IN THE COURT OF APPEALS OF IOWA
No. 13-1420
Filed March 26, 2014
IN THE INTEREST OF K.S., B.S., AND G.B.,
Minor Children,
R.S., Father,
Appellant,
B.T., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Bryan J. Tingle, Des Moines, for appellant father.
Magdalena Reese of Carr & Wright, P.L.C., Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Annette Taylor,
Assistant County Attorney, for appellee State.
Erin Mayfield of the Youth Law Center, Des Moines, attorney and guardian
ad litem for minor children.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
2
DOYLE, J.
B.T., the mother of G.B., born in 2007, K.S., born in 2011, and B.S., born
in 2012, appeals the termination of her parental rights. R.S., the father of K.S.
and B.S., also appeals the termination of his parental rights. Both parents 1 argue
the State failed to prove the grounds for termination and that termination of their
parental rights is not in the children’s best interests. Additionally, both contend
Iowa Code section 232.116(3)(a) and (c) (2013) applies to avoid termination of
their parental rights. Upon our de novo review, we affirm on both appeals.
I. Background Facts and Proceedings.
The parents have a history of substance abuse, domestic violence, and
criminal activities. In September 2010, the mother received a deferred judgment
after she pled guilty to the charge of obtaining or attempting to obtain a
prescription drug by fraud, deceit, misrepresentation, or subterfuge, a class “C”
felony. She was placed on probation for three years. As part of her probation,
she underwent a substance abuse evaluation, which recommended she
participate in an intensive-outpatient-treatment program. She agreed to
participate, and in February 2011, she successfully discharged from the program.
In approximately June 2012, it was reported to the Iowa Department of
Human Services (Department) that the parents were again actively using illegal
substances. At that time, the mother was pregnant with B.S. The parents had
sought treatment at a methadone clinic, and the parents were required to provide
1
We will refer to R.S. as “the father” and to R.S. and B.T. collectively as “the
parents,” though we recognize R.S. is not the biological father of G.B. The parental
rights of G.B.’s biological father, J.B., were not terminated and are not at issue in this
appeal.
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urine samples for testing as part of the program. The clinic’s records revealed
the father had been drug-tested nine times from December 2011 to
approximately July 2012. He tested positive for marijuana on every drug screen,
and he tested positive for methamphetamine seven out of nine times, including
his drug screen in July 2012. The mother also tested positive for
methamphetamine and benzylpiperazine in May 2012. In July, she gave birth to
B.S., who was born addicted to methadone and had to spend a month in the
neonatal intensive care unit due to withdrawals from the drug.
The mother then provided a urine sample in August that was negative for
substances, including methadone. Because it was negative for methadone, it
was believed she had used someone else’s urine sample for the test. She was
requested to provide another sample thereafter, and she refused. At the end of
August 2012, the parents provided samples, and both tested positive for
methamphetamine. The mother admitted she was abusing prescription
medication, and she reported the father was selling prescription medication. The
children were then removed from their care. B.S. and K.S. were placed in a
friend’s care, and G.B. was placed with his biological father. In April 2013, B.S.
and K.S. were placed in the custody of their paternal third cousins. B.S., K.S.,
and G.B. have since remained in their relatives’ care.
Services were offered to the parents, including substance abuse treatment
and therapy, but they minimally participated. The parents’ last provided urine
samples in November 2012, and the father had tested positive for amphetamine.
Both parents stopped attending their substance-abuse-treatment programs in
December 2012. The father stopped contacting the Department, and he no
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longer had visits with his children. The mother’s visitation had decreased from
two visits a week to one because she was inconsistent in her attendance. She
too stopped contacting the Department, and the case worker did not hear from
her from the end of January 2013 to the end of March. The mother also stopped
meeting with her probation officer, and ultimately, her deferred sentence was
revoked and a warrant issued for her arrest.
In April 2013, the State filed petitions for the termination of the parents’
parental rights due to their lack of participation and progress in the case.
Hearing on the petition was held in July 2013. At that time, the mother was in
jail, having been arrested on the warrant a few days before the hearing. The
court entered its ruling terminating their parental rights on multiple grounds in
August, finding termination was in the children’s best interest
Both parents now appeal.2
II. Analysis.
In determining whether parental rights should be terminated under chapter
232, the juvenile court “follows a three-step analysis.” In re D.W., 791 N.W.2d
703, 706 (Iowa 2010). Step one requires the court to “determine if a ground for
termination under section 232.116(1) has been established” by the State. Id. If
the court finds grounds for termination, the court moves to the second step of the
analysis: deciding if the grounds for termination should result in a termination of
parental rights under the best-interest framework set out in section 232.116(2).
Id. at 706-07. Even if the court finds “the statutory best-interest framework
supports termination of parental rights,” the court must proceed to the third and
2
We note this case was transferred to this court on March 6, 2014.
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final step: considering “if any statutory exceptions set out in section 232.116(3)
should serve to preclude termination of parental rights.” Id. at 707.
On appeal, we review the juvenile court’s decision to terminate parental
rights de novo. In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). Although we are
not bound by the court’s factual findings, we do give them weight, particularly any
credibility findings made. Id. If the juvenile court finds multiple grounds for
termination exist under section 232.116(1), we need only to determine, on our de
novo review, if there is clear and convincing evidence supporting one of those
grounds in the record. D.W., 791 N.W.2d at 707; see also In re R.R.K., 544
N.W.2d 274, 276 (Iowa Ct. App. 1995).
Here, both parents separately contend the State failed to prove the
grounds for termination found by the juvenile court and that termination of their
parental rights is not in their children’s best interests. Additionally, both argue
their parental rights should not be terminated because section 232.116(3)(a) and
(c) (2013) applies. We address their arguments in turn.
A. Grounds for Termination.
Among other grounds, the juvenile court terminated both parents’ parental
rights pursuant to Iowa Code section 232.116(1)(l), which requires proof of
several elements including proof that “[t]he parent has a severe substance-
related disorder and presents a danger to self or others as evidenced by prior
acts” and “the parent’s prognosis indicates that the child will not be able to be
returned to the custody of the parent within a reasonable period of time
considering the child’s age and need for a permanent home.” Upon our de novo
review, we find the State has met its burden as to each parent on this ground.
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While the law requires a “full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,” this patience has been built into
the statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000). Our supreme court has stated “the legislature, in cases meeting the
conditions of [the Iowa Code], has made a categorical determination that the
needs of a child are promoted by termination of parental rights.” In re M.W., 458
N.W.2d 847, 850 (Iowa 1990) (discussing Iowa Code § 232.116(1)(e)). The
public policy of the state having been legislatively set, we are obligated to heed
the statutory time periods for reunification.
1. The Father.
The father only challenges the latter element of paragraph (l), and he
points to his testimony at the hearing claiming, among other things, he was
scheduled to begin treatment and that, “although he had been in denial, he was
prepared to regain custody of his children.” All of his actions prior to the end of
March 2013 support the opposite conclusion, and by that time, the children had
been out of his care for over six months. He did nothing to even start addressing
his multiple issues until right before the petition for termination of his parental
rights had been filed. He only completed a substance abuse evaluation a week
before the termination hearing, and he had still not completed any kind of
substance abuse treatment at the time of the termination hearing, three months
after the petition was filed. He still had not provided any urine samples for drug
screening, and he testified at the hearing that, if he provided a sample at that
time, it would likely be positive for marijuana.
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“We have long recognized that an unresolved, severe, and chronic drug
addiction can render a parent unfit to raise children.” A.B., 815 N.W.2d at 776.
Given that the father has tested positive for illegal substances since at least
December 2011 and still had not completed any substance-abuse-treatment
program by the time of the termination hearing, he has given us no reason to
believe that he will now complete it. The evidence demonstrates that the father’s
substance abuse issue continued to place himself and others in danger despite
his newfound interest in participating in services. While we commend the father
for his recent efforts and hope he is successful, K.S. and B.S. are not equipped
with pause buttons. We have reiterated many times that “[t]he crucial days of
childhood cannot be suspended while parents experiment with ways to face up to
their own problems.” In re C.H., 652 N.W.2d 144, 151 (Iowa 2002) (citations and
internal quotation marks omitted). Children “simply cannot wait for responsible
parenting. Parenting cannot be turned off and on like a spigot. It must be
constant, responsible, and reliable.” A.B., 815 N.W.2d at 777 (citation and
internal quotation marks omitted). Furthermore, the children’s best interests are
not served by “continu[ing] to keep them in temporary foster homes while the
natural parents get their lives together.” Id.
Although it appears the father loves K.S. and B.S., he was unable to
distance himself from illegal substances to act as their father throughout the
case. He showed no interest in being a sober father to these children until just
before the termination hearing, and even then, he still had a long way to go to
reach sobriety. Here, the father’s actions throughout the case support the finding
that, due to his abuse of illegal substances, the children will not be able to be
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returned to his custody within a reasonable period of time. We therefore agree
with the juvenile court that the State proved the ground for termination set forth in
section 232.116(1)(l).
2. The Mother.
The mother directs us to her on-and-off participation in the methadone
clinic’s substance-abuse-treatment program as support she will now complete an
inpatient treatment program, refrain from using illegal substances, and maintain
sobriety. However, her actions throughout the case do not support her claim.
Here, the record shows the mother was pregnant at the time of the
termination hearing, and she was still not following recommendations concerning
use of methadone for the sake of that child’s safety. In fact, the mother used her
pregnancy as a tactic to demand methadone even though she was not following
safety recommendations.
Like the father, we hope the mother is successful in her newest attempt at
treatment for the sake of her youngest child, but the evidence in this case
demonstrates that the mother’s substance abuse issue continued to place her
and others in danger. Moreover, the record shows the children cannot be
returned to her custody within a reasonable period of time. We therefore agree
with the juvenile court that the State proved the ground for termination set forth in
section 232.116(1)(l).
B. Best-Interest Framework.
As stated above, “[e]ven after we have determined that statutory grounds
for termination exist, we must still determine whether termination is in the
children’s best interests.” A.B., 815 N.W.2d at 776. For the reasons stated
9
above in finding the children could not be returned to the parents’ custody within
a reasonable period of time, we find the best interests framework in Iowa Code
section 232.116(2) supports termination of their parental rights of these children.
In that section, the legislature highlighted the children’s safety, the best
placement for furthering the long-term nurturing and growth of the children, and
the physical, mental, and emotional condition and needs of the children as
primary considerations. In re P.L., 778 N.W.2d 33, 37 (Iowa 2010); see also
Iowa Code § 232.116(2). The children’s “safety and the need for a permanent
home are now the primary concerns when determining [the children’s] best
interests.” In re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring
specially). Those best interests are to be determined by looking at the children’s
long-range as well as immediate interests. In re C.K., 558 N.W.2d 170, 172
(Iowa 1997). We are to consider what the future likely holds for the children if the
children are returned to the parents. In re J.K., 495 N.W.2d 108, 110 (Iowa
1993). Insight for that determination is to be gained from evidence of the
parent’s past performance, for that performance may be indicative of the quality
of the future care that the parent is capable of providing. In re L.L., 459 N.W.2d
489, 493-94 (Iowa 1990).
1. The Father.
The father merely asserts the juvenile court did not apply the best-interest
framework in its decision to terminate his parental rights. The evidence
demonstrates otherwise. Here, the juvenile court explained:
The children’s safety is the court’s primary consideration.
There are ongoing concerns about the safety of the children if
returned to the care and custody of either parent. The children
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need a long-term commitment by adult(s) who can be appropriately
nurturing, supportive for their growth and development, and that
appropriately meet their physical, mental, and emotional needs.
[B.S. and K.S.] are currently placed in a family that meets such
criteria. [G.B.] is in the custody of his [biological father], who is
appropriately meeting his needs. The children in interest’s best
interests require that the parental rights of [their mother] and [their
father] be terminated.
We agree with the juvenile court, and, like that court, we conclude termination of
the father’s parental rights to K.S. and B.S. was in their best interests.
2. The Mother.
The mother contends termination of her parental rights was not in the
children’s best interests due to the close bond between her and the children.
She states “the children were excited to see her during interactions, and they
became upset when the visits ended.” However, our review of the record
indicates that statement was true when she regularly participated in visitation up
to January 2013. The service provider testified that since January 2013, the
mother’s visits were very inconsistent and, at the time of the hearing, the mother
had not seen her children for two months. The provider testified the mother’s
bond with the children was not strong at that time. The provider also testified that
the mother stopped consistently preparing for the visits, such as bringing a diaper
bag with her to the visit, after January 2013. Upon our de novo review of the
record, we agree with the juvenile court that termination of the mother’s parental
rights was in the children’s best interests as set forth under section 232.116(2).
C. Potential Grounds Not to Terminate.
Section 232.116(3) provides that the court need not
terminate the relationship between the parent and child under
certain circumstances. A finding under subsection 3 allows the
court not to terminate. The factors weighing against termination in
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section 232.116(3) are permissive, not mandatory, and the court
may use its 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 the parent-child relationship.
In re A.M., ___ N.W.2d ___, ___, 2014 WL 685401, *12 (Iowa 2014) (internal
citations and quotation marks omitted).
Here, each parent contends termination was not necessary because the
children are in the custody of relatives, and because of the closeness of their
relationship with the children. See Iowa Code § 232.116(3)(a), (c). However, we
conclude upon our de novo review that neither the children’s placement with
relatives nor their bond with either parent weighs heavily enough to reverse the
termination. Under the facts of this case, we cannot maintain the parent-child
relationship where there exists only a remote possibility the mother and/or the
father will become a responsible and consistent parent sometime in the unknown
future. See In re Z.H., 740 N.W.2d 648, 652 (Iowa Ct. App. 2007) (describing
strong bond between parent and child as militating factor, but not overriding
consideration). These children deserve permanency now and should not have to
wait any longer for the parents to put their needs first. See D.W., 791 N.W.2d at
707-08. Termination will provide the children with the safety, security, and
permanency they deserve. See P.L., 778 N.W.2d at 41. The children are doing
well in their relative placements. We believe the children’s best interests are
served by severing their legal tie with the parents, and we therefore decline to
invoke section 232.116(3).
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III. Conclusion.
For the foregoing reasons, we affirm the juvenile court’s termination of
each parent’s parental rights.
AFFIRMED ON BOTH APPEALS.