In the Interest of J.A. and M.K., Minor Children, K.S.K., Mother ( 2017 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 17-0606
    Filed August 2, 2017
    IN THE INTEREST OF J.A. and M.K.,
    Minor Children,
    K.S.K., Mother,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
    District Associate Judge.
    A mother appeals the termination of her parental rights to two children.
    AFFIRMED.
    Gina E. Verdoorn of Sporer & Flanagan, Des Moines, for appellant
    mother.
    Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
    General, for appellee State.
    Kayla Stratton of Juvenile Public Defender’s Office, Des Moines, guardian
    ad litem for minor children.
    Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
    2
    TABOR, Judge.
    A mother, Kathryn, appeals the juvenile court’s decision to terminate her
    parental rights to two children, three-year-old J.A. and two-year-old M.K. She
    challenges the sufficiency of the State’s proof of the statutory grounds for
    termination and contends termination is not in the best interests of the children.
    After independently reviewing the record, we find clear and convincing evidence
    the children cannot be safely returned to Kathryn’s care and termination is in their
    best interests.1
    I. Background Facts and Proceedings
    This family first came to the attention of the Iowa Department of Human
    Services (DHS) in the summer of 2014 after Kathryn filed a domestic-abuse
    petition against the father, Johnnie.2          The DHS had concerns about the
    continuing domestic violence perpetrated by Johnnie and about the parents’ drug
    use around the children. The juvenile court ordered J.A. to be removed from his
    parents’ custody due to these concerns.3
    1
    Our review is de novo. See In re M.W., 
    876 N.W.2d 212
    , 219 (Iowa 2016). We are not
    bound by the factual findings of the juvenile court, but we do give them weight,
    particularly with regard to the credibility of witnesses. See 
    id.
     “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.” In re D.W., 
    791 N.W.2d 703
    , 706 (Iowa
    2010). Evidence is “clear and convincing” when there are no “serious or substantial
    doubts as to the correctness [of] conclusions of law drawn from the evidence.” See
    M.W., 876 N.W.2d at 219 (alteration in original) (citation omitted).
    2
    Kathryn sought a civil protective order in June 2014 but later denied she was the victim
    of domestic abuse.
    3
    Kathryn has two older children from a previous relationship who were included in this
    removal order. As of August 5, 2015, the oldest child permanently resided in Utah with
    his biological father. As of November 2016, Kathryn’s second oldest child was in a
    3
    The DHS placed J.A. in foster care in August 2014.                 Kathryn began
    mental-health treatment that same month at the recommendation of the DHS. A
    few months after she began therapy, she and Johnnie were married.                       The
    juvenile court adjudicated J.A. a child in need of assistance (CINA) in November
    2014.
    Kathryn was generally consistent with therapy for the next two years, but
    she discontinued treatment in October 2016. Kathryn worked with a therapist on
    issues concerning domestic violence.             The therapist testified Kathryn was
    “a natural caregiver” and would often get “sucked back” into a dangerous
    relationship with Johnnie when he needed help due to his mental-health and
    substance-abuse issues. The therapist believed Kathryn was eventually able to
    identify these triggers, and the two of them explored strategies for Kathryn to
    leave Johnnie safely. The therapist did not note any substance-abuse problems
    at the beginning of Kathryn’s therapy. Kathryn confided she had an “addiction” to
    the relationship with Johnnie rather than to controlled substances.
    Kathryn and Johnnie participated in services provided by the DHS and
    moved to semi-supervised visits in March 2015. The juvenile court held a review
    hearing the following month and found Kathryn and Johnnie were making
    progress. J.A. returned to his parents’ care in mid-April for a trial home visit.
    The progress Kathryn and Johnnie exhibited in the months after J.A. was
    adjudicated a CINA stalled near the end of his first trial home visit. Kathryn, who
    was pregnant with M.K. at the time, testified she stopped living with Johnnie in
    relative’s care. Kathryn’s parental rights to her two older children are not at issue in this
    appeal.
    4
    June 2015. According to Kathryn, Johnnie had threatened to hurt her, so she
    decided to leave him. This incident of domestic violence resulted in another
    protective order preventing contact between the parents, and J.A. once again
    returned to foster care in June.
    M.K. was born in July 2015.       The court adjudicated M.K. a CINA on
    August 19 because she was born with a heart condition that left her vulnerable
    when coupled with her parents’ unresolved mental-health issues and Johnnie’s
    issues with domestic violence. M.K. remained in Kathryn’s care following the
    adjudication, while J.A. stayed in foster care in the months following M.K.’s birth.
    Kathryn signed a safety plan in August 2015, agreeing she would only
    communicate with Johnnie by email and would interact with him only to co-parent
    J.A. and M.K. In November, the court placed J.A. back in Kathryn’s care, where
    he remained with M.K. for the next six months.
    On May 17, 2016, Kathryn agreed to removal of J.A. and M.K. based on
    her drug use. Her children’s removal in May 2016 marked the first time the DHS
    focused on Kathryn’s substance abuse.            Kathryn began substance-abuse
    treatment on May 19 at New Beginnings in Des Moines and attended until the
    second week in July. Kathryn told her substance-abuse counselor she used
    methamphetamine almost daily from December 2015 to May 2016.               Kathryn
    would often use with Johnnie and give him unapproved access to J.A. and M.K,
    despite the DHS safety plan and court order prohibiting his contact with Kathryn
    and the children.
    Visitation between Kathryn and her children was always positive. The
    DHS had no concerns regarding Kathryn’s treatment of her children during visits.
    5
    Kathryn eventually had supervised visits twice a week for an hour and a half
    each time.4 Both children had appointments with medical specialists. The record
    reflects no problems with Kathryn’s knowledge of cardiopulmonary resuscitation,
    so she was able to safely to participate in visits with M.K. in spite of her heart
    condition. J.A. had an underdeveloped pituitary gland for which he was seeing
    an endocrinologist, but his condition never caused any problems for Kathryn
    during their visits.
    Kathryn began work at Perry Health Care Center in June 2016, where she
    performed well as a licensed practical nurse. Her employer submitted a letter to
    the court outlining many her duties. Her employer did not suspect drug use and
    did not question her honesty or integrity. In July, not long after Kathryn started
    work at Perry Health Center, the sweat test she provided for the DHS was
    positive for methamphetamine.
    Kathryn did not successfully complete her substance-abuse therapy at
    New Beginnings. She changed treatment providers in mid-July 2016, stating she
    had a difficult commute from her home in Perry to treatment in Des Moines. She
    was admitted to treatment at Zion Recovery in Perry on August 4, and she
    completed her substance-abuse goals five weeks before she stopped attending
    treatment. Kathryn provided a urine sample at Zion on the day of her admission,
    which came back positive for amphetamines.             Kathryn’s prescribed ADHD
    medication accounted for the positive amphetamine result.
    4
    Kathryn’s visitation had decreased from three times per week due to scheduling issues
    with her family safety, risk, and permanency worker.
    6
    The DHS was concerned Kathryn was not being honest about her
    substance-abuse history with her therapist at Zion. That therapist told the DHS
    Kathryn had not revealed her previous drug use or the positive tests. Kathryn
    also had not informed Zion about her previous treatment provider’s concerns that
    her ADHD medication could impede her recovery from methamphetamine
    abuse.5
    Due to his unresolved mental-health and substance-abuse issues and his
    low participation in services offered by the DHS, Johnnie’s parental rights were
    terminated on August 8, 2016.6 Johnnie would later tell the DHS he began living
    at Kathryn’s home on August 25 and together they moved his belongings into her
    house in the middle of the night so they would not be seen. Kathryn disputed
    Johnnie’s account, claiming a friend dropped off Johnnie’s belongings to store at
    her home.
    Kathryn participated in another urinalysis at Zion on September 14. This
    test came back negative for methamphetamine but positive for amphetamines, a
    result consistent with taking her ADHD medication. When Kathryn submitted to a
    sweat test through the DHS on September 17, it came back positive for
    methamphetamine. Kathryn denied the results, claiming her ADHD medication
    also caused the positive methamphetamine result.
    On September 21, 2016, Kathryn was the victim of a particularly violent
    incident with Johnnie when she found him in her home uninvited. This led to a
    5
    Kathryn’s substance-abuse provider at New Beginnings recommended she not take
    amphetamines to treat her ADHD due to her history of substance abuse, but Kathryn
    disregarded that advice.
    6
    Johnnie is not a party to this appeal.
    7
    standoff between Johnnie and the police.        Kathryn told a responding officer
    Johnnie had assaulted her, giving her two black eyes and leaving bruising on her
    neck. The police learned Kathryn was storing many of Johnnie’s belongings in
    her home, as well as caring for their dog. This incident led the DHS to believe
    Kathryn had more contact with Johnnie than she was reporting.
    After this incident, Kathryn began to miss mental-health appointments.
    Her therapist testified it would have been better for Kathryn not to stop treatment
    so soon after an upsetting event. But Kathryn told her therapist it was difficult for
    her to fit in the appointments with her work schedule and visits with her children.
    Kathryn’s last visit with her mental-health provider was in mid-October
    2016.    Kathryn’s substance-abuse therapist at Zion suggested she remain
    enrolled in the substance-abuse program after she completed her goals to
    combat the emotional strain caused by her children’s removal and Johnnie’s
    abuse. But Kathryn decided not to remain enrolled in the program. She did not
    show up for ten drug tests required by the DHS between July and December
    2016. Kathryn testified she stopped showing up for these tests because she was
    planning for her parents to adopt the children.7
    The State filed a petition to terminate Kathryn’s parental rights on
    December 6, 2016. The juvenile court held the termination hearing over two
    days, December 13, 2016, and January 9, 2017. On the second day of the
    hearing, a social worker testified Kathryn had returned to Zion for substance-
    7
    The DHS found Kathryn’s parents were not appropriate candidates for adoption after
    Kathryn’s father tested positive for methamphetamine during a hair test in November
    2016.
    8
    abuse treatment in January. In a letter admitted during the hearing, Kathryn’s
    substance-abuse counselor at Zion reported her urinalysis was negative when
    she returned to treatment and she had stopped taking the ADHD medication that
    produced her previous positive amphetamine result. The counselor also believed
    Kathryn was committed to parenting her children and would be able to provide a
    safe and nurturing environment for them.
    On March 30, 2017, the juvenile court terminated Kathryn’s parental rights
    under Iowa Code section 232.116(1)(d) and (h) (2016). The court recognized
    Kathryn was “an intelligent, educated woman with significant skills,” but
    nevertheless concluded she had unaddressed issues with substance abuse and
    violent relationships that did not allow the children to return home safely.
    Kathryn appeals the juvenile court’s termination order.
    II. Analysis
    A. Statutory Grounds
    Kathryn argues the State did not prove with clear and convincing evidence
    the grounds for termination under section 232.116(1)(d).           Specifically, she
    challenges the State’s proof of the final requirement of subsection (d), that the
    circumstances that led to the CINA adjudication continued to exist despite the
    offer or receipt of services. Because Kathryn does not challenge the termination
    under subsection (h), we can affirm on that ground. See In re P.L., 
    778 N.W.2d 33
    , 40 (Iowa 2010) (holding even if only one ground for termination is proven, the
    court may order the termination). But even if we construed Kathryn’s argument
    broadly to include a challenge to the fourth element of section 232.116(1)(h)—
    requiring clear and convincing proof the children could not be returned to her
    9
    care—we would still find the statutory grounds satisfied. The children are both
    three years of age or younger, they have both been adjudicated as CINA, both
    have been removed from their mother’s custody for more than six consecutive
    months, and clear and convincing evidence shows they cannot be returned to
    their mother’s care at the present time. See 
    Iowa Code § 232.116
    (1)(h).
    The juvenile court identified three concerns regarding Kathryn’s parental
    ability: her substance abuse, her mental health, and her pattern of abusive
    relationships.   Kathryn maintains she willingly participated in the services
    provided to combat these issues, though she admits not consistently seeking
    mental-health therapy. She claims she has no contact with Johnnie and denies
    using controlled substances.
    We find clear and convincing evidence the children cannot be safely
    returned to Kathryn’s care. After two years of receiving therapy to improve her
    mental health, Kathryn’s attendance grew inconsistent just when she was
    confronting traumatic events in her life.   Although Kathryn had been working
    through her issues of being victimized by Johnnie, those domestic-violence
    issues were still ongoing after years of therapy.         She admitted using
    methamphetamine with him and willingly stored his belongings in her home when
    she claimed she was not in contact with him.
    At the beginning of the CINA case, Kathryn did not have an ongoing
    problem with methamphetamine abuse, but she admitted using the drug
    recreationally in her past. Her more severe drug problems occurred after a year
    of participating in DHS services. She used methamphetamine regularly from
    December 2015 to May 2016.        She had two positive sweat patch tests for
    10
    methamphetamine between July and December 2016 and missed ten drug tests
    in the same time period.
    These circumstances indicate the children cannot be safely returned to
    Kathryn’s care. Her drug use worsened while she participated in services. It is
    also concerning that she did not ultimately take responsibility for the positive
    methamphetamine test results in 2016. See In re A.B., 
    815 N.W.2d 764
    , 775
    (Iowa 2012) (holding a father’s denial of having any substance-abuse issues
    when he had tested positive for methamphetamine was enough to terminate his
    parental rights despite his positive participation in parenting services). Not until
    January 2017 did she follow the recommendation of her substance abuse
    therapist to discontinue use of the narcotic ADHD medication. Termination under
    section 232.116(1)(h) is proper.
    B. Best Interests
    After concluding the State has proven statutory grounds sufficient for
    termination, we must find termination is in the best interests of the children. See
    A.B., 815 N.W.2d at 776. We consider three best-interests factors: (1) the child’s
    safety, (2) the best placement for furthering the long-term nurturing and growth of
    the child, and (3) the physical, mental, and emotional condition and needs of the
    child. Iowa Code section 232.116(2); see also P.L., 
    778 N.W.2d at 37
    .
    Kathryn asserts the strong bond she has with her children is a compelling
    reason not to terminate her parental rights. Closeness between a parent and
    child is a mitigating factor provided in Iowa Code section 232.116(3)(c). But the
    closeness of the parent-child relationship does not automatically outweigh other
    11
    factors in support of termination. See In re N.F., 
    579 N.W.2d 338
    , 341 (Iowa Ct.
    App. 1998).
    The record shows Kathryn was engaged and affectionate during her visits
    with J.A. and M.K. But we must balance those positive connections against the
    risk posed by her recent difficulties with methamphetamine abuse and inability to
    protect the children from the domestic violence perpetrated by Johnnie. J.A. and
    M.K. live together with foster parents who are interested in adopting them and
    are able to meet their medical needs. Opening them to the possibility of adoption
    in a stable home without the threat of domestic abuse or exposure to controlled
    substances will further the physical, mental, and emotional needs of the children.
    Accordingly, we find termination of Kathryn’s parental rights is in the best
    interests of the children.
    AFFIRMED.
    

Document Info

Docket Number: 17-0606

Filed Date: 8/2/2017

Precedential Status: Precedential

Modified Date: 4/17/2021