In the Interest of A.B. and A.B., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0323
Filed May 31, 2019
IN THE INTEREST OF A.B. and A.B.,
Minor Children,
M.Z., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe,
Judge.
A mother appeals the juvenile court order terminating her parental rights.
AFFIRMED.
Douglas Cook of Cook Law Firm, Jewell, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Sarah J. Livingston of Thatcher, Tofilon & Livingston, P.L.C., Fort Dodge,
attorney and guardian ad litem for minor children.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.
A mother appeals the juvenile court order terminating her parental rights.
We find there is sufficient evidence in the record to support termination of the
mother’s parental rights. It is not in the children’s best interests to give the mother
additional time to work on reunification. Termination of the mother’s rights is in the
children’s best interests. Although the father’s rights could not be terminated at
the time of the termination hearing because he had not received adequate notice,
the court could proceed with termination of the mother’s rights. We affirm the
decision of the juvenile court.
I. Background Facts & Proceedings
M.B., mother, and A.Y.B., father, are the parents of A.B., born in 2008, and
A.B., born in 2010.1 In June 2016, the family came to the attention of the Iowa
Department of Human Services (DHS) due to allegations the mother was using
methamphetamine while caring for the children. On August 25, the juvenile court
determined the children were in need of assistance (CINA) under Iowa Code
section 232.2(6)(c)(2) and (n) (2016). The children were removed from the
mother’s care and placed in foster care.
In September, the mother entered a substance-abuse treatment program
and the children were placed there with her. She completed the program in
December. After leaving the program the mother quickly relapsed, testing positive
for methamphetamine, amphetamines, and ecstasy. The mother reentered the
1
The mother had another child, A.Z., in April 2017. Her parental rights to this child were
terminated and the termination was affirmed on appeal. See In re A.Z., No. 18-1420, 2018
WL 4909831, at *3 (Iowa Ct. App. Oct. 10, 2018).
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substance-abuse treatment program and the children went with her. The mother
completed the program in June 2017. She and the children moved in with the
maternal grandfather. Custody was formally returned to the mother in August.
By late 2017, concerns arose the mother had again relapsed by using illegal
substances. On December 2, the mother was arrested for harboring a fugitive in
her home.2 The children were removed from her care on December 7 and placed
in foster care. In January 2018, the mother tested positive for methamphetamine
and amphetamines. She entered a new substance-abuse treatment program.
While in treatment, she was diagnosed with bipolar disorder, major depressive
disorder, and generalized anxiety disorder. She was inconsistent in addressing
her mental-health problems. After graduating from the substance-abuse program
in February, the mother tested positive for methamphetamine in March. On April
2, the juvenile court entered an order giving the mother an additional six months
to work on reunification.
The mother received a recommendation to attend an intensive outpatient
program for her substance-abuse and mental-health problems. She was
unsuccessfully discharged from the program due to sporadic attendance. The
mother tested positive for marijuana in May and also missed several drug tests.
Furthermore, the mother was missing about forty percent of her visits with the
children. She was dishonest with service workers and not cooperative with
services.
2
The mother later pled guilty to being an accessory to a misdemeanor and was required
to pay a fine.
4
On October 3, the State filed a petition seeking to terminate the parents’
rights. The mother entered another substance-abuse treatment program in
October and was unsuccessfully discharged in December. The father’s
whereabouts were unknown to DHS and he was served by publication for the CINA
and termination cases. In February 2019, the father filed a motion seeking to
vacate the CINA proceedings and dismiss the termination proceedings because
he had not been given sufficient notice.
The juvenile court terminated the mother’s parental rights pursuant to
section 232.116(1)(f) and (l) (2018). The court found the mother “has made no
significant progress in her substance treatment or mental health treatment since
the initiation of this case.” The court also found, “Since the children’s removal, [the
mother’s] cooperation with DHS, this Court, and other service providers has been
abysmal.” The court determined termination of the mother’s parental rights was in
the children’s best interests and none of the exceptions in section 232.116(3) were
applicable. The court concluded the father’s parental rights should not be
terminated because the State had not adequately provided him with notice of the
proceeding. The court found, “The State also failed to comply with the requirement
for service by publication because of its failure to provide evidence of a diligent
search.”3 The mother now appeals the termination of her parental rights.
II. Standard of Review
We review de novo the termination of parental rights. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “There must be clear and convincing evidence of the
3
The court ordered the State to give notice to the father of the CINA proceedings and
stated an adjudicatory hearing on the CINA petition would be held.
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grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). Where there is clear and convincing evidence, “there are no serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (citation omitted). The
paramount concern in termination proceedings is the best interest of the children.
In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
III. Sufficiency of the Evidence
The mother claims there is not sufficient evidence in the record to support
termination of her parental rights. “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.” In re T.S., 868 N.W.2d 425, 435 (Iowa
Ct. App. 2015). We will focus on the termination of the mother’s rights under
section 232.116(1)(f).
The mother disputes the fourth factor under section 232.116(1)(f) and states
the children could be returned to her care immediately. She states she has
maintained stable housing, obtained employment, and has the financial ability to
care for the children. The mother points out the children were formally returned to
her care in August 2017 and states this shows she could successfully care for
them.
Evidence of a parent’s past performance “may be indicative of the quality of
the future care that parent is capable of providing.” A.B., 815 N.W.2d at 778.
Although the children were returned to the mother’s care in August 2017, they were
removed again in December 2017. The mother was not honest with service
providers during the time the children were in her care and later admitted she had
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been using controlled substances. The evidence of the mother’s past performance
shows it is unlikely she would be able to care for the children successfully in the
future. Furthermore, the mother has not adequately addressed her substance-
abuse and mental-health problems. We conclude the children could not be safely
returned to the mother’s care and her parental rights were properly terminated
under section 232.116(1)(f).
IV. Additional Time
In an alternative argument, the mother states even if the children could not
be returned to her care immediately, they could be returned to her care in the near
future. She asks for an additional six months to work on reunification with the
children.
We note the mother has already been given additional time, as the juvenile
court entered an order on April 2, 2018, giving the mother an additional six months
for work on reunification. In addition, we agree with the juvenile court’s finding in
the termination order, “The Court does not find that an additional six months for
[the mother] to meet the goals which have been set for months would be in the
best interests of the children.” The mother has not made significant progress from
when DHS became involved in June 2016. We find it is not in the children’s best
interests to further extend this case.
V. Best Interests
The mother claims termination of her parental rights is not in the children’s
best interests. In considering a 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, mental, and emotional
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condition and needs of the child.” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)
(quoting Iowa Code § 232.116(2)). “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.” Id. at 41.
We conclude termination of the mother’s parental rights is in the children’s
best interests. The record shows the mother was not able to maintain sobriety
outside of a structured setting. The juvenile court found, “In summary, [the
mother’s] actions demonstrate manifest defiance of this Court’s order. She has
falsified substance abuse tests. She has continued to use illegal substances. She
has failed to comply with her treatment and testing.” The court also found, “[The
mother’s] substance abuse and mental condition, when untreated, renders her
unable to safely care for the children. The case is replete with evidence of her
failure to supervise and nurture the children when her substance and mental health
is untreated.” We agree with the juvenile court’s findings.
VI. Father’s Case
Finally, the mother claims her parental rights should not be terminated
because the father’s parental rights were not terminated at the same time. She
states, “the entire CINA proceedings and subsequent termination proceedings
should be vacated and void as to all parties as the statutory requirements were not
met” concerning notice to the father. The juvenile court found the State failed to
meet the statutory requirements for serving notice of the CINA and termination
proceedings to the father and, therefore, his rights could not be terminated at that
time.
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“[I]n termination of parental rights proceedings each parent’s parental rights
are separate adjudications, both factually and legally.” In re D.G., 704 N.W.2d
454, 459 (Iowa Ct. App. 2005). “[E]ach [parent] need[s] to advance their own
reasons on appeal why, considering the juvenile court’s findings regarding their
individual strengths and weaknesses, their separate parental rights should not be
terminated.” Id. at 460. The juvenile court may decide to terminate the rights of
one parent and not the rights of the other parent. See In re D.E.D., 476 N.W.2d
737, 740 (Iowa Ct. App. 1991) (affirming the termination of a mother’s parental
rights but reversing and remanding as to the father, who had not received
adequate notice of the grounds for termination), overruled on other grounds by
P.L., 778 N.W.2d at 39. We conclude the juvenile court could properly terminate
the mother’s parental rights, leaving the issue of the father’s parental rights for
another day.
We affirm the decision of the juvenile court.
AFFIRMED.