In the Interest of Z.P., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0225
Filed April 28, 2021
IN THE INTEREST OF Z.P.,
Minor Child,
A.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda Belcher,
District Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Michael A. Horn of Horn Law Offices, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Michelle R. Becker and Ellen
Ramsey-Kacena, Assistant Attorneys General, for appellee State.
Erin Mayfield of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Mullins, P.J., Greer, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
MAHAN, Senior Judge.
A mother appeals the termination of her parental rights to her child, born in
2017.1 She contends the State failed to prove the ground for termination cited by
the juvenile court, the court should have granted additional time to work toward
reunification, and the court should have applied statutory exceptions under Iowa
Code section 232.116(3) (2020) to preclude termination. We affirm.
I. Background Facts and Proceedings
This family came to the attention of the department of human services in
October 2019, due to concerns about the parents’ use of methamphetamine in the
home while caring for Z.P. and the mother’s two older children.2 The children were
removed from the home and adjudicated in need of assistance. Z.P. was initially
placed in the care of his maternal uncle and later with his paternal grandmother,
where he has remained. The older children were placed with their maternal
grandmother.
Shortly after the children’s removal, the father was arrested for a probation
violation and placed in jail. The mother engaged in services but “continue[d] to
provide positive drug screens and d[id] not take responsibility or engage in services
that properly address her substance use issues.” Upon little progress toward
reunification, the State filed a petition for termination of parental rights with regard
to Z.P.3 The termination hearing was held in December 2020. The record before
1 The father’s parental rights were also terminated. He does not appeal.
2 The older children have been the subject of prior founded child-protective
assessments in 2008 and 2011 relating to the mother’s use of illegal drugs.
3 Meanwhile, the court entered a permanency order establishing a guardianship
over the two older children with the maternal grandmother. On the mother’s
appeal, this court affirmed that order and declined her request for an additional six
3
the juvenile court indicated Z.P. had been removed from the mother’s care for more
than one year, the mother’s visits recently got “cut off” because she refused a drug
test, and the mother admitted to using illegal drugs within the past two weeks. The
mother requested “[a]t least another six months” to “get a hold on [her] addiction,”
but she also believed Z.P. could “safely be placed in [her] care today.” The
department caseworker and guardian ad litem recommended termination of the
mother’s parental rights.
Following the termination hearing, the court entered its order terminating
the mother’s parental rights pursuant to Iowa Code section 232.116(1)(h). The
mother appeals.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the best
interests of the child, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining
elements of which are the child’s safety and need for a permanent home. In re
H.S., 805 N.W.2d 737, 748 (Iowa 2011).
III. Discussion
The mother challenges the sufficiency of the evidence supporting the
ground for termination cited by the juvenile court. She does not contest the child
is three years of age or younger, has been adjudicated a child in need of
assistance, and has been removed from the parents’ physical custody for at least
six of the last twelve months. See Iowa Code § 232.116(1)(h)(1)–(3). But she
months to work toward reunification. See In re H.P., No. 20-1418, 2021 WL
210969, at *1 (Iowa Ct. App. Jan. 21, 2021).
4
claims “the State failed to show by clear and convincing evidence that Z.P. not be
returned safely to the home” at the time of the termination hearing. See id.§ 232.116(1)(h)(4).
Despite the mother’s acknowledgment at the termination hearing that she
“did weed” “[t]wo weeks ago” and used methamphetamine “[p]robably a week prior
to that,” she claims on appeal the State “did not provide any direct evidence that
the child could not be placed in her care with services despite recent drug usage.”
The mother’s track record of participation in services shows otherwise; she
admitted she had not completed an updated substance-abuse evaluation,
attended any individual therapy or treatment, or provided any drug screens since
the October 2020 permanency hearing.4
The mother also contends on appeal that “she had done everything DHS
asked of her.” But at the termination hearing, she acknowledged that “maintaining
[her] sobriety was one of the expectations that the department had for [her],” and
when asked if she had done that, she answered, “No, I didn’t, but there were times
when I did.”5 We do not discount the mother’s testimony about her employment,
her apartment, and her belief she is “not financially struggling,” but we cannot
agree with her assertion that “[a]ll [Z.P.’s] basic needs would be met” if he was
4 The mother admitted her sweat-patch test was positive for methamphetamine in
August, but she stated it was “inaccurate.” She also had an additional sweat-patch
test that was positive for methamphetamine around that time. She admitted she
took a sweat patch off in September. Since the permanency hearing in October,
she refused to take two additional tests because she did not “trust” them.
5 She stated her longest period of sobriety during this proceeding was “four months
straight,” but she “ended up relapsing.” She could not remember “which months it
was,” but “[i]t was after January” 2020.
5
placed in her custody considering her admitted recent drug use and unaddressed
addiction.6
Lastly, the mother alleges the court failed to consider the “sibling bond”
between the child and his older half-siblings “in determining the long term best
interests of Z.P.” But the mother agreed at the termination hearing Z.P. does not
see his half-siblings often because they are in different placements. On this topic,
the guardian ad litem stated “the information that [Z.P.] has not had contact with
his siblings is not accurate,” but “it’s in both of the paternal grandmother’s and
maternal grandmother’s interest to continue that relationship between the siblings.”
Ultimately, the juvenile court found, “There are ongoing concerns about the
safety of the child if returned to the care and custody of [the mother],” and
concluded “[t]he child cannot be safely returned to his mother.” Considering the
mother’s lack of progress and unwillingness or indifference to follow through with
treatment and refrain from use of illegal drugs, despite the services offered over
the past year or more since the child’s removal, we concur in the juvenile court’s
finding the child could not be returned to her custody at the time of the termination
hearing. We further agree with the guardian ad litem “that the evidence and the
history before the Court indicates that an extension would not be appropriate and
that even given additional time [it] would not be reasonably likely that [Z.P.] could
safely be returned to [the mother’s] care.” Under these circumstances, a six-month
extension was not warranted. Iowa Code section 232.116(1)(h) was satisfied.
6 The mother believed she “need[ed] inpatient treatment in order to stay clean.”
6
The mother also contends the court did not need to terminate her parental
rights because the child was placed with a relative and due to the parent-child
bond. See Iowa Code § 232.116(3)(a), (c). The exceptions to termination of
parental rights found under section 232.116(3) are permissive, not mandatory. In
re A.S., 906 N.W.2d 467, 475 (Iowa 2018). It is within the court’s discretion to
consider the circumstances of the case and the best interests of the child in
determining whether to apply the factors. In re A.M., 843 N.W.2d 100, 113 (Iowa
2014); In re C.K., 558 N.W.2d 170, 174 (Iowa 1997) (noting the “determination to
terminate a parent-child relationship is not to be countermanded by the ability and
willingness of a family member to take the child”). Considering Z.P.’s young age
and need for permanency, the fact he is placed with his paternal grandmother does
not preclude termination. Permanency cannot be established by a guardianship,
and Z.P. should not have to wait in limbo while the mother attempts to put her life
in order. With regard to the parent-child bond, we have no reason to disagree with
the mother’s testimony that Z.P. “was a mama’s boy from day one,” and their
“relationship’s pretty close.” But, there is no evidence the mother’s relationship
with Z.P. is so close it would be detrimental to him if termination occurred. We
conclude termination is in this child’s best interests, and no permissive statutory
exception should be applied to preclude termination. We affirm the decision of the
juvenile court to terminate the mother’s parental rights.
AFFIRMED.