IN THE COURT OF APPEALS OF IOWA
No. 1-320 / 11-0128
Filed May 25, 2011
IN THE INTEREST OF A.G. and D.C.,
Minor Children,
T.M.C., Mother,
Appellant,
C.G., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Susan Flaherty,
Associate Juvenile Judge.
A mother and father appeal separately from the order terminating their
parental rights. AFFIRMED ON BOTH APPEALS.
Angela M. Railsback of Railsback Law Office, Cedar Rapids, for appellant
mother.
Sharon D. Hallstoos of Hallstoos Law Office, Cedar Rapids, for appellant
father.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Jerry Vander Sanden, County Attorney, and Kelly J. Kaufman,
Assistant County Attorney, for appellee State.
Deborah Skelton, Walford, for minor children.
Considered by Sackett, C.J., and Doyle and Danilson, JJ.
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DOYLE, J.
A father and mother appeal separately from the order terminating their
parental rights. Each parent argues the State failed to prove the grounds for
termination by clear and convincing evidence and that termination of his or her
parental rights was not in the children’s best interests. The mother also contends
the State failed to make reasonable efforts for reunification and that she should
have been given additional time for reunification. Upon our de novo review, we
affirm on both appeals.
I. Background Facts and Proceedings.
T.C. is the mother and C.G. is the father of two children at issue in this
case: A.G., born in May 2008, and D.C., born in November 2009. The parents
are unmarried and have a history of substance abuse. The father also has a
long history of criminal involvement, as well as a history of inflicting domestic
violence on the mother.
The mother first came to the attention of the Iowa Department of Human
Services (Department) in November 2003, after the mother’s firstborn child, A.V.,
tested positive for marijuana at birth.
The mother agreed to participate in
voluntary services and to abstain from any further drug use. No further action
was taken at that time.
In 2005 the Department learned of allegations that the mother’s then
boyfriend was manufacturing methamphetamine in their home. Drug testing was
performed on A.V., and the child tested positive for methamphetamine.
The
mother then agreed to enter a residential substance abuse treatment facility for
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women with children. The mother also participated with services through the
Department. The Department’s case was then closed in 2006.
In May 2008, A.G. was born and tested positive for cocaine.
The
Department began a child abuse assessment, and the mother again agreed to
enter a residential substance abuse treatment facility. Thereafter, the children
were adjudicated children in need of assistance (CINA).
Since the CINA case began, the mother and father have been offered
numerous services to reunite them with their children, including drug testing,
substance abuse evaluations, drug treatment, parenting instruction, supervised
visitation, drop-in supervision, family support worker assistance, domestic
violence counseling, and mental health services.
The parents were also
admitted to participate in family drug court. There were no requests made for
additional services by either parent that were not addressed by the Department
or the juvenile court.
Both parents initially made progress. The mother successfully completed
her outpatient treatment and regularly submitted to drug testing. Both parents
participated in services. However, the parents had a dispute in September 2008
that ended with the father entering the mother’s home and destroying some of
her property.
Because of the parents’ volatile relationship and the domestic
violence incidents between them, the juvenile court ordered that each parent
have no contact with the other.
By February 2009, the father was no longer compliant with drug testing.
He was not regularly attending visitation with the children, and his living situation
was no longer stable. The parents also admitted to violations of the no-contact
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order between them.
In April, the mother acknowledged she was pregnant,
though she denied C.G. was the father.
The mother continued progressing, and she celebrated one year of
sobriety in June 2009.
Thereafter, her progress declined.
Although she
continued to participate in family drug court, she became noncompliant with its
expectations for consistent drug testing and attendance at AA meetings.
Additionally, the mother continued her relationship with the father despite the nocontact order between them and the father’s continued refusal of drug testing
and his inconsistent visitation with the children. She was discharged from family
drug court in September 2009.
In November 2009, D.C. was born free from drug exposure. Paternity
testing later established C.G. is the child’s father.
In January 2010, the mother reported she had been assaulted by the
father, and fresh bruising on her face was observed. The mother explained that
the father had struck her in the face and had broken a coffee table over her back.
The mother reported that the children were present when the assault occurred.
The mother admitted that she and the father had been having frequent contact,
despite the court’s no-contact order between them. Additionally, she admitted
she had been using marijuana and methamphetamine for several months. The
father was charged with domestic assault causing bodily injury, and he later pled
guilty to the charge.
The children were then removed from the mother’s care on January 28,
2010. The children were placed in family foster care, where they have since
remained. Following removal, the children were tested for drugs, and A.V. tested
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positive for exposure to cocaine. A.G. tested positive for exposure to cocaine
and methamphetamine. D.C., then two months old, tested positive for ingestion
of methamphetamine. Thereafter, the juvenile court adjudicated D.C. a CINA.
In February 2010, the parents were arrested after the vehicle in which they
were passengers was stopped. Officers searched the vehicle, and a crack pipe,
a razor, a spoon with crack cocaine residue, and a plastic bag containing crack
cocaine were found in the vehicle. A prescription pill was found in the mother’s
pocket. The mother was charged with possession of drug paraphernalia and
possession of prescription drugs. The father was charged with interference with
official acts, violation of a criminal no-contact order, and possession of a
controlled substance with intent to deliver.
The mother again entered a residential treatment program following her
arrest in February 2010, but her efforts were short-lived; she left the facility the
same evening she entered. She re-entered the program in April 2010, but again
left after admission. She then entered an inpatient substance abuse treatment
center on April 21, 2010, after she had been hospitalized for a week for
substance abuse and mental health issues. Thereafter, she entered the center’s
halfway program. She left the program on May 19, but returned on May 22. She
admitted she relapsed during this time.
She also admitted that she had
continued to have contact with the father, and she reported he had again
assaulted her during the time she left the treatment center.
Throughout 2010, the father had sporadic involvement in the case, and he
continued to decline participation in services. He did not have any visitation with
the children from January to May 2010.
In May, he told the Department’s
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caseworker he wanted to start working with the Department again, including
providing samples for urinalysis testing. He then had one supervised visit with
A.G. on May 7, 2010. Thereafter, the father was arrested for possession of crack
cocaine on May 11, 2010. He was also arrested in May 2010 for assaulting the
mother. He was incarcerated in jail for approximately sixty days. He did not set
up any further visits with the children, and he did not have any further contact
with the children. On June 22, 2010, the State filed a petition seeking termination
of the parents’ parental rights.
The mother continued her treatment in the center’s halfway house, which
does not allow children to reside at the center with their recovering parent. She
had two visits per week with her children and was consistent with visitation. At
the time of the termination hearing in September 2010, the mother had been
clean for three months. The mother was looking for housing outside the halfway
house. The mother requested additional time for reunification.
On January 11, 2011, the juvenile court entered its order terminating the
mother’s parental rights pursuant to Iowa Code section 232.116(1)(h) (2009), and
the father’s parental rights pursuant to sections 232.116(1)(b), (e), (h), and (l).
The mother and father now appeal.
II. Scope and Standards of Review.
We review the juvenile court’s decision to terminate parental rights de
novo. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The State must prove
grounds for termination by clear and convincing evidence. In re J.E., 723 N.W.2d
793, 798 (Iowa 2006).
In considering whether to terminate, our primary
considerations are the children’s safety; the physical, mental, and emotional
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condition and needs of the children; and the placement that best provides for the
long-term nurturing and growth of the children. Iowa Code § 232.116(2); P.L.,
778 N.W.2d at 37.
III. Discussion.
A. Reasonable Efforts.
We first address the mother’s challenge that the juvenile court erred in
finding the State made reasonable efforts to reunite the children with the mother.
“Reasonable efforts” are defined as
the efforts made to preserve and unify a family prior to the out-ofhome placement of a child in foster care or to eliminate the need for
removal of the child or make it possible for the child to safely return
to the family’s home. . . . If returning the child to the family’s home
is not appropriate or not possible, reasonable efforts shall include
the efforts made in a timely manner to finalize a permanency plan
for the child.
Iowa Code § 232.102(10)(a). A child’s health and safety shall be the paramount
concern in making reasonable efforts. Id.
The State, through the Department, is required to “make every reasonable
effort to return the child to the child’s home as quickly as possible consistent with
the best interests of the child.” Id. § 232.102(7). Nevertheless, “[w]hile the State
has the obligation to provide reasonable reunification services, the [parent] ha[s]
the obligation to demand other, different, or additional services prior to the
termination hearing.”
In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999)
(emphasis added). When a parent alleging inadequate services fails to demand
services other than those provided, the issue of whether services were adequate
is not preserved for appellate review. Id.; In re T.J.O., 527 N.W.2d 417, 420
(Iowa Ct. App. 1994). Here, there is no evidence the mother ever requested
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additional services other than those provided. We therefore find the mother has
not preserved error on this issue.
However, even assuming, arguendo, that the mother had properly
preserved this issue for our review, we would still find the mother was provided
more than adequate services to promote reunification with her children. The
record here shows that since 2003 the Department has offered or provided the
mother numerous services to reunify her with the children. We conclude the
State has met its burden.
B. Grounds for Termination.
We need only find termination proper under one ground to affirm. In re
R.R.K., 544 N.W.2d 274, 276 (Iowa Ct. App. 1995).1 Termination is appropriate
under section 232.116(1)(h) where there is clear and convincing evidence:
(1) The child is three years of age or younger.
(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 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 that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
There is no dispute the first three elements of this section have been proved.
However, the parents each contend there is insufficient evidence to show the
1
We note the father challenges only three of the four grounds under which his
parental rights were terminated: sections 232.116(1)(b), (h), and (l). We could affirm the
termination based on the unchallenged ground as urged by the State. See Iowa R. App.
P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver
of that issue.”). Nevertheless, we elect to proceed to the merits of one of the challenged
grounds, section 232.116(1)(h).
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children cannot be returned to the mother’s care at the present time. Upon our
de novo review, we find the State has met its burden as to both parents.
While the law requires a “full measure of patience with troubled parents
who attempt to remedy a lack of parenting skills,” this patience has been built into
the statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa
2000).
The legislature incorporated a six-month limitation for children
adjudicated a CINA aged three and younger. Iowa Code § 232.116(1)(h)(3).
Our supreme court has stated that “the legislature, in cases meeting the
conditions of [the Iowa Code], 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) (discussing Iowa Code § 232.116(1)(e)).
The
public policy of the state having been legislatively set, we are obligated to heed
the statutory time periods for reunification.
1. The Father.
Here, the father did not participate in services throughout much of these
proceedings. He had only a few visits with the children during the pendency of
the case. The father has not established in any way that he can refrain from
violence; he continued his violent relationship with the mother despite all
recommendations and orders that he stay away, and received several charges
for domestic abuse during the case, one charge as late as May 2010. He has
had numerous drug-related charges throughout the case and, although he
maintains he is not abusing substances, he refuses to participate in urinalysis
testing to verify his assertion. There is no evidence in the record that the children
could have been returned to his care at time of the termination hearing.
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Accordingly, we find the State has proved by clear and convincing evidence the
children could not be safely returned to the father’s care at the time of the
hearing.
2. The Mother.
We also agree with the juvenile court that the State proved by clear and
convincing evidence the children could not be safely returned to the mother’s
care at the time of the hearing. A.G. was adjudicated CINA in 2008, and services
have been offered to the mother since before that time. Instead of progressing
towards reunification, the children were removed from the mother’s care in
January 2010, when all three of her children tested positive for either exposure to
or ingestion of illegal substances.
While we recognize and commend the recent progress the mother has
made in attempting to address her long-standing issues with substance abuse
and domestic violence, such efforts are simply too little, too late.
We have repeatedly followed the principle that the statutory
time line must be followed and children should not be forced to wait
for their parent to grow up. We have also indicated that a good
prediction of the future conduct of a parent is to look at the past
conduct. Thus, in considering the impact of [an] addiction, we must
consider the treatment history of the parent to gauge the likelihood
the parent will be in a position to parent the child in the foreseeable
future. Where the parent has been unable to rise above the
addiction and experience sustained sobriety in a noncustodial
setting, and establish the essential support system to maintain
sobriety, there is little hope of success in parenting.
In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (citations omitted).
Here, the mother has relapsed numerous times. It is far too early to have
any confidence that the mother will be able to maintain sobriety and her
commitment to change, as well as abstain from unhealthy, violent relationships.
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See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“A parent cannot wait until the
eve of termination, after the statutory time periods for reunification have passed,
to begin to express an interest in parenting.”).
Under the circumstances
presented, we find the State has proved by clear and convincing evidence the
children could not be safely returned to the mother’s care at the time of the
hearing.
C. Best Interests.
Each parent contends termination was not in the children’s best interests.
We disagree on both counts.
If a statutory ground for termination is determined to exist, the court may
terminate a parent’s parental rights. P.L., 788 N.W.2d at 37. In considering
whether to terminate, the court must then apply the best-interest framework
established in section 232.116(2). Id. The legislature highlighted as primary
considerations: the child’s safety, the best placement for furthering the long-term
nurturing and growth of the child, and the physical, mental, and emotional
condition and needs of the children. Id.
1. The Mother.
Taking these factors into account, we agree with the juvenile court that the
children’s best interests require termination of the mother’s parental rights. While
we do not doubt the mother’s love for the children and the children’s for her,
[i]t is well-settled law that we cannot deprive a child of permanency
after the State has proved a ground for termination under section
232.116(1) by hoping someday a parent will learn to be a parent
and be able to provide a stable home for the child.
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Id. at 41. The record reveals that the children cannot be returned to the mother’s
care at this time, and the children should not be forced to wait for permanency.
Life has no pause button. “The crucial days of childhood cannot be suspended
while parents experiment with ways to face up to their own problems.” In re A.C.,
415 N.W.2d 609, 613 (Iowa 1987). “At some point, the rights and needs of the
child rise above the rights and needs of the parents.” In re J.L.W., 570 N.W.2d
778, 781 (Iowa Ct. App. 1997), overruled on other grounds by P.L., 778 N.W.2d
at 39-40. The children should not be forced to endlessly suffer the parentless
limbo of foster care. In re J.P., 499 N.W.2d 334, 339 (Iowa Ct. App. 1993). The
children are now three and one years old and in need of protection and
permanency. We are not unsympathetic to the mother’s struggle to maintain
sobriety, yet the interests in permanency for the children must prevail over the
mother’s long and uncertain battle with drugs. N.F., 579 N.W.2d at 341. Given
the mother’s most recent attempt at sobriety after numerous relapses and the
children’s need for permanency, we agree with the juvenile court that termination
of the mother’s parental rights was in the children’s best interests.
2. The Father.
We also agree with the juvenile court that termination of the father’s
parental rights was in the children’s best interests. Here, the father has had
minimal participation at best with services in this case, and he has had almost no
involvement in the children’s lives.
The record here shows the father and
children share no bond. Under the facts and circumstances in this case, and
considering the children’s long-term and immediate best interests, we decline to
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apply section 232.116(3).
Accordingly, we find termination of the father’s
parental rights was in the children’s best interests.
D. Additional Time.
The mother also argues the juvenile court abused its discretion in not
delaying permanency for an additional six months to allow her to be reunited with
her children. A juvenile court has the discretion to continue a child’s placement
out of the home for an additional six months if it determines the need for removal
will no longer exist at the end of the additional period.
§ 232.104(2)(b).
See Iowa Code
The evidence in the record does not allow such a
determination. We find no abuse of discretion under the circumstances of this
case.
IV. Conclusion.
For the foregoing reasons, we affirm the termination of each parent’s
parental rights to A.G. and D.C.
AFFIRMED ON BOTH APPEALS.
