In the Interest of A.L., Minor Child ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0296
Filed June 5, 2019
IN THE INTEREST OF A.L.,
Minor Child,
A.L., Father,
Appellant,
D.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A mother and father separately challenge the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant
father.
Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Chuck Fuson of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
A mother and father separately challenge the termination of their parental
rights to their minor child.
I. Background Facts and Proceedings
The mother and father are the parents of A.L., born in July 2015. The child
came to the attention of the Iowa Department of Human Services (DHS) in January
2017. As the mother was in the process of being arrested for operating a motor
vehicle while intoxicated, she disclosed to police that she had left her five children
unattended in a hotel room. The children’s ages ranged from ten years old to one
year old, the youngest being the child in interest.1 When police arrived at the hotel,
they found the children in a room in deplorable condition. Soiled diapers, dirty
laundry, and trash littered the floor; the room had a foul odor; mattresses were torn
apart; and electrical wires were exposed. The younger children’s diapers were
soiled and had not been changed for several hours. Police believed the mother
had likely left the children unattended on previous occasions. The police also
believed the older children’s responses to questions suggested the mother
coached the children on what to say. The mother was subsequently charged with
multiple counts of child endangerment and jailed. After its investigation, DHS
returned founded child-abuse assessments against the mother for denial of critical
care in relation to each child.2
1
The father in this case is only the father of A.L.
2
DHS previously returned several founded child-abuse assessments against the mother
in March 2011 for denial of critical care. The mother had allowed an individual charged
with child endangerment and assault to take care of one of her children. The mother was
aware the individual was working with DHS regarding issues with his own children. Later,
DHS returned a founded assessment against this individual after he committed domestic
violence against the mother when the children were present.
3
The court ordered the children’s immediate removal from the mother’s care
and placed the children in the temporary custody of DHS. None of the children’s
fathers were in a position to have the children placed with them, so the children
ultimately ended up in foster care. DHS provided supervised visitation for the
mother and father of A.L. DHS recommended substance-abuse treatment,
individual therapy, and parenting classes for the mother and recommended
substance-abuse treatment and individual therapy for the father.
The court adjudicated A.L., along with the other children, to be a child in
need of assistance (CINA) in February. Because none of the children’s fathers
were in a position to care for the children when they were removed from the
mother’s care, the court also considered this a removal from all the fathers’ care.
The father of A.L. suffers from several mental-health issues and takes
medication. He also has a history of drug use, including cocaine, heroin, and
methamphetamine. The father suffered a stroke when he was twenty-one years
old due to excessive methamphetamine use. The father attended treatment but
relapsed in May 2017. He also had a mental breakdown and was subsequently
hospitalized in a psychiatric unit. The father stopped attending treatment and
therapy services after claiming his counselor suggested they go buy some
methamphetamine together. The father struggled with housing and employment.
After his relapse, the father became inconsistent with his visitation, missing a
month’s worth of visits. He informed DHS this was due to needing some personal
time. Due to his behaviors, DHS believed the father had relapsed again. The
mother reported that domestic violence was present in all of her relationships,
including with the father. The father denied physically abusing the mother but
4
admitted the relationship with his paramour was volatile and he had physically
abused her. He was arrested in June for throwing a brick through his paramour’s
window.
In June, the mother was arrested for driving while barred as a habitual
offender and spent over a month in jail. Once released, she was homeless. She
stayed with family or friends, including an uncle who was an active alcoholic. In
July, the mother reported she was pregnant. In August, she entered Hope
Ministries shelter and began engaging in its substance-abuse and mental-health
services. Due to the mother’s progression in services, her visitation with the
children increased and ultimately the two oldest children were returned to her care
in December. The mother also gave birth to another child in December. The three
youngest children were returned to her care in January 2018. The court
conditioned the children’s return to the mother’s care on her continued placement
at Hope Ministries.
After the children were placed with the mother, she struggled to balance her
treatment with meeting the children’s needs. She often blamed her inability to gain
insight and attend required classes on the fact that she had six children. The room
she shared with the children was in disarray and appeared to be on a path to the
deplorable conditions found in the hotel, which led to the children’s removal and
DHS’s intervention. In May, the mother was discharged from Hope Ministries after
being unable to successfully complete its program. She failed to follow through on
expectations, had unauthorized medication, and failed to take accountability. Due
to having no housing, the mother became despondent and threatened to kill
herself. She was hospitalized for a short period of time on a psychiatric evaluation
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hold. All the children were again removed from her care. A.L. was placed with the
paternal grandmother, and the other children were placed in foster care. When
DHS spoke with the mother about the importance of ongoing therapy, the mother
reported she had reengaged in mental-health services. However, her therapist
reported to DHS that she had not seen the mother in over a year and the mother
failed to attend a recent appointment. The mother then began sessions with a new
therapist.
The father was incarcerated on two occasions for forgery during the
proceedings, in December 2017 and August 2018. In its October permanency
order, the court found the father was not in a position to have custody and that
both the mother and father were not making reasonable progress to achieve the
permanency goal of reunification or complying with other provisions of the
permanency plan. The court modified the permanency goal from reunification to
termination of parental rights. In December, the State petitioned to terminate both
parents’ rights. It sought to terminate the mother’s rights pursuant to Iowa Code
section 232.116(1)(h) and (l) (2018) and the father’s rights pursuant to section
232.116(1)(b), (e), and (h).
At the beginning of the termination hearing, the State requested A.L.’s case
be continued to allow more time for reunification with the parents. The State
explained that its position on A.L.’s case shifted due to the continuance of A.L.’s
younger sibling’s case. The State was willing to continue the hearing on A.L. to
allow the parents time to show consistency in their progress, as both parents had
been taking positive steps. The court refused to continue A.L.’s case, determining
that A.L. had been out of the parents’ care for approximately eighteen of the last
6
twenty-four months and needed permanency. Following the hearing, the juvenile
court terminated the mother’s and father’s parental rights to A.L.3 The mother and
father separately appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re A.S.,
906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “Our
primary concern is the best interests of the child.” In re J.E., 723 N.W.2d 793, 798
(Iowa 2006).
“[R]eview of termination of parental rights under Iowa Code chapter 232 is
a three-step analysis.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We must
first determine if “any ground for termination under section 232.116(1) has been
established.” Id. If a “ground for termination has been established, then we
determine whether the best-interest framework as laid out in section 232.116(2)
supports the termination of parental rights.” Id. at 219–20. “Finally, if we do find
that the statutory best-interest framework supports the termination of parental
rights, we consider whether any exceptions in section 232.116(3) apply to preclude
termination of parental rights.” Id. at 220.
3
The mother’s parental rights to four older children were terminated at the hearing. The
court continued the termination hearing of the mother’s youngest child.
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III. Analysis
A. Mother’s Appeal
The mother challenges the sufficiency of the evidence supporting the
statutory grounds for termination cited by the juvenile court, section 232.116(1)(h)
and (l). “On appeal, 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). We choose to focus on paragraph (h), which
requires the State to establish:
(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.
Iowa Code § 232.116(1)(h). “At the present time” has been interpreted to mean
“at the time of the termination hearing.” D.W., 791 N.W.2d at 707.
The mother does not challenge the State’s establishment of the first three
elements. She challenges the establishment of the fourth, claiming there was
insufficient evidence presented that the child could not be returned to her custody
at the time of the termination hearing. She also argues she received ineffective
assistance of counsel from her attorney during the termination hearing because
the attorney failed to address or correct the court’s perception that the mother’s
nod during the court’s summation of A.L.’s case was indicating her agreement with
the court’s summation.
8
“The test for ineffective assistance of counsel in termination cases is
generally the same as in criminal proceedings.” In re A.R.S., 480 N.W.2d 888, 891
(Iowa 1992). “In order to establish an ineffective assistance claim, it must be
shown that (1) counsel’s performance is deficient, and (2) actual prejudice
resulted.” Id. “We presume that counsel’s conduct falls within the range of
reasonable professional competency,” and it is the mother’s burden to prove
ineffective assistance. Id.Near the conclusion of the hearing, the court made several findings on the
record:
[The mother] is doing well. She is making mental health therapy
gains, better than she has her entire life. But I interpret her
statement, which was unsolicited when she said I could not have
both children in my care today. I agree that would be too much. That
was a statement she was making from maintaining her mental health.
And I see her nodding.
The mother claims that her nod indicated her agreement to a staggered
return of the two youngest children to her care, not that she agreed she could not
care for both of the children at the time of the hearing. However, immediately prior
to the mother’s nod, the court clarified with the mother’s attorney about the
mother’s position and the following exchange occurred:
[COUNSEL]: Thank you, Your Honor. [The mother] is ready
to have her children returned to her care today, Your Honor. She’s
addressing her mental health needs and working—
THE COURT: Well, your client just said she could not have
both returned to her care today at the same time.
[THE MOTHER]: Correct.
We find the mother has not established deficient performance as the mother’s
attorney did not need to address the nod or correct the court’s perception when
the mother herself verbally agreed with the court’s statement. There is no
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evidence the court misinterpreted the mother. Accordingly, the ineffective-
assistance-of-counsel claim fails.
Further, while the mother argues that the court’s willingness to return her
youngest child to her care at a future date is evidence that A.L. should have been
returned to her care at the time of the termination hearing, we do not agree. The
court was not willing to return the youngest child at the time of the termination
hearing because it wanted more visitation to occur before the child would be
returned to ensure a positive transition. In contrast with the youngest sibling, A.L.’s
case has been pending and A.L. had been out of the mother’s care for a much
longer period of time.
During the pendency of A.L.’s case, the mother has not been able to show
sustained progress and stability when any of her children have been in her care.
When the children were returned to the mother’s care, her progress in treatment
waned and she was unable to balance taking care of her children and her issues.
While the mother has engaged in mental-health services, she did not do so
consistently until a few months prior to the termination hearing. Based upon our
de novo review of the record, we find sufficient evidence was presented to
establish A.L. could not be returned to the mother’s care at the time of the
termination hearing.
The mother also contends termination of her parental rights to A.L. is not in
the child’s best interest. In our consideration of whether termination is in the child’s
best interest, “there is no all-encompassing best-interest standard.” In re P.L., 778
N.W.2d 33, 40 (Iowa 2010). We “give primary consideration to the child’s safety,
to the best placement for furthering the long-term nurturing and growth of the child,
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and to the physical, mental, and emotional condition and needs of the child.” Iowa
Code § 232.116(2). “Insight for the determination of the child’s long-range best
interests can be gleaned from ‘evidence of the parent’s past performance for that
performance may be indicative of the quality of the future care that parent is
capable of providing.’” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In re
Dameron, 306 N.W.2d 743, 745 (Iowa 1981)).
The mother admitted she has not remained consistent and stable with
following through with services and treatment during the pendency of this case.
She recognized that she has had periods of doing well followed by periods where
she struggled. We, like the district court, recognize the progress the mother has
made over the pendency of this case, but the mother has not demonstrated the
sustained progress that would warrant a delay in A.L.’s permanency. Throughout
this case, A.L. has been in multiple placements. Given the child’s young age, he
needs “permanency, emotional stability and to attach as part of a family.” In re
E.B.L., 501 N.W.2d 547, 551 (Iowa 1993). “We will not gamble with [A.L.’s] future
by asking [the child] to continuously wait for a stable biological parent, particularly
at such a tender age.” In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011).
Based upon our review of the record, we find termination is in the child’s best
interest.4
4
The mother’s appellate brief provided the court with information outside of the closed
record. We do not consider those facts that were not a part of the district court’s record in
reaching our conclusion. See Iowa R. App. P. 6.801 (the record on appeal consists of “the
original documents and exhibits filed in the district court case . . . , the transcript of
proceedings, if any, and a certified copy of the related docket and court calendar entries
prepared by the clerk of the district court.”); In re Marriage of Keith, 513 N.W.2d 769, 771
(Iowa Ct. App. 1994) (“[A]ny matters outside the record on appeal are disregarded.”).
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B. Father’s Appeal
The father likewise challenges the sufficiency of the evidence supporting
the statutory grounds for termination of his parental rights under Iowa Code section
232.116(1)(b), (e), and (h). As to paragraph (h) he only challenges the
establishment of the final element—that the child could not be returned to his care
at the time of the termination hearing. He contends that A.L. could have been
returned to him at the time of the termination hearing or within a reasonable amount
of time.
At the time of the termination hearing, the father had just attended
orientation at a new job and did not have a stable residence. The father had “couch
surfed” with his friends and, at the time of the termination hearing, he was staying
at his current paramour’s apartment. The father is not listed on the lease. The
apartment has only one bedroom, and the father admitted it would be crowded
since it would be the father, his paramour, and their daughter, in addition to A.L. if
the child was returned to his care. The father admitted A.L. would possibly have
to sleep in the same bed with him and his paramour. His testimony throughout the
termination hearing indicated that he wanted the child returned to the mother’s
care—not his own. Further, the father only completed substance-abuse treatment
successfully just prior to the termination hearing. He completed multiple
substance-abuse evaluations during the pendency of this case, but his prior
attempts to follow through and complete a treatment program failed. Like the
mother, the record indicates the father has a history of cycling through periods of
doing well and then doing poorly; he has been unable to sustain a long period of
progress. Only a few months prior to the termination hearing did the father begin
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to respond to services. “A parent cannot wait until the eve of termination, after the
statutory time periods for reunification have expired, to begin to express an interest
in parenting.” C.B., 611 N.W.2d at 495. Upon our de novo review, we find
sufficient evidence to establish that the child could not be returned to the father at
the time of the termination hearing.
To the extent the father questions whether termination is in the child’s best
interests, the father, like the mother, has not shown consistent and sustained
progress in dealing with his issues. He was incarcerated multiple times throughout
the pendency of this case, interrupting his ability to be a consistent presence in the
child’s life. Further, he only recently was able to complete a substance-abuse
treatment program successfully. The father has not had stable employment and
housing throughout the pendency of the case. At the time of the termination
hearing, he was staying with his paramour and his daughter and the father
admitted the home would be crowded if A.L. was returned to his custody. Upon
our review, we find termination is in the child’s best interest.
To the extent that the father is requesting additional time for reunification,
section 232.104(2)(b) permits the juvenile court to continue the child’s placement
for an additional six months if the court finds “the need for removal . . . will no
longer exist at the end of the additional six-month period.” Upon our de novo
review, we decline to delay the child’s permanency any further, and we decline to
grant the father an extension.
Neither parent contends that an exception to termination pursuant to section
232.116(3) warrants a different result. Therefore, we do not need to address that
13
step. See P.L., 778 N.W.2d at 40. Accordingly, we affirm the termination of both
parents’ parental rights.
AFFIRMED ON BOTH APPEALS.