IN THE COURT OF APPEALS OF IOWA
No. 19-0020
Filed March 20, 2019
IN THE INTEREST OF N.S. and N.S.,
Minor Children,
K.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Stephanie Forker
Parry, District Associate Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant mother.
Thomas J. Miller Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Meret Thali of Juvenile Law Center, Sioux City, attorney and guardian ad
litem for minor children.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.
A mother appeals the juvenile court order terminating her parental rights.
The mother claims the children could be returned to her care at the time of the
hearing or in the near future. We find the State established by clear and convincing
evidence the children could not be returned to the mother, and termination is in the
children’s best interests.
I. Background Facts & Proceedings
K.K. is the mother of N.M.S., born in 2014, and N.J.S., born in 2016. On
January 29, 2017, the mother was arrested for possession of methamphetamine
in the home and two counts of child endangerment. The children’s father, A.S.,
was in prison at the time. The parents have a history of domestic violence and
drug use.
The children remained in the mother’s custody subject to protective
supervision by the Iowa Department of Human Services (DHS). The mother and
children moved in with the mother’s father, then later moved to her mother’s home.
On March 27, the children were adjudicated in need of assistance (CINA) under
Iowa Code section 232.2(6)(a), (c)(2), and (n) (2017). In April, the infant tested
positive for exposure to methamphetamine.
The mother pleaded guilty to a charge of child endangerment and received
a suspended sentence. The mother sporadically participated in services including
drug testing, mental-health treatment, substance-abuse evaluations and
treatment, and parenting classes. The mother often showed initial interest in a
service, but then failed to follow through with the programming. The mother told
workers she did not feel she needed treatment and she did not have a substance-
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abuse problem. The father was paroled to Minnesota in August, and the parents
began weekend visits.
One morning in early September, the older child, then two years of age, was
found underdressed and alone across the street from the home while the mother
slept; officers found the door to the home wide open. The mother admitted to
relapsing on methamphetamine that week and later admitted to having used
methamphetamine and marijuana weekly between January and September. The
children were placed with the maternal grandmother with a safety plan. The
mother continued to live in the home while clean and sober, but she was no longer
allowed unsupervised care of the children. On January 3, 2018, the court moved
the children to the custody of DHS, which placed them with the maternal
grandmother.
In November 2017, the mother was accepted into family treatment court but
was released in January 2018 due to noncompliance. A domestic-violence
incident occurred between the parents in late December. The mother began
missing appointments with her probation officer and admitted using marijuana and
methamphetamine. During a traffic stop of the parents in February, marijuana,
methamphetamine, and drug paraphernalia were found on the mother’s person
and in the vehicle. The drugs were attributed to the father and he was arrested
and charged. In March, the father pleaded guilty to two felony drug offenses and
was sentenced to consecutive prison sentences.
In early March, the mother attended intensive outpatient treatment. In April,
she served twenty days in jail for a probation violation, then relapsed again upon
release. In early July, the mother entered an inpatient treatment center and
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requested temporary custody of the children. While there, she completed a
parenting class. On August 20, the mother moved to a half-way house and was
still there at the time of the termination hearing. She obtained employment and
was still living at the half-way house where the children could not join her at the
time of the termination hearing.
On August 20, the State filed a petition to terminate the parents’ rights. On
October 4, the court held a dispositional review hearing on the mother’s motion to
modify dispositional order, and hearing on the State’s petition to terminate parental
rights. The court heard testimony from a Family Safety, Risk, and Permanency
Services (FSRP) provider; the mother; the mother’s current therapist; and the
father testified via telephone. At the time of the hearing, the mother had been
sober over three months and was on a waiting list for an apartment offered by the
treatment program. The FSRP provider and mother both testified the parents were
both more likely to relapse when around each other. The mother had asked the
father not be told where she was during her treatment. However, while the mother
was in the half-way house and the father in prison they remained in telephone
contact, but both parents state they are not in a relationship. The father testified
he expected to parole in 2019 after completing treatment. The guardian ad litem
for the children told the court termination of the parents’ rights is in the children’s
best interests.
On December 31, the court terminated the mother’s parental rights pursuant
to section 232.116(1)(h) and (l) (2018).1 The mother appeals.
1
The father’s parental rights to both children were also terminated. He does not appeal.
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II. Standard of Review
We review termination-of-parental-rights cases de novo. In re A.B., 815
N.W.2d 764, 773 (Iowa 2012). “There must be clear and convincing evidence of
the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219
(Iowa 2016). Where there is clear and convincing evidence, there is “no serious
or substantial doubts as to the correctness or conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (citation omitted). The
paramount concern in termination proceedings is the best interest of the child. In
re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “We give weight to the juvenile court’s
factual findings, especially when considering the credibility of witnesses, but we
are not bound by them.” In re H.S., 805 N.W.2d 737, 745 (Iowa 2011).
III. Analysis
The mother challenges the court’s conclusion the children could not be
returned to her custody pursuant to section 232.116(1)(h) and (l). “When the
juvenile court orders termination of parental rights on more than one statutory
ground, we need only find grounds to terminate on one of the sections to affirm.”
In re T.S., 868 N.W.2d 425, 435 (Iowa Ct. App. 2015). We find termination was
proper under section 232.116(1)(h).
Under section 232.116(1)(h), the court must find the children are three years
of age or younger, as determined at the last date of the termination hearing; 2 have
2
We note N.M.S. turned four years old between the time of the termination hearing and
the filing of the order. For purposes of section 232.116(1)(h), the child’s age is determined
on the date of completion of the termination hearings, not the date of the order, so
termination was appropriate under paragraph (h). See In re J.A., No. 13-0889, 2013 WL
5758054, at *3–4 (Iowa Ct. App. Oct. 23, 2013).
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been adjudicated CINA; have been removed from the parent’s custody for at least
six months; and the children cannot be returned to the parent at the present time.
The mother does not contest the first three elements. The children were
ages two and three at the time of the termination hearing. They had been
adjudicated CINA on March 27, 2017. The children had been in DHS custody for
nine months at the time of the hearing.
We note and applaud the mother’s progress since the beginning of July in
structured treatment center settings. However, she did not start to be serious
about her treatment until after nearly a year and a half of DHS supervision, after
the court had set a permanency hearing, and she must learn to manage two severe
substance addictions. “A parent cannot wait until the eve of termination . . . to
begin to express an interest in parenting.” In re C.B., 611 N.W.2d 489, 495 (Iowa
2000). The mother has struggled with sobriety while living in the community and
receiving outpatient treatment. She continues to have contact with the father even
though the times they are together are marked by domestic violence and drug use.
The children, now two and four years old, have been under the supervision
of DHS since January 2017. Despite her recent progress, the mother’s visitations
are still supervised and limited to twice a week. The children cannot currently live
with the mother in her treatment facility. The mother has substantial progress to
make before the children can be returned to her custody, most importantly showing
she can stay sober in the community. She has struggled with this in the past
several years even without having sole custody of two small children. “We do not
‘gamble with the children’s future’ by asking them to continuously wait for a stable
biological parent, particularly at such tender ages.” D.W., 791 N.W.2d at 707
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(citation omitted). The mother admitted at the termination hearing it is not fair to
ask the children to continue to wait on her progress. We find the State has shown
by clear and convincing evidence the children cannot be returned to the custody
of the mother at this time. Therefore, we find clear and convincing evidence in the
record the mother’s rights should be terminated under Iowa Code section
232.116(1)(h).
“When we consider whether parental rights should be terminated, we ‘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].’” M.W., 876 N.W.2d
at 224 (quoting Iowa Code § 232.116(2)). The children’s grandparents have
provided a safe and stable home for the children since 2017 while the mother went
through cycles of treatment and relapse. The mother is not at a point in her
recovery to support a finding she is able to meet the needs of the children. We
agree with the juvenile court’s finding termination of the mother’s rights is in the
children’s best interests.
AFFIRMED.
In the Interest of N.S. and N.S., Minor Children
Combined Opinion