IN THE COURT OF APPEALS OF IOWA
No. 16-1226
Filed November 9, 2016
IN THE INTEREST OF C.N.C. and C.N.C.,
Minor children,
S.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Alan D. Allbee,
Associate Juvenile Judge.
A mother appeals the district court’s permanency order, placing her
children under the guardianship of their paternal grandmother. AFFIRMED.
Sarah Dooley Rothman of Rothman Law Office, Independence, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Patrick Ritter of Elwood, O’Donohue, Braun & White L.L.P., West Union,
guardian ad litem for minor children.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
2
VOGEL, Presiding Judge.
A mother appeals1 from the district court’s permanency order in a child-in
need-of-assistance (CINA) proceeding, placing her two children under the
guardianship of their paternal grandmother. The mother asserts on appeal: (1)
she should have been given an additional six months to work towards
reunification, (2) the department of human services (DHS) did not provide her
with reasonable services, and (3) her attorney was ineffective. We conclude
additional time would not have impacted the mother’s ability to safely care for the
children, reasonable services were offered to the mother, and she cannot show
her counsel’s performance prejudiced her such that the outcome of this CINA
case would have been different. We affirm the district court’s order.
We review CINA permanency orders de novo, giving deference to, but not
being bound by, the district court’s findings. In re K.N., 625 N.W.2d 731, 733
(Iowa 2001).
The children in this case, born in 2003 and 2004, have been adjudicated
CINA on four separate occasions within the past six years, with each case
involving the parents’ use of methamphetamine while the children were in their
care. Most recently, the children were adjudicated CINA and removed from the
home after the mother, while under the influence of methamphetamine,
physically assaulted the older child by tackling him to the ground, causing injury.
The mother was arrested, and a no contact order was issued between the
mother and this child. The children were placed in the care of their paternal
1
The children’s father does not appeal from the permanency order.
3
grandmother, a licensed foster parent, where they had been placed for a
combined total of more than three of the past six years.
While the mother asserts she should be given an additional six months to
work towards reunification, her past behavior lends no credence to her assertion
that things will be different in the near future. Under Iowa Code section
232.104(2)(b) (2015), a court may authorize a six-month extension of time if it
determines “the need for removal of the child from the child’s home will no longer
exist at the end of the additional six-month period.” The mother either refuses to
be tested for drug use or, when she does submit to testing, continues to test
positive for methamphetamine and amphetamines. Moreover, at the time of the
permanency hearing the mother was facing drug-related criminal charges. The
district court found, and we agree, the facts do not establish that sufficient
progress would be made by the mother such that it would be reasonably likely
that the children could be safely returned to her care if given an additional six
months before the entry of a permanency order.
Her next claim, that she was not provided adequate services, is also
belied by the record. A host of services were offered to her, including mental
health counseling, family therapy, and visitation. Her claim on appeal is that the
older child was not forced to participate in family therapy. However, the record
discloses the child had become so disappointed in the mother’s behavior and her
lack of progress in achieving stability that it was counterproductive to force such
family therapy upon that child. The mother’s own conduct set the tone for the
older child’s lack of trust in his mother. As to the visitation offered, the mother did
participate in the once-a-week visits but refused to take advantage of the
4
additional visitation offered, which was to be supervised by the paternal
grandmother. The mother testified her relationship with the grandmother was
“good. It’s good. It’s—it’s good. I feel it’s been a little strained lately, and I’m not
exactly for sure why; but it’s—it’s normally a good relationship.” Again, the
mother’s complaints of lack of visitation fall on her own shoulders, not on the
efforts of DHS to assist in arranging more visits.
Finally, the mother asserts her attorney was ineffective in a number of
ways, including: not adequately preparing for trial, not ensuring the mother was
aware of the requirements in the case plan for reunification, not ensuring the
mother attended mental health and substance abuse treatments, not advocating
for additional services, and not challenging the positive drug test results.
To review the effectiveness of counsel, we apply the same standard for a
CINA permanency hearing as we do for criminal cases. See In re T.P., 757
N.W.2d 267, 274 (Iowa Ct. App. 2008) (noting we apply the same standard to
evaluate ineffective-assistance claims in termination proceedings as we use in
criminal proceedings). A parent claiming ineffective assistance of counsel “must
prove both a deficiency in counsel’s performance and actual prejudice.” Id. “We
presume that counsel’s conduct falls within the range of reasonable professional
competency.” In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992).
Even if we were to find counsel breached an essential duty in any of the
ways the mother summarily asserts on appeal, we find no prejudice. This fourth
CINA case was opened in April 2015, after the children had again been
subjected to dangerous situations due to the mother’s continued
methamphetamine use, coupled with her unresolved mental health issues. At
5
trial she testified she did not “trust DHS” and shifted the blame for her children’s
removal unto others. The same is true in her claim against her counsel. Her
assertions that trial counsel should have done more to push her to comply with
the case plan, prepared more to defend her even though she failed to comply
with services, challenged the repeated positive drug screens in the face of her
failure to comply with drug testing, and advocated for more visits when she
refused the additional visits offered, are simply more attempts to shift the
mother’s own responsibilities onto someone else. Upon our de novo review of
the record, including all the reports, exhibits, and trial testimony, it is apparent the
mother’s bald assertions—even if true—would not affect the outcome of the
permanency hearing.
We affirm the permanency order of the district court.
AFFIRMED.