IN THE COURT OF APPEALS OF IOWA
No. 14-0753
Filed July 16, 2014
IN THE INTEREST OF K.M. and J.M. JR.,
Minor Children,
A.M., Mother,
Appellant,
J.M. SR., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
A mother and father appeal from termination of their parental rights.
AFFIRMED.
Darren D. Driscoll of Johnson, Kramer, Good, Mulholland, Cochrane &
Driscoll, P.L.C., Fort Dodge, for appellant-mother.
Douglas Cook, Jewell, for appellant-father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Cori Kuhn-Coleman, County Attorney, and Ryan D. Baldridge,
Assistant County Attorney, for appellee.
Christopher O’Brien, Fort Dodge, attorney and guardian ad litem for minor
children.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.
A mother and father appeal from the juvenile court order terminating their
parental rights to two children. The mother’s rights were terminated pursuant to
Iowa Code sections 232.116(1)(h) and (l) (2013). The father’s parental rights
were terminated pursuant to Iowa Code sections (b), (e) and (h). The mother
argues there was insufficient evidence to satisfy the statutory grounds for
termination. The mother and father both argue termination was not in the
children’s best interest.
I. BACKGROUND FACTS AND PROCEEDINGS.
The family has been under the supervision of Iowa Department of Human
Services (DHS) since fall 2010, when K.M. was born testing positive for
methamphetamine. The mother also tested positive for methamphetamine. DHS
has been offering substance abuse services to the parents since that time.
Both parents have extensive substance abuse issues. The mother served
time in prison on drug manufacturing charges. During this time, she lost parental
rights to an older child who is now in the maternal grandmother’s custody. After
the initial removal, the court returned K.M. to the parents in early 2011. In spring
2011, the mother tested positive in several drug tests for her probation officer.
She tested positive in March, April, and June 2011. When DHS became aware
of these tests, they removed K.M. from the parental home again.
In August 2011, the mother entered Jackson Recovery for substance
abuse treatment. Upon entering, the mother tested positive for
methamphetamine. She admitted she had used methamphetamine that very day
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and stated she had been using methamphetamine daily. The mother also
admitted she and the father had used drugs together in March 2011. In October,
after an out-of-facility visit, the mother returned testing positive for ethanol. She
also brought a prohibited cellular phone into the facility.
J.M. was born in fall 2011, while the mother was in drug treatment. She
successfully completed the Jackson Recovery treatment program in November
2011 and entered the YWCA program, where K.M. and J.M. could reside with
her. In December, the DHS worker received a phone call from the mother
indicating she was upset with the YWCA counselors and other residents. On the
same day, the DHS worker spoke with the YWCA substance abuse counselor,
who told her the mother had left the building. The DHS worker spoke with the
mother, who indicated she was in Webster City and had spent the night with a
man there. The mother had left the children at the YWCA. The DHS worker
instructed the mother to return to the YWCA and the mother complied. However,
in January 2012, due to her complaints about the YWCA, DHS agreed to allow
the mother to return to the family home with the children, so long as the father left
it.
In September 2012, the mother tested positive for methamphetamine, as
did both children. The court removed the children by ex parte order and placed
them in foster care. DHS did not consider placement with the father an option
because of his substance abuse history and lack of cooperation with testing and
treatment. In September, the mother completed a substance abuse evaluation
with the YWCA, which recommended intensive outpatient treatment. However,
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she attended only one or two meetings, and the YWCA discharged her without
successful completion. The mother relapsed in December, using drugs with the
father. She planned to attend treatment at Prairie Ridge in Algona in February
2013; however the substance abuse counselor there indicated the mother had
not been attending meetings, and discharged her without successful completion
in March. Also in February 2013, the mother tested positive for
methamphetamine and amphetamine.
In April 2013, the mother entered into a plan with DHS to set up a new
substance abuse evaluation and begin treatment within thirty days. The YWCA
had accepted the mother for treatment, but the mother failed to appear for her
scheduled evaluations, and the YWCA withdrew the offer. In May, the mother
tested positive for methamphetamine and amphetamine and admitted to using
drugs with the father. Also in May, the mother and father together saw the
children at visitation at the Families First office. They began fighting, and DHS
removed the children from the room and ended the visitation. At that time, the
mother had no permanent home.
In October 2013, the mother signed a “contract of expectations” with DHS
that required her to begin substance abuse treatment. The mother completed a
substance abuse evaluation with Community and Family Resources in
December; but in January, the resources center indicated the mother performed
the evaluation but never returned to begin the recommended treatment.
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Throughout this case, the court has ordered the father to obtain substance
abuse treatment. His only attempt at treatment occurred in September 2011
when he completed an evaluation with Community and Family Resources.
Although he attended some treatment, he refused to give urine samples on
multiple occasions. In October 2011, he tested positive for methamphetamine,
amphetamine, and marijuana. In November, he refused to give a sample, but
admitted he would test positive for marijuana. Shortly thereafter, he was
unsuccessfully discharged from treatment. Throughout the case, the father has
visited infrequently with the children. He was not present for J.M.’s birth. He did
not see the children at all between September and December 2013. The DHS
worker testified the father does not understand child development and has
unrealistic expectations for the children’s abilities relative to their ages. Because
of this, their behaviors easily frustrate him. The DHS worker noted he did not
interact with the children during visitation and displayed no attachment to them.
In December 2013, the State filed a petition to terminate parental rights,
consistent with DHS’s recommendation. The hearing on the petition was set for
February 5, 2014. On the morning of the hearing, the court was informed the
mother’s counsel had a conflict of interest and would need to withdraw. The
court granted the motion to withdraw and continued the trial to March 26, 2014.
At the termination hearing, the mother reported she had been attending
Narcotics Anonymous meetings for about one month. She testified the last time
she used drugs was December 2013. In March, she moved into her own
apartment and obtained a part-time job. Also in March, the mother and father
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visited with the children in the mother’s home. DHS had to end the visit and
remove the children because the mother and father were fighting. At the time,
the father reported he was not seeking substance abuse treatment and was not
employed.
The children have been in the same foster home since September 2013.
DHS notes they have been thriving in this placement, and the foster parents are
providing needed stability, discipline, and love. The foster mother notes the
children “are able to express their needs and wants” and “verbalize love and
affection towards [the foster parents] and each other.” The children have made
friends at daycare and with the foster parents’ nieces and nephews. The DHS
worker testified the children are safe and happy in their placement. The foster
parents have indicated they want to adopt the children. Both the DHS worker
and foster parents note the children exhibit aggressive behaviors, such as hitting
and biting, after visitation with the mother and father.
Following the hearing on the petition to terminate parental rights, the
juvenile court terminated the mother’s parental rights under Iowa Code sections
232.116(1)(h) and (l). The court terminated the father’s parental rights under
Iowa Code section 232.116(1)(b), (e), and (h). The mother and father appeal
separately.
II. STANDARD OF REVIEW.
We review termination of parental rights proceedings de novo. In re A.B.,
615 N.W.2d 764, 773 (Iowa 2012). We give weight to the factual determinations
of the juvenile court, especially with regard to witness credibility, but are not
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bound by them. Id. Our primary consideration is the best interest of the child.
Id. at 776.
III. ANALYSIS.
In determining whether to terminate parental rights, the juvenile court
follows a three-step analysis. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First,
the court must determine if a statutory ground for termination exists under Iowa
Code section 232.116(1). Id. Second, the court must give consideration to the
child’s best interests. See Iowa Code § 232.116(2); P.L., 778 N.W.2d at 39.
Finally, the court need not terminate parental rights if it finds any of the statutory
exceptions under Iowa Code section 232.116(3) apply. P.L., 778 N.W.2d at 39.
A. Mother.
The mother argues there was insufficient evidence to terminate under the
statutory grounds alleged. We will uphold the termination of parental rights
where there is clear and convincing evidence of the statutory grounds for
termination. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is clear
and convincing when there are no serious or substantial doubts as to the
correctness of conclusions of law drawn from the evidence. Id. When the
juvenile court terminates parental rights on more than one statutory ground, we
need only find grounds to terminate on one of the paragraphs to affirm. In re
J.A.D.-F., 776 N.W.2d 879, 884 (Iowa Ct. App. 2009). Here, we focus on the
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evidence supporting the court’s termination of the mother’s parental rights under
Iowa Code section 232.116(1)(h).1
The mother argues there was not clear and convincing evidence the
children could not be returned to her custody. The mother has a serious
substance abuse problem, including a long history of repeated relapses, and has
been unable or unwilling to remain sober for any extended period of time. She
repeatedly tested positive for drugs throughout this case, even while in treatment
programs, and has exposed the children to drugs as well. This is the case
despite DHS being involved and offering her services since 2010, and despite
the mother previously losing custody of another child for the same reasons. Her
eleventh-hour attempts at seeking treatment are insufficient, particularly in light of
her long history of relapses. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000);
In re D.M., 516 N.W.2d 888, 891 (Iowa 1994). We are reinforced in this view by
the fact that she did not begin attending NA, or obtain an apartment, or obtain a
job until after the original termination hearing was continued. At the time of the
termination hearing, the children had been out of her care for about eighteen
months—nearly half K.M.’s life and most of J.M.’s life. Yet, the mother has made
little progress toward resolving the issues that led DHS to remove the children
from her care. The children would not be safe in her care. We find, therefore,
1
To terminate parental rights under Iowa Code section 232.116(1)(h), the State must
show by clear and convincing evidence the child is three years old or younger, has been
adjudicated a child in need of assistance, has been removed from the parent’s care for
at least the last six consecutive months or at least six of the last twelve months, and
cannot be returned to the parent’s custody at the time of the termination hearing.
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that the evidence is clear and convincing that the children cannot be returned to
her.
The mother further argues it would not be in the children’s best interest to
terminate her parental rights. In considering their best interests we weigh the
children’s safety; the best placement for furthering their long-term nurturing and
growth; and their physical, mental, and emotional needs. See Iowa Code
§ 232.116(2). In light of the risks posed by the mother’s substance abuse issues,
the length of time they have been out of the mother’s care, and the mother’s
inability or unwillingness to put their needs above hers, the children’s best
interests weigh in favor of termination. Accordingly, we affirm termination of the
mother’s parental rights.
B. Father.
The father does not dispute any of the statutory grounds for termination of
his parental rights. His sole argument is that termination was not in the children’s
best interest. He argues the juvenile court should not have terminated the
mother’s parental rights and should have allowed him to remain a “non-custodial
parent.” He “believes the children belong with their mother” and are bonded with
the mother. He argues he is “not a problem” as a “non-custodial parent.”
There is no question of the father remaining a “non-custodial parent”; Iowa
law does not provide for such a status in the context of termination of parental
rights. The father presents no argument for why it is not in the children’s best
interests to terminate his parental rights and he has no standing to argue in favor
of the mother’s parental rights. He does not claim to have any bond with the
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children himself, and the evidence does not support the existence of one.
Accordingly, we affirm termination of the father’s parental rights.
IV. CONCLUSION.
We affirm termination of the mother’s parental rights under Iowa Code
section 232.116(1)(h), and determine it is in the children’s best interests to
terminate the parental rights of both parents.
AFFIRMED.
In the Interest of K.M. and J.M. Jr., Minor Children, A.M., Mother, J.M. Sr., Father
Combined Opinion