In the Interest of E.I. and A.W., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 21-1435
Filed March 30, 2022
IN THE INTEREST OF E.I. and A.W.,
Minor Children,
J.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Michael A. Horn of Horn Law Offices, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Michelle R. Becker, Assistant
Attorney General, for appellee State.
Michael Sorci of the Youth Law Center, Des Moines, attorney and guardian
ad litem for minor children.
Considered by May, P.J., and Schumacher and Badding, JJ.
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BADDING, Judge.
A mother who has been involved in a methadone treatment program since
2017 for an opiate addiction appeals the termination of her parental rights to her
two daughters, born in 2009 and 2011, pursuant to Iowa Code section
232.116(1)(f) (2021). She challenges each step of our three-step termination
analysis and argues the juvenile court should have established a guardianship in
lieu of termination. We affirm.
I. Background Facts and Proceedings
This family’s history with the Iowa Department of Human Services began in
April 2018 after the mother lost control of her vehicle and struck a utility pole. She
was taken to the hospital, where she tested positive for opiates, oxycodone,
methadone, benzodyazapines, marijuana, and alcohol. The mother was pregnant
with her third child at the time. When interviewed by a child protective worker, the
mother acknowledged she had abused opiates in the past but said she has been
taking methadone since 2017 to curb that addiction. The mother’s sister told the
worker the mother “was struggling with Xanax abuse.”
The department initiated services for the family, which were ongoing when
the mother’s third child was born in August. Despite those services, the
department returned to the family’s home in the fall to investigate a report of
domestic violence between the parents in the children’s presence. The
department ended its services for the family in January 2019. Tragically, another
investigation was opened at the end of February when the mother’s two daughters
found their infant brother unresponsive in his swing. The infant passed away, but
the cause and manner of his death was undetermined.
3
The family again came to the attention of the department in July 2019, this
time upon a report that the mother was “under the influence of an unknown drug”
while caring for the children. The reporter alleged the mother was “slumped over,”
had “slowed movements, was difficult to wake up, had slurred speech, and was
swaying.” Only after testing positive would the mother admit to relapsing on
oxycodone a week earlier, but she denied any other use. She agreed to temporary
removal based on her “unresolved substance abuse issues.” The children were
placed in the custody of the maternal grandmother under department supervision.
In September, the children were adjudicated as in need of assistance under Iowa
Code section 232.2(6)(c)(2) and (n) (2019).
The mother had previously submitted to a substance-abuse evaluation in
March 2019. By October, however, the mother had not attended any group
treatment sessions and only one individual session. The same month, the mother
declined drug testing and showed signs of substance abuse on multiple occasions.
On one such occasion, during an interview with a department worker about the
mother’s social history, the mother could hardly stand, had slurred speech, drooled
all over herself, and had trouble staying awake. The department reached out to
the mother the next day to facilitate a drug test, but she did not respond.
In January 2020, the mother participated in a mental-health assessment
and began attending therapy sessions. She also tested negative for drugs over
the next few months and underwent another substance-abuse evaluation in March.
However, the department was unable to verify the mother’s participation in
treatment and remained concerned about gaps in her participation in services.
4
Come July, the department was still unable to verify that the mother was
participating in substance-abuse treatment based on her evasiveness with
providing releases. The mother was also evasive in providing drug tests requested
by the department. In late July, when the mother finally submitted to a hair-stat
test, she was positive for cocaine, morphine, heroin, and oxycodone. And although
the mother had participated in some mental-health therapy sessions earlier in the
year, the department learned she had not attended any since April. It also turned
out that the mother’s alleged participation in substance-abuse treatment was
limited to her reporting to a facility to get methadone and briefly “touching in” with
someone there. The department accordingly recommended the initiation of
termination proceedings, which the juvenile court ordered the State to commence
in its permanency order.
In October, shortly before the termination trial, law enforcement came into
contact with the mother while investigating a report that she had burglarized a
neighbor’s house. When the police arrived at the mother’s home, the children were
in her care. Law enforcement “described the mother as lethargic, unsteady on her
feet, and [displaying] a white, powdery substance on her chin and hands.” The
mother said the children were there for a “sleepover,” although the department had
not authorized unsupervised or overnight contact between the mother and
children. Several pieces of stolen property were found in the mother’s possession.
The police also noticed an “off brown” colored substance that looked to be
“consistent with cocaine” on a table in the home. The mother refused to allow the
police to test the substance on her face or table. She later claimed it was drywall,
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which she said that she had a habit of consuming.1 The grandmother told the
police the “white powdery substance” could have been crushed Xanax. Based on
the foregoing, the State moved to modify the children’s placement from their
grandmother to their maternal aunt. The court granted the motion. A sweat patch
placed on the mother more than two weeks after this incident was negative for all
substances.
Following the termination trial in late October, the juvenile court terminated
the father’s parental rights. But the court found insufficient evidence to sustain the
petition as to the mother, mostly because the department lacked information about
the mother’s current drug use and treatment due to her lack of cooperation. The
court was careful to point out its ruling was not equivalent to granting a six-month
extension because there was also insufficient evidence to determine if the children
could be returned to her care at the end of that time period. So the court denied
the termination petition as to the mother but directed the State to reinitiate separate
termination proceedings.2 Shortly thereafter, and with very little notice to the
department, the maternal aunt requested that the children be removed from her
care. They were initially placed in the same foster home but, after a short
hospitalization, the older child was placed in a separate foster home due to her
aggressive behaviors.
1 The mother’s testimony about the events that evening differed from the
department’s account in other material respects, although the department’s
version was based on body-cam footage it received from law enforcement. The
footage was not admitted as evidence in this proceeding.
2 We note the first termination proceeding was separate from the second. No
appeal was taken in the first proceeding and no request was made below that it be
included in the district court record, so it is not part of the record on appeal. See
Iowa R. App. P. 6.801.
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The State filed its second termination petition in March 2021. At the trial on
that petition, the family-centered services provider testified about her observations
of the mother during a visitation that occurred earlier that month. When the
provider and the children arrived at the mother’s home, the mother and a man were
both present and appeared “drowsy.” The man grabbed his belongings, including
“an orange prescription bottle,” and quickly left. The provider then observed the
mother to have slurred speech, be tired and “dozing off,” and “eating what
appeared to be like a drywall substance.” The provider ended the visit early, noting
the mother was also not doing much to interact with the children.
During her testimony at trial, the mother essentially said that whenever she
exhibited signs of substance abuse, it was because she was not taking her
methadone regularly. She would admit to only two relapses during the case, once
when the proceedings were first initiated in July 2019 and another in December
2020. The mother ended her testimony by requesting that the children be returned
to her care or placed under the guardianship of the maternal aunt.
At the end of the two-day trial in March, the guardian ad litem asked the
court to delay permanency for ninety days and conditionally place the children with
the maternal aunt “to evaluate if this family option would be safe and likely to
resolve the need for terminating the mother’s parental rights.” The court granted
the request to delay termination and reopened the record for consideration of
placement with the aunt. A third day of trial was held in August. The mother did
not appear, apparently due to the existence of an active warrant for her arrest.
This warrant resulted from an incident in early June involving the mother “driving
a vehicle while under the influence of a combination of unknown drugs” and
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“swerving all over the road and r[unning] into a pole.” The mother failed field
sobriety testing, prescription drugs and illegal narcotics were found in her purse,
and she was charged with operating under the influence.
When the trial concluded in August, the children were still in their separate
foster placements, both of which were willing to serve as permanency options. The
children had previously reported information about visits with the aunt that the
department found concerning. And the younger child expressed her preferences
to continue living separately from the older child and remain with her foster family.
The older child’s issues with verbal and physical aggression, which plagued the
viability of previous placements, had drastically improved in her current foster
home. That child’s psychiatrist recommended that she remain in this home and
not be placed in the aunt’s care, opining the child “has demonstrated more success
and positive support in her current foster placement than she has had in multiple
placements with her biological family members.”
Ultimately, the juvenile court terminated the mother’s parental rights under
Iowa Code section 232.116(1)(f) (2021), finding the children could not be returned
to her care, termination was in the children’s best interests, and placing the
children under the aunt’s guardianship would be contrary to their best interests.
The mother appeals, challenging all of these findings.
II. Analysis
In our de novo review of termination of parental rights, “[w]e generally apply
a three-step analysis.” In re L.B., ___ N.W.2d ___, ___, 2022 WL 495312, at *1–
2 (Iowa 2022). We ask whether (1) a statutory ground for termination is satisfied,
(2) the children’s best interests are served by termination, and (3) a statutory
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exception applies and should be exercised to preclude termination. Id. at *2; see
Iowa Code § 232.116(1)–(3).
A. Ground for Termination
First, the mother challenges the sufficiency of the evidence supporting the
final element of Iowa Code section 232.116(1)(f)—that the children could not be
returned to her custody at the time of the termination hearing. See Iowa Code
§ 232.116(1)(f)(4) (requiring clear and convincing evidence that the children
cannot be returned to the custody of their parents as provided in section 232.102
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”). The mother argues the children are old enough to self-protect, and she
“had housing, was engaging in substance abuse treatment, and was engaged in
therapy.”
The children were removed from the mother’s care in July 2019 due to her
drug abuse. Her abuse clearly continued throughout the proceedings, as
evidenced by obvious behavioral indicators. The proceedings began with the
mother driving under the influence of drugs and, at the time of the final day of the
termination hearing, the mother was the subject of an active arrest warrant for a
separate but essentially identical incident. The resulting effects of the mother’s
drug abuse render her incapable of providing adequate care or supervision for
these children. Long story short, the children could not be safely returned to the
mother’s custody at the time of the termination hearing. See In re A.S., 906 N.W.2d
467, 473 (Iowa 2018). As such, we find the evidence sufficient to support
termination under section 232.116(1)(f).
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B. Best Interests
Next, the mother passively suggests termination is contrary to the children’s
best interests, citing the “interest in the integrity of the family unit.” In determining
whether termination is in the best interests of children, we “give primary
consideration to the child[ren]’s safety, to the best placement for furthering the
long-term nurturing and growth of the child[ren], and to the physical, mental, and
emotional condition and needs of the child[ren].” Iowa Code § 232.116(2).
Despite several years of services, the mother has simply not progressed to
a point at which her children can be returned to her care. “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 . . . be able
to provide a stable home for the child.” In re A.B., 815 N.W.2d 764, 777 (Iowa
2012) (quoting In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). We conclude the
mother has been given ample time to get her affairs in order. These children’s
best interests are best served by providing 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))). The children are thriving and
integrated in their foster placements, both of which are willing to serve as
permanency options. See Iowa 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 placement, the placement parents were “able to
provide for their physical, emotional, and financial needs,” and they were prepared
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to adopt the children). We agree with the juvenile court that termination is in the
children’s best interests.
C. Statutory Exceptions
Turning to the last step in the analysis, the mother argues “[t]he trial court
failed to properly consider Iowa Code [s]ection 232.116(3)(b) and (c).” The
exceptions contained in those provisions respectively allow the juvenile court to
forego termination when “the child is over ten years of age and objects to the
termination” or “[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 first note the application of the statutory exception to termination
is “permissive, not mandatory.” M.W., 876 N.W.2d at 225 (quoting In re A.M., 843
N.W.2d 100, 113 (Iowa 2014)).
As to the exception contained in section 232.116(3)(b), the mother argues
the older child objected to termination, and the younger child waffled between
returning to the mother or remaining in her foster placement. It is certainly true
that both children wish their mother was in a position to provide them with stable
and consistent care. But, by the last day of the termination trial, both correctly
understood that returning to their mother’s care was not a viable option. And while
the older child did, at times, want the mother’s parental rights to remain intact, the
mother did not present clear and convincing evidence supporting “a well-defined
opinion [of the child] on the issue of termination, much less a clear objection to
termination.” See In re A.J., 553 N.W.2d 909, 916 (Iowa Ct. App. 1996), overruled
on other grounds by P.L., 778 N.W.2d at 39–40; see also A.S., 906 N.W.2d at 476
(“[T]he parent resisting termination bears the burden to establish an exception to
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termination . . . .”). Also, the younger child’s desire to remain in her foster
placement was clear. As for the exception in section 232.116(3)(c), given the long
time the children were removed from the mother’s care and each child’s
acknowledgement that returning to her care is not an option, we cannot conclude
“termination would be detrimental to the child[ren] . . . due to the closeness of the
parent-child relationship[s].” As such, we affirm the juvenile court’s decision to not
apply these exceptions to overcome termination.
D. Guardianship
The mother finally argues that establishing a guardianship with the maternal
aunt was a better permanency option than termination, highlighting the maternal
aunt’s “ability and willingness to be a long term placement for the children” and the
children’s relationships with extended family. See Iowa Code § 232.117(5)
(authorizing the court, following a termination hearing, to enter an order in
accordance with section 232.104 in lieu of terminating parental rights); see also id.§ 232.104(2)(d)(1) (allowing for transfer of “guardianship and custody of the child
to a suitable person”).
We begin with the principle that “a guardianship is not a legally preferable
alternative to termination.” A.S., 906 N.W.2d at 477 (quoting In re B.T., 894
N.W.2d 29, 32 (Iowa Ct. App. 2017)). Although section 232.104(2)(d) allows for
the establishment of a guardianship as a permanency option, section 232.104(3)
requires “a judicial determination that [such a] planned permanent living
arrangement is the best permanency plan for the child[ren].” See B.T., 894 N.W.2d
at 32–33. Convincing evidence must also exist to show termination would be
contrary to the child’s best interests. Iowa Code § 232.104(4)(a). So determining
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whether a guardianship is an appropriate avenue for permanency is essentially a
best-interests assessment.
A guardianship, rather than termination, would not promote stability or
provide permanency to these children’s lives. See In re R.S.R., No. 10-1858, 2011
WL 441680, at *4 (Iowa Ct. App. Feb. 9, 2011) (“So long as a parent’s rights remain
intact, the parent can challenge the guardianship and seek return of the child to
the parent’s custody.”). The aunt was already given placement of the children on
one occasion, and the placement was abruptly ended after less than a month
because she was unable to cope with the older child’s behaviors. A number of
professionals, including the older child’s psychiatrist, recommended against
placing the children with the aunt. We likewise conclude a guardianship in lieu of
termination is not the best permanency plan for the children.
III. Conclusion
We affirm the termination of the mother’s parental rights.
AFFIRMED.