IN THE COURT OF APPEALS OF IOWA
No. 18-1412
Filed October 10, 2018
IN THE INTEREST OF A.M., A.M., E.M., and I.M.,
Minor Children,
N.S., Mother,
Appellant,
J.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,
Judge.
The mother and father appeal the termination of their parental rights with
regards to their four children. AFFIRMED ON BOTH APPEALS.
Mark A. Milder of Mark Milder Law Firm, Waverly, for appellant mother.
Nina M. Forcier of Forcier Law Office, PLLC, Waterloo, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Melissa A. Anderson-Seeber of Waterloo Juvenile Public Defender Office,
Waterloo, guardian ad litem for minor children.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
VOGEL, Judge.
The mother and father separately appeal the termination of their parental
rights to their minor children: A.M., born 2011; A.M., born 2012; E.M., born 2014;
and I.M., born 2016. The father argues the children were not removed for the
statutorily required time. Both argue additional time should have been afforded to
work towards reunification. Because of the lack of progress by either parent in
being able to safely parent these children, we find the State has proved the
grounds for termination by clear and convincing evidence, additional time would
not correct the deficiencies, and there is nothing hindering termination.
I. Background Facts and Proceedings
The Iowa Department of Human Services (DHS) first took notice of this
family in March 2016, when I.M. tested positive for methamphetamine at birth. The
mother also tested positive for methamphetamine, the father admitted to using
methamphetamine, and the other three children tested positive for ingestion of
methamphetamine. The parents agreed to a three-month safety plan that included
the following conditions: the parents would refrain from illegal drug use, the
children would stay with their maternal grandparents, the parents would have no
unsupervised contact with the children, and the parents would cooperate in the
assessment process and random drug testing.
The children were returned to their parents after the three months.
However, the children were removed on October 4, 2016, after the parents’ drug
test results were positive. The children again tested positive for
methamphetamine.
3
After more than one year of services, a trial home placement began on
August 8, 2017; on September 8, the children were returned to the parents’
custody. However, on October 18, law enforcement arrived at the home and
suspected the mother was under the influence of drugs. Law enforcement also
noticed multiple bruises on I.M. in various stages of healing. The mother admitted
to causing the injuries on I.M. by grabbing his face and arms, and the father
admitted to knowing about the mother’s violent tendencies without reporting such
behavior. Both parents were charged with child endangerment, and no-contact
orders were filed in November 2017.
Neither parent appeared for the criminal case hearings in February 2018,
prompting warrants to issue for their arrest. About one month later, the parents
were located, arrested, and incarcerated. Neither parent participated in any of the
services offered following the October 2017 removal. At the May 17, 2018
termination hearing, both parents’ parental rights were terminated under Iowa
Code section 232.116(1)(f), (h), and (i) (2018). The mother and father appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile court’s finds
of fact, but we do give them weight, especially in assessing the credibility of
witnesses.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “We will uphold an
order terminating parental rights if there is clear and convincing evidence of
grounds for termination under Iowa Code section 232.116.” Id.; see Iowa Code
§ 232.117(3) (“If the court concludes that facts sufficient to sustain the petition
have been established by clear and convincing evidence, the court may order
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parental rights terminated.”). “‘Clear and convincing evidence’ means there are no
serious or substantial doubts as to the correctness [of] conclusions of law drawn
from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Grounds for Termination
The father argues the State did not meet its burden of proving by clear and
convincing evidence that the children were removed for the statutorily proscribed
time under Iowa Code section 232.116(1)(f)(3) and (h)(3).1 The father argues the
two oldest children must be removed from the parents’ custody for twelve
consecutive months and any trial home placement must have been less than thirty
days.2 Iowa Code section 232.116(1)(f)3 states termination is warranted if four
conditions are met, one of which is the child must have been “removed from the
1
The father additionally appeals the grounds for termination under subsection (i) of Iowa
Code section 232.116(1). We find the State has met its burden of proving grounds for
termination under Iowa Code section 232.116(1)(h) and (f). Because we may affirm on
any ground supported by the record, we decline to discuss subsection (i). See In re A.B.,
815 N.W.2d 764, 774 (Iowa 2012).
2
The father also argues the time-removed requirement for the two youngest children was
not met under Iowa Code section 232.116(1)(h) (2018). The father claims the time
requirement under this subsection is twelve months as well, however, subsection (h)
requires the child to have 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.” Iowa Code
§ 232.116(1)(h)(3). Nevertheless, the analysis in this section still applies because the
children have only been in the parents’ custody for a total of five months since March 3,
2016.
3 Section (f) provides termination is warranted if,
The court finds that all of the following have occurred:
(1) The child is four years of age or older.
(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 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.
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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.” Therefore, the relevant statute provides for two
methods of determining the time the child must have been removed.
In this case, the parents voluntarily consented to relative placement from
March 3, 2016, until June 2016. The children were returned and remained in the
parents’ custody from June to October 4, 2016, when they were removed due to
concerns of the parents’ methamphetamine use. From October 4, 2016, until
September 8, 2017, the court ordered DHS to have temporary care, custody, and
control of the children, with a trial placement from August 8 to September 8. During
this period, the children were again placed with relatives. The parents regained
custody on September 8 until October 18, 2017, when law enforcement removed
the children due to possible child abuse and concerns of the mother’s relapse into
drug use. It was again ordered that DHS have temporary custody of the children.
The children have remained in relative placement since October 18, 2017. Since
March 2016, the children have been in the parents’ custody for approximately five
months—from March 3 to June 2016 and from September 8 to October 18, 2017.
Between March 3, 2016, and the date of the termination hearing on May 17, 2018,
the children had been removed for approximately twenty-one months. Thus, the
statutory time frames have been met. See Iowa Code § 232.116(1)(f), (h).4
4
The mother does not contest the statutory grounds under Iowa Code section
232.116(1)(f), (h), or (i).
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IV. Additional Time
Both parents argue the district court should have granted them additional
time to work towards reunification. The mother claims an additional twelve months
of services should have been provided. The mother further argues the State
“jumped the gun in moving to termination” because substantial evidence was not
provided to indicate the children were in need of permanency and the children were
in relative placement. The father argues he could resume care of the children
within six months and notes that he has a positive history of participating in
services offered. Under Iowa Code section 232.104(2)(b), a court may authorize
a six-month extension of time if it determines “the need for removal of the child
from the child’s home will no longer exist at the end of the additional six-month
period.”
In this case, the children’s second removal from the parents’ custody was
for about eleven months—from October 4, 2016, to September 8, 2017. After this
time, the children were returned to the parents’ custody, but law enforcement had
to remove the children again within forty days due to child abuse and illegal drug
use by the parents. The father continues to struggle with drug use and has
admitted to using methamphetamine before the children were returned to the
parents’ custody in September 2017. The father did not consistently participate in
the services previously provided to him. He had a substance-abuse evaluation at
one facility and was diagnosed with a moderate substance disorder, but he was
discharged about a week later due to his failure to attend treatment. After the
children were removed in October 2017, the parents ceased participating in offered
or provided services and failed to take any further steps towards reunification with
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the children. A DHS worker testified at the termination hearing that termination is
in the best interests of the children because “the parents have been given ample
opportunities to address their substance abuse issues and while they did have a
period of sobriety, it appears, through their own admissions, that it wasn’t accurate
and that they still were using at different times.”
Furthermore, the father was aware of the mother’s violent behaviors toward
the children, and he failed to report or seek assistance with this matter. After being
charged with child endangerment, the parents failed to appear for their criminal
case hearings and arrest warrants were issued. After finally being located by
police, the parents were incarcerated and remained incarcerated at the time of the
termination hearing. It was uncertain what the parents’ futures were going to entail
due to their criminal charges and lack of participation in services. A DHS worker
testified that additional time would not be helpful because the parents have “done
absolutely nothing for the last seven months” and even if they were not
incarcerated, she “believe[d] that they still wouldn’t be doing anything.” “We will
not gamble with a child’s future by asking him [or her] to continuously wait for a
stable biological parent, particularly at such a tender age.” In re D.S., 806 N.W.2d
458, 474 (Iowa Ct. App. 2011). Therefore, the record does not support the notion
that additional time would extinguish the need for removal. See Iowa Code
§ 232.104(2)(b).
V. Nothing in the Record Precludes Termination
The mother and father claim the strong bond between the parents and the
children and relative placement are exceptions that weigh against termination.
Once the State has proven grounds for termination exist, the parent resisting
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termination bears the burden of proof to establish a permissive factor precludes
termination under Iowa Code section 232.116(3). In re A.S., 906 N.W.2d 467, 476
(Iowa 2018). The father asserts that “[s]ince the children were placed with
relatives, the court need not terminate the rights of the parents.” “An appropriate
determination to terminate a parent–child relationship is not to be countermanded
by the ability and willingness of a family relative to take the child. The child’s best
interests always remain the first consideration.” In re C.K., 558 N.W.2d 170, 174
(Iowa 1997). The mere fact that the children are placed with relatives is insufficient
to meet the parents’ burden of establishing the preclusion of termination under
Iowa Code section 232.116(3)(a).
“A strong bond between parent and child is a special circumstance which
mitigates against termination when the statutory grounds have been satisfied.” In
re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see Iowa Code
§ 232.116(3)(c). However, this “is not an overriding consideration, but merely a
factor to consider.” N.F., 579 N.W.2d at 341. At the time of the termination
hearing, both parents were incarcerated and neither parent was capable of
providing a safe and permanent home for the children. The bond between the
parents and the children in this case is insufficient to preclude termination. See
Iowa Code § 232.116(3)(c).
VI. Conclusion
We conclude the State proved by clear and convincing evidence the
grounds for termination of both the mother’s and father’s parental rights. Based
on the parents’ lack of compliance with offered services, additional time was not
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warranted, and neither any bond between the parents and the children nor the
children’s placement with relatives is sufficient to preclude termination.
AFFIRMED ON BOTH APPEALS.