IN THE COURT OF APPEALS OF IOWA
No. 18-0102
Filed March 21, 2018
IN THE INTEREST OF M.M., M.L., and M.L.,
Minor Children,
B.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A mother appeals the termination of her parental relationship with three
children. AFFIRMED.
Kelsey L. Knight of Carr & Wright, P.L.C., Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for
minor children.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
Ma.L., My.L, and M.M. were ages three years, two years, and two months
when removed from their mother’s care based on concerns about her substance
abuse. Nineteen months later, the juvenile court terminated the mother’s parental
relationship with the children, concluding the “upheaval and chaos” in their young
lives must “come to an end.” The mother appeals the order, contending the State
did not offer sufficient evidence for termination under Iowa Code section
232.116(1) (2017). She alternatively argues the court should have granted a six-
month extension of permanency. She also alleges termination was not in the best
interests of the children and would be harmful to them because of their close
relationship with her. See Iowa Code § 232.116(2), (3)(c).
After independently reviewing the record,1 we find clear and convincing
evidence the children could not be returned to their mother’s care at the time of the
termination hearing. We conclude the mother did not preserve error on her request
for additional time to work toward reunification. We also conclude the children’s
best interests are served by moving toward a stable, long-term living arrangement.
Accordingly, we affirm the juvenile court’s order.2
1
We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not bound
by the juvenile court’s factual findings, but we give them weight, especially when witness
credibility is at stake. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). The State must
offer clear and convincing proof, which means we see 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) (quoting In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).
2
Ma.L.’s father is deceased. The juvenile court terminated the parental rights of the
putative fathers of the other two children; those fathers are not parties to this appeal.
3
I. Facts and Prior Proceedings
In May 2016, the youngest child, M.M., tested positive at birth for
tetrahydrocannabinol , the active component of marijuana. The mother’s middle
child, My.L., also tested positive for illegal drugs when he was born in 2013. The
Iowa Department of Human Services (DHS) worried about the mother’s ongoing
substance abuse and the possibility that she committed the offense of operating
while intoxicated (OWI) while one of the children was in the car. When the mother
did not respond to DHS inquiries, the State filed a petition to adjudicate the children
in need of assistance (CINA). The juvenile court granted the CINA petition in July
2016. After the children were removed, their maternal grandmother stepped in to
care for them.
During the fall and winter of 2016, the mother spent nearly 120 days in jail
for her pending OWI charges. But by February 2017, she had “made significant
progress in stability in housing and mental health well-being,” according to the
juvenile court, though concerns surrounding her substance abuse and attendance
at visitations persisted. The next month, the mother’s progress came to a halt.
She did not attend scheduled visitations, and her probation officer informed the
DHS that she tested positive for methamphetamine, opiates, and cocaine. “Per
the probation officer, the mother admitted to using methamphetamine and
Percocet but denied use of cocaine.” As a result of this probation violation, a
warrant issued for her arrest. In May 2016, the juvenile court directed the State to
file a petition to terminate the mother’s parental rights. The court emphasized the
maternal grandmother was not to allow the mother contact with the children “unless
and until” the mother turned herself in on her outstanding warrant.
4
The juvenile court held a termination hearing in August 2017. The mother
was incarcerated but attended the hearing. She testified that after her release from
jail she would be going to inpatient treatment for several weeks. The mother had
not visited the children since February 2017, five months earlier, because she had
a probation warrant and did not want to go to jail. The mother expressed a desire
to open a guardianship for the children with her mother. The juvenile court did not
immediately terminate the mother’s rights. Instead, in a September 6, 2017 order,
the court ordered the DHS to take two steps: (1) have the case staffed by the
African American Case Review Team in October and (2) meet with the maternal
grandmother to review the differences between guardianship and termination of
parental rights. The court ordered the children to remain in the grandmother’s
care.
Three weeks later, the State filed a motion to modify the placement, alleging
the grandmother allowed the mother to have unsupervised contact with the
children, and the children were left in the mother’s care while she was under the
influence of heroin. The State also indicated the grandmother was facing criminal
charges for assault with a weapon. After the juvenile court filed a modification
order, the DHS placed the children in foster care. The mother did not request visits
with the children after they were removed from the grandmother’s care. The court
re-opened the termination record in early December 2017 and received additional
exhibits. The foster parents reported to the court that the oldest child, Ma.L., was
exhibiting concerning behaviors.
5
In January 2018, the juvenile court issued its order terminating the parental
relationship between the mother and her three children. The court cited Iowa Code
section 232.116(1), subparagraphs (b), (e), (f), and (h). The ruling noted:
DHS has staffed this case with the African American Case Review
Team in an effort to come up with culturally appropriate and equitable
permanency options for this family and for these children, and some
meaningful direction was given and is being taken seriously by DHS
per the December 2017 report.
The mother now appeals the termination order.
II. Analysis of Mother’s Claims
A. Statutory Basis for Termination
When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the order on any ground supported by clear and
convincing evidence. D.W., 791 N.W .2d at 707. In this case, we find clear and
convincing evidence to support termination under section 232.116(1)(f)3 for Ma.L.,
the oldest child, and section 232.116(1)(h)4 for My.L. and M.M., the younger
children.
3
The State must prove these four elements:
(1) The child is four years of age or older.
(2) The child has been adjudicated [CINA under] section 232.96.
(3) The child has been removed from the physical custody of the child’s
parents for at least twelve of the last eighteen months, or for the last twelve
consecutive months and any trial period at home has been less than thirty
days.
(4) There is clear and convincing evidence that at the present time the
child cannot be returned to the custody of the child’s parents as provided
in section 232.102.
Iowa Code § 232.116(1)(f).
4
The State must prove these four elements:
(1) The child is three years of age or younger.
(2) The child has been adjudicated [CINA under] 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
6
The mother challenges the fourth element of both (f) and (h)—whether the
children could have been returned to her custody “at the present time.” Under both
sections, “at the present time” means the time of the termination hearing. In re
A.M., 843 N.W.2d 100, 111 (Iowa 2014). The mother contends “she attended most
court hearings and was engaged throughout the case when she was not
incarcerated.” Her contention ignores the five months she did not attend visitation
with the children because of an outstanding warrant for her arrest and her refusal
to set up visits after DHS placed them with a foster family. Because of her ongoing
substance abuse and criminal difficulties the mother was not in a position to
resume care of the children at the time of the termination hearing. Termination
was proper under paragraphs (f) and (h).5
In her petition on appeal, the mother refers in passing to the possibility the
juvenile court “could have provided an additional period of rehabilitation (in the
form of a six-month extension of permanency) and if that had been granted, the
mother may have been in a position to resume care at that point in time.” The
mother did not ask to defer permanency under section 232.104(2)(b) at either
termination hearing. Accordingly, this argument is not properly before us. Cf. In
re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (finding issue of additional
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).
5
The juvenile court believed paragraph (h) did not apply to My.L. because he turned four
before the termination order issued. But because we look to the last day of the termination
hearing as the critical time, we affirm the State’s petition on that ground. See M.W., 876
N.W.2d at 221.
7
services had not been preserved for appellate review where parent did not make
demand in the juvenile court).
B. Best Interests
The mother next contends termination was not in the children’s best
interests under section 232.116(2). That provision focuses on the children’s
safety, as well as the best placement for furthering their long-term nurturing and
growth, and their physical, mental, and emotional condition and needs. See In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010). In applying the statutory best-interest
standard we cannot rule in a way that would deprive children of permanency by
hoping someday their parent will be able to offer proper care and a stable home.
Id. at 41. Here, the mother repeatedly exposed her children to illegal drugs and
was not able to attend to their needs on a regular basis. As the juvenile court
reasoned, the children’s best interests were served by moving “in the direction of
real and lasting permanency.”
C. Closeness of Relationship
Finally, the mother argues the juvenile court should have refrained from
severing her legal ties with the three children because termination would be
detrimental due to the closeness of the parent-child relationship. Iowa Code
§ 232.116(3)(c). The mother points to family safety, risk, and permanency reports
noting that when she had supervised visits with the children the interactions went
well, and the children looked forward to seeing her.
Whatever bond the mother had with her children was strained by the months
on end when she did not attend visits. After reviewing the record, we conclude the
closeness of the parent-child relationship is not cause for declining to go forward
8
with the termination. See D.W., 791 N.W.2d at 709 (explaining “our consideration
must center on whether the [children] will be disadvantaged by termination, and
whether the disadvantage overcomes [the parent’s] inability to provide for [the
children’s] developing needs”).
AFFIRMED.