IN THE COURT OF APPEALS OF IOWA
No. 17-0917
Filed September 13, 2017
IN THE INTEREST OF A.W.,
Minor Child,
J.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
The mother appeals from the order terminating her parental rights to her
child, A.W., born in March 2015. AFFIRMED.
Monica L. Cameron of Cameron Law Firm, P.C., Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
General, for appellee State.
Kimberly S. Ayotte of Youth Law Center, Des Moines, guardian ad litem
for minor child.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, Judge.
The mother appeals from the order terminating her parental rights to her
child, A.W., pursuant to Iowa Code Section 232.116(1)(g) and (h) (2017). The
mother claims: (1) the State failed to prove the statutory factors; (2) the court
erred in denying a six-month permanency extension; (3) termination is not in the
best interests of A.W.; (4) the mother’s bond with the child precludes termination;
(5) the juvenile court erred in denying the mother’s motion to continue; and (6)
the juvenile court erred in denying the mother’s request to appoint new counsel.
We affirm.
I. Background Facts and Proceedings.
In March 2015, A.W. came to the attention of the Iowa Department of
Human Services (DHS) upon a report the child was born with methamphetamine
in their system. On March 13, a removal order was issued, and A.W. was placed
with relatives.1 On March 23, the court held a removal hearing and the mother
stipulated to the continued removal of A.W. However, the court placed A.W. in
foster care, as the relatives refused to provide requested drug screenings. In its
removal order, the court found the mother had a history of substance abuse.
On April 20, A.W. was adjudicated as a child in need of assistance (CINA)
pursuant to Iowa Code section 232.2(6)(c)(2), (n), and (o) (2015). At the
adjudication hearing, the mother stated she had relapsed on alcohol and
methamphetamine since the removal hearing. The mother also reported she
1
The juvenile court also terminated A.W.’s father’s parental rights. The father is not a
party to this appeal.
3
was asked to leave her rehabilitation facility temporarily because a breathalyzer
test was positive for alcohol.
On May 22, the mother requested A.W.’s return to her custody in a
contested dispositional hearing. The juvenile court found the mother was
participating in rehabilitative services and making positive steps towards
recovery. The court stated, “The court does not want this finding to detract from
the mother’s recent progress and believes the child will be returned . . . if she
continues to comply with services and maintains sobriety.” The juvenile court,
however, confirmed out-of-home placement for A.W in its order, citing the
mother’s “substantial history of substance abuse issues” and recent alcohol and
methamphetamine relapses. On September 10, the court continued the
scheduled permanency hearing, stating a “hearing is not required and the mother
has continued to make progress and expanded visitation has started. All parties
are in agreement to schedule the hearing from permanency to a review hearing.”
On September 25, the State filed a motion to modify disposition requesting
A.W. be returned to the mother’s care. The State claimed, “[T]he mother has
addressed the safety concerns that led to the removal of the child from her care.
The mother has fully cooperated and participated in services. She is currently
residing at Hope Ministries.” On September 28, the court granted the State’s
motion and placed A.W. in the custody of the mother “so long as mother resides
at Hope Ministries.” The court also found the child could not be placed with the
father due to ongoing substance-abuse issues and unstable housing.
Custody of A.W. remained with the mother, and she transitioned from a
rehabilitative housing facility to independent housing. However, in August 2016,
4
the State received information from DHS that the mother tested positive for
methamphetamine.2 The State filed another motion to modify placement on
August 25 and recommended placement with A.W.’s prior foster family. In its
motion the State claimed, “DHS has received results for mother’s sweat patch
from August 10, 2016, that was positive for methamphetamine. There are
additional concerns regarding violations of the [no-contact order] between mother
and father when father became incarcerated at the Polk County Jail towards the
end of June 2016.” The court granted the State’s motion on August 25, and A.W.
was again placed in foster care.
A review hearing took place on September 22. The court adjusted its
findings on the mother’s rehabilitative progress as follows:
This matter was last reviewed early May of 2016, and at that time
mother had successfully completed the Hope Ministry residential
program and had obtained independent [housing] for herself and
the child. At the time, the Court was not made aware of any
concerns but reports received today indicate Hope Ministry had
reported in April that mother was not consistently attending
programing. At the time, mother was expected to be meeting
weekly for aftercare services. Mother only attended two times in
April, had one random contact in May with her treatment provider,
and one contact in June.
The mother also had troubling contact with the father. In June 2016, the police
were called on two occasions when the father violated the no-contact order
between himself and the mother. The juvenile court described the events:
In June of 2016, the police were called to mother’s residence on
two separate occasions due to father appearing and violating the
2
During the November 13 dispositional hearing the court became aware of an issue at
the mother’s residential rehabilitation facility. According to DHS reports, the mother was
asked to leave the facility with the child overnight due to attitude issues with the staff.
DHS was not notified until after the child and mother left the facility. The mother was
allowed to return to the facility, and the court ordered DHS to adopt a plan in the event
the mother was required to leave the facility again.
5
no contact order. The first incident occurred on June 5, 2016,
where father appeared at the apartment, kicked the door, called
mother demeaning names, and punched in the window. The child
was present in the home during this incident. Mother called the
police and father fled the scene. A second incident occurred on
June 17, 2016 . . . . Father appeared with a large kitchen knife in
hand and accused mother of being in a relationship with [another
man]. The man fled the home fearing for his safety and called the
police. It is unclear where the child was during this incident. Father
was arrested on June 20, 2016, [and is] currently in jail on charges
related to these incidents. . . . On June 28, 2016, there was a
phone call between the parents while Father was in jail. . . . During
this call, Mother puts the child on the phone to speak with Father.
The parents have another phone call the next day and fight
throughout the call. Father is repeatedly verbally abusive to Mother
but remains on the phone anyway. . . . The child is also present
during this call.
The court also found the mother relapsed on methamphetamine in August 2016
when she and A.W. tested positive for methamphetamine. The court ordered
A.W. to remain in out-of-home placement, and a permanency hearing was set for
January 5, 2017.
On November 18, the mother was arrested on a drug-related charge.3
The mother remained in jail until her release in January 2017. Following a
contested permanency hearing, the juvenile court found the mother stopped
engaging in substance-abuse treatment after her August 2016 relapse when she
disagreed with the findings of her substance-abuse evaluation. The court
ordered the child remain in out-of-home placement and set a termination hearing
for March 2017.
At the termination hearing, the mother’s attorney requested a continuance,
claiming she misunderstood the hearing order and inaccurately informed the
mother the termination hearing was cancelled. The mother eventually showed
3
The criminal charges were unresolved at the time of the termination hearing.
6
up, and the juvenile court denied the mother’s motion to continue. At the
mother’s request, the mother’s attorney also made a motion to withdraw. The
court denied the motion, stating another delay in the two-year proceeding was
not in A.W.’s best interest and current court-appointed counsel had the
necessary knowledge of a lengthy case to provide adequate representation.
At the termination trial, the mother testified she is engaged in several
services at a residential treatment facility. She stated she is focused on
recovering from addiction for herself and A.W. and she can effectively parent
A.W. during recovery. Although the mother is currently unemployed, she testified
she can provide for A.W.’s physical and emotional needs. She testified that she
is not going to engage in a relationship with violent people who have caused her
harm in the past. She also asked the court for a six-month permanency
extension in the event A.W. could not be returned to her care at the time of the
termination trial.
A.W.’s guardian ad litem (GAL) also testified at the termination trial. The
GAL stated termination of the mother’s rights is in the best interests of A.W.
based on the mother’s substance abuse history and the child’s success with their
foster family.
On May 31, the juvenile court issued an order terminating the mother’s
rights to A.W. pursuant to Iowa Code Section 232.116(1)(h) and (g). The juvenile
court held, “Despite the services offered, [the mother] has [not] corrected the
situation that lead to the removal and subsequent adjudication [of A.W.]. As a
result the child cannot be returned to the custody of [the mother] . . . due to [the
mother’s] unresolved domestic violence and substance abuse issues.”
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The mother appealed.
II. Standard of Review.
We conduct a de novo review of proceedings terminating parental rights.
In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental
rights will be upheld 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 “clear and convincing” when there are no serious or
substantial doubts as to the correctness of conclusions drawn from it. Id. We
give weight to the factual determinations of the juvenile court, particularly
regarding the credibility of witnesses, although we are not bound by them. Id.
The primary consideration of our review is the best interests of the child. In re
J.E., 723 N.W.2d 793, 798 (Iowa 2006).
“We review a motion for continuance under an abuse of discretion
standard and will only reverse if injustice will result to the party desiring the
continuance.” In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996).
Our review of the district court’s denial of counsel’s motion to withdraw is
for an abuse of discretion. See State v. Brooks, 540 N.W.2d 270, 272 (Iowa
1995). We find an abuse of discretion only upon a showing the court exercised
its discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable. State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997).
III. Discussion.
The mother argues the statutory grounds for termination were not met, a
six-month permanency extension should have been granted, and termination is
8
not in the best interests of A.W. The State argues termination is appropriate due
to the mother’s unresolved substance-abuse and domestic-violence issues.
a. Statutory Grounds.4
We review termination orders using the following three-step analysis:
The first step is to determine whether any ground for termination
under section 232.116(1) has been established. If we find that a
ground for termination has been established, then we determine
whether the best-interest framework as laid out in section
232.116(2) supports the termination of parental rights. Finally, if we
do find that the statutory best-interest framework supports the
termination of parental rights, we consider whether any [permissive
factors] in section 232.116(3) apply to preclude termination of
parental rights.
In re M.W., 876 N.W.2d 212, 219–20 (Iowa 2016).
The mother claims the court erred in finding her parental rights should be
terminated under Iowa Code section 232.116(1)(h)5 because the child could have
been returned to her at the time of termination. The mother argues she has
developed a strong bond with A.W., and she resided in a stable rehabilitation
facility that meets all of A.W.’s needs. The State argues termination is
4
“When the juvenile court terminates parental rights on more than one statutory ground,
we need only find grounds to terminate under one of the sections cited by the juvenile
court to affirm.” In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
5
The relevant portion of the code permits the court to terminate parental rights if it finds
all of the following:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(3) The child has been removed from the physical custody of the
child’s parents for at least six months of the last twelve months, or for the
last six consecutive months and any trial period at home has been less
than thirty days.
(4) There is clear and convincing evidence that the child cannot be
returned to the custody of the child’s parents as provided in section
232.102 at the present time.
Iowa Code § 232.116(1)(h)(1)–(4).
9
appropriate because A.W. could not be returned to the mother’s care based on
the mother’s historical substance-abuse issues. We agree with the State.
It is undisputed that the first three elements of the statute are satisfied. At
the time of the termination hearing, A.W. was approximately two years old. The
juvenile court adjudicated A.W. as CINA in April 2015. In March 2015, the State
removed the child. A.W. was returned to the mother’s care, but A.W. was
removed again on August 25, 2016. The child has not returned to the mother’s
care since the August removal, and the termination trial took place on March 14,
2017. The remaining issue is whether A.W. could have been returned to the
mother at the time of termination.
There is clear and convincing evidence A.W. could not be returned to the
mother’s custody at the time of the termination hearing. The mother has
struggled with methamphetamine addiction, and A.W. has felt the harm of the
mother’s addiction since A.W. tested positive for methamphetamine at birth.
A.W. also tested positive for methamphetamine when the mother relapsed in
August 2016. A.W. was exposed to domestic violence while the child was in the
mother’s care. See In re C.C., 538 N.W.2d 664, 667 (Iowa Ct. App. 1995)
(upholding termination where mother’s continuation of an abusive relationship
potentially exposed the children to danger). The mother’s inability to maintain
sobriety while A.W. is in her care after completing treatment supports the district
court’s finding that placement with the mother is not in A.W.’s best interests. See
In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (“Insight for the determination of the
child’s long-range best interests can be gleaned from ‘evidence of the parent’s
past performance for that performance may be indicative of the quality of the
10
future care that parent is capable of providing.’” (citation omitted)); In re L.L., 459
N.W.2d 489, 495 (Iowa 1990) (“Children simply cannot wait for responsible
parenting. Parenting . . . must be constant, responsible, and reliable.”). We
agree with the district court that A.W. could not be returned to the mother’s care
at the time of the termination hearing.
The mother next claims the court improperly denied her request for a six-
month permanency extension. The mother argues she has made significant
progress in addressing the concerns that led to removal.
The juvenile court may grant an extension 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.” Iowa Code § 232.104(2)(b). The mother’s history
in treatment does not support a finding that the need for removal will no longer
exist at the end of a six-month extension. Although the mother was successfully
discharged from a residential treatment facility, she relapsed shortly thereafter,
exposing A.W. to domestic violence and methamphetamine. While we commend
the mother’s efforts for continuing treatment, last-minute efforts in this case are
insufficient to demonstrate a need for reunification. See In re C.B., 611 N.W.2d
489, 495 (Iowa 2000) (“Time is a 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.”). At some point, the court’s
patience with the mother must succumb to the child’s wellbeing. In re C.K., 558
N.W.2d 170, 175 (Iowa 1997). Based on the above, we cannot conclude the
need for removal will cease to exist at the end of a six-month extension.
b. Best Interests.
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The mother next argues that termination is not in the best interests of the
child, in part, because of the strong bong she developed with A.W. Even when
the above statutory grounds are satisfied, the juvenile court must give “primary
consideration to the child’s safety, to the best placement for furthering the long-
term nurturing and growth of the child, and to the physical, mental, and emotional
condition and needs of the child.” Iowa Code § 232.116(2).
There is little evidence that retaining the mother’s parental rights is in the
best interests of A.W. Despite the positive interactions between the mother and
A.W. during visitations, the mother’s methamphetamine use illustrates the
mother’s willingness to put her own perceived needs before that of her child’s.
The child’s positive tests for methamphetamine at birth and in August 2016
reveal the extent of harm to the child.
It is also difficult to tell from the record whether the mother can provide a
stable home for A.W. At the time of the termination trial, she was participating in
a residential treatment facility. However, the mother relapsed shortly after
completion of the same residential treatment program in 2015, and the mother
refused to reengage in treatment after her August 2016 relapse. See A.B., 815
N.W.2d at 778. Permanency and stability are essential elements of A.W. needs.
See J.E., 726 N.W.2d at 802 (Cady, J., concurring specially). It is in the best
interests of the child’s safety, long-term physical and mental growth, and
emotional needs to terminate the mother’s parental rights.
c. Permissive Factors.
The mother argues the juvenile court should not have terminated her
parental rights because the mother developed a strong bond with the child. Iowa
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Code section 232.116(3) allows the court to decline termination if termination
“would be detrimental to the child at the time due to the closeness of the parent-
child relationship.” Id. § 232.116(3)(c). The statutory factors are permissive, not
mandatory. In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011). “The court
has 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.” Id.
Here, the closeness of the parent-child relationship does not override the
need for termination. A.W. was removed at birth. At the time of the termination
proceedings, A.W. was approximately two years old. Additionally, A.W.
experienced success with the current foster family. The mother’s substance-
abuse issues, as outlined above, outweigh any bond that exists between A.W.
and the mother. The child has yet to experience permanency in its lifetime, and
A.W. deserves a stable environment at such a young age. See J.E., 726 N.W.2d
at 802 (Cady, J., concurring specially). We affirm the juvenile court’s termination
of the mother’s parental rights.
d. Motion to Continue and Motion to Withdraw.
The mother argues the juvenile court erred in denying her motion for
continuance. She claims it is an injustice to deny the continuance since the
mother is defending a constitutional right. “Denial of a motion to continue must
be unreasonable under the circumstances before we will reverse.” C.W., 554
N.W.2d at 281.
The hearing was scheduled for March 14, 2017. The mother asked for a
continuance on the day of the termination trial due to the alleged
13
miscommunication about the hearing date. However, the mother moved her
criminal hearing on the same date in order to accommodate the termination
hearing, which confirms her understanding of the hearing date. The mother’s
rights were not affected by the denial of the continuance because she was
present at the hearing and represented by counsel. See In re J.S., 470 N.W.2d
48, 52 (Iowa Ct. App. 1991) (“Where a parent receives notice of the petition and
hearing, is represented by counsel, counsel is present at the termination hearing,
and the parent has an opportunity to present testimony by deposition, we cannot
say the parent has been deprived of fundamental fairness.”). Moreover, the
hearing was scheduled two years after the child was removed, and the child was
exposed to methamphetamine twice during the proceedings. “A sense of
urgency exists in termination cases due to the importance of stability in a child’s
life. Due to this urgency, the trial court is not obligated to grant a parent’s motion
for continuance because ‘children simply cannot wait for responsible parenting.’”
C.W., 554 N.W.2d at 281 (quoting L.L., 459 N.W.2d at 495). We see no injustice
in the juvenile court’s denial.
The mother also claims the juvenile court erred in denying the mother’s
request for new counsel. She argues the court should have consulted with the
mother to determine if there was sufficient cause to grant her request for new
counsel. A.W. was removed two years before the trial. The mother’s counsel
had extensive knowledge of lengthy proceedings. Appointing a new attorney
minutes before the termination hearing would delay the proceedings and cause
more hardship for A.W. See In re M.B., No. 09-0409, 2009 WL 1913699, at *2
(Iowa Ct. App. July 2, 2009) (affirming the juvenile court’s denial of the mother’s
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motion to continue one week before the termination hearing where “appointing
new counsel would cause extensive delays in a case already four and a half
years old”); In re Z.E.P., No. 03-0616, 2003 WL 21459565, at *2 (Iowa Ct. App.
June 25, 2003). The court did not abuse its discretion in denying the mother’s
request to appoint a new attorney on the hearing date.
IV. Conclusion.
Termination of the mother’s parental rights to A.W. under Iowa Code
section 232.116(1)(h) is supported by clear and convincing evidence and is in the
child’s best interest because A.W. could not be returned to the mother’s home at
the time of termination. The conditions that led to removal would not be resolved
if the juvenile court granted a six-month permanency extension. Termination is
also in A.W.’s best interests because the child was exposed to domestic abuse
and methamphetamine while in the mother’s care. We also agree with the
juvenile court that termination is not precluded by the permissive factors. Finally,
the court did not err denying the mother’s motion to continue and motion to
appoint new counsel.
AFFIRMED.