IN THE COURT OF APPEALS OF IOWA
No. 17-1771
Filed January 24, 2018
IN THE INTEREST OF M.M. and M.M.,
Minor Children,
J.M., Father,
Appellant,
J.H., Mother,
Appellant.
Appeal from the Iowa District Court for Dubuque County, Thomas J.
Straka, Associate Juvenile Judge.
A mother and father separately appeal a juvenile court order terminating
their parental rights. AFFIRMED ON BOTH APPEALS.
Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant
father.
Sharon D. Hallstoos of Hallstoos Law Office, L.L.C., Dubuque, for
appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Sandra P. Trevino of Jensen & Trevino, P.C., East Dubuque, Illinois,
guardian ad litem for minor children.
Considered by Danilson, C.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
A mother and father separately appeal a juvenile court order terminating
their parental rights to their two children, born in May 2014 and June 2015. The
father contends his bond with the children should have precluded termination. 1
The mother avers the juvenile court erred in (1) finding clear and convincing
evidence established the statutory grounds for termination, (2) concluding
termination was in the children’s best interests, and (3) declining to grant her
additional time to work towards reunification.
I. Background Facts and Proceedings
The parents came to the attention of the Iowa Department of Human
Services (DHS) in May 2014 when their daughter was born and tested positive
for methamphetamine (meth) and amphetamines. In October, following ongoing
issues concerning the mother’s substance abuse, a removal order was obtained,
and the daughter was adjudicated a child in need of assistance (CINA). In April
2015, the State petitioned for termination of both parents’ parental rights with
respect to their daughter. In June, the juvenile court found the State sufficiently
established the grounds for termination of both parents’ parental rights to the
daughter, but the court ultimately granted the mother’s request for an extension
1
The father also states he “does not entirely agree with all of the conclusions of the”
juvenile court regarding the statutory grounds for termination. Because he provides no
supportive facts, argument, or analysis on this passive assignment of error, we consider
any challenge to the statutory grounds for the termination of his parental rights waived.
See Iowa R. App. P. 6.903(2)(g)(3); see also In re C.B., 611 N.W.2d 489, 492 (Iowa
2000) (“A broad, all encompassing argument is insufficient to identify error in cases of de
novo review.”); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not
speculate on the arguments [a party] might have made and then search for legal
authority and comb the record for facts to support such arguments.”); Ingraham v.
Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this
case would require us to assume a partisan role and undertake the appellant’s research
and advocacy. This role is one we refuse to assume.”).
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of time to work towards reunification and continued the termination proceedings. 2
The daughter was eventually returned to the mother’s custody, and the case was
closed in March 2016.
In June 2016, only a few months after the first case was closed, DHS
received allegations that the mother was using meth in the children’s presence.
Drug tests were performed on the children and parents; the children and father
tested positive for meth, but the mother tested negative. The father advised DHS
that the mother did something to her hair in order to manipulate the outcome of
her test. Voluntary services were provided to the family, and a safety plan was
put in place that required the father to move out of the family home and
disallowed him from having unsupervised contact with the children. However,
the father continued to reside in the home.
Further allegations of drug use on the mother’s part surfaced in March
2017. Following those allegations, the mother and both children tested positive
for meth. The State filed CINA petitions as to both children and applied for
removal. On March 23, the juvenile court ordered the children be removed from
the parents’ care after which DHS placed the children in foster care. In May, the
children were adjudicated CINA. Both parents relapsed in the same month.
Throughout the CINA case, the mother frequently missed her scheduled drug-
test appointments. Since her initial involvement with DHS, the mother frequently
denied she used meth. She later admitted to using the substance on a number
of occasions.
2
The parents’ son was born just a few days before the juvenile court granted the mother
an extension. The mother admitted at the termination hearing in this matter that she
used meth while she was pregnant with her son.
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In September, as a result of the parents’ inability to maintain sobriety, lack
of honesty with DHS, and inability to properly care for the children, the State
petitioned for the termination of their parental rights. Just two days before the
termination hearing in October, the mother was cited for possession of drug
paraphernalia. The court ultimately terminated both parents’ parental rights as to
both children pursuant to Iowa Code section 232.116(1)(h) and (l) (2017). Both
parents appeal.
II. Standard of Review
We review termination-of-parental-rights (TPR) 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 we do give them weight, especially in assessing the
credibility of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). Our primary consideration is the best interests of the children. In re J.E.,
723 N.W.2d 793, 798 (Iowa 2006).
III. Analysis
A. Grounds for Termination
The mother contends the statutory grounds for termination were not
proven by clear and convincing evidence. “On appeal, we may affirm the juvenile
court’s termination order on any ground that we find supported by clear and
convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). The
juvenile court terminated the mother’s parental rights pursuant to Iowa Code
section 232.116(1)(h) and (l). As to the former provision, the mother only argues
“the State failed to prove that the children could not be safely returned to [her]
care” at the time of the termination hearing. See Iowa Code § 232.116(1)(h)(4);
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A.M., 843 N.W.2d at 111 (indicating the statutory language “at the present time”
refers to the termination hearing).
The State presented evidence regarding the mother’s substance-abuse
history, which included multiple relapses. Of particular concern to this court is
the mother’s meth use that occurred around the time the juvenile court granted
her an extension in the prior TPR case and the relapse occurring only a few
months after the closure of the prior CINA and TPR cases. A pattern is evident—
the mother is able to control (or conceal) her drug use when her parental rights
are in jeopardy, but as soon as she emerges from the legal trenches with her
parental rights intact, she recommences her drug use. We are not convinced by
the mother’s self-serving testimony at the termination hearing that she has
remained clean for several months and the children can therefore be returned to
her care. Only time will tell if the mother will be able to overcome her drug habits
and be a suitable parent. With this mother’s relapse history in mind, she needs
to do much more than stay clean for a few months while merely going through
the motions in order for her children to be returned to her. See In re A.B., 815
N.W.2d 764, 778 (Iowa 2012) (noting a parent’s past conduct is instructive in
determining the parent’s future behavior); In re C.K., 558 N.W.2d 170, 172 (Iowa
1997) (stating that when considering what the future holds if a child is returned to
the parent, we must look to the parent’s past behavior because it may be
indicative of the quality of care the parent is capable of providing in the future);
see also M.W., 876 N.W.2d at 224 (indicating a parent must do more than simply
go through the motions and check things off on her to do list).
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Upon our de novo review, we find the evidence clear and convincing that
at the time of the termination hearing the mother was in no position to have these
children returned to her care. We therefore affirm the juvenile court’s termination
of the mother’s parental rights under Iowa Code section 232.116(1)(h).
B. Best Interests and Statutory Exceptions to Termination
The mother contends termination was not in the children’s best interests.
In support of her argument, the mother points to her “special bond” with the
children, the children’s bond with extended family members, and the potential for
emotional trauma to the children if those bonds are severed. The father similarly
argues, pursuant to Iowa Code section 232.116(3)(c), his bond with the children
should have served as an exception to termination.
“In considering whether to terminate the rights of a parent . . . [we] 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).
Regarding exceptions to termination, “[t]he court need not terminate the
relationship between the parent and child if . . . the 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 application of the statutory exceptions to
termination is “permissive not mandatory.” M.W., 876 N.W.2d at 225 (quoting
A.M., 843 N.W.2d at 113).
It is undisputed that both parents share a strong bond with the children
and that the severance of those bonds will be difficult for the children.
Problematic, however, is the parents’ chosen course of conduct since DHS
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initially became involved in these children’s lives. These parents have been
given opportunity after opportunity to put their children first and obtain and
maintain sobriety. The parents have exhibited varying and inconsistent degrees
of progress throughout the first and second sets of CINA and TPR proceedings,
but every instance of progress has consistently been followed by relapse. “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.” A.B., 815 N.W.2d at 777 (quoting In re P.L., 778 N.W.2d 33, 41 (Iowa
2010)). “[A]t some point, the rights and needs of the children rise above the
rights and needs of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App.
2009).
These children need stability and permanency. Their best interests are
not served by giving these parents yet another chance at permanent sobriety, as
it would require the children to remain in a CINA limbo, which both children have
already been in for most of their lives. “We hold no crystal ball, and to some
extent, the [best-interests] determination must be made upon past conduct.” In
re M.M., No. 16-1685, 2016 WL 7395788, at *4 (Iowa Ct. App. Dec. 21, 2016).
Based on the parents’ past conduct and inability to consistently put their children
before their substance-abuse habits, we conclude termination of the parents’
parental rights is in the children’s best interests. We also note the record reveals
the children are assimilating well into their new foster-to-adopt home. Contrary to
what the parents have been able to provide for the children, adoption will give
these children a chance at stability and permanency, which is in their best
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interests. Cf. M.W., 876 N.W.2d at 224–25 (concluding termination was in best
interests of children where children were well-adjusted to home with their
caregivers, the caregivers were “able to provide for their physical, emotional, and
financial needs,” and the caregivers were prepared to adopt the children).
We agree with the juvenile court that termination is in the children’s best
interests and the application of statutory exceptions to termination should not be
applied in this case.
C. Extension
Finally, the mother contends the juvenile court erred in declining to grant
her additional time to work towards reunification. She believes if she was
provided additional time, it is likely the children could have been returned to her
care within two to three months from the time of the termination hearing.
If, following a termination hearing, the court does not terminate parental
rights but finds there is clear and convincing evidence that the child is a CINA,
the court may enter an order in accordance with section 232.104(2)(b). Iowa
Code § 232.117(5). Section 232.104(2)(b) affords the juvenile court the option to
continue placement of a child for an additional six months if the court finds “the
need for removal . . . will no longer exist at the end of the additional six-month
period.” The juvenile court was unable to make such a finding. The court stated:
The parents’ past behavior indicates that a[n] extension of time will
not resolve the adjudicatory harms to the extent the children could
be returned to their care. The parents have already had three
years of services to address the same exact issues. A prior case
went to a termination and, at that time, an extension was granted
and the case was closed. However, just two-and-a-half months
later the same issues again appeared. Mother has done absolutely
nothing in the present case to convince the Court the children could
be returned to her care with another extension.
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Upon our de novo review, we are also unable to make a finding that the need for
removal would no longer exist after the mother’s requested extension.
Therefore, we affirm the juvenile court’s denial of the mother’s request for an
extension of time to work towards reunification.
We affirm the termination of both parents’ parental rights as to their
children.
AFFIRMED ON BOTH APPEALS.
In re M.M. & M.M.
Combined Opinion