In the Interest of A.B. and J.B., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-0358
Filed June 20, 2018

IN THE INTEREST OF A.B. and J.B.,
Minor Children,

T.B., Father,
Appellant,

V.F., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, William S.

Owens, Associate Juvenile Judge.

The mother and father separately appeal the termination of their parental

rights to their children. AFFIRMED ON BOTH APPEALS.

Jonathan Willier, Centerville, for appellant father.

Robert F. Bozwell Jr. of Bozwell Law Office, Centerville, for appellant

mother.

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

Attorney General, for appellee State.

Julie R. DeVries of DeVries Law Office, P.L.C., Centerville, guardian ad

litem for minor children.

Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
 2

POTTERFIELD, Judge.

The mother and the father of A.B., born in 2011, and J.B., born in 2016,

separately appeal the termination of their parental rights. On appeal, the mother

maintains there is not clear and convincing evidence to support termination as the

children could have been returned to her care at the time of the termination hearing

“or a reasonable period thereafter” and termination is not in the children’s best

interests. The father also claims termination is not in the children’s best interests

and asserts the juvenile court should have entered a permanency order placing

the children in a guardianship with a relative rather than terminating the father’s

parental rights.

I. Background Facts and Proceedings.

The Iowa Department of Human Services (DHS) became involved with this

family in May 2015 upon allegations of lack of supervision and illegal drug use by

the parents. A.B., who was then less than four years old, had been found

wandering one mile from the family home, and DHS learned she had been

unsupervised for approximately two hours. The mother admitted to smoking

marijuana daily, but the father denied use of illegal drugs. Both parents agreed to

subsequent drug testing, but neither participated. A.B. was adjudicated in need of

assistance but remained in her parents’ care.

J.B. was born in the family home in April 2016. Soon thereafter, DHS

received a report that the mother was using methamphetamine in the home. DHS

became concerned the mother had purposely had the child at home to escape

detection, as children are commonly tested for drugs at birth in the hospital. The

mother showed behavioral indicators she was using the illegal substance, and both
 3

parents refused to sign the DHS safety plan. DHS then sought and obtained a

removal order, and the children were placed with their paternal grandmother.

At the April 27 removal hearing, the parents agreed to engage in services

and comply with the DHS safety plan, including being tested for illegal drug use.

Under these circumstances, the children were returned to the parents’ care.

However, when the results from the initial drug test came back less than

one week later, both parents tested positive for the use of methamphetamine.

Though she initially denied it, the mother later admitted she used

methamphetamine during her pregnancy. The parents voluntarily agreed to place

the children back in the care of the paternal grandmother. The court ordered the

parents to participate in substance-abuse treatment and drug testing. The mother

completed a substance-abuse evaluation, which diagnosed her with

methamphetamine use disorder, moderate. It was recommended she begin

intensive outpatient treatment, which she did not do. The father failed to complete

a substance-abuse evaluation and did not otherwise seek treatment.

After a review hearing in September, the voluntary placement of the children

with the grandmother became court ordered.

In November 2016, the father was found passed out behind the wheel of a

vehicle that was still running. It was reported that the mother was in the backseat

of the vehicle at the time. The father was arrested and charged with operating
 4

while intoxicated (OWI) and possession of a controlled substance

(methamphetamine) in a correctional institution.1

Due to the mother’s increased anxiety and self-reported issues she was

experiencing as the proceedings continued, the court recommended the mother

complete a mental-health evaluation and engage in any recommended treatment.

The termination hearing took place over two dates: November 30, 2017,

and January 9, 2018. At the hearing, it was generally agreed the parents are

bonded with the children and there are no safety concerns regarding their

parenting skills and knowledge when they are sober. However, the former social

worker—who had been with the family from June of 2015 until July of 2017—noted

ongoing concerns with the family’s home. The parents lived in a camper on a

relative’s land. There was at least one time during the proceedings when the

camper lacked electricity and several times the parents reported they had only cold

water. Additionally, the camper was small and cluttered. There was less concern

with the living situation when DHS first became involved with the family because

they had only the one child, and A.B. was old enough to “maneuver through the

clutter and not be harmed.” However, with the birth of a fourth member of the

family, the concern increased. The parents moved to “very nice, well kept” rental

home for a short time during the proceedings, but because neither the father nor

the mother maintained employment, they were unable to keep up with the rent and

returned to living in the camper. Visits could not take place in the parents’ home

1
According to exhibits entered at the termination hearing, the father pled guilty to both
charges, receiving a deferred judgment for the possession of methamphetamine and a
one-year sentence with all but two days suspended for the OWI charge.
 5

and instead occurred in the community. Other than the mother’s completion of a

substance-abuse evaluation, the parents failed to take any actions to address the

department’s substance-abuse concerns during the almost three years DHS was

involved with the family. Additionally, the mother did not follow recommendations

regarding seeking mental-health treatment. The initial social worker described the

parents’ progress as “very little.” Both children remained in the care of their

paternal grandmother, where they had been the entire time—except the

approximately one week the children were returned to the parents—since April

2016. The paternal grandmother completed the foster-adoptive training and

expressed interest in adopting the children.

Following the two-day trial, the juvenile court terminated both parents’

parental rights to A.B. pursuant to Iowa Code section 232.116(1)(f) (2017) and to

J.B. pursuant to section 232.116(1)(h). The court noted, “There is no question the

parents love and care about [the children], but neither has done anything to move

any closer to having [the children] returned than when [they] were removed

approximately nineteen months ago.”

The mother and father separately appeal.

II. Standard of Review.

We review termination-of-parental-rights proceedings de novo. In re L.M.,

904 N.W.2d 835, 839 (Iowa 2017). “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.” In re J.E., 907 N.W.2d 544, 545 n.1 (Iowa Ct. App. 2017).

Proof must be clear and convincing, which means there are no serious or
 6

substantial doubts as to the correctness of conclusions of law drawn from the

evidence. Id.

III. Discussion.

A. Mother’s Appeal.

The mother maintains there is not clear and convincing evidence to support

termination as the children could have been returned to her care at the time of the

termination hearing “or a reasonable period thereafter” and termination is not in

the children’s best interests.

The fourth element of subsections (f) and (h) allows the court to terminate

parental rights when the children, among other things, cannot be returned to the

parents’ care at the time of the termination hearing. See Iowa Code

§ 232.116(1)(f)(4), (h)(4); see also In re A.M., 843 N.W.2d 100, 111 (Iowa 2014).

The mother maintains the children could be returned to her care because the

service provider testified the parents regularly participated in visits, employed

appropriate disciplinary and parenting skills during those times, and shared a bond

with the children. While it was generally agreed that the mother was an able parent

when she was sober, the mother had yet to begin substance-abuse treatment

despite being diagnosed with methamphetamine use disorder, moderate. The

mother also had not taken any steps to deal with her mental-health issues.

Additionally, the parents’ home was not appropriate for the entire family, and the

parents did not offer any evidence to suggest they would be obtaining other

housing. Under these circumstances, the children would be at risk of suffering

additional adjudicatory harm if returned to the mother. Thus, we agree with the
 7

district court that the children could not be returned to the mother’s care at the time

of the termination hearing. See In re M.M., 483 N.W.2d 812, 815 (Iowa 1992).

Next, the mother contends the juvenile court should have given her an

extension of time in order to “correct and resolve the Department’s concerns

regarding housing, mental health, and substance abuse treatment.” The court may

delay permanency if the court determines “that the need for removal of the

child[ren] from the child[ren]’s home will no longer exist at the end of the additional

six-month period.” Iowa Code § 232.104(2)(b). Here, DHS was involved with the

family from April 2015 to January 2018, with DHS having the same concerns

throughout the proceedings. As the district court noted, neither parent has done

anything to move any closer to having the children returned during the thirty-three

months DHS was involved with the family and the nineteen months the children

were removed. Nothing in the record indicates that another six months would

correct the situation.

The mother maintains termination was not in the children’s best interests.

In considering the best interests of the children, we “give primary consideration to

the child[ren]’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[ren].” Id. § 232.116(2). While the mother loves the children and

is an able parent during supervised weekly visits in the community, the children

need and deserve more. They need a parent who can offer them permanency and

stability, see id. § 232.116(2)(b)(1), and nothing in the record suggests the mother

is able to do so at this time.
 8

Because the statutory grounds for termination have been met and it is in the

best interests of the children, we affirm the termination of the mother’s parental

rights.2

B. Father’s Appeal.

The father does not dispute the statutory grounds for termination have been

met. See P.L., 778 N.W.2d at 40 (declining to address whether statutory grounds

were met when the parent did not raise the issue on appeal). Rather, he maintains

that instead of terminating his parental rights, the best interests of the children

required the court to enter a permanency order placing the children in a

guardianship with a relative. See Iowa Code § 232.104(2)(d)(1) (allowing the

court, after a permanency hearing, to transfer guardianship and custody of the

child to a suitable person rather than terminate a parental relationship when

termination is not in the best interests of the child).

“[P]ermanency orders are not preferred over the termination of parental

rights.” In re B.T., 894 N.W.2d 29, 33 (Iowa Ct. App. 2017). “[T]he legislature . . .

has made a categorical determination that the needs of a child are promoted by

termination of parental rights.” In re M.W., 458 N.W.2d 847, 850 (Iowa 1990).

Moreover, neither the father nor any other party presented any evidence of a

relative who was capable and willing to enter into a guardianship. Under these

circumstances, we agree with the district court: “It is time for these children to

2
We need not consider whether a permissive factor weighs against termination, as the
mother has not raised the issue on appeal. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)
(indicating that if a party does not challenge a particular step in the three-step termination
framework, appellate courts need not address the issue); see also In re A.S., 906 N.W.2d
467, 476 (Iowa 2018) (holding “that once the State has proven a ground for termination,
the parent resisting termination bears the burden to establish an exception to termination
under Iowa Code section” 232.116(3)).
 9

achieve permanency, and in these circumstances a guardianship is woefully

inadequate to achieve the sort of stable, nurturing and permanent home they both

need and deserve.”

Because the father does not contest the statutory grounds for termination

have been met and the children’s best interests are served by termination, we

affirm the juvenile court’s termination of the father’s parental rights.

AFFIRMED ON BOTH APPEALS.