IN THE COURT OF APPEALS OF IOWA
No. 18-0197
Filed April 18, 2018
IN THE INTEREST OF A.S., G.S., and T.R.,
Minor Children,
F.S., Father,
Appellant,
M.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gary K.
Anderson, District Associate Judge.
A mother and father separately appeal from the district court’s order
terminating their parental rights. AFFIRMED ON BOTH APPEALS.
Roberta J. Megel of State Public Defender Office, Council Bluffs, for
appellant father.
J. Joseph Narmi, Council Bluffs, for appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Anne M. Rohling, Council Bluffs, guardian ad litem for minor children.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
2
VOGEL, Presiding Judge.
The mother and father1 separately appeal from the district court’s order
terminating their parental rights to their child A.S. The mother also appeals from
the district court’s order terminating her parental rights to her children G.S. and
T.R. Both the mother and father contend the State offered insufficient proof to
terminate their parental rights under the Iowa Code, that termination was not in the
children’s best interests, and the State did not make reasonable efforts for
reunification. Because A.S.’s father’s failed to address his substance-abuse
issues and because the mother did not address her substance-abuse issues, the
children’s safety and development is served by terminating the parental rights of
both the mother and father, and there are no exceptions to preclude termination,
we affirm the district court’s termination of the parental rights of the mother and
father.
I. Background Facts and Proceedings
The family came to the attention of the Iowa Department of Human Services
(DHS) in March 2016 after A.S. was born and tested positive for the presence of
marijuana and amphetamines in his system. While still in the hospital, the mother
also tested positive for amphetamines and cannabinoids. The DHS learned the
mother had two additional children, G.S., born in 2012, and T.R., born in 2011,
who resided with their maternal grandfather. An April 8 child-protective
assessment for A.S. found abuse on the mother for the presence of illegal drugs
in the child. A.S. was placed with his maternal grandfather, and G.S. and T.R.
1
Unless otherwise noted, hereinafter “father” refers to the father of A.S.
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remained in the same home. The mother resided with and cared for the children
under the supervision of either the children’s grandfather or the mother’s brother,
who also lived in the home. On May 11, the mother tested positive for
amphetamine and methamphetamine, and she admitted to caring for the children
while under the influence of methamphetamine.
On June 10, A.S. was adjudicated a child in need of assistance (CINA)
pursuant to Iowa Code section 232.2(6)(c)(2), (n) and (o) (2016). On the same
day, G.S. and T.R. were adjudicated CINA pursuant to section 232.2(6)(c)(2) and
(n). Following the CINA adjudication, the mother unsuccessfully completed
inpatient treatment and was discharged from an outpatient treatment facility for
poor attendance. During this time, the children continued to live with their maternal
grandfather. In April 2017, the mother entered another inpatient treatment facility.
Beginning in May, all three children resided at the facility with the mother until her
successful discharge on July 19. The mother and all three children then moved
into an apartment until the mother again tested positive for methamphetamine; the
children were removed from her care on August 7 and placed with a foster family
where they remained during the termination hearing. The mother has not complied
with services following the children’s removal.
The father participated in family team meetings and visits but did not
participate in services related to his substance-abuse issues. At the termination
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hearing, the father admitted to using methamphetamine two weeks prior to the
hearing, and he admitted he is homeless and unemployed.2
The State petitioned to terminate the parental rights of the mother and father
on October 6, 2017. A contested hearing was held on November 27, 2017, after
which the district court terminated the mother’s parental rights to all three children
under Iowa Code section 232.116(1)(h), (i), and (l) (2017). The district court
terminated the father’s parental rights to A.S. under Iowa Code section
232.116(1)(b), (e), (h), (i), and (l). The district court also terminated G.S. and T.R.’s
father’s parental rights under Iowa Code section 232.116(1)(b), (e), (f), and (l).3
The mother and A.S.’s father appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo, giving
deference to the district court’s findings though we are not bound by them. In re
C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Father’s Appeal
The father asserts the State did not prove by clear and convincing evidence
his parental rights should be terminated under Iowa Code section 232.116(1)(b),
(e), (h), (i), and (l). When the juvenile court terminates parental rights on more
than one statutory ground, we only need to find grounds to terminate under one of
the paragraphs cited by the juvenile court to affirm. In re S.R., 600 N.W.2d 63, 64
(Iowa Ct. App. 1999). We turn to section 232.116(1)(h).
2
The DHS attempted to locate and contact the father of G.S. and T.R. without success.
As of the time of termination, the DHS has not receive a response to any notice sent to
the father, and he has not participated in any service available through the DHS.
3
The father of G.S. and T. R. does not appeal.
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Termination is warranted under paragraph (h) when:
The court finds that all of the following have occurred:
(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.
The first three elements are met and the father only asserts A.S. could be
returned to his care if he had more time to find housing and employment. As of
the date of the termination hearing the father had not attended services to treat his
substance-abuse issues. The November 27, 2017 DHS report indicates the father
failed to attend all thirty-eight drug screens offered to him during the course of
these proceedings. By the father’s admission, he used methamphetamine
approximately two weeks prior to the termination hearing and did not attend
counseling services for his substance-abuse issues. Further, the father has not
been able to maintain employment because of his substance-abuse issues
resulting in his continued homelessness. Due to the father’s failure to address his
substance-abuse issues and homelessness, we agree with the district court that
there is clear and convincing evidence the child could not be returned to the father
at the time of the termination hearing.
As to the father’s request for additional time, we have no confidence the
father’s situation would improve to the level required for the child to be safely
returned to his care. See Iowa Code § 232.104(2)(b). The father provided no
indication he placed the needs of A.S. over his own, as indicated by his continued
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drug use and unwillingness to seek treatment during the approximately twenty
months A.S. has been under the DHS’s supervision. We conclude additional time
would not be beneficial for A.S.; we agree with the district court.
The father also contends the State did not prove by clear and convincing
evidence termination of his parental rights was in the child’s best interest. See In
re P.L., 778 N.W.2d 33, 40–41 (Iowa 2010). In making a best-interest
determination, 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). A.S. has been safely cared for by his maternal grandfather and in his
current placement with his foster family. Through the pendency of this case, and
for much of A.S.’s life, the father has not addressed his substance-abuse issues,
therefore we agree with the district court it is in A.S.’s best interest to terminate the
father’s parental rights.
The father also contends he shares a strong bond with A.S. that should
preclude termination. See id. § 232.116(3)(c). Such a consideration is permissive
and not mandatory. See P.L., 778 N.W.2d at 39. A.S. has never resided with the
father, and their only contact has come during supervised visits. Due to A.S.’s
young age and early placement with his maternal grandfather and then his foster
family, we agree with the district court; any perceived bond should not preclude
termination.
Finally, the father argues DHS did not make reasonable efforts for his
reunification with his child. The State contends error was not preserved. To
preserve error, the father had an “obligation to demand other, different, or
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additional services prior to a permanency or termination hearing.” In re A.A.G.,
708 N.W.2d 85, 91 (Iowa Ct. App. 2005). The father has failed to state where in
the record he objected to the services offered or requested additional services; he
simply states, “The State failed to show reasonable efforts were provided to
Appellant to reunite him with his child.” Error has therefore not been preserved.
IV. Mother’s Appeal
The mother contends the State did not prove by clear and convincing
evidence her parental rights should be terminated under Iowa Code section
232.116(1)(h), (i), and (l). As with the father, we need only to find grounds to
terminate the mother’s parental rights under one of the paragraphs cited by the
juvenile court to affirm. See S.R., 600 N.W.2d at 64. We focus our review on
section 232.116(1)(l).
A parent’s rights may be terminated under paragraph (l) if the State proves
by clear and convincing evidence the children have been adjudicated CINA, the
parent has a severe and chronic substance-abuse disorder rendering her a danger
to herself or others, and the children cannot be returned within a reasonable time
due to the substance abuse problem. Iowa Code § 232.116(1)(l). We agree with
the district court; the actions of the mother indicate that the children cannot be
returned to her care due to her “severe, chronic substance abuse disorder.” Id.
The mother has successfully and unsuccessfully participated in many
inpatient and outpatient drug-treatment programs. During some of these
programs, the mother had care and custody of her children while she received
treatment. However, upon each discharge the mother relapsed and used
methamphetamine. Since the mother tested positive for methamphetamine in July
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2017, she has not cooperated with multiple drug testing requests from the DHS.
Additionally, the mother’s substance abuse creates a danger to her children. A.S.
was born with methamphetamine in his system, and the record indicates, and the
mother admits, she cared for the children while under the influence of
methamphetamine. On August 5, 2017, the mother got into a one-car accident
while transporting G.S. and T.R. to a service provider’s facility for a visit. The
service provider reported the mother smelled of alcohol and did not have a valid
driver’s license. The mother’s inability to refrain from using drugs and alcohol while
caring for her children presents a danger to their safety due to their young age and
inability to care for themselves.
In determining the future actions of the parent, her past conduct is
instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Given this ongoing
behavior, it is clear the children cannot be returned to the mother’s care or custody.
See Iowa Code § 232.116(1)(l). Consequently, we affirm the juvenile court’s order
terminating her parental rights.
The mother also asserts the State did not prove by clear and convincing
evidence termination of her parental rights was in her children’s best interest. See
P.L., 778 N.W.2d at 40–41. G.S. and T.R. were reported to have missed school,
and G.S. is reported to have autism, requiring additional care and attention. The
mother’s history of leaving all three children alone and caring for the children while
using methamphetamine does not further their long-term nurturing and growth.
The record illustrates the instability in these children’s lives, caused by moving
between the care of their maternal grandfather, then their mother, and then finally
a foster family. These children need permanency and do not need to wait for their
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mother to attend to her own substance-abuse issues. “Children simply cannot wait
for responsible parenting. Parenting cannot be turned off and on like a spigot. It
must be constant, responsible, and reliable.” In re T.J.O., 527 N.W.2d 417, 422
(Iowa 1994) (internal citations omitted).
The mother also contends she shares a strong bond with all three children.
See id. § 232.116(3)(c). This consideration is not mandatory. See P.L., 778
N.W.2d at 39. Although the children returned to their mother’s care while she
underwent treatment, A.S.’s young age and G.S. and T.R.’s improvement in the
foster home refutes the conclusion there is a strong parent-child bond that should
preclude termination. We agree with the district court; any perceived bond should
not preclude termination.
Finally, the mother asserts the DHS did not make reasonable efforts for
reunification with her children. The State asserts the mother failed to preserve
error on her argument because she did not raise the issue at any time during the
CINA proceeding. As with the father, the mother needed to demand other,
different, or additional services prior to a permanency or termination hearing.
A.A.G., 708 N.W.2d at 91. Though the mother asserts she made a request at the
August 31 permanency hearing, we note the district court’s order following the
hearing states, “The Court finds that reasonable efforts were made to avoid the
necessity of continued out-of-home placement and that return of the children to a
parental home would be contrary to the well-being of the children.” The
permanency order does not indicate the mother requested additional services and
the record lacks any other request. Error has therefore not been preserved.
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V. Conclusion
Because the father failed to address his substance-abuse issues and
homelessness, A.S.’s safety and development is best served by terminating the
father’s rights, and there are no barriers to termination, we affirm the district court’s
termination of the father’s parental rights. Additionally, because the mother did not
address her substance-abuse issues, the children’s safety and development is
served by terminating the mother’s parental rights, and there are no exceptions to
preclude termination, we affirm the district court’s termination of the mother’s
parental rights.
AFFIRMED ON BOTH APPEALS.