In the Interest of A.G., R.G., and K.H., Minor Children, C.B., Father, T.G.-h., Mother ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1177
Filed October 11, 2017
IN THE INTEREST OF A.G., R.G., and K.H.,
Minor Children,
C.B., Father,
Appellant,
T.G.-H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
The mother and one of the fathers appeal from the termination of their
parental rights. AFFIRMED ON BOTH APPEALS.
Douglas E. Cook of Cook Law Office, Jewell, for appellant father of A.G.
Neven J. Conrad of Baker, Johnsen, Sandblom & Lemmenes, Humboldt,
for appellant mother.
Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney
General, for appellee State.
Derek J. Johnson of Johnson & Bonzer, P.L.C., Fort Dodge, guardian ad
litem for minor children.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, Judge.
The mother appeals the termination of her parental rights to her three
children, A.G., born in 2011;1 R.G., born in 2014; and K.H., born in 2015.2 The
mother claims the State failed to establish the statutory grounds for termination.
Alternatively, she maintains the children could be returned to her care if she was
given an additional six months to work toward reunification. The mother also
argues termination of her parental rights is not in the children’s best interests.
I. Background Facts and Proceedings.
The Iowa Department of Human Services (DHS) became involved with
this family in August 2014, when R.G. was born with THC in his system. Neither
1
The parental rights of A.G.’s father were also terminated, and he appeals. As he did at
the juvenile court, the father concedes he is unable to be the custodial parent of A.G.
He also admits he has “no significant dispute with the court’s finding of fact,” which
included findings that the father’s “visits are sporadic” and he had no “contact with [A.G.]
from September of 2016 through late February 2017. The DHS worker has continually
attempted to contact [the father] to offer visits and transportation through the [family
safety, risk, and permanency] (FSRP) provider. [The father] has not taken advantage of
these services.”
Rather, the father uses his appeal as an attempt to bolster the arguments of the
mother so that he may remain in A.G.’s life as a noncustodial parent. The father is not
allowed to make arguments on behalf of the mother. See, e.g., In re K.R., 737 N.W.2d
321, 323 (Iowa Ct. App. 2007) (finding the court’s denial of the father’s motion to vacate
was not an abuse of discretion because “[t]he father’s only basis for the motion dealt
with the change in the mother’s living situation and how that should have prevented the
termination of her parental rights. He did not have standing to assert that argument on
her behalf in an effort to ultimately gain a benefit to himself, that is, the reversal of the
termination of his parental rights”); In re D.G., 704 N.W.2d 454, 460 (Iowa Ct. App. 2005)
(stating that one parent cannot assert facts or legal positions pertaining to the other
parent as the court makes a separate adjudication as to each parent). And insofar as
we understand his best-interests argument to pertain to himself, we find the termination
of his parental rights is in A.G.’s best interests. As noted, the father concedes he is not
able to be the custodial parent of A.G. A.G.’s best interests require more than sporadic
visits with a biological parent; she needs and deserves permanency. See In re J.E., 723
N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially) (noting the “defining
elements in a child’s best interest” are the child’s safety and her “need for a permanent
home”). Without further discussion, we affirm the termination of the parental rights of
A.G.’s father.
2
The parental rights of the legal and putative fathers of R.G. and K.H. were also
terminated. None appeal.
3
A.G., who was two years old at the time, nor R.G. was immediately removed
from the mother’s care. Instead, the mother agreed to and began receiving daily
in-home “safety services.” The mother also agreed to complete drug treatment,
receive a mental-health evaluation, maintain a home with appropriate
cleanliness, and continue to meet with DHS.
By late October, DHS received reports the mother had failed to attend
twelve of her outpatient treatments and was refusing to attend support meetings
or parenting classes. The mother also refused to be supervised during a drug
test, so she was allowed to proceed unsupervised. However, the temperature of
the urine was not within normal range, and the test was considered invalid.
Providers in the home noted it was cluttered, with food and clothing all over the
floor.
In early November, the mother told the social worker she wanted to be
done with services and did not want any providers to come back. She was
discharged from drug treatment for lack of progress and lack of attendance. The
mother refused to speak to the social worker about these developments, and she
barred the FSRP worker from entering the home.
A.G. and R.G. were removed from the mother’s care on November 11,
2014.
The children remained out of the mother’s care until April 8, 2016—
approximately seventeen months. In the meantime, K.H. was born in the
summer of 2015 and remained in the mother’s care. During the same period, at
a permanency review hearing in October 2015, the court ordered an additional
six months to work toward reunification. The court noted the mother had
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completed a substance-abuse program and was consistently testing negative for
illegal substances. Additionally, the mother had resumed taking her medications
for her mental health after her pregnancy ended, was attending her monthly
therapy appointments, and she and her new husband had moved into a new
home, providing a fresh start away from recognized negative influences and
without the clutter and garbage that was an issue in the previous home.
A.G. and R.G. returned to the mother’s home for a trial visit on April 8,
2016, and the children were officially returned to the mother’s care pursuant to a
court order on April 28, 2016. At the time of their return, the court noted that the
mother and her new husband had recently had some marital discord with the
mother leaving the home and staying with a friend for a few days. The mother
and husband were given referrals to a marriage counselor. Also, the condition of
the new home had begun to be a concern.
Approximately four months later, in August 2016, all three children were
removed from the mother’s care and placed together with a foster family. The
removal occurred after the mother and the maternal grandmother engaged in a
physical altercation in front of A.G. Although it is unclear exactly how it occurred,
as a result of the altercation, the maternal grandmother’s arm was broken; a
founded child abuse assessment resulted. Additionally, the mother appeared to
be overwhelmed with caring for the three children full-time. The condition of the
home quickly became “unsanitary and filthy,” and the family’s hygiene was poor.
The mother quit taking her mental-health medication, and the mother’s therapist
expressed concern about the welfare of the children.
5
Between August 2016, when the children were removed for the final time,
and June 2017, when the termination hearing was held, the mother continued to
regress. Pictures admitted into evidence at the termination hearing show the
unsanitary conditions of the family home, with multiple piles of animal feces being
left on the floor and dirty, crusted pans and plates kept on the floor of the
kitchen.3 After the children were removed, the mother put wood chips in one of
the bedrooms and kept a chicken and a rabbit in the room. The social worker
testified there was animal urine on the furniture and a full litterbox that did not
appear to get emptied kept on the dining room floor. Starting in March 2017,
visits were no longer allowed in the home due to its condition. Rather than
recognizing the condition of the home, the day before the termination hearing,
the mother told the caseworker she would like to add more pets. Based on
behavioral indicators, DHS believed the mother began using drugs again in
January 2017, and the mother missed all twenty-three of the drug tests that were
authorized after that date. The mother had stopped taking her mental-health
medication and she refused to go to couple’s counseling, even after she was
arrested in April 2017 for perpetrating domestic violence against the husband.
Although there was a no-contact order between the two for a short while, they
had it dismissed and, at the time of the termination hearing, both the mother and
the husband were again living in the marital home.
3
The social worker had taken photos on March 8 and June 5, 2017, and the home was
in similar unsafe conditions on each date with animal feces and large amounts of
garbage present on both dates.
6
The mother did not testify at the termination hearing, but there was
testimony she wanted to move homes again and that she believed she could be
successful after another fresh start.
The juvenile court terminated the mother’s parental rights to all children
pursuant to Iowa Code section 232.116(1)(l) (2017). Additionally, the mother’s
parental rights to R.G. and K.H. were terminated pursuant to subsection (h) and
to A.G. pursuant to subsection (f).
The mother appeals.
II. Standard of Review.
We review termination proceedings de novo. In re C.B., 611 N.W.2d 489,
492 (Iowa 2000).
III. Discussion.
A. Statutory Grounds.
As here, where the juvenile court terminated on more than one ground,
“we may affirm the juvenile court’s termination order on any ground that we find
supported by clear and convincing evidence.” In re D.W., 791 N.W.2d 703, 707
(Iowa 2010). Iowa Code section 232.116(1)(f) and (h) contain similar elements,
and the mother does not dispute there is sufficient evidence to establish the first
three elements of paragraphs (f) and (h). She does contest the fourth element,
common to both paragraphs: that the children could not be returned her custody
at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4), (h)(4);
see also D.W., 791 N.W.2d at 707 (stating the language “at the present time,” as
found in subsections (f)(4) and (h)(4), means “cannot be returned to the parents’
care at the time of the termination hearing”).
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The mother maintains the children could be returned to her care at the
time of the termination hearing because she intended to move to a new home,
“which would provide a fresh start for not only her, but her children as well.” This
argument ignores the other facts in the record. First, the mother had already
moved to a new residence during the pendency of the proceedings in order to
obtain a fresh start. Still, shortly after, the home was in a condition that was
unsafe for the children to live in. The mother had stopped taking her medication
for her mental health, and it was believed she was again using illegal
substances. The mother had been in one altercation that resulted in the
maternal grandmother’s arm being broken and a second altercation with the
husband that resulted in the mother’s arrest. She refused to attend couple’s
counseling with her husband. Additionally, the caseworker testified that when the
mother was responsible for taking care of all three children, she became
overwhelmed after a short time—a matter of hours. Nothing in the record—
including the mother’s intention to move again in the near future—supports a
finding the children could be returned at the time of the termination hearing.
Alternatively, the mother claims the children could be returned in six
months if she was given additional time to work toward reunification. See Iowa
Code § 232.104(2)(b). Although the mother was once able to establish that she
could meet DHS expectations in order to have the children returned to her, since
the children were removed a second time, the mother has continued to regress.
At the time of the termination hearing, even supervised visits could not take place
at the home due to the dirty and unsafe conditions. The mother’s statement to
the social worker the day before the termination hearing that she would like to
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add more pets to the home showed either a lack of understanding or an
unwillingness to comply with the DHS requirements regarding the cleanliness of
the home. Additionally, if the mother intended to take the current pets with her
(and add more) to the new home, we see no reason to believe the circumstances
of the present home would not continue to exist. The mother did not make any
progress in the time period leading up to termination; there is no reason to
believe an additional six months would cure the conditions that led to removal.
B. Best Interests.
The mother also maintains the termination of her parental rights was not in
the children’s best interests. She notes the social worker agreed she shares a
bond with the children and claims she has the ability to regain custody and keep
them all together. At the time of the termination hearing, the oldest two children
had been out of the mother’s care approximately twenty-seven of the preceding
thirty-two months. K.H., who was not yet two years old, had been out of the
mother’s care for approximately ten months. After two and a half years of
involvement with DHS, the mother was not in a position to care for her children
full-time, and, as noted above, there is nothing to suggest she could be in such
place in the near future. In contrast, the three children were living together with
one foster family, who wished to adopt all three siblings. The caseworker
testified the children were “good” and “continuing to make progress.”
Additionally, “[t]hey’re bonded with their foster mother” and “ha[ve] a good
relationship with her.” At this point, we cannot ask these children to continue to
wait for a biological parent who may never be in a place to care for them. See
C.B., 611 N.W.2d at 495 (“Once the limitation period lapses, termination
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proceedings must be viewed with a sense of urgency.”); see also D.W., 791
N.W.2d at 707 (“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.”
(citation omitted)).4
IV. Conclusion.
Because the statutory grounds have been met, the record does not
support the mother’s assertion the children could be returned in additional six
months, and termination is in the children’s best interests, we affirm.
AFFIRMED ON BOTH APPEALS.
4
As part of her best-interests argument, the mother makes an argument on behalf of her
husband, the legal father of K.H. The mother states, “[I]n the event the Court were to
find an issue regarding Mr. Hall’s lack of notice or involvement in the underlying CINA or
similar absences in the Termination case, the Mother would ask the Court to consider
the best interests of the family unit if [the husband] is given additional time due to
procedural defects.” The legal father did not appeal from the termination of his parental
rights, and the mother has no standing to advocate on his behalf. See D.G., 704 N.W.2d
at 460. We do not consider whether there was defect in the legal father’s participation or
notice in the underlying proceeding.