In the Interest of L.M and L.M., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1466
Filed January 12, 2022
IN THE INTEREST OF L.M. and L.M.,
Minor Children,
A.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Virginia Cobb,
District Associate Judge.
A mother appeals the district court order terminating her parental rights.
AFFIRMED.
Benjamin J. Bragg of Bragg Law Firm, P.L.L.C., Clive, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Gina Burress of Carr Law Firm, P.L.C., Des Moines, attorney and guardian
ad litem for minor children.
Considered by Mullins, P.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.
A mother appeals the juvenile court order terminating her parental rights.
There is clear and convincing evidence in the record to support termination of the
mother’s parental rights. The mother did not preserve error on her claim regarding
reasonable efforts. We find termination of the mother’s parental rights is in the
children’s best interests. Thus, we affirm the decision of the juvenile court.
I. Background Facts & Proceedings
A.M. is the mother and C.M. is the father of L.J.M., born in 2017, and L.M.M.,
born in 2018. The children were removed from the mother’s care on October 29,
2018, after she physically assaulted the paternal grandmother while she was
holding L.M.M. The mother tested positive for marijuana, methamphetamine, and
amphetamines. She was charged with two counts of child endangerment and one
count of assault. The children were placed with the father.
The mother consented to the children’s adjudication as children in need of
assistance (CINA), pursuant to Iowa Code section 232.2(6)(c)(2) and (n) (2018).
The mother participated in an outpatient substance-abuse treatment program. She
also received mental-health services. The mother pled guilty to child
endangerment and assault causing bodily injury. She was placed on probation.
On May 3, 2019, the mother relapsed on methamphetamine. She entered
an inpatient treatment program but was unsuccessfully discharged due to lack of
cooperation. In August, the mother was arrested on charges of criminal mischief.1
In September, she was arrested for probation violations. When arrested, the
1She pled guilty to criminal mischief in the second degree. The mother was again
placed on probation.
3
mother had drug paraphernalia on her person and tested positive for marijuana.
She was confined in jail and then the women’s prison.2 She had telephone contact
with the children while incarcerated.
On June 1, 2020, the State filed a petition seeking termination of the
mother’s parental rights. A hearing was held in August. The juvenile court entered
an order on November 9, denying the petition. The court found the mother was
addressing her substance-abuse and mental-health problems while in prison. The
court determined the mother should have more time to work on reunification.
In the meantime, while the first termination proceeding was pending, the
mother was released from prison on August 22. She did not comply with random
drug testing. On December 7, the mother’s hair test was positive for
methamphetamine. A hair test on December 28 was positive for
methamphetamine, amphetamines, and THC.3
On February 2, 2021, the State filed a second petition for termination of the
mother’s parental rights. The mother was in jail at the time of the hearing on
May 14, facing charges of fifth-degree theft, assault of a police officer, possession
of a controlled substance, as well as probation violation charges. The mother
stated the last time she used methamphetamine was March 31, which was when
she was arrested on the current charges. She testified that she expected to be
sent to a halfway house, where she could receive substance-abuse and mental-
2 The mother’s probation was revoked on the charge of child endangerment and
she was sentenced to prison for a period not to exceed two years. Her probation
on the charge of criminal mischief was modified to require her to reside at a
community correctional center for one year.
3 A urinalysis test on the same date was negative for controlled substances.
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health treatment. The mother stated she did not think the children could live with
her at the halfway house.
The juvenile court entered an order on October 1, terminating the mother’s
parental rights under section 232.116(1)(e), (f) (L.J.M.), (h) (L.M.M.), (i), and (l)
(2021). The court found terminating the mother’s parental rights was in the
children’s best interests. The court also found “there is no evidence that
termination would be detrimental to the children due to the closeness of the parent-
child relationship.” The mother appeals the termination of her parental rights.
II. Standard of Review
Our review of termination proceedings is de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). The State must prove its allegations for termination by clear
and convincing evidence. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). “‘Clear
and convincing evidence’ means there are no serious or substantial doubts as to
the correctness [of] conclusions of law drawn from the evidence.” Id. Our primary
concern is the best interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa
2014).
III. Sufficiency of the Evidence
The mother claims the State did not present clear and convincing evidence
to show her parental rights should be terminated. “We will uphold an order
terminating parental rights where there is clear and convincing evidence of the
statutory grounds for termination.” In re T.S., 868 N.W.2d 425, 434 (Iowa Ct. App.
2015), as amended (Oct. 16, 2015). “When the juvenile court orders termination
of parental rights on more than one statutory ground, we need only find grounds
to terminate on one of the sections to affirm.” Id. at 435.
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The mother challenges termination of her parental rights under section
232.116(1)(e), (f), (i), and (l). She does not challenge the termination of her rights
to L.M.M. under section 232.116(1)(h). Because we can affirm on any section
relied upon by the juvenile court, we affirm the termination of the mother’s parental
rights to L.M.M. pursuant to section 232.116(1)(h). See Iowa R. App. P.
6.903(2)(g) (stating the failure to raise an issue on appeal is a waiver of that issue).
In considering the termination of the mother’s parental rights to L.J.M., we
focus on section 232.116(1)(f). A parent’s rights may be terminated under section
232.116(1)(f) if the court finds:
(1) The child is four years of age or older.
(2) The child has been adjudicated a [CINA] pursuant to
section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
The mother states the children were not removed from the care of both
parents, as the children were placed with the father under the supervision of the
Iowa Department of Human Services (DHS). The parental rights of one parent
may be terminated even if the other parent has legal custody of the children. In re
N.M., 491 N.W.2d 153, 156 (Iowa 1992). “It is not in the children’s best interests
to interpret the language of the subsections to prevent termination of the
noncustodial parent’s rights when the children are placed in the separate home of
the other parent.” Id. at 155.
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We find the elements of section 232.116(1)(f) have been met. L.J.M. is four
years old, there was a CINA adjudication, and the child has been removed from
the mother’s care since October 2018—almost three years prior to the termination.
Additionally, the child could not be returned to the mother’s care at the time of the
termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (noting we
consider whether a child may be returned at the time of the termination hearing).
The mother was in jail, then expected to be placed in a halfway house where she
did not think the children would be permitted. We conclude the mother’s parental
rights were properly terminated under section 232.116(1)(f) and (h).
IV. Reasonable Efforts
The mother claims the State did not engage in reasonable efforts to reunite
her with the children. She asserts that after she was released from prison, she
was provided with only drug tests and visitation. She claims the State should have
done more to assist her in obtaining substance-abuse treatment.
The Iowa Court of Appeals previously stated:
While the State has an obligation to provide reasonable
services to preserve the family unit, it is the parent’s responsibility “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); In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.
App. 1997). Complaints regarding services are properly raised “at
removal, when the case permanency plan is entered, or at later
review hearings.” In re C.H., 652 N.W.2d 144, 148 (Iowa 2002).
Where a parent “fails to request other services at the proper time, the
parent waives the issue and may not later challenge it at the
termination proceeding.” C.H., 652 N.W.2d at 148. Similarly, we will
not review a reasonable efforts claim unless it is raised prior to the
termination hearing. See In re L.M.W., 518 N.W.2d 804, 807 (Iowa
Ct. App. 1994) (stating that a party challenging reasonable efforts
must do so prior to the termination hearing).
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T.S., 868 N.W.2d at 442 (quoting In re M.Y.R., No. 11-1139, 2011 WL 5389436,
at *7 (Iowa Ct. App. Nov. 9, 2011)).
The mother did not previously raise the issue she raises now regarding
services after she was released from prison. On January 20, 2020, while she was
still incarcerated, she requested in-person visits with the children. She voluntarily
withdrew this request, however, on March 19, noting no visits were permitted at
the prison due to COVID. The issue was not addressed by the juvenile court in
the termination order. We conclude the mother has not preserved error on the
reasonable efforts argument she raises on appeal. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we
will decide them on appeal.”).
V. Best Interests
The mother claims termination of her parental rights is not in the best
interests of the children. She claims the children could be placed in the father’s
physical care and she could continue to have visitation with them. She also asks
for more time to work on her problems with substance abuse.
In considering the best interests of children, we give “primary consideration
to the child’s safety, to the best placement for furthering the long-term nurturing
and growth of the child, and to the physical, mental, and emotional needs of the
child under section 232.116(2).” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010). “It 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
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parent will learn to be a parent and be able to provide a stable home for the child.”
Id.The juvenile court stated:
The court had found that [the mother] had come a very long
way from where she started in improving herself and her situation,
and found she should be allowed to have additional time to prove
herself, given that COVID has interfered so much. She has not,
however, taken advantage of that additional time, and has resumed
her former illegal activities. She was specifically given the additional
time to follow through with her substance abuse treatment and
provide clean [drug tests], follow through with her mental health
treatment, and follow the terms and conditions of her probation. She
had planned to establish herself in a location closer to her children,
but did not do so. She has not progressed beyond supervised visits.
She has not been consistent with her drug-testing, or her visits with
the children.
The mother is not able to meet the needs of the children. Both children
have special needs. L.J.M. has been diagnosed with autism and L.M.M. is
developmentally delayed. L.J.M. in particular needs consistency, which the mother
is unable to provide. She relapsed into using illegal substances soon after she
was released from prison and was facing new criminal charges. The mother was
given an extension of time when the first termination proceedings were dismissed
in November 2020. The mother did not take advantage of the extension of time.
We conclude a further extension would not be in the children’s best interests. We
find termination of the mother’s parental rights is in their best interests.
We affirm the decision of the district court.
AFFIRMED.