In the Interest of H.B. and Z.R., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 19-1796
Filed December 18, 2019

IN THE INTEREST OF H.B. and Z.R.,
Minor Children,

T.R., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Gary P.

Strausser, District Associate Judge.

A mother appeals the termination of her parental rights to two children.

AFFIRMED.

Sara Strain Linder of Bray and Klockau, Iowa City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Christopher Foster of Foster Law Office, Iowa City, attorney and guardian

ad litem for minor children.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

A mother, Tamika, appeals the juvenile court order terminating her parental

rights to two children, five-year-old H.B. and two-year-old Z.R. She raises four

issues. First, she contends the court should have granted a continuance to give

her attorney more time to prepare. Second, she alleges the State did not offer

clear and convincing evidence supporting the statutory grounds for termination.

Third, she contends termination will be detrimental to H.B. and Z.R. because of the

strong parent-child bond. And fourth, she asks for more time to reunify. Looking

independently at the entire record, we find no basis for reversal.1

I. Facts and Prior Proceedings

A mid-summer drug raid at Tamika’s home in 2018 resulted in the

emergency removal of H.B. and Z.R. Authorities found she and her husband,

Matthew, were under the influence of methamphetamine while caring for the

children.2 In the wake of this raid, Tamika pleaded guilty to child endangerment

and possession of methamphetamine; she received a deferred judgment.

That summer, Tamika obtained a substance-abuse evaluation that

assessed her with amphetamine dependence. She failed to complete the

recommended substance-abuse treatment and missed more than twenty of the

randomly requested drug tests.

1
We review this appeal de novo, which means we examine both the facts and law and
adjudicate anew those issues properly preserved and presented. See In re L.G., 532
N.W.2d 478, 480 (Iowa Ct. App. 1995). The factual findings of the juvenile court do not
bind our decision, but we give them weight. In re M.W., 876 N.W.2d 212, 219 (Iowa 2016).
The State’s proof must be clear and convincing, which means we see no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the evidence.”
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
2
This event marked the second time the Iowa Department of Human Services (DHS) took
custody of H.B. because of Tamika’s substance abuse; his first removal was in 2015.
 3

At the end of August, the court adjudicated H.B. and Z.R. as children in

need of assistance (CINA). Showing no progress in addressing her addiction,

Tamika never regained custody of the children. During his time in foster care, H.B.

demonstrated “fairly significant behavioral and learning issues,” according to the

report of the guardian ad litem. His younger sister, Z.R., adapted well to foster

care, developing a strong attachment to her foster mother. The DHS tried to obtain

an area education agency evaluation for Z.R. but could not do so because of

Tamika’s lack of cooperation.

Between August and November 2018, Tamika attended only half of the

thirty-two visitations offered with her children. Her visitation with H.B. caused him

emotional harm. The DHS reported his behavior would decline after each

interaction “and even more so when his mother did not show up for the

interactions.” To DHS, “[i]t became clear that Tamika’s sporadic attendance was

causing her child distress.” H.B. expressed fear of his mother and frequently

revisited the trauma of the police raid on their home.

At the recommendation of his therapist, the juvenile court suspended H.B.’s

visitation with his mother. The court made clear Tamika could resume interactions

with H.B. if she obtained a psychological evaluation and a substance-abuse

evaluation and followed up on their respective recommendations. But she did not

do so. Tamika’s visitations with Z.R. continued.

Tamika resisted other services recommended by the DHS and missed five

appointments scheduled with the caseworker in November and December 2019.

When Tamika finally attended a family team meeting in early January 2019, she

was uncooperative and swore at the caseworker. The DHS continued to reach out
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to Tamika through February and March 2019, but she remained unreceptive to

complying with the case plan.

The State filed a petition to terminate parental rights on March 11, 2019. At

the April 25 hearing, Tamika testified she was “clean and sober” and had no mental

health issues. In its order terminating her parental rights, the juvenile court found

those claims incredible. Tamika now appeals.3

II. Analysis

A. Motion to Continue

Tamika argues the juvenile court should have continued the April 25

termination hearing because her attorney, Sara Linder, did not have time to

prepare against the allegations in the State’s petition. Linder represented Tamika

in the CINA case. See Iowa Code § 232.89(1) (2019) (authorizing appointment of

counsel in CINA cases). But the court did not enter the order of appointment in

the termination case until 2:19 p.m. on April 24—less than twenty-four hours before

the start of the hearing. See Iowa Code § 232.116(1) (authorizing appointment of

counsel in termination cases).

At the start of the termination hearing, Linder sought a continuance, arguing

she needed more time “to properly prepare and present the appropriate defense”

for her client. Linder acknowledged attending a pretrial conference on April 4,

where the parties talked about a “conditional appointment order, which was not

entered.” Counsel noted she “was not able to even see the grounds in the petition

3
The court also terminated the parental rights of H.B.’s father, Phillip, and Z.R.’s legal
father, Matthew. Neither of them appeals.
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until yesterday.” She further noted the State offered some exhibits that were not

included in the underlying CINA file.

The juvenile court agreed the timing placed attorney Linder “in a difficult

position.” But the court denied the continuance, finding Tamika at fault for the

delay in seeking court-appointed counsel. “[Linder] would have had more time to

review the petition more thoroughly with her client, as well as those exhibits, if her

client had timely applied for an attorney.” The court explained that the State filed

a summons on March 12, notifying Tamika of the April 25 hearing date and her

right to be represented by counsel. That summons included this message:

The sheriff served the summons on Tamika on March 22. But she did not filed her

request for counsel until April 24, more than one month later.

On appeal, Tamika argues the denial of her motion to continue violated her

right to due process. No question, “[w]e have procedural safeguards in our CINA

and [termination of parental rights] statutes to adequately accord fundamental

fairness to parents.” In re M.D., 921 N.W.2d 229, 243 (Iowa 2018) (citing section

232.113 as one such safeguard). But Tamika did not raise a due process claim
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before the juvenile court. Thus, we consider only whether the court abused its

discretion in denying the motion to continue. See id at 234.

Tamika’s case is unlike In re E.J.C., where the juvenile court denied a

parent’s eleventh-hour request for court-appointed counsel. 731 N.W.2d 402, 404

(Iowa Ct. App. 2007). There, we noted “section 232.113(1) does not set forth any

time frame in which a request for court appointed counsel must be made.” We

acknowledged the parent “should have been more attentive to her legal needs and

applied for counsel earlier,” but we found her delay should not deprive her of

counsel absent a statutory time limitation. Id.

By contrast, Tamika was not denied the right to counsel. Rather, she had

the same well-prepared counsel who represented her in the CINA proceedings.

But we are concerned by the short turnaround afforded counsel in these

termination proceedings. We are less ready than the juvenile court to blame the

mother for her belated application. Parents or any lay persons could

understandably read the language in the summons highlighted above and not

realize they would need to reapply for counsel when they have already been

represented in the CINA case. See In re J.B., No. 18-1807, 2018 WL 6706266, at

*2 (Iowa Ct. App. Dec. 19, 2018) (finding juvenile court abused its discretion in

“plowing forward in the termination proceeding without appointing counsel, at least,

to assist the parents on a temporary basis in explaining the need to again apply

for court-appointed counsel”). We would strongly recommend such notices be

revised to expressly notify parents that they must submit a new request for court-

appointed counsel in the termination proceeding even if the court appointed

counsel in the CINA case. We also believe it would be best practice to notify the
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attorneys appointed in CINA cases when a termination petition has been filed so

counsel can advise their clients of the need to apply for court-appointed counsel in

that new proceeding. Even with those suggestions, under the instant

circumstances, we cannot find the juvenile court abused its discretion in denying

the motion to continue. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996)

(“Denial of a motion to continue must be unreasonable under the circumstances

before we will reverse.”).

B. Statutory Grounds

The juvenile court terminated Tamika’s parental rights to Z.R. under Iowa

Code section 232.116(1), paragraphs (e), (h), and (l). The court terminated her

rights to H.B. under paragraphs (e) and (l). Tamika contests all grounds on appeal.

“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.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). We choose to

address paragraph (h) for Z.R. and paragraph (e) for H.B.

Termination under section 232.116(1)(h) requires showing:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
a 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 the child cannot be
returned to the custody of the child’s parents as provided in section
232.102 at the present time.

Tamika concentrates on the last point, asserting Z.R. could have been

placed in her custody at the time of the hearing. Tamika argues the State failed to
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show harm would befall the two-year-old girl if returned to her care. She questions

the record proof of her continued methamphetamine use.

Contrary to her argument, the record reveals Tamika has not addressed her

substance abuse. The juvenile court did not believe her claim she was “clean and

sober” finding her failure to comply with random drug tests was “a strong indicator

of continued drug use.” Our courts have recognized the hazards of leaving young

children in the care of methamphetamine users. See State v. Petithory, 702

N.W.2d 854, 859 (Iowa 2005). The fact Tamika has not successfully sought

treatment heightens our concern. See A.B., 815 N.W.2d at 776 (explaining “an

unresolved, severe, and chronic drug addiction can render a parent unfit to raise

children”). The record contains clear and convincing evidence it is not safe to place

Z.R. in Tamika’s care at the present time.

Termination under section 232.116(1)(e) requires showing:

(1) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(2) The child has been removed from the physical custody of
the child’s parent for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents
have not maintained significant and meaningful contact with the child
during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given
the opportunity to do so.

Tamika focuses on the third point, asserting she has maintained “significant

and meaningful contact” with H.B. That phrase “includes but is not limited to the

affirmative assumption by the parents of the duties encompassed by the role of

being a parent.” Iowa Code § 232.116(1)(e)(3). On top of financial obligations,

this affirmative duty “requires continued interest in the child, a genuine effort to

complete the responsibilities prescribed in the case permanency plan, a genuine
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effort to maintain communication with the child, and requires that the parents

establish and maintain a place of importance in the child’s life.” Id.

Tamika argues “it should not be held against [her] that visitation was not

allowed with H.B.” That argument tells only part of the story. The court suspended

visitation for H.B.’s therapeutic benefit. In its January 2019 order, the court set

clear expectations for Tamika to meet before interactions could resume. She did

not try to meet those expectations. We also agree with the juvenile court’s

conclusion that Tamika did not make affirmative efforts to comply with the

mandates of the case permanency plan so she could assume the role of parent to

H.B. The record contains clear and convincing evidence that termination of her

rights to H.B. is proper under section 232.116(1)(e).

C. Parent-Child Bond

Tamika contends termination of her parental rights would be detrimental to

H.B. and Z.R. because of the closeness of the parent-child relationship. See Iowa

Code § 232.116(3)(c). But she falls short of showing that detriment. See In re

A.S., 906 N.W.2d 467, 476–77 (Iowa 2018) (holding parent resisting termination

has burden to prove permissive factors under section 232.116(3)). When the DHS

offered visitation, Tamika’s attendance was lackluster. Her inconsistency triggered

aggressive behaviors in H.B. And both children are benefitting from the stability

offered by their foster home. On these facts, section 232.116(3)(c) does not weigh

against termination.

D. Additional Time

Tamika contends that given a little more time she could resolve the situation

that led to the children’s removal. To grant an extension of six months under Iowa
 10

Code section 232.104, the court must determine the need for removal will dissipate

at the end of that time. See In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).

We cannot make such a determination here. Tamika has a long history of

substance abuse and refuses to address it head on. The record gives us no reason

to believe her addiction and instability will be resolved in six months. The extension

is not warranted.

AFFIRMED.