In the Interest of B.P., Minor Child ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0233
Filed May 1, 2019
IN THE INTEREST OF B.P.,
Minor Child,
K.D., Mother,
Appellant,
J.M., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,
Associate Juvenile Judge.
A father and mother appeal separately from the juvenile court order
terminating their parental rights. AFFIRMED ON BOTH APPEALS.
Michael Lanigan, Waterloo, for appellant mother.
Joseph G. Martin, Cedar Falls, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Mark Milder, Waverly, guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge.
A father, James, and a mother, Karmen, separately appeal the termination
of their parental rights to their eight-year-old child, B.P. They both contend rather
than terminating their rights, the juvenile court should have established a
guardianship with B.P.’s current placement, his maternal aunt. Karmen further
contends the State did not offer clear and convincing evidence she was “unable to
care for the child.” After an independent review,1 we reach the same conclusions
as the juvenile court: terminating parental rights is proper and establishing a
guardianship is not the preferred outcome for B.P.
I. Facts and Prior Proceedings
B.P. came to the attention of the Iowa Department of Human Services
(DHS) three years ago because of Karmen’s methamphetamine use and the
domestic violence he witnessed in his home. At that time, B.P. lived with his
mother, Karmen; his stepfather, David; and his older half-sister, T.D. The juvenile
court approved removal of both children in April 2016.
B.P.’s biological father, James, has had only sporadic contact with him since
his birth in 2011. James has not seen B.P. since February 2016. James also has
a significant history of substance abuse and a lengthy criminal record, including
convictions for domestic-abuse assault.
1
We review termination-of-parental-rights cases de novo. In re M.W., 876 N.W.2d 212,
219 (Iowa 2016). Although we are not bound by the juvenile court’s fact findings, we give
them weight, particularly on credibility issues. Id. Evidence must be clear and convincing
to support the termination. In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014). Evidence
is clear and convincing when there are no serious or significant doubts as to the
correctness of conclusions of law drawn from the evidence. In re C.B., 611 N.W.2d 489,
492 (Iowa 2000). The child’s best interests are our primary concern. In re L.T., 924
N.W.2d 521, 529 (Iowa 2019).
3
Following DHS intervention, James and Karmen failed to comply with the
court’s expectations regarding their substance-abuse testing and treatment.
Karmen missed or refused many drug tests. James did not have stable housing
or employment and was incarcerated for thirteen months during these
proceedings. At the termination hearing, the DHS worker testified B.P. has little or
no bond with James. The DHS worker also testified B.P. displays concerning
behavioral issues—including excessive aggression—attributable to the instability
of his parents and home life.
Early in the child-in-need-of-assistance (CINA) proceedings, the DHS
placed B.P. and T.D. with David. But the court ordered B.P.’s removal from that
home due to domestic violence. After a short stint with a foster family, B.P. was
placed in the care of his maternal aunt, Brandy, who lives in South Carolina. T.D.—
who is three years older than B.P.—remained in Iowa. The siblings’ separation
has been difficult for both children as they share a strong bond. They have stayed
in touch by “FaceTime” and phone calls.
By the time of the termination hearing, B.P. had lived with Brandy in South
Carolina for one year. The aunt, who wishes to adopt B.P., reported he was
thriving but still anxious about where he would live permanently.
The court terminated both James’s and Karmen’s parental rights. They
appeal.
II. Analysis
A. Mother’s Contention—Statutory Ground
Karmen raises two claims: (1) the State did not prove the statutory grounds
for termination; and (2) the court did not consider whether a guardianship was in
4
B.P.’s best interests. As James raises the same guardianship issue, we will
address it below.2
The juvenile court terminated Karmen’s parental rights based on Iowa Code
section 232.116(1), paragraphs (e), (f), and (l). When the court relies on more than
one statutory ground, we may affirm on any ground supported by the record. In re
A.B., 815 N.W.2d 764, 774 (Iowa 2012). Karmen argues the State did not prove
by clear and convincing evidence “she was unable to care for the child.” Trouble
is, this language does not appear in section 232.116(1). When a parent does not
refer to the specific statutory ground being challenged, we are unable to address
the claim on appeal. See, e.g., In re L.M., 904 N.W.2d 835, 839 n.7 (Iowa 2017);
M.W., 876 N.W.2d at 222; In re P.L., 778 N.W.2d 33, 40 (Iowa 2010); C.B., 611
N.W.2d at 492; In re J.B.L., 844 N.W.2d 703, 704 (Iowa Ct. App. 2014); In re S.R.,
600 N.W.2d 63, 64 (Iowa Ct. App. 1999). By not identifying a specific statutory
ground, Karmen has waived her sufficiency challenge.
And if waiver was not an impediment, we would affirm the termination under
paragraph (f): B.P. is older than four years of age; has been adjudicated a CINA;
has been removed from Karmen’s physical custody for two years—well beyond
the statutory requirement; and cannot be returned to her care at the present time.
See Iowa Code § 232.116(1)(f); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)
(interpreting statutory language “at the present time” to mean the time of
termination hearing).
2
James does not contest the juvenile court’s findings that the grounds for termination of
his rights have been met. See Iowa Code § 232.116(1)(e), (f) (2018).
5
Karmen did not comply with the court’s expectations as to her drug testing
and treatment. Although she sometimes engaged with substance-abuse services,
she repeatedly cancelled or failed to appear and did not successfully complete any
treatment. She complains the court focuses too narrowly on these issues and she
highlights her recent success in finding full-time employment and maintaining a
residence. But her drug use prompted B.P.’s original removal. And Karmen has
not demonstrated a long-term commitment to sobriety. She tested positive for
methamphetamine several times during the CINA case while denying use. The
DHS could not recommend unsupervised visitations with B.P. because of drug-
related safety concerns. While Karmen’s recent achievements are commendable,
the danger that B.P. would be subject to the same adjudicatory harm remains.
Beyond the statutory elements, Karmen resurrects a parity argument she
advanced at the termination hearing, contending termination of her parental
relationship with B.P. is inconsistent with her “joint custody and visitation rights” as
to his half-sister, T.D. At the termination hearing, the DHS worker testified T.D.
was in David’s care and the worker continued to supervise her case under a
permanency order. But regardless of T.D.’s situation, we must judge B.P.’s safety
and welfare independently based on the applicable law, including statutory
timelines. B.P.’s two years out of Karmen’s care far exceeds the statutory
benchmarks. Moving him toward permanency will further his long-term nurturing
and growth. See Iowa Code § 232.116(2).
B. Both Parents’ Contention—Guardianship
Karmen and James both fault the juvenile court for not establishing a
guardianship for B.P. They assert a guardianship would achieve the same result
6
for their son as termination of their rights and adoption. We disagree.
“[G]uardianship is not a legally preferable alternative to termination.” In re A.S.,
906 N.W.2d 467, 477 (Iowa 2018). We are primarily concerned with B.P.’s safety
and need for a permanent home. See A.B., 815 N.W.2d at 776 (citing In re J.E.,
723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)). A child in a
guardianship remains in flux because the parents can eventually petition for its
closing. See, e.g., Iowa Code §§ 232.104, 633.675. A guardianship is not
permanent, and B.P. would not experience the certainty of adoption. We agree
with the juvenile court’s sound analysis on this point:
Both parents request that guardianship of the child be placed with
Brandy . . . so that they can demonstrate their sobriety, stability and
ability to meet the child’s needs. This court finds that guardianship
is not in the child’s best interests, based upon the parents[’] past
performance neither is willing or capable of making the necessary
long-term changes in their life to parent the child. [B.P.] has waited
over two years for Karmen . . . and James . . . to make the changes
that would allow the child to return to their care. Neither parent has
chosen to make those changes. The child’s behaviors have
significant[ly] deteriorated as a result of his lack of permanency and
confusion as to where [he] will grow up. The child’s safety can best
be ensured by a termination of parental rights.
B.P.’s home is now in South Carolina with his aunt, Brandy. The parents
did not present evidence suggesting Brandy would be willing to remain a guardian.
Instead, she has expressed her willingness to adopt B.P. The DHS worker testified
Brandy gives B.P. structure and stability, and his placement there is “the best
decision for him.” We find B.P.’s long-term best interests are served by termination
and adoption rather than a guardianship. See Iowa Code § 232.116(2).
7
James also invokes the relationship between B.P. and T.D. as a reason for
preferring a guardianship in Brandy. He asserts, “[T]he parental relationship which
binds the siblings together should not be severed.”3
We recognize the importance of fostering sibling ties. See In re T.J.O., 527
N.W.2d 417, 420 (Iowa Ct. App. 1994). But it is not clear how a guardianship
makes it easier for B.P. and T.D. to maintain contact—B.P. would be living in South
Carolina either way.4 And “the paramount concern in these cases must be the
child’s best interests.” Id. Once the statutory requirements for termination are met,
“the needs of a child are promoted by termination of parental rights.” In re M.W.,
458 N.W.2d 847, 850 (Iowa 1990).
We affirm termination of parental rights as to both James and Karmen.
AFFIRMED ON BOTH APPEALS.
3
James does not suggest he has a strong bond with B.P. In fact, he does not contest the
court’s conclusion—under section 232.116(1)(e)—he failed to maintain significant and
meaningful contact with his son. And because James is not T.D.’s parent, we question
the logic of his argument. Severing James’s parental relationship with B.P. has no bearing
on the connection between B.P. and T.D.
4
Although they live a great distance apart, Brandy and David have both expressed a
commitment to keep the siblings in contact as much as possible.