IN THE COURT OF APPEALS OF IOWA
No. 14-0369
Filed April 30, 2014
IN THE INTEREST OF Z.B.,
Minor Child,
J.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother appeals the order terminating her parental rights. AFFIRMED.
Emily K. Tisinger of Springer & Laughlin Law Offices, P.C., Des Moines for
appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Andrea S. Vitzthum,
Assistant County Attorney, for appellee State.
Karl Wolle of the Juvenile Public Defender’s Office, Des Moines, attorney
and guardian ad litem for minor child.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2
DOYLE, J.
A mother appeals from the juvenile court’s order terminating her parental
rights to her eleven-month-old child.1 We affirm.
I. Background Facts and Proceedings
This family came to the attention of the Iowa Department of Human
Services (DHS) in August 2013 following the hospitalization of the mother and
father due to intravenous drug use.2 The child, then five months old, was
removed the parents’ care and placed in foster care.3 The mother’s drug screen
tested positive for cannabis, oxycodone, benzodiazepines, and opiates. The
mother admitted she had been using drugs “about every day” for “about four
months” prior to the child’s removal. The mother completed a substance abuse
evaluation, which recommended she attend intensive outpatient drug treatment
while on the waiting list for halfway house residential programming through the
House of Mercy. The mother did not participate in the recommended drug
treatment.
The child was adjudicated in need of assistance in September 2013. At
that time, DHS presented the mother with a Contract of Expectations, setting
forth specific action expected of the mother, including that she would participate
in substance abuse treatment, maintain sobriety, submit to random UA’s,
participate in offered visitation with the child, be responsible for scheduling and
1
The father has not appealed the termination of his parental rights to the child.
2
The mother overdosed on morphine injection and had a staph infection at the injection
site on her arm. The mother stated she used morphine only when she “couldn’t get
other drugs,” due to her belief that she was allergic to morphine.
3
The child has remained in the same family foster care placement since removal. That
family has expressed its willingness and ability to adopt the child.
3
maintaining medical and other appointments for the child, participate in parenting
classes, obtain a mental health evaluation, maintain stable and safe living
arrangements, and maintain employment. The Contract of Expectations was
signed by the mother and her DHS caseworker.
In October 2013, the mother missed an appointment with her probation
officer.4 She admitted to her probation officer that she had continued abusing
drugs. The mother was charged with a probation violation and was placed in
custody. She spent ninety-five days at the Polk County Jail, and was then
transferred to a women’s residential facility in Des Moines, where she had
resided for two weeks as of the time of the termination hearing.
The State filed a petition to terminate parental rights in January 2013. The
termination hearing was held in February 2014. The juvenile court observed the
mother was twenty-one years old and had a significant history of drug abuse,
beginning when she was thirteen years old. The mother testified she last used
drugs on the day of her arrest, and she had not successfully completed any sort
of substance abuse treatment program. The mother had just begun substance
abuse treatment at the women’s residential facility two weeks prior. The mother
stated she had also briefly attempted treatment at the House of Mercy right after
the child was removed, but that she stopped going and continued to use drugs.5
Prior to her probation violation the mother had been living with her mother
who used methamphetamine and gave her money to obtain drugs. The mother
4
The mother was on probation stemming from a prior conviction for third-degree
burglary.
5
The mother’s prior attempt at drug treatment (namely, court-ordered drug treatment as
a condition of her probation in March 2011) ended when the mother quit attending
because she “felt like she had better things to do at the time.”
4
had also lived with a boyfriend who was on probation for an OWI and sometimes
drank to excess. The mother’s only employment during these proceedings—
Dunkin Donuts for two and one-half months—ended when she was fired for
theft.6 She had not completed a mental health evaluation. She had not
consistently participated in visits with the child.
The mother agreed the child could not be returned to her custody at the
time of the termination hearing, but stated she was “really trying to change [her]
life.” The mother also admitted she had not been able to stay clean and sober
for a significant period in her life since the age of thirteen, and that the prospect
of confinement in jail due to a probation violation was not sufficient motivation for
her to stay sober in the past. The juvenile court denied the mother’s request for
a six-month extension.
Following the termination hearing, the juvenile court entered its order
terminating the mother’s parental rights pursuant to Iowa Code sections
232.116(1)(d), (i), and (I) (2013). The mother appeals.
II. Scope and Standard of Review
We review proceedings to terminate parental rights de novo. In re A.B.,
815 N.W.2d 764, 773 (Iowa 2012). We give weight to the juvenile court’s factual
findings, especially when considering the credibility of witnesses, but we are not
bound by them. Id. We will uphold an order terminating parental rights if there is
clear and convincing evidence of grounds for termination under Iowa Code
section 232.116. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is
6
The mother testified she had a history of thefts.
5
clear and convincing when there are no serious or substantial doubts as to the
correctness of conclusions of law drawn from the evidence. Id.
III. Discussion
A. Grounds for Termination
We must first determine whether a ground for termination under section
232.116(1) is established. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). The
mother disputes the grounds to terminate her parental rights under each ground
found by the juvenile court. “We only need to find grounds to terminate parental
rights under one of the sections cited by the district court in order to affirm its
ruling,” see In re R.K., 649 N.W.2d 18, 19 (Iowa Ct. App. 2000), and we elect to
address the mother’s contention that statutory grounds under section
232.116(1)(d) have not been proved by clear and convincing evidence.7
Under that section, termination may be ordered when a child has been
adjudicated in need of assistance for physical or sexual abuse or neglect and the
circumstances continue despite receipt of services. See Iowa Code
§ 232.116(1)(d). The mother did not contest the removal of the child from her
care in August 2013 following her hospitalization for intravenous drug use. The
mother later testified she was abusing drugs at the time she became pregnant
with the child, for a time during the pregnancy, and nearly every day in the four
months preceding the child’s removal. The child was five months old at the time
of removal. The mother agreed she placed herself and others at risk because of
7
The State’s petition alleged the child’s adjudication pursuant to Iowa Code section
232.2(6)(b), (c)(2), and (n). The adjudication was not contested. “[A] CINA
determination under section 232.2(6)(b) may lead to termination of parental rights under
section 232.116(1)(d) . . . .” In re J.S., No. 13-1606, ___ N.W.2d ___, ___ (Iowa 2014).
6
her drug use. We agree with the juvenile court’s astute conclusion that “[t]his
serious, unfettered abuse of hard drugs while caring for an infant is certainly the
kind of neglect that places the child in imminent danger.” To us, the mother’s
focus on the fact that she kept her needles for intravenous drug use locked up
and away from the child emphasizes the mother’s complete disregard, or at the
very least, startling lack of understanding concerning her infant child’s safety and
well-being.
The mother claims there has been a “substantial change in [her] attitude,
her persistence to engage in all resources available to her and work toward
reunification with her child.” At the termination hearing, however, the mother
testified she had not yet completed drug treatment despite her understanding
that such treatment was a critical component to become reunited with the child.
In this case, the mother’s actions and inactions speak louder than her words: she
continued to use drugs after the child’s removal and after she signed the
Contract of Expectations; she lived with her mother who provided her money to
buy drugs; and she has been in custody or residential placement since the very
day she last used drugs. This is not even to mention the unaddressed concerns
regarding the mother’s mental health. Clearly, the circumstances leading to the
initial adjudication have not been rectified despite the receipt of services. Under
these facts and circumstances, we conclude there is clear and convincing
evidence that grounds for termination exist under section 232.116(1)(d).
B. Factors in Termination
Even if a statutory ground for termination is met, a decision to terminate
must still be in the best interests of a child after a review of section 232.116(2).
7
P.L., 778 N.W.2d at 37. In determining the best interests, this court’s primary
considerations are “the child’s safety, the best placement for furthering the long-
term nurturing and growth of the child, and the physical, mental, and emotional
condition and needs of the child.” Id.
The mother contends termination of her parental rights is not in the best
interests of the child. The mother’s best-interests claim essentially focuses on
the juvenile court’s failure to grant her a six-month extension.8 As the mother
claims, “Allowing [her] to have an additional six months to complete the services
she had engaged in would not have been detrimental to the child.”
We agree with the juvenile court’s finding that termination of the mother’s
parental rights is in the best interests of the child and would best provide for the
child’s long-term nurturing and growth. Nothing in the record suggests additional
time and services would correct the circumstances leading to the child’s
adjudication and removal. As the juvenile court observed:
In this case, neither [the mother nor the father] is able to
care for [the child] in either of their homes at this time. It is unlikely
that [the child] can be safely returned to [the mother or father] in the
foreseeable future. To return the child to her mother or father at
this time or in the foreseeable future would subject her to great
instability and uncertainty inflicted by her parents. There has not
been any resolution to the concerns raised at the time of the child’s
removal. A parent’s past behavior is an important factor in
determining what the future holds for a child if returned to the
parent’s care and custody. . . .
....
The parents each argue for a six month extension under
Iowa Code section 232.104(2)(b). Neither parent, however, is able
to state when he or she will be released from custody, or where
each would go once released from custody. Neither parent is
employed. . . . [The mother] has yet to address her mental health
8
The mother also raises this claim in section V of her brief, but we will not address that
claim separately in light of our discussion on this issue here.
8
issues, and has just now begun outpatient and relapse classes as
part of her halfway house program. It is impossible for the Court to
enumerate specific factors, conditions, or expected behavior
changes which would comprise the basis for a determination that
the need for removal of the child will no longer exist at the end of an
additional six-month period. Therefore, termination is in the best
interests of this child.
“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.” Id. at 41; see In re A.B., 815 N.W.2d 764, 778 (Iowa 2012)
(noting the parent’s past conduct is instructive in determining his future behavior).
Here, the mother is unable to assume custody of the child now or at any time in
the foreseeable future. Children are not equipped with pause buttons. “The
crucial days of childhood cannot be suspended while parents experiment with
ways to face up to their own problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa
1987). There is no reason to delay the child the permanency she needs and
deserves.
C. Factors Against Termination
Finally, we give consideration to whether any exception or factor in section
232.116(3) applies to make termination unnecessary. The mother claims the
juvenile court erred in terminating her parental rights due to her close bond with
the child. Termination is not mandatory when clear and convincing evidence is
found that termination would be detrimental to the child due to the closeness of
the parent-child relationship. See Iowa Code § 232.116(3)(c).
We have discretion, based on the unique circumstances of each case and
the best interests of the child, whether to apply the factors in this section to save
9
the parent-child relationship. In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct. App.
2011). Although the mother loves the child, there is no evidence the mother’s
relationship with the child is one that is so close it would be detrimental to the
child if termination occurred. No exception or factor contained in section
232.116(3) applies to make termination of the mother’s parental rights
unnecessary in this case.
IV. Conclusion
There is clear and convincing evidence that grounds for termination exist,
termination of parental rights is in the child’s best interests, nothing in the record
suggests an additional six months would correct the circumstances leading to the
child’s adjudication and removal, and no consequential factor weighing against
termination requires a different conclusion. Accordingly, we affirm termination of
the mother’s parental rights.
AFFIRMED.
Vogel, P.J., concurs; Mullins, J., concurs specially.
10
MULLINS, J. (specially concurring)
I concur that the ruling to terminate the mother’s parental rights should be
affirmed, but write separately as I believe it should be affirmed under section
232.116(1)(i) not under section 232.116(1)(d).