In the Interest of C.G., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 20-1102
Filed November 30, 2020
IN THE INTEREST OF C.G.,
Minor Child,
M.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Steven Guiter,
District Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Dusty Lea Clements of Clements Law and Mediation, Newton, for appellant
mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
William E. Sales III of Sales Law Firm, P.C., Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., Doyle, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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SCOTT, Senior Judge.
A mother appeals the termination of her parental rights to her child, born in
2013, pursuant to Iowa Code section 232.116(1)(e) and (f) (2020).1 She contends
termination is not in the child’s best interests given the parent-child bond, the State
failed to make reasonable efforts at reunification, and she should have been
granted a six-month extension.
I. Background Facts and Proceedings
The mother consented to temporary removal of her child in December 2018
after entering inpatient treatment for her unresolved substance-abuse issues. The
mother admitted to heroin use and tested positive for morphine and hydrocodone.
Upon the State’s application, the juvenile court entered a formal order for
temporary removal, and the child was placed in the care of the maternal
grandmother. The State petitioned for a child-in-need-of-assistance adjudication,
which was entered in February 2019 upon the parties’ stipulation. The mother was
drug tested following the adjudication hearing, and she admitted she would test
positive for heroin and methamphetamine. At the time of the dispositional hearing
in April, the mother continued to struggle with substance abuse.
In May, the mother admitted to consuming methamphetamine and THC,
which a drug test confirmed. In July, the court ordered the child be placed in foster
care upon the guardian ad litem’s motion for modification of placement. In the
ensuing months, the mother variously tested positive for THC and alcohol and
failed to appear for multiple scheduled drug tests. By September, the Iowa
1The parental rights of the child’s putative father were also terminated. He did not
participate in the proceedings and does not appeal.
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Department of Human Services (DHS) recommended the State file a petition for
termination of parental rights given the mother’s unstable housing and employment
and unresolved substance-abuse and mental-health issues. Later that month, the
mother was arrested for violating her probation and was sentenced to complete
long-term treatment, which the mother engaged in.
In November, the mother progressed to semi-supervised visitation, and she
reported being sober for sixty days. Following a December review hearing, the
court granted the mother a six-month extension to work toward reunification based
on the mother’s continued participation in inpatient substance-abuse treatment.
Until the middle of that month, the mother appeared to be making progress with
her substance abuse and mental health. She engaged in recovery court and
Progress Iowa. Then things began to unravel—the mother began missing classes,
appointments, and recovery court. In late December, the mother was
unsuccessfully discharged from inpatient treatment as a result of being aggressive
with staff, after which visitation reverted to fully supervised. Then, in early January
2020, the mother entered residential treatment, which she successfully completed
in February. But then, in February, the mother was discharged from recovery court
for lack of engagement, and she was incarcerated from early March to mid-April
for violating her probation. Also in February, the foster parents advised they could
no longer serve as a permanency option due to the behavior of the mother and her
relatives toward the foster family. Thereafter, the child was moved to a new foster
home in April. The State filed its termination petition shortly before the mother’s
release from custody. Following the mother’s release from custody, visitations
were held via video conference as a result of the COVID-19 pandemic, but the
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mother was inconsistent in participating. The mother reengaged in inpatient
treatment in late May, but she was asked to leave in early June for physically
assaulting a child.
The matter proceeded to a termination hearing on June 10 and 12. At the
time, the mother continued to have unstable housing and employment. She
testified her most recent relapse was mere weeks before the termination hearing,
when she used marijuana, opiates, and heroin. The mother requested the child
be placed with her family and she be given additional time to work on her sobriety.
She testified she intended to reenter inpatient treatment roughly a week after the
termination hearing. While DHS was still considering an out-of-state relative to
serve as a permanency option, the child was placed in a pre-adoptive foster home
that was willing to serve as a permanent placement. The child has expressed that
he wants to remain in his current foster home.
The juvenile court terminated the mother’s parental rights under Iowa Code
section 232.116(1)(e) and (f). The mother appeals.
II. Standard of Review
Appellate review of orders terminating parental rights is de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best interests
of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements of
which are the child’s safety and need for a permanent home. In re H.S., 805
N.W.2d 737, 748 (Iowa 2011).
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III. Analysis
A. Reasonable Efforts
The mother argues DHS failed to make reasonable efforts at reunification.
She cites the suspension of in-person visits in March 2020 in response to the
COVID-19 pandemic. She also complains that she was not offered in-person visits
when they were allowed to resume roughly a week before the termination hearing.
DHS “shall 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(9). “A child’s health and safety shall be the paramount concern in
making reasonable efforts.” Id. § 232.102(12). DHS need only provide those
services that are reasonable under the circumstances. See In re S.J., 620 N.W.2d
522, 525 (Iowa Ct. App. 2000). Given the COVID-19 pandemic, we find switching
to virtual visits was certainly reasonable. As to the mother’s claim that not offering
her in-person visits once they were allowed shortly before the termination hearing
amounted to a failure to make reasonable efforts, we disagree. The mother had
recently relapsed. And the child’s therapist recommended that the mother and
child only have face-to-face interactions if the mother was seeking active recovery,
which she was not. We find the DHS’s efforts at reunification were reasonable
under the circumstances.
B. Best Interests and Statutory Exception
The mother does not challenge the sufficiency of the evidence supporting
the statutory grounds for termination, so we need not address that issue. See In
re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The mother argues “it is not in the child’s
best interest for [her] rights to be terminated, given [her] plan to reenter an inpatient
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treatment program.” 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).
Here, the matter initially progressed to a recommendation that termination
be pursued. The mother did not enter treatment until nearly a year after the
December 2018 removal, when it was ordered as a result of her probation violation.
The mother engaged in treatment and made progress in late 2019 and, as a result,
she was granted a six-month extension. After the mother’s unsuccessful discharge
from one treatment program, she was in and out of other programs for the ensuing
months, one of which she successfully completed. But the mother continued to
have unstable housing and employment, and she continued to relapse, including
an occasion mere weeks before the termination hearing when she used marijuana,
opiates, and heroin.
“We hold no crystal ball, and to some extent, the [best-interests]
determination must be made upon past conduct.” In re M.M., No. 16-1685, 2016
WL 7395788, at *4 (Iowa Ct. App. Dec. 21, 2016). Addiction is a crippling affliction.
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. Given the
mother’s track record, namely her participation in several treatment programs yet
ongoing need for removal given her continued substance abuse, we are unable to
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agree her “plan to reenter an inpatient treatment program” renders termination
contrary to the child’s best interests.
The mother goes on to argue termination is contrary to the child’s best
interests given the parent-child bond. We interpret her argument as a request for
application of the statutory exception to termination contained in Iowa Code section
232.116(3)(c). We first note the application of the statutory exceptions to
termination is “permissive, not mandatory.” In re M.W., 876 N.W.2d 212, 225 (Iowa
2016) (quoting In re A.M., 843 N.W.2d 100, 113 (Iowa 2014)). The juvenile court
may forego termination upon “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.” Iowa Code § 232.116(3)(c). While we acknowledge a bond
between the mother and child, we conclude the mother failed to meet her burden
to show detriment to the child resulting from termination. See In re A.S., 906
N.W.2d 467, 476 (Iowa 2018) (noting parent bears burden to establish an
exception to termination). The child’s life has been fraught with instability due to
the mother’s actions, and he has a preference for a stable home and consistency.
We are unable to determine termination will be detrimental to the child due to his
bond with the mother.
We conclude termination is in the child’s best interests and the exception to
termination should not be applied.
C. Additional Time
Finally, the mother claims the court erred in declining her six additional
months to work toward reunification. She believes an extension was warranted
based on “her plan to enter inpatient treatment and due to her successful
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completion of inpatient treatment earlier in the case.” But the mother was already
granted a six-month extension based upon a hope that her participation in inpatient
treatment would remedy the need for removal. It ultimately did not.
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
months if the court finds “the need for removal . . . will no longer exist at the end of
the additional six-month period.” Given the mother’s track record and past
parenting performance, we are unconvinced the need for removal will no longer
exist after six months. The mother goes on to argue the child will suffer no
additional harm if permanency is delayed an additional six months, asserting
adoption will take time given the child’s relatively new foster placement and the
DHS’s continuing consideration of a relative placement. To support her argument,
the mother cites our decision In re K.M., where we granted an extension on the
basis that a delay would not result in additional harm to a child. No. 16-0795, 2016
WL 4379375, at *9 (Iowa Ct. App. Aug. 17, 2016). But there, we were able to
“enumerate the specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal . . . will no longer
exist at the end of the additional six-month extension.” See id. at *8–9 (quoting
Iowa Code § 232.104(2)(b)). We are unable to do so here, so we conclude an
extension is not warranted.
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IV. Conclusion
We find the State made reasonable efforts at reunification, termination is
in the child’s best interests, the requested exception should not be applied, and
additional time is unwarranted. We affirm the termination of the mother’s
parental rights.
AFFIRMED.