In the Interest of K.K., K.K., and R.K., Minor Children ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0943
Filed August 1, 2018
IN THE INTEREST OF K.K., K.K., and R.K.,
Minor Children,
N.K., Father,
Appellant,
K.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Mary L. McCollum
Timko, Associate Juvenile Judge.
Mother and father appeal from the order terminating their parental rights
pursuant to Iowa Code chapter 232 (2018). AFFIRMED ON BOTH APPEALS.
George C. Blazek of Franck, Sextro & Blazek, P.L.C., Denison, for appellant
father.
Kara L. Minnihan of Minnihan Law Firm, Onawa, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Martha A. Sibbel of Law Office of Martha Sibbel, P.L.C., Carroll, guardian
ad litem for minor child.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
Parents Nicholas and Kimberly appeal from a juvenile court order
terminating their parental rights pursuant to Iowa Code section 232.116 (2018).
The parents have one child in common. Nicholas is the father of R.K. (born 2009),
K.K. (born 2013), and K.K. (born 2015). His rights to the children were terminated
pursuant to Iowa Code section 232.116(1)(e) and (l), as to all three children, and
(h), as to the youngest child. Kimberly is the mother of R.K. Her parental rights in
R.K. were terminated pursuant to Iowa Code section 232.116(1)(g) and (l). The
juvenile court also terminated the parental rights of the mother of K.K. and K.K.,
but she does not appeal.
I.
This court reviews termination proceedings de novo. See In re A.M., 843
N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination
of a parent-child relationship is well established and need not be repeated herein.
See In re A.S., 906 N.W.2d 467, 472–73 (Iowa 2018) (setting forth the statutory
framework). Where, as here, “the juvenile court terminates parental rights on more
than one statutory ground, we may affirm the juvenile court’s order on any ground
we find supported by the record.” In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).
II.
By way of background, this family has been involved with the Iowa
Department of Human Services (IDHS) for over six years. Kimberly had her rights
to three other children terminated in March 2015 due to her use of
methamphetamine and criminal activity. In the same proceeding, a permanency
order placed custody of R.K. with Nicholas.
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This most recent case stems from several incidents occurring in March
2017. On March 1, 2017, Kimberly tested positive for methamphetamine. Prior to
this time, Nicholas permitted unsupervised contact between Kimberly and R.K. In
mid-March, a search of Nicholas and his girlfriend’s home revealed drug
paraphernalia and stolen property. Nicholas was arrested. IDHS then began an
investigation into allegations Nicholas and his girlfriend were using
methamphetamine and marijuana around the children. After Nicholas and his
girlfriend both admitted to using methamphetamine and being under the influence
of the drug while caring for R.K., K.K., and K.K., the children were removed from
their care.
Nicholas made little progress over the life of this case. He was diagnosed
with methamphetamine-use disorder and cannabis-use disorder. The case plan
directed him to obtain substance-abuse treatment and attain sobriety. He did not
do so. Over the life of the case, Nicholas tested positive for methamphetamine,
amphetamine, or some combination thereof at least eight times. He completed an
inpatient treatment program after the State petitioned to terminate his parental
rights but relapsed almost immediately. Nicholas was directed to obtain mental-
health services and participate in anger-management classes. The classes were
necessary due to Nicholas’s violent outbursts, most notably threats to decapitate
his mother and shoot Kimberly. As of the termination hearing in April 2018,
Nicholas was not attending mental-health appointments, had not completed anger-
management classes, was sporadic in his attendance at outpatient substance-
abuse treatment, and blamed others and outside contamination for his recent
positive drug tests.
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In contrast, initially, Kimberly showed more promise. She engaged in
inpatient substance-abuse treatment. After inpatient treatment, she sought
outpatient services, obtained an apartment, and found employment. Kimberly
maintained custody of her younger children, and R.K. was placed in her care.
After showing positive signs, Kimberly relapsed in January 2018. She used
methamphetamine several times over a multiple-day period. R.K. and her other
children were removed from her care. Kimberly was placed in the county jail and
then a residential treatment facility for parole violations. At the time of intake into
the residential treatment facility on February 7, 2018, Kimberly tested positive for
methamphetamine.
At the termination hearing, Kimberly requested additional time to reunite
with her child. Kimberly testified she had been sober for ten months prior to her
relapse and could again attain sobriety. In the prior termination case involving her
older children, she was sober for two years prior to relapse. Kimberly testified this
time would be different because she would break up with her boyfriend, who she
said was a bad influence on her. Her testimony lacked credibility. At the time of
the termination hearing, she was pregnant with his child, which would make
compliance with her promise of no future contact difficult at best. In addition, she
admitted on cross-examination she had broken up with him on four prior occasions.
Kimberly testified that she would seek further substance-abuse treatment and
comply with all IDHS services. Her caseworker expressed skepticism given
Kimberly’s long history of treatment, sobriety, and relapse.
Ultimately, the juvenile court terminated the parental rights of Kimberly in
R.K. and Nicholas in all three children. Both parents now appeal.
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III.
A.
We first address the claims raised by Nicholas. He contends the State failed
to prove the statutory grounds authorizing the termination of his parental rights.
Specifically, he argues the State failed to prove “that the father relapsed on
methamphetamines” after December 2017 and thus failed to prove the grounds for
termination of parental rights under subsection (l). We disagree.
Iowa Code section 232.116(1)(l) states the court may terminate parental
rights when:
(1) The child has been adjudicated a child in need of assistance
pursuant to section 232.96 and custody has been transferred from
the child’s parents for placement pursuant to section 232.102.
(2) The parent has a severe substance-related disorder and
presents a danger to self or others as evidenced by prior acts.
(3) There is clear and convincing evidence that the parent’s
prognosis indicates that the child will not be able to be returned to
the custody of the parent within a reasonable period of time
considering the child’s age and need for a permanent home.
A “substance-related disorder” is defined as “a diagnosable substance abuse
disorder of sufficient duration to meet diagnostic criteria specified within the most
current diagnostic and statistical manual of mental disorders published by the
American psychiatric association that results in a functional impairment.” Iowa
Code § 125.2(14).
On our de novo review of the record, we find clear and convincing evidence
to satisfy these elements. Nicholas began using marijuana at age thirteen and
methamphetamine at age nineteen. At the time of the termination hearing, he was
twenty-eight and had been struggling with addiction for years. He also had been
diagnosed with substance-use disorders on at least two separate occasions. See
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In re G.C., No. 17-1758, 2018 WL 540873, at *1 (Iowa Ct. App. Jan. 24, 2018)
(finding a severe substance-related disorder based on history of usage and
diagnosis). Nicholas presents a danger to himself or others. Nicholas admitted
he used methamphetamine while caring for his children. The district court also
pointed out that his use of methamphetamine has prevented him from meeting his
own basic needs and those of his children. In addition, Nicholas threatened to
decapitate his mother and shoot Kimberly. There is clear and convincing evidence
that the children could not be returned to Nicholas within a reasonable period of
time. “[I]n considering the impact of a drug addiction, we must consider the
treatment history of the parent to gauge the likelihood the parent will be in a
position to parent the child in the foreseeable future.” In re N.F., 579 N.W.2d 338,
341 (Iowa Ct. App.1998). Nicholas’s history is not promising. The caseworker
aptly noted the lack of follow through, “currently and historically, they’re still not
following through with the specific guidelines set out for them . . . I don’t think with
more time that there would be improvements made.” All three children have
suffered as a result of this instability and uncertainty and deserve permanency. To
borrow from the juvenile court, “the court concludes it would be in [the children’s]
best interest to terminate the parent-child relationship so that they will have the
opportunity to grow and mature in a safe, healthy, and stimulating environment.
Enough is enough.”
Nicholas also requests he be given an additional six months’ time to resume
care of his children. Pursuant to Iowa Code section 232.104(2)(b), the court may
enter an order deferring permanency for six months upon a finding the need for
the child’s removal will no longer exist at the end of the additional six-month period.
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The court must “enumerate the specific factors, conditions, or expected behavioral
changes which comprise the basis for the determination” the need for removal will
no longer exist at the end the extension. Iowa Code § 232.104(2)(b). “The court
may look at a parent’s past performance” in determining if such a deferral is
appropriate. In re T.D.H., 344 N.W.2d 268, 269 (Iowa Ct. App. 1983). “The judge
considering [deferred permanency] should however constantly bear in mind that,
if the plan fails, all extended time must be subtracted from an already shortened
life for the children in a better home.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct.
App. 2005) (quoting In re A.C., 415 N.W.2d 609, 613–14 (Iowa 1987)). More time
is not the solution. There is no basis for this court to conclude removal would no
longer be necessary at the end of an additional six-month period. Nicholas has a
long history of drug use, unsuccessful treatment, non-compliance, and displaying
a lack of motivation to change. “Children simply cannot wait for responsible
parenting.” In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).
B.
We now turn to Kimberly’s arguments on appeal. She contends the
evidence supporting the grounds for termination is insufficient, requests six months
of deferred permanency, and contends termination is not in the best interest of
R.K.
We address the sufficiency of the evidence supporting the grounds for
termination set forth in Iowa Code section 232.116(1)(g). Pursuant to this
provision, the juvenile court may terminate a parent’s rights upon clear and
convincing evidence of the following:
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(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(2) The court has terminated parental rights pursuant to
section 232.117 with respect to another child who is a member of the
same family or a court of competent jurisdiction in another state has
entered an order involuntarily terminating parental rights with respect
to another child who is a member of the same family.
(3) There is clear and convincing evidence that the parent
continues to lack the ability or willingness to respond to services
which would correct the situation.
(4) There is clear and convincing evidence that an additional
period of rehabilitation would not correct the situation.
On de novo review, we conclude there is clear and convincing evidence
supporting termination of Kimberly’s parental rights. It is undisputed R.K. has been
adjudicated a child in need of assistance. It is also undisputed Kimberly’s parental
rights have been terminated with respect to other children in the family. There is
clear evidence an additional period of services would not correct the situation.
Kimberly has been involved with IDHS for six years. Although Kimberly has shown
progress on occasions, her progress is ephemeral and not enduring. In the
termination case involving her older children, Kimberly was sober but relapsed. In
this case, she was sober but relapsed. In the past, she repeatedly stated she
would cease her relationship with her troublesome boyfriend but failed to do so. In
this case, she stated she would cease her relationship with her troublesome
boyfriend but became pregnant with his child. This court has affirmed the
termination of parental rights under Iowa Code section 232.116(1)(g) under similar
circumstances. See In re A.H., No. 16-0691, 2016 WL 4379355, at *2 (Iowa Ct.
App. Aug. 17, 2016) (finding termination appropriate under section 232.116(1)(g)
where parent had substance-abuse dependence and repeatedly relapsed after
periods of sobriety); see also In re B.C., No. 17-0933, 2017 WL 4050975, at *1
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(Iowa Ct. App. Sept. 13, 2017) (affirming termination under 232.116(1)(g) where
mother had history of drug abuse and limited success with treatment and other
services); In re K.F., No. 14-0892, 2014 WL 4635463, at *3 (Iowa Ct. App. Sept.
17, 2014) (finding termination appropriate, where as here, “[a]lthough [the mother]
has been involved with services concerning her children at least three times, she
does not obtain any lasting benefit from those services”). As in the cited cases,
we conclude the evidence is sufficient in this case.
Kimberly also requests six months of deferred permanency. As with
Nicholas, we look to her “past performance” to determine the likelihood that the
need for removal will no longer exist at the end the extension. See T.D.H., 344
N.W.2d at 269. While Kimberly has had periods of sobriety, she continues to
engage in the cyclical pattern of addiction, rehabilitation, and relapse. Her past
conduct leads us to conclude an additional six months of deferred permanency is
not appropriate in this case.
Finally, Kimberly briefly contends termination of her parental rights is not in
the best interest of R.K. 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 condition and needs of the child.” In re
P.L., 778 N.W.2d 33, 39 (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 parent will learn to be a parent and be
able to provide a stable home for the child.” A.B., 815 N.W.2d at 776 (quoting P.L.,
778 N.W.2d at 41). R.K. has suffered through years of her mother’s instability,
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poor choices, and drug addiction. Any harm to R.K. is vastly outweighed by the
long and short-term benefits of a loving, stable, permanent home.
IV.
For these reasons, we affirm the juvenile court order terminating the
parental rights of Nicholas and Kimberly pursuant to Iowa Code chapter 232.
AFFIRMED ON BOTH APPEALS.