In the Interest of A.L., Minor Child , 919 N.W.2d 768 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0349
Filed June 6, 2018
IN THE INTEREST OF A.L.,
Minor Child,
A.H., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan C. Cox, District
Associate Judge.
A mother appeals the termination of her parental rights to her child.
AFFIRMED.
Jessica J. Chandler of Chandler Law Office, Windsor Heights, for
appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Karl Wolle of Juvenile Public Defender Office, Des Moines, guardian ad
litem for minor child.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
2
VOGEL, Presiding Judge.
A mother appeals the termination of her parental rights to her daughter,
asserting the State failed to prove the grounds for termination and termination
was not in the best interests of the child. Because the mother was incarcerated
and she did not attend to her substance abuse and other issues, the child could
not be returned to her care at the time of the termination hearing. Also, because
termination is in the child’s best interests and there are no impediments to
termination, we affirm.
I. Background Facts and Proceedings
The child, born in March 2015, initially came to the attention of the Iowa
Department of Human Services (DHS) in October 2015 after the department
received allegations the mother was abusing substances and unable to safely
parent A.L. As the investigation was pending, the mother was arrested in
Minnesota on a probation violation warrant and held there for several days. Over
the next several months, the DHS monitored the family due to concerns of
domestic abuse and drug and alcohol abuse by the mother and father.
In December 2016, the mother drove A.L. to the emergency room while
apparently under the influence of prescription drugs. A.L. was subsequently
removed from the home and placed with her maternal grandparents. In February
2017, the mother was arrested and charged with theft in the third degree. The
mother and the father had a volatile relationship that consisted of drug and
alcohol abuse, resulting in domestic violence and a no-contact order. Despite
the no-contact order, and a subsequent no-contact order requested by the father,
3
the mother and father continued to communicate, and the father provided the
mother with transportation. A.L. was adjudicated in need of assistance on
February 16, 2017, based on the parents’ substance-abuse issues and domestic-
violence concerns.1
In March 2017, the mother was arrested for operating while intoxicated
(OWI)—second offense, and she tested positive for methamphetamine and
amphetamines. The child was moved to her paternal grandmother’s care in April
because the maternal grandmother was unable to set appropriate limits with the
mother. In May, the mother entered inpatient treatment, but she was discharged
shortly thereafter for possessing prescription medication in her room and giving
medication to another patient. She entered another inpatient treatment program
in June. In September, the police found the mother unresponsive in the driver’s
seat of her vehicle. Prescription medication was found in the vehicle, and she
was arrested and charged with OWI—third offense and failure to report
contraband at a correctional institute. In October, the mother was hospitalized
after overdosing on prescription medication. In November, the mother pleaded
guilty to her two OWI charges and the theft charge. Also in December, the child
was removed from the paternal grandmother’s care due to the DHS’s concerns
that the paternal grandmother would return the child to the father even if his
parental rights were terminated. The child was then placed with her maternal
aunt and uncle in Minnesota where she remained at the time of the termination
hearing.
1
A.L. was adjudicated in need of assistance under Iowa Code section 232.2(6)(c)(2) and
(n) (2017).
4
Months earlier, at the June 2017 permanency review hearing, the district
court found the parents “demonstrated repeated dishonesty [regarding] their
substance abuse and toxic relationship,” and it determined termination was the
permanency goal. The State filed a petition to terminate the parents’ parental
rights on October 2, 2017, which came on for hearing on January 9, 10, 24, and
25, 2018. The court issued its order on February 11, terminating both parents’
parental rights under Iowa Code section 232.116(1)(h) (2018).
The mother appeals.2
II. Standard of Review
Our review of termination proceedings is de novo, giving weight to the
district court’s fact findings but not being bound by them. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012).
III. Grounds for Termination
The mother asserts the State failed to prove the statutory grounds for
termination under Iowa Code section 232.116(1)(h), claiming A.L. can be
returned to her care “in the future.” However, to terminate parental rights under
Iowa Code section 232.116(1)(h), the State must establish the child (1) is three
years old or younger, (2) has been adjudicated a child in need of assistance, (3)
has been removed from the home for six of the last twelve months, and (4)
cannot be returned to the parent’s custody as provided in section 232.102 “at the
present time.” Iowa Code § 232.116(1)(h)(1)-(4) (emphasis added); See In re
2
The father initially filed a timely notice of appeal, but he did not file his petition on
appeal within fifteen days and his appeal was dismissed.
5
A.M., 843 N.W.2d 100, 111 (Iowa 2014) (indicating “at the present time” means
at the time of the termination hearing).
The record establishes the mother has failed to abstain from abusing
prescription medication, and has continued to have contact with the father
despite the no-contact orders, and the child cannot be safely returned to her care
at the present time without the risk of adjudicatory harm. See Iowa Code §
232.116(1)(h)(4). Even as late as November 2017, the visitation supervisor cut
the mother’s visit with A.L. short after observing the mother having difficulty
walking straight, keeping her balance, pushing the stroller, and keeping her eyes
open. Moreover, despite a domestic-violence incident with the father that
resulted in a no-contact order, the mother and father were both found to be in
contempt after violating the no-contact order on multiple occasions.
On December 21, the mother was sentenced on her two OWI convictions
and a theft conviction. She received a sentence consisting of five years on the
OWI—third, two years on the theft—third, and one year on the OWI—first, with
the sentences ordered to run concurrently. The mother remained in prison at the
time of the termination hearing. With no progress being made on the issues that
were the mother’s obstacles to reunification, we agree with the district court’s
conclusion the State proved by clear and convincing evidence the child could not
be safely returned to the mother at the present time. See id.IV. Best Interests
Next, the mother argues that termination is not in the child’s best interests.
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,
6
mental, and emotional condition and needs of the child.” Id. § 232.116(2). We
may consider the length of time the child has been in the foster family, the
integration of the child into that family and the “desirability of maintaining that
environment and continuity for the child,” as supported by the record. Id.
§ 232.116(2)(b)(1). These considerations indicate termination is in the child’s
best interests because she was removed from the mother at a young age, and
the mother has not been able to put the child’s needs ahead of her own. “[W]e
cannot deprive a child of permanency after the State has proved a ground for
termination under section 232.116(1) by hoping someday a parent will learn to be
a parent and be able to provide a stable home for the child.” In re P.L., 778
N.W.2d 33, 41 (Iowa 2010). The DHS caseworker testified that A.L. is adjusting
well to her new placement, with her aunt and uncle and their children—A.L.’s
cousins— and her needs are being met.
Accordingly, we agree with the district court that it was in the child’s best
interests to terminate the mother’s parental rights. See Iowa Code § 232.116(2).
V. Impediments to Termination
Finally, the court must consider if any statutory considerations set forth in
section 232.116(3) should serve to preclude termination. “While a finding of any
of these factors allows us to choose not to terminate parental rights, ‘[t]he factors
weighing against termination in section 232.116(3) are permissive, not
mandatory.’” In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (alteration in original)
(quoting A.M., 843 N.W.2d at 113). The mother asserts her bond with A.L.
should preclude termination, yet she sabotaged her own ability to maintain a
bond with A.L. See Iowa Code § 232.116(3)(c). The visitation supervisor ended
7
one visit prematurely after the mother arrived under the influence. During
another visit, the mother was asked to leave after being disruptive and using
profanity. Any bond between the mother and the child should not preclude
termination. See id. Moreover, her claim that a guardianship would be preferred
over termination was rejected by the district court, and we agree as it would not
provide A.L. with the permanency she so deserves. See id. § 232.116(3)(a).
VI. Conclusion
Because the mother was incarcerated and she did not attend to her
substance abuse and other issues, the child could not be returned to her care at
the time of the termination hearing. Also, because termination is in the child’s
best interests and there are no impediments to termination, we affirm.
AFFIRMED.