In the Interest of D.M., Minor Child ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0086
Filed March 21, 2018
IN THE INTEREST OF D.M.,
Minor Child,
A.D., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A mother appeals from an order terminating her parental rights pursuant to
Iowa Code chapter 232 (2017). AFFIRMED.
Tammy M. Westhoff Gentry of Parrish, Kruidenier, Dunn, Boles, Gribble,
Cook, Parrish, Gentry & Fisher L.P., Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Brent M. Pattison of Drake Legal Clinic, Des Moines, guardian ad litem for
minor child.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
Ariana appeals from the order terminating her parental rights in her child,
D.M. Ariana raises two challenges on appeal. She argues the evidence is
insufficient to support termination of her parental rights. She also argues
guardianship is a better alternative to termination of her parental rights.
I.
Ariana is the mother of D.M. (born 2010). The family first came to the
attention of the Iowa Department of Human Services (IDHS) in August 2016 when
it was reported Ariana was abusing controlled substances, including the abuse of
prescription pills. The child reported the mother regularly crushed pills, injected
substances, and passed out in the child’s presence. D.M.’s maternal grandmother
corroborated Ariana’s drug use. In addition to Ariana’s intravenous drug use in the
presence of her child, IDHS had concerns regarding Ariana’s ability to meet the
basic needs of the child due to Ariana’s joblessness and homelessness. The
father was in federal prison at the time these concerns arose and not available to
care for the child. D.M. was removed from Ariana’s care and placed with the
maternal grandparents.
By the time of the termination hearing in October 2017, Ariana had not
addressed the concerns giving rise to removal. She commenced outpatient
substance-abuse treatment in October 2016 and had some success. However,
Ariana did not complete the treatment. In December 2016, Ariana reported
symptoms of anxiety and depression and told workers she was prescribed
hydrocodone for pain relief for her teeth. She subsequently failed to comply with
drug testing in February, March, April, and May 2017. Shortly before the
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termination hearing, Ariana tested positive for opiates and oxycodone. There were
other reports the mother had been using methamphetamine intravenously. It was
clear from the evidence presented at the termination hearing that Ariana was
doctor shopping and abusing morphine and oxycodone, among other things. In
addition, it was clear Ariana was in denial regarding her substance-abuse
addiction. At the time of the termination hearing, Ariana remained unemployed
and homeless. She testified she had been living with a friend for a few weeks,
although she could not recall the address.
The juvenile court terminated Ariana’s parental rights in D.M. pursuant to
section 232.116(1)(f) (2017). Ariana timely filed this appeal.
II.
This court reviews termination proceedings de novo. See In re A.M., 843
N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination
of a parent-child relationship is well established and need not be repeated herein.
See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (setting forth the statutory
framework).
III.
On de novo review, we conclude there is clear and convincing evidence
authorizing the termination of Ariana’s rights pursuant to Iowa Code section
232.116(1)(f). We have interpreted this provision to require, among other things,
“clear and convincing evidence the child[] would be exposed to an appreciable risk
of adjudicatory harm if returned to the parent’s custody at the time of the
termination hearing.” In re E.H., No. 17-0615, 2017 WL 2684420, at *1 (Iowa Ct.
App. June 21, 2017).
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D.M. was removed from Ariana’s care due in part to Ariana’s use of
controlled substances, including intravenous use of controlled substances while in
the presence of the child. The child explained how Ariana crushed pills, injected
drugs via needles, and passed out. Ariana has never completed substance-abuse
treatment. She continues to use opioids, testing positive shortly before the
termination hearing. She continues to minimize her addiction even in the face of
a severe dependency diagnosis. Ariana’s history of injecting controlled
substances in the presence of the child when coupled with the denial of her
substance-abuse addiction demonstrates the child would be exposed to an
appreciable risk of harm if returned to Ariana’s care. See, e.g., In re A.B., 815
N.W.2d 764, 776 (Iowa 2012) (noting drug addiction can render a parent unable to
care for children); In re L.S., No. 17-1824, 2018 WL 540968, at *1 (Iowa Ct. App.
Jan. 24, 2018) (providing untreated substance abuse can create a risk of harm to
the children); In re R.P., No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug.
31, 2016) (affirming termination of parental rights of parent with history of drug
abuse); In re H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa Ct. App. July 16,
2014) (affirming termination of parental rights when parent had history of
substance abuse).
In addition, Ariana’s joblessness and homelessness demonstrate she would
not be able to provide adequate care for the child. The lack of stable housing is of
great concern in this case as the record reflects Ariana has resided with a drug
dealer in an environment not suitable for the care of a child. See, e.g., In re J.C.,
No. 17-0750, 2017 WL 3283395, at *3 (Iowa Ct. App. Aug. 2, 2017) (affirming
termination of parental rights where mother was unemployed and essentially
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homeless); In re M.T., No. 03-1417, 2003 WL 22346539, at *2 (Iowa Ct. App. Oct.
15, 2003) (considering mother’s inability to find employment or stable housing
when determining children could not be returned to her care); In re K.H., No. 03-
0671, 2003 WL 21459582, at *2 (Iowa Ct. App. June 25, 2003) (concluding the
children would be at a continued risk for harm when the father did not have stable
employment or housing).
IV.
Ariana argues this court should exercise its discretion to preserve the
parent-child relationship and place D.M. in a guardianship with the maternal
grandmother rather than terminate her parental rights. The factors outlined in
232.116(3) are permissive, not mandatory. See In re A.S., 906 N.W.2d 467, 475
(Iowa 2018). “Once the State has proven a ground for termination, the parent
resisting termination bears the burden to establish an exception to termination.”
Id. at 476.
Ariana has not met her burden in establishing a guardianship is preferable
under the circumstances. “[A] guardianship is not a legally preferable alternative
to termination.” Id. at 477 (citation omitted). None of the persons involved in this
case advocated for a guardianship in lieu of termination of Ariana’s parental rights.
The caseworker testified that IDHS would not support a guardianship because
“Ariana and [the maternal grandmother] have a history of not getting along when it
comes to [D.M.], and I think in another couple of years if she tried to fight for
custody, that would be another upset in [D.M.]’s life that I don’t think [the child]
needs to endure.” The guardian ad litem also recommended termination of
Ariana’s parental rights. “It is significant to us that neither the third-party service
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providers nor the [guardian ad litem] believed [the child] could be safely returned
to her parent[] at the time of trial.” In re A.M., 843 N.W.2d 100, 112 (Iowa 2014).
See In re A.S., 906 N.W.2d at 476 (rejecting a request to establish a guardianship
and noting the case manager and guardian ad litem recommended termination of
parental rights).
This case is not analogous to In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App.
2017), as Ariana claims. In that case, the court concluded a guardianship with the
maternal grandmother was preferable to termination of the mother’s parental rights
where the mother and child shared a close bond, the mother had substance-abuse
issues but had also had many years of sobriety, the child expressed an interest in
maintaining a relationship with the mother, and the mother and grandmother had
a close relationship “free of conflict.” See B.T., 894 N.W.2d at 34. Here, Ariana
and her mother have a history of conflict, and the grandmother did not advocate
on behalf of the mother.
Nothing in this record warrants the use of judicial discretion to preserve the
parent-child relationship. By all reports, D.M. is happy and enjoys the stability of
living with the maternal grandmother. IDHS reported the child “has integrated into
his grandmother and step-grandfather’s home. [D.M.] is loved and has a very
close relationship with [them] . . . . Termination and adoption is the least
detrimental permanency option for this child and it outweighs any benefit of
maintaining the parent child relationship.” We agree with IDHS’s assessment.
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V.
For these reasons, we affirm the order of the juvenile court terminating
Ariana’s parental rights in D.M.
AFFIRMED.
.