IN THE COURT OF APPEALS OF IOWA
No. 16-0457
Filed May 25, 2016
IN THE INTEREST OF M.M. AND M.M.,
Minor children,
B.R., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother appeals the termination of her parental rights to her children.
AFFIRMED.
Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Kristi A. Traynor, Assistant
Attorney General, for appellee State.
M. Kathryn Miller of the Juvenile Public Defender, for minor children.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
The mother appeals the termination of her parental rights to her two
children. She asserts the court improperly concluded the State established
grounds to terminate her rights and the court should have granted her additional
time to work towards reunification. With little progress having been made over
the course of nearly two years of services, we conclude the district court properly
denied the mother’s request for additional time. Further, because of the mother’s
longstanding substance abuse and mental health problems, the district court
properly terminated her parental rights pursuant to Iowa Code section
232.116(1)(f) and (h) (2015). Therefore, we affirm the order of the district court.1
I. Background Facts and Procedural History.
In February 2014, the children, M.M.-1 (born 2008) and M.M.-2 (born
2014), were exposed to a violent domestic dispute between their parents. The
mother attempted to retrieve drugs from the family’s vehicle by smashing in a
window, spraying glass on the younger child. Due to the parents using
methamphetamine and marijuana in the home, both children tested positive for
the same. Criminal charges were filed. The Iowa Department of Human
Services (DHS) was soon involved, and the children were removed from the
home and eventually placed with the maternal grandmother, where the children
have spent the majority of the time during these proceedings. In April 2014, the
parents stipulated to the entry of an order adjudicating the children in need of
assistance.
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The father’s parental rights were terminated on September 30, 2015, and he did not
appeal that order.
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The record is replete with services offered to, and received by, the mother,
but there has been limited success in both attendance and compliance. While
the mother did make sufficient progress with drug treatment such that the
children were returned to her care for nearly four months—from March to June
2015—it soon became apparent the children were not safe residing with her
because she was continuing to expose the children to the father, who was still
actively using illegal drugs. By October, the mother had failed a drug screen and
was not compliant with the requirements of her terms of probation.
A petition to terminate the mother’s parental rights came on for hearing on
December 17, 2015, and the court ordered the termination by a ruling dated
February 28, 2016. The mother appeals.
II. Standard of Review.
Our review of termination-of-parental-rights proceedings is de novo. In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). 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. Id. Our primary
consideration is the best interests of the children. In re A.B., 815 N.W.2d 764,
776 (Iowa 2012).
III. Grounds for Termination.
As to M.M.-1, termination of parental rights under paragraph (f) requires
the court to find the State proved by clear and convincing evidence: (1) the child
is four years of age or older; (2) the child has been adjudicated in need of
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assistance pursuant to section 232.96; (3) the child has been removed from the
physical custody of the child’s parents for at least twelve of the last eighteen
months, or for the last twelve consecutive months, and any trial period at home
has been less than thirty days; and (4) there is clear and convincing evidence
that at the present time the child cannot be returned to the custody of the child’s
parents as provided in section 232.102. Iowa Code § 232.116(1)(f)(1)–(4).
Similar to paragraph (f), to terminate the mother’s rights to M.M.-2, under
Iowa Code section 232.116(1)(h), the State must establish the child: (1) is three
years old or younger, (2) has been adjudicated a child in need of assistance,
(3) has been removed from the home for six of the last twelve months, and
(4) cannot be returned to the parent’s custody as provided in section 232.102 at
the present time. Iowa Code § 232.116(1)(h)(1)–(4).
The first three elements of paragraphs (f) and (h) are not in dispute;
rather, the mother only maintains the State did not prove the fourth element of
each paragraph by clear and convincing evidence. To satisfy its burden of proof
under the fourth element, the State must establish “[t]he child cannot be
protected from some harm which would justify the adjudication of the child as a
child in need of assistance.” See Iowa Code § 232.102(5)(a)(2); see also In re
A.M.S., 419 N.W.2d 723, 725 (Iowa 1988). The threat of probable harm will
justify termination of parental rights, and the perceived harm need not be the one
that supported the child’s initial removal from the home. See In re M.M., 483
N.W.2d 812, 814 (Iowa 1992).
The district court found:
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At the present time the child[ren] cannot be returned to Mother’s
custody as provided in Iowa Code Section 232.102 because [they]
would be subjected to further adjudicatory harm as Mother has
failed to reengage in substance abuse treatment since her relapse,
has failed to attend mental health services to address her mental
health and relationship issues, has not seen the kids in the last
three weeks, and failed to provide the last requested drug screen
. . . which is considered positive, does not have stable housing or
employment to provide for the children’s basic needs, and
continues to associate with unsafe persons. Further, the Court
finds Mother generally lacks credibility regarding her testimony she
can provide a safe and stable environment for these children.
Mother’s testimony was inconsistent on several occasions.
The record supports these findings. The Family Safety, Risk, and
Permanency worker testified the mother had not been complying with mental
health or substance abuse treatment, had recently tested positive for illegal
substances, and had missed several visits with the children in the prior few
months. In addition, the worker opined the mother was not able to provide
“stability and consistency” for the children. The mother admitted to years of
methamphetamine use, failed a drug test in late September 2015, used
marijuana and methamphetamine as recently as October 2015, attempted to
manipulate a recent drug screening, and failed to comply with wearing a drug
sweat patch in early December 2015.
The DHS worker testified that after nearly two years of services, the
mother had not made progress such that the children would be able to avoid an
adjudicatory harm if returned to her care. The same problems existed in
December 2015 as they did in February 2013. While the district court did not
specifically rule on the mother’s request for additional time to work towards
reunification, it did find it was not in the children’s best interest “to suspend the
crucial days of childhood while the [mother] experiments with ways to face up to
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[her] own problems,” citing In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We
agree.
Therefore, we conclude the grounds for termination were proved by clear
and convincing evidence and affirm the order of the district court.
AFFIRMED.
In the Interest of M.M. and M.M., Minor Children, B.R., Mother
Combined Opinion