In re S.E. - Case Law

IN THE COURT OF APPEALS OF IOWA

No. 17-1678
Filed January 24, 2018

IN THE INTEREST OF S.E.,
Minor Child,

P.H., Father,
Appellant,

K.J., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Page County, Amy L. Zacharias,

District Associate Judge.

A mother and father each challenge a juvenile court order terminating their

parental rights to their four-year-old son. AFFIRMED ON BOTH APPEALS.

Sarah M. Hart of Reisinger Booth and Associates, P.C., L.L.O., Omaha,

Nebraska, for appellant father.

Justin R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for appellant

mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Vicki R. Danley, Sidney, guardian ad litem for minor child.

Considered by Vogel, P.J., and Tabor and Bower, JJ.
2

TABOR, Judge.

Parents, Philip and Kassandra, separately appeal the termination of their

parental rights in their now four-year-old son, S.E. The Iowa Department of Human

Services (DHS) took custody of S.E. based on Kassandra’s methamphetamine

use. On appeal, Kassandra challenges the juvenile court’s determinations S.E.

could not be returned to her care, she failed to maintain significant and meaningful

contact with S.E. and made no efforts to resume care for S.E., and termination was

in S.E.’s best interests. Kassandra also requests an additional six months to work

toward reunification. Philip challenges the juvenile court’s determinations S.E.

could not be placed with him, he failed to maintain significant and meaningful

contact with S.E. and made no efforts to resume care for S.E., and termination was

in S.E.’s best interests. Philip also argues S.E. was never removed from his care

because he was the noncustodial parent, and the State failed to make reasonable

efforts to support reunification.

After independently reviewing the record, we reach the same conclusion as

the juvenile court regarding the termination of parental rights.1

I. Facts and Prior Proceedings

S.E. and his half-siblings2 came to the attention of the DHS in October 2015

after a child protective worker found Kassandra failed to provide proper supervision

for the children. In May 2016, Kassandra tested positive for methamphetamine;

1
Our review is de novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We are not
bound by the juvenile court’s factual findings, but we give them weight, especially when
witness credibility is critical to the outcome. See id. Proof must be clear and convincing,
meaning there are no “serious or substantial doubts as to the correctness [of] conclusions
of law drawn from the evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
2
Philip is not the biological father of the other children.
3

S.E. was voluntarily placed with a family friend. Citing Kassandra’s continued drug

use, the State filed a petition alleging S.E. and his siblings were children in need

of assistance (CINA). In August 2016, S.E.’s placement could no longer care for

him, and he was formally removed from his parents’ custody through an ex parte

order and placed in foster care.

Because state officials could not locate Philip after a diligent search, they

served him notice of the CINA hearing via publication. In October 2016, Philip and

Kassandra appeared telephonically at the hearing where S.E. was adjudicated

CINA.3 The juvenile court advised both parents to seek mental-health and

chemical-dependency evaluations, follow their respective substance-abuse and

mental-health recommendations, submit to random drug screenings, actively

engage in Family Safety, Risk, and Permanency (FSRP) services, and participate

in visitation.

The parents did not follow that advice. Philip did not remain engaged with

services, did not remain in contact with his attorney, and did not file the necessary

paperwork to allow the attorney to be paid by the State. After obtaining Philip’s

updated contact information, an FSRP worker text messaged him the date and

time of an upcoming family team meeting. But Philip did not attend the meeting.

And Kassandra consistently either failed to complete requested drug screens or

tested positive for illegal substances.

Both parents appeared in person for the first time before the juvenile court

at a February 2017 review hearing. The court warned the parents to comply with

3
All three of Kassandra’s children were classified as children in need of assistance.
4

services or risk termination of parental rights. Philip appeared to initially take this

warning seriously. He moved in with his aunt to establish more stable housing and

he got a job. He also completed a chemical-dependency evaluation and was to

begin substance-abuse treatment in February. But Philip did not show up for

treatment and did not contact the facility. Eventually, Philip again attempted

inpatient treatment but left after just a week. For her part, Kassandra entered

inpatient substance-abuse treatment in March 2017 and completed a thirty-day

program. But while in treatment Kassandra did not finish assignments and became

upset when staff recommended additional treatment. Upon her discharge she

entered outpatient treatment despite recommendations she complete an additional

thirty-day inpatient program.

In May 2017, Kassandra moved into her paramour’s home and hoped to

have visitation with S.E. there. While her paramour completed an initial

background check, he failed to provide any explanation for his significant history

of criminal convictions and abuse reports. Both parents attended a May court

hearing and provided drug screens free from unprescribed substances. That same

month, the State filed its petition to terminate parental rights in S.E. Then both

parents began to miss random drug screens. Kassandra submitted one

subsequent drug screen on June 22, 2017 and tested positive for

methamphetamines, amphetamines, and THC.

The juvenile court held a termination-of-parental-rights hearing on

September 19, 2017. Both Kassandra and Philip were present but only Kassandra

testified. The juvenile court concluded Philip and Kassandra abandoned S.E.

under Iowa Code section 232.116(1)(e) (2017) and S.E. could not be returned to
5

either parents’ home under Iowa Code section 232.116(1)(h). The court also

concluded the State provided reasonable efforts supporting reunification and

termination of Philip and Kassandra’s rights is in S.E.’s best interests. Both

parents now appeal.

II. Analysis of the Parents’ Issues

A. Kassandra’s Claims

1. Ground for Termination

Kassandra challenges both grounds for termination cited by the juvenile

court. To affirm, we need to find facts to support just one of the grounds. In re

J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014). We focus our analysis on

paragraph (h).

Under that paragraph, the State must prove:

(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).

Kassandra only challenges the fourth element; she asserts S.E. could be

returned to her home at the present time. Kassandra argues had the DHS more

thoroughly investigated her current situation, it would have returned S.E. to her

care. She notes no worker visited her home to assess its condition and argues a

more extensive review of her live-in paramour would alleviate any concern the
6

DHS has about him being around S.E. But Kassandra ignores the acknowledged

fact that a DHS worker tried twice to visit the home.4 The inability of the DHS to

inspect Kassandra’s home lies at her feet. She and her paramour also failed to

provide the additional information requested by the DHS regarding his past.

Without a home inspection or further explanation of the paramour’s criminal

history, S.E. cannot be placed in the home. See In re A.R., No. 17-1459, 2017 WL

6517534, at *2 (Iowa Ct. App. Dec. 17, 2017) (noting mother’s decision to live with

a paramour with a criminal record); In re R.S., No. 17-0667, 2017 WL 3525313, at

*2 (Iowa Ct. App. Aug. 16, 2017) (explaining DHS could not complete necessary

home inspection because of the mother’s conduct).

Kassandra’s arguments reflect her inability to fully grasp the DHS’s

concerns regarding her parenting abilities. She fails to appreciate S.E. was

removed from her care due to her drug use and inability to show any significant

period of sobriety. Throughout the life of this case she has produced several

positive drug screenings and failed to complete several more. She has not

completed her outpatient therapy, though she opined she easily could but just has

a problem with “lack of follow through.”

We cannot be confident S.E. would be safe if returned to Kassandra’s care.

Beyond concerns about her ability to stay sober, her general conduct presents

concerns about her ability to provide adequate care for her son. On one occasion,

she left her three children on side of the road with an FSRP worker after the worker

4
Kassandra testified “She [Social worker Christina Williams] made an attempt to come
see the home twice, I believe. I was sick this last time that she made an appointment, but
it was not an appointment for a visit, but it was just to come see the home.”
7

experienced car troubles. Kassandra found herself a ride and left rather than trying

to assist her own children and the worker. Kassandra also has had difficulty

keeping a home with basic functions, such as running water and utilities. Given

these concerns, we conclude S.E. cannot be returned to Kassandra’s care at the

present time.

2. Best Interests

Kassandra also challenges the juvenile court’s finding that termination was

in S.E.’s best interests. She notes termination of her rights results in S.E.’s

separation from his half-siblings. If possible, we prefer to keep siblings together.

In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994). While we share her desire

to keep S.E. with his siblings, preserving Kassandra’s parental rights would not

reach the desired result. Both of S.E.’s siblings are out of Kassandra’s care, one

is with her father and the other is in foster care. Even if S.E. was returned to

Kassandra, he would not be reunited with his siblings. Looking at Kassandra’s

past performance as a guidepost, we conclude termination is in S.E.’s best

interests. See In re S.N., 500 N.W.2d 32, 34 (Iowa 1993).

3. Parental Bond

Kassandra also argues her strong bond with S.E. should preclude

termination. Iowa Code section 232.116(3)(c) permits a juvenile court to consider

a close parent-child relationship as a factor weighing against termination. But

bonding is a permissible factor and not the overriding consideration. In re Z.H.,

740 N.W.2d 648, 652 (Iowa Ct. App. 2007). While S.E. is clearly attached to

Kassandra, the record indicates he is also attached to his foster family even

exclaiming “I want my mom” in reference to his foster mother during a visitation.
8

Kassandra’s bond with S.E. does not overcome the case for termination of parental

rights here.

4. Additional Six Months

In the event we find grounds for termination, Kassandra asks us to grant

her an additional six months to work toward reunification. A placement extension

requires us to determine there will no longer be a reason for removal in six months.

See Iowa Code § 232.104(2)(b). Through the pendency of these proceedings

Kassandra was warned her inaction could lead to termination, yet her inaction

persisted. Given this track record, we have little reason to believe Kassandra could

address the DHS’s concerns within the next six months. Kassandra testified about

her long-standing problems with “follow through” at the termination hearing.

Accordingly, we decline to grant Kassandra an additional six months to work

toward reunification. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (noting

termination should not be delayed in the hopes that a parent may someday

become a suitable parent).

B. Philip’s Claims

1. Grounds for Termination

Philip also challenges both statutory grounds for termination cited by the

juvenile court. To affirm, we need to find facts to support just one of the grounds.

J.B.L., 844 N.W.2d at 704. We again focus on paragraph (h).

(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 § 232.16(1)(h).

Philip challenges the third and fourth elements. First, citing to In re C.F.-H.,

889 N.W.2d 201 (2016), Philip argues “removed from the physical custody” within

subparagraph (3) requires a change in physical custody rather than a lack of

physical custody. Because S.E. was removed from Kassandra’s physical care and

not his, Philip argues the State failed to satisfy subparagraph (3). We rejected this

argument in In re J.E., No. 17-1461, 2017 WL 6040009, at *2 (Iowa Ct. App. Dec.

6, 2017). We distinguished C.F.-H. by noting the child in that case was never

removed from either parent’s care. Id. But like the child in J.E., S.E. was removed

from his mother’s care and that removal was “sufficient to start the statutory

timelines counting toward termination as to either parent.” Id.

Philip next challenges subparagraph (4); he contends S.E could be returned

to his care at the time of termination. Philip argues his home was inspected by a

DHS worker, and he had a full-time job and stable support system. Philip argues

the State only presented the lack of information available to the DHS regarding

Philip as justification for refusing to place S.E. with him.

Philip turns a blind eye to evidence running counter to his argument. While

it is commendable that Philip eventually obtained housing with his aunt and found

stable employment, these were not the only drawbacks to Philip’s parenting. The

DHS also expressed concerns about Philip’s drug use and mental-health issues.

He was instructed to obtain chemical-dependency and mental-health evaluations,
10

follow recommendations made by healthcare providers, submit to drug screenings,

and participate in visitation. But Philip largely ignored these directives.

Eventually, Philip obtained a chemical-dependency evaluation in April 2017.

But he did not adequately address his substance-abuse issues. He left inpatient

care after one week and without any indication of a successful discharge. He only

provided one drug screen in May 2017 and failed to submit to four subsequent

drug screens. Philip’s mental health is also concerning. He attempted suicide in

September 2016 and has not submitted to a mental-health evaluation since then.

Additionally, he failed to participate in visitation, completing just two interactions

since August 2016. Given Philip’s failure to address the DHS’s concerns, we

conclude S.E. could not be returned to Philip’s care.

2. Reasonable Efforts

Throughout Philip’s argument he suggests the DHS failed to make

reasonable efforts toward reunification. See In re C.H., 652 N.W.2d 144, 147 (Iowa

2002) (noting DHS must make reasonable efforts to provide parents with services).

The measure of reasonable efforts varies depending on the circumstances of each

case. Id. (citing In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct. App. 1997)). On

appeal Philip claims he “constantly asked for visitation to be set up” through his

DHS social worker and the multiple FSRP workers. Philip provides no support for

that assertion. He did not testify or provide specific instances when he requested

visitation and was denied. The only evidence available regarding visitation

indicates Philip, not the DHS, rejected visitation attempts.

While the DHS workers’ testimony indicates minimal contact with Philip, the

CINA record shows attempts to engage Philip. In August 2016, a DHS worker
11

helped him fill out Medicaid and food stamp paperwork. But reports indicate when

the worker tried to contact Philip again, he was unresponsive. He later failed to

attend a scheduled visitation. A worker also tried emailing him to set up visitation

but Philip did not respond.

Even Philip’s attorney could not reach him and had to withdraw from the

case. When a worker was able to talk to Philip after Kassandra called him during

visitation, she got his updated contact information and told Philip about the next

family team meeting. But Philip did not attend. And when the worker tried to

confirm a date and time for visitation, Philip did not confirm. He was also

encouraged to set up visitations himself but did not. In February 2017, Philip was

warned his parental rights may be terminated if he continued to ignore the court’s

concerns. Yet he did not attend the permanency hearing the next month. Philip’s

lack of contact with S.E. is due to his own failings—not a lack of reasonable efforts

by the DHS.

3. Best Interests

Philip also alleges termination of his parental rights was not in S.E.’s best

interests. Like Kassandra, he expresses concern that S.E. may be separated from

his half-siblings. See T.J.O., 527 N.W.2d at 420 (preferring to keep siblings

together). Philip’s concern is valid but not relevant to his appeal. Philip is not the

father of S.E.’s half-siblings so termination of Philip’s rights will not directly impact

S.E.’s relationship with those children. And given Philip’s lack of interest and

involvement in S.E.’s life thus far, we conclude termination is in S.E.’s best

interests. See S.N., 500 N.W.2d at 34.
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4. Parental Bond

Finally, Philip cites S.E.’s close relationship with Kassandra as a basis for

avoiding termination of his parental rights. He also argues there was no evidence

showing a lack of emotional bonding between himself and S.E. Philip misinterprets

Iowa Code section 232.116(3)(c). This paragraph permits a court to consider an

unusually strong parental bond as a factor precluding termination. See Iowa Code

§ 232.116(3)(c); Z.H., 740 N.W.2d at 652. The provision does not require the State

to prove a lack of parental bond. In re N.S., No. 14-1375, 2014 WL 5253291, at

*3 (Iowa Ct. App. Oct. 15, 2014) (“There is no presumption of the parent-child bond,

nor does the State have to show a complete lack of parent-child bond.”).

Kassandra’s bond with S.E. is not relevant to termination of Philip’s parental rights.

Because there is no evidence of a strong parental bond between Philip and S.E.,

we do not find this permissible factor weighs against termination of Philip’s parental

rights.

III. Conclusion

After our de novo review, we conclude: (1) S.E. could not be returned to

Kassandra’s care without risk of harm; (2) termination of Kassandra’s rights is in

S.E.’s best interests; (3) Kassandra is unlikely to address her challenges within six

months; (4) S.E. could not be returned to Philip’s care without risk of harm; (5) the

DHS provided Philip with reasonable reunification efforts; and (6) termination of

Philip’s rights is in S.E.’s best interests.

AFFIRMED ON BOTH APPEALS.