the court to terminate parental rights if
the court finds all of the following:
(1) The child is three years of age or younger.
(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 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.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
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along with the child’s paternal grandfather. The father acknowledged using
marijuana throughout this case, including shortly before the termination hearing.
During the pendency of the termination case, the grandfather pled guilty to
controlled substance violations involving methamphetamine. The juvenile court
took judicial notice of the grandfather’s criminal case file.
After considering the evidence presented, we conclude there was clear and
convincing evidence that the child could not be returned to the mother’s custody
at the time of the termination hearing. For that reason, the State proved grounds
for termination under section 232.116(1)(h), and we need not consider the
mother’s arguments on subsections (g) or (l).
B. Reasonable Efforts. The mother next argues DHS failed to make
reasonable efforts toward reunification by failing to provide her with additional
visitation with the child and by placing the child 120 miles away rather than looking
for a foster home closer to Dubuque. The mother contends that her vision
impairment, financial condition, and distance from the child all impacted her ability
to attend visits.
DHS must “make every reasonable effort” to reunify the parent and child “as
quickly as possible consistent with the best interests of the child.” In re C.B., 611
N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code § 232.102(7) (1995)); see also
Iowa Code § 232.102(9) (2019). “[W]hat constitutes reasonable services varies
based upon the requirements of each individual case.” In re C.H., 652 N.W.2d
144, 147 (Iowa 2002). Reasonable efforts “includes visitation designed to facilitate
reunification while providing adequate protection for the child.” C.B., 611 N.W.2d
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at 493. “[T]he nature and extent of the visitation is always controlled by the best
interests of the child.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).
Here, the parents opted to have one longer visit per week rather than two
shorter visits because of the distance. In a cycle of the parents’ making, DHS
would not progress visits so long as the parents continued to test positive for illegal
substances, and because the parents continued to test positive, they did not
progress beyond fully supervised visits.
The parents were, however, given options to have additional contact with
the child. The DHS caseworker offered to allow the parents to ride along with her
as she picked up and returned the child for visits. This would have allowed the
parents to spend additional time with the child. The parents declined. DHS also
gave the parents the option of setting up additional weekend visits with the relative
caring for the child. The parents again declined. The relative offered to speak with
the parents on the phone daily, and, though the child is young, the relative also
offered to facilitate daily phone contact between the parents and the child. The
parents did not take advantage of the caregiver’s offer for contact. When the
mother was asked why the parents did not take advantage of an extra Sunday visit
they had been offered, she testified:
It just didn’t work out for our schedule. We had a visit Saturday until
like 3:15 and then that would consist of having to drive all the way up
there and back, and we would have had [the father’s older child] with
us as well and he had school Monday morning. He has daycare
anyway.
When asked why she did not use extra visits the caregiver offered, the
mother testified:
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Things just feel very uncomfortable between [the caregiver] and I and
as well as I only get limited time with my other kids as well for visits
due to everybody’s schedule, and it really makes things hard to pick
and choose on what children I want to see and what children I can’t.
The court found DHS made reasonable efforts regarding visitation. We
agree. We acknowledge that the distance and the mother’s vision impairment
were barriers, but the mother was offered many options to have more contact with
the child and declined. Even so, the mother’s ongoing substance abuse was the
biggest barrier to DHS allowing more, and unsupervised, visitation with the child.
We conclude DHS made reasonable efforts. Finding the mother’s claims without
merit, we affirm the termination of her parental rights.
V. Disposition.
We affirm the juvenile court order terminating the mother and father’s
parental rights to N.W.
AFFIRMED ON BOTH APPEALS.