IN THE COURT OF APPEALS OF IOWA
No. 18-0202
Filed May 2, 2018
IN THE INTEREST OF T.K. and D.K.,
Minor Children,
S.D., Mother,
Appellant,
J.K., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother and father separately appeal from the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant
mother.
Jeremy L. Merrill of Lubinus Law Firm, P.L.L.C., Des Moines, for appellant
father.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
ConGarry D. Williams of Juvenile Public Defender, Des Moines, guardian
ad litem for minor children.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.
A mother and father separately appeal from the termination of their parental
rights to their children pursuant to Iowa Code section 232.116(1)(f) and (l) (2017).
Both parents challenge the grounds for termination, contend termination is not in
the children’s best interests, and assert exceptions apply to preclude the need for
termination. Because the parents have not taken significant steps to reengage in
substance-abuse treatment or to address the domestic-violence concerns in their
relationship, we affirm the termination of their parental rights to their children.
I. Background Facts & Proceedings.
The parents have two children: T.K., age 11, and D.K., age five. The
department of human services (DHS) became involved with this family due to
concerns regarding domestic violence and marijuana use by the parents. The
children were removed on November 4, 2016, after the parents both tested positive
for methamphetamine. The children were placed in the temporary legal custody
of their maternal grandmother under DHS supervision.
Following the removal of the children from their care, the parents
participated in substance-abuse treatment and both achieved and maintained
sobriety for approximately seven months. A transition plan was put into place
anticipating return of the children to the parents’ care in May of 2017. However,
near the same time the children were being placed back into the parents’ full-time
care, the mother tested positive for marijuana. DHS reverted the parents back to
semi-supervised visits.
After the children were not returned to their full-time care as planned, the
mother and father both struggled with relapse. At the time of the termination
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hearing on January 18, 2018, the mother reported she had used
methamphetamine within the past week, and the father stated he was actively
using methamphetamine “[w]hen it [was] available.” Both parents were
unemployed and still living together despite the acknowledged domestic-violence
concerns present when they are using illegal substances. The mother stated that,
following her relapse, she had attempted at least twice to begin inpatient
substance-abuse-treatment programs, only to leave after about an hour each time.
The mother stated she was now on a wait list for a different program. The mother
also acknowledged she had not been consistent with her mental-health treatment.
The father stated he had a bed at an inpatient substance-abuse treatment program
lined up for the following day but had not yet taken steps to address his continuing
substance-abuse issues.
The court determined termination of the parents’ parental rights was
appropriate under section 232.116(1)(f) and (l). With respect to subsection (f), the
court held,
[N]either parent is in any better position to have the children in her or
his care today than when the children were first removed from their
care. In many respects, the parents are in a worse position now than
when the children were removed over [fourteen] months ago. Both
are actively using methamphetamine. Neither has been in treatment
for several months. Neither [is] addressing their ongoing episodes
of domestic violence. [The mother] is not addressing her mental
health.
The parents appeal.
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II. Standard of Review and Analysis.
On our de novo review, In re M.W., 876 N.W.2d 212, 219 (Iowa 2016), we
agree there are grounds for termination pursuant to section 232.116(1)(f) and
termination is in the children’s best interests. Because we find there are grounds
for termination under section 232.116(1)(f), we need not address whether grounds
also exist under subsection (l). See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012)
(“When the juvenile court terminates parental rights on more than one statutory
ground, we may affirm the juvenile court’s order on any ground we find supported
by the record.”).
A. Grounds for Termination.
Section 232.116(1)(f) provides a court may order the termination of parental
rights where “[t]he child is four years of age or older,” “has been adjudicated a child
in need of assistance” (CINA), “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,”
and “[t]here is clear and convincing evidence that at the present time the child
cannot be returned to the custody of the child’s parents.” At the time of the
termination hearing T.K. and D.K. were both over the age of four and were
adjudicated CINA.
The mother contends grounds have not been established under section
232.116(1)(f) because there was a trial period with the children at home lasting
greater than thirty days. At the termination hearing, the juvenile court asked the
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DHS caseworker to clarify how long and with what frequency the children had been
transitioned back to their parents’ care just before visitation was pulled back:
THE COURT: Let’s clear something up for me. We talked
about a re-removal back in late May or some time in that range; right?
WITNESS: Yes.
THE COURT: Okay. Really what we had was extended time
with the parents, overnights, that type of thing; right?
WITNESS: That’s correct.
THE COURT: Okay. So, where exactly were we at when we
had the—when we pulled back from that? How often had they been
staying with or living with the parents for a week, two weeks, month?
WITNESS: We had started with a transition plan in April where
they would spend a weekend overnight there, transition to three
days. At the time when we pulled back, they had just started to stay
there for full time. So I believe they had stayed there that week three
days.
....
COUNSEL FOR THE MOTHER: But to follow-up on the
judge’s question, . . . so they were staying at their parents’ home. At
the conclusion of that week, was it the plan to return to the parents’
care?
WITNESS: Yes.
Thus, it is clear even if the children could have been considered returned to the
full-time care of the parents at all, such time would have been much less than the
requisite thirty-day period under section 232.116(1)(f)(3). We conclude it was
shown the children were removed from the parents’ care for the last twelve
consecutive months with no trial period exceeding thirty days.
The father asserts there is not clear and convincing evidence the children
could not safely be returned to the parents’ care. The father argues, “The
children’s needs were met by [the father] despite some intermittent drug use
throughout the children’s lives. While it is agreed that children should not be
witness to drug use or domestic abuse, these children’s physical needs were met.”
However, this argument ignores the danger to the children by being placed in a
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situation involving substance abuse and domestic violence by the parents. It also
ignores the lack of stability for the children.
There may be no greater challenge than to parent a child, and we
acknowledge there is no perfect parent. We do expect, however, that a parent’s
efforts exceed a meager or sporadic level of cooperation with services and that
progress will be sufficiently sustained to evoke confidence. Unfortunately,
sometimes a parent’s willingness and ability to cooperate and progress are
compromised by usage of drugs or alcohol, or both. Here, both parents have faced
difficulties in avoiding the use of drugs.
The parents’ failure to maintain sobriety and to reengage in treatment after
relapse has resulted in detrimental effects on the children. Service providers and
the parents recognize T.K. is very angry with her parents and D.K. suffers a great
deal of sadness being separated from the parents. Neither child has been afforded
the comfort they deserve in knowing they will have a stable and safe environment
in which to grow. At the termination hearing, the mother acknowledged:
I think that both my children feel abandoned. I think they feel
like they don’t matter. I think they feel like they’ve been waiting on
these promises that we’ve been making over the last year and that
we didn’t follow through with, so they can’t trust us, you know. . . .
[T]hey’re let down. They are disappointed.
It is clear the children cannot be safely returned to the parents’ care under the
current circumstances with neither parent having taken significant steps toward
maintaining sobriety and providing a safe environment for the children.
B. Best Interests.
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The detrimental impact on the children reveals why termination is also in
the children’s best interests.
In considering whether to terminate the rights of a parent
under this section, the court shall give primary consideration to the
child[ren]’s safety, to the best placement for furthering the long-term
nurturing and growth of the child[ren], and to the physical, mental,
and emotional condition and needs of the child[ren].
Iowa Code § 232.116(2).
At the time of the termination hearing, the children had been primarily
placed with the grandmother since November 2016.1 The mother recognized that
in the grandmother’s care the children “have a good routine. They have stability.
They have a sense of normalcy. You know, they know what to expect. They know
nothing crazy is going to happen and turn their world upside down anytime soon.”
We note, “Once the limitation period lapses, termination proceedings must
be viewed with a sense of urgency.” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000).
“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 future care that parent is capable of providing.’”
Id. (citation omitted). The children have waited long enough for the parents to
address their ongoing substance-abuse and domestic-violence issues. The
children deserve permanency.
C. Exceptions.
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The children were transferred to their aunt’s care from February to June 2017 while the
grandmother recovered from open-heart surgery. The aunt moved in to assist with the
children, allowing the children to remain in the grandmother’s home. The children were
returned to the grandmother’s care following her recovery.
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We also acknowledge the parents contend the exceptions provided in
section 232.116(3)(a) and (c) apply to preclude the need for termination in this
matter. “‘The factors weighing against termination in section 232.116(3) are
permissive, not mandatory,’ and the court may use its discretion, ‘based on the
unique circumstances of each case and the best interests of the child[ren], whether
to apply the factors in this section to save the parent-child relationship.’” In re A.M.,
843 N.W.2d 100, 113 (Iowa 2014) (citation omitted).
Section 232.116(3)(a) states an exception to the need for termination of the
relationship between the parents and children exists where “[a] relative has legal
custody of the child.” We note here temporary legal custody was placed with the
grandmother under DHS supervision. However, at the termination hearing, the
grandmother expressed she wished to adopt the children. She explained, “I want
this to be over for the kids and myself so that we can go on and make a—a life;
and then when their parents decide that they want to be clean and healthy and
productive people, then they can be a part of their life.” Termination of the parents’
rights to the children and the subsequent adoption of the children by the
grandmother will avoid subsequent legal proceedings which could arise if the
children were placed in a guardianship—particularly if the parents were to achieve
another short period of sobriety and attempt to terminate the guardianship.
Although the children are placed in the custody of their grandmother, that
consideration does not outweigh the children’s need for permanency, and, thus,
the need for termination.
Section 232.116(3)(c) provides “[t]he court need not terminate the
relationship between the parent and child if the court finds . . . [t]here is clear and
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convincing evidence that the termination would be detrimental to the child at the
time due to the closeness of the parent-child relationship.” We acknowledge the
strong bond between the children and parents in this case. However, throughout
these proceedings the children have been left disappointed and now lack trust in
the parents. Here, we do not find the parent-child bond outweighs the need for the
children to achieve permanency and stability.
III. Conclusion.
We affirm the termination of the parents’ parental rights pursuant to section
232.116(1)(f), finding grounds for termination have been established, termination
is in the children’s best interests, and no exception applies to preclude the need
for termination.
AFFIRMED ON BOTH APPEALS.
In the Interest of T.K. and D.K., Minor Children
Combined Opinion