IN THE COURT OF APPEALS OF IOWA
No. 17-0528
Filed July 19, 2017
IN THE INTEREST OF A.B.,
Minor Child,
A.D., Mother,
Appellant,
J.B., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother and father appeal separately from the juvenile court’s order
terminating their parental rights. AFFIRMED ON BOTH APPEALS.
Lori M. Holm of Holm Law Office, West Des Moines, for appellant mother.
John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Erin E. Mayfield of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.
A mother and father appeal separately from the juvenile court’s order
terminating their parental rights to their child. Both argue the State failed to
prove the statutory grounds for termination by clear and convincing evidence and
an exception to termination exists due to their close bond with their child. The
mother additionally argues termination is contrary to A.B.’s best interests and the
juvenile court should not have terminated her parental rights because the child is
placed with a relative. Upon our de novo review, we affirm both appeals.
I. Background Facts and Proceedings
The mother and father have one child, A.B., born in 2015. The family
came to the attention of the Iowa Department of Human Services (DHS) in
February 2016, due to the parents’ mental-health issues and use of
methamphetamine while caring for their child. The parents consented to the
temporary removal of the child, and the court ordered the child be placed with the
paternal grandmother. That same month, the State filed a child-in-need-of-
assistance (CINA) petition. The court held an uncontested hearing in April 2016
and adjudicated the child CINA under Iowa Code section 232.2(6)(c)(2) and
232.2(6)(n) (2016).
In May, the court entered a dispositional order confirming the adjudication
and continuing placement of the child with the paternal grandmother. The court
also adopted a case permanency plan outlining several requirements for both
parents to satisfy in order to have A.B. returned to their care. The plan provided
“both parents need to adequately address their mental health and substance
abuse concerns and demonstrate a period of sobriety as well as insight into how
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substance use affects their ability to parent.” The court-adopted plan also
specified the parents were to participate in individual therapy, substance-abuse
treatment, drug screening, and other family services.
The court held a permanency hearing in September, after which the court
granted the parents an additional six months to work toward reunification with
their child. The court required each parent to “participate fully in services[,] . . .
abstain from use of illegal substances,” and further required “[the] mother obtain
a new substance abuse evaluation and follow recommendations.” A sweat patch
drug screen was administered to the mother immediately following the
permanency hearing, which resulted in a positive test for methamphetamine.
The mother did not obtain a new substance-abuse evaluation until early January
2017—nearly four months later—because she was recovering from a medical
procedure.
The record shows the father continued to use methamphetamine
throughout the CINA case and only occasionally attended therapy appointments.
He tested positive for methamphetamine as recent as January 2017, just a week
before the combined permanency review and termination hearing began. The
mother testified she did not know about the father’s continued methamphetamine
use until he disclosed it at a family meeting in December 2016.
The court and DHS also expressed concerns throughout the case
regarding the parents’ struggles with mental-health issues. In fact, one of the
main factors contributing to the child’s removal was the mother’s attempted
suicide by prescription overdose while the child was in her care. At the
termination hearing, the father acknowledged his substance abuse directly
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related to his stress and depression. Both parents have participated in some
mental-health therapy, but neither has attended therapy consistently or fully
complied with the recommended services.
Furthermore, the mother and father’s ongoing relationship concerned the
juvenile court throughout the proceedings. In order to address its concern with
the parents’ relationship, the court’s permanency order included a requirement
that the mother “demonstrate the ability to be protective of the child regarding
[the] father’s contact with [the] child should she remain substance free and the
father does not.” On the last date of the termination hearing, the mother
informed the court for the first time that she and the father had ended their
relationship one week prior.
In December 2016, the State petitioned the court to terminate the parental
rights of the mother and the father pursuant to Iowa Code section 232.116(1)(h)
and (l). The court held a hearing on the petition in February 2017 and concluded
termination was proper under section 232.116(1)(h). The court found the State
had proved by clear and convincing evidence A.B. could not be returned to the
custody of either parent due to the parents’ continued use of illegal substances
and inability to exercise a reasonable degree of care with the child. The court
further found that returning A.B. to either the mother’s or the father’s custody
would subject the child to instability and uncertainty and that termination was in
A.B.’s best interests. Finally, the court found none of the exceptions under
section 232.116(3) applied to preclude termination in this case. Accordingly, the
juvenile court terminated the mother’s and the father’s parental rights.
The mother and father now separately appeal.
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II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re
M.W., 876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile
court’s findings of fact, but give them weight, especially in assessing the
credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). We may affirm the order on any statutory grounds supported by clear
and convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
“Evidence is considered clear and convincing ‘when there are no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.”’” In re M.W., 876 N.W.2d at 219 (alteration in original). Our primary
consideration is the best interests of the child. In re J.E., 723 N.W.2d 793, 798
(Iowa 2006).
III. Analysis
“Our review of termination of parental rights under Iowa Code chapter 232
is a three-step analysis.” In re M.W., 876 N.W.2d at 219. First we must
determine whether the State established the statutory grounds for termination by
clear and convincing evidence. See Iowa Code § 232.116(1); In re M.W., 876
N.W.2d at 219. Second, if the statutory grounds for termination are established,
we consider whether termination is in the child’s best interests under section
232.116(2). See In re M.W., 876 N.W.2d at 219–20. Finally, we consider
whether any exceptions under section 232.116(3) weigh against termination.
See id. at 220.
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A. Statutory Grounds
The juvenile court terminated the parents’ parental rights to A.B. under
Iowa Code section 232.116(1)(h). Under that section, the court may terminate
parental rights if the court finds the child (1) is three years old or younger; (2) has
been adjudicated CINA; (3) has been removed from the physical custody of the
parent for at least six of the last twelve months, or the last six consecutive
months and any trial period at home has been less than thirty days; and
(4) cannot be returned to the parent’s custody at the time of the termination
hearing. Iowa Code § 232.116(1)(h).
The parents do not contest the first three elements of section 232.116(h):
the child is under the age of three, has been adjudicated CINA, and has been
removed from the parents’ custody since February 2016. Instead, the mother
argues the State failed to meet its burden to show by clear and convincing
evidence A.B. could not be returned to her custody at the time of the hearing.
The father argues the same in support of the mother. Because the father does
not have standing to assert legal arguments on behalf of the mother in order to
prevent the termination of his parental rights, we proceed only with the mother’s
statutory arguments. See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007);
see also In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005) (holding one
parent cannot argue facts or legal positions for the other parent).
The mother asserts A.B. could have been returned to her physical custody
at the time of the hearing because she has engaged in daily parenting of the
child and planned to move in with the child’s paternal grandmother and care for
A.B. while continuing her mental-health and substance-abuse treatment
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programs. She maintains she has complied with her substance-abuse treatment
and has not used methamphetamine since February 2016, despite the positive
sweat test in September 2016. She further asserts she has broken off her
relationship with the father, a relationship the court had found concerning, given
his lack of progress and continued substance abuse.
We recognize the mother has made some progress. She has had almost
daily visits with the child under the supervision of DHS or the paternal
grandmother, and there were no concerns about the mother’s ability to parent the
child in this environment. However, the mother has not shown she is able to
parent the child independently and never progressed beyond supervised visits.
She failed to successfully complete substance-abuse treatment and tested
positive for methamphetamine after the court granted her an additional six
months to work toward reunification with her child. She then did not obtain a new
substance-abuse evaluation until one month before the termination hearing
began. The mother also failed to address her mental-health issues; she did not
consistently attend mental-health therapy and was hospitalized for stress in
September 2016. The mother did not end her relationship with the father until
after the termination hearing began, despite recognizing the relationship was a
barrier to reunification with her child. Furthermore, at the time of the hearing,
neither parent was able to provide for the child’s needs because they were
unemployed, did not have stable housing, and lacked reliable transportation.
“Children simply cannot wait for responsible parenting. Parenting . . .
must be constant, responsible, and reliable.” In re L.L., 459 N.W.2d 489, 495
(Iowa 1990); see also In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Time is a
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critical element. A parent cannot wait until the eve of termination, after the
statutory time periods for reunification have expired, to begin to express an
interest in parenting.”). Upon our de novo review, we find the record shows clear
and convincing evidence A.B. could not be returned to the mother’s physical
custody at the time of the termination hearing. Thus, we find clear and
convincing evidence supports terminating the mother’s and the father’s parental
rights under section 232.116(1)(h).
B. Best Interests
The mother next contends termination was not appropriate here because
it is not in A.B.’s best interests. She argues her plan to resume custody of the
child and live with the child’s paternal grandmother is the least restrictive means
to achieve the child’s best interests. The father does not raise a best-interests
argument; thus, he has waived this issue. See Iowa R. App. P. 6.903(2)(g)(3);
Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not speculate on
the arguments [appellant] might have made and then search for legal authority
and comb the record for facts to support such arguments.”).
“Once we have established that at least one ground for termination under
section 232.116(1) exists, the next step of our analysis is to evaluate whether the
termination of parental rights would be in the best interest of the child under
section 232.116(2).” In re M.W., 876 N.W.2d at 224. “[T]he court shall give
primary consideration to the child’s safety, to the best placement for furthering
the long-term nurturing of and growth of the child, and to the physical, mental,
and emotional condition and needs of the child.” Iowa Code § 232.116(2).
“Insight for the determination of the child’s long-range best interests can be
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gleaned from ‘evidence of the parent’s past performance for that performance
may be indicative of the quality of the future care that parent is capable of
providing.’” In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (quoting In re C.B., 611
N.W.2d at 495).
The record reflects the mother continued to struggle with substance abuse
throughout the underlying CINA proceedings. As noted above, the mother
participated in substance-abuse treatment but was discharged unsuccessfully.
She tested positive for methamphetamine in September 2016 but failed to take
responsibility for the positive test. Additionally, the mother has unresolved
mental-health issues. She attended some therapy but missed multiple sessions.
Furthermore, the mother and father did not break off their concerning relationship
until just one week before the conclusion of the termination hearing.
Although the mother appropriately cared for A.B. during her visits with the
child, she never progressed past supervised visits. “We do not ‘gamble with the
child[]’s future’ by asking [him or her] to continuously wait for a stable biological
parent, particularly at such [a] tender age[].” In re D.W., 791 N.W.2d at 707
(citation omitted). A.B. is doing well in the paternal grandmother’s care, where
she has been placed for over a year. It is in A.B.’s best interests to terminate the
parents’ parental rights.
C. Exceptions to Termination
“Once we have established that the termination of parental rights is in the
[child’s] best interests, the last step of our analysis is to determine whether any
exceptions in section 232.116(3) apply to preclude termination.” In re M.W., 876
N.W.2d at 225. Both parents argue the juvenile court should not have terminated
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their parental rights because they share a bond with their child. The mother also
argues termination was inappropriate because the child is placed with a relative.
Iowa Code section 232.116(3) provides:
The court need not terminate the relationship between the
parent and child if: . . . (a) A relative has legal custody of the child[;]
. . . [or] (c) There is clear and convincing evidence that the
termination would be detrimental to the child at the time due to the
closeness of the parent-child relationship.
The application of section 232.116(3) is permissive, not mandatory. In re A.M.,
843 N.W.2d at 113.
After our review of the entire record, we agree with the juvenile court that
the permissive factors in section 232.116(3) do not apply here. “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.” In re
P.L., 778 N.W.2d 33, 41 (Iowa 2010).
A.B. is very young and deserves permanency and stability. The record
reflects the parents cannot provide either. “An appropriate determination to
terminate a parent-child relationship is not to be countermanded by the ability
and willingness of a family relative to take the child.” In re C.K., 558 N.W.2d 170,
174 (Iowa 1997). Thus, even though the child is placed with a relative, we find
termination is in A.B.’s best interests. Similarly, the bond between A.B. and the
parents is limited and does not preclude termination in this case. Although A.B.
sees the parents often, A.B. does not know them as primary caregivers, and the
parents have not shown they can adequately provide for her care independently.
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IV. Conclusion
Upon our careful, de novo review of the record, we conclude the State met
its statutory burden for termination of the mother’s and the father’s parental rights
and termination is in A.B.’s best interests. We further find no permissive factors
weigh against termination in this case. Accordingly, we affirm.
AFFIRMED ON BOTH APPEALS.