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

IN THE COURT OF APPEALS OF IOWA
No. 19-1063
Filed September 11, 2019
IN THE INTEREST OF A.R. and S.R.,
Minor Children,
J.R., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Daniel L.
Block, Associate Juvenile Judge.
The father appeals the termination of his parental rights to his two
children. AFFIRMED.
Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant
father.
Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant
Attorney General, for appellee State.
Tammy L. Banning of Juvenile Public Defender’s Office, Waterloo,
guardian ad litem for minor children.
Considered by Potterfield, P.J., and Tabor and Greer, JJ.
2
TABOR, Judge.
A father, Jeremy, appeals the termination of his parental rights to his two
children, A.R. born in 2007, and S.R., born in 2011.1 The juvenile court
terminated Jeremy’s parental rights to both children under Iowa Code
section 232.116(1) (2019), paragraphs (e), (f), (j), and (l). Jeremy does not
dispute the statutory grounds for termination. Instead, he maintains termination
of his parental rights is not in the children’s best interests. See Iowa Code
§ 232.116(2). He also relies on the closeness of his bond with A.R. and S.R. to
argue the juvenile court should have placed the children in a guardianship with
their maternal grandmother rather than terminate his parental rights. See id.§ 232.116(3)(c).
Those arguments did not dissuade the juvenile court from terminating. It
reasoned: “Permanency through an adoptive placement is clearly in the
children’s best interests.” After our independent review of the record, we reach
the same conclusion as the juvenile court.2
Given Jeremy’s concession of the statutory grounds for termination, we
start our analysis with the best-interests question. See In re P.L., 778 N.W.2d
33, 40 (Iowa 2010) (“Because the father does not dispute the existence of the
grounds, we do not have to discuss this step.”). In doing so, we give primary
consideration to the children’s safety, to the best placement for furthering their
1
The children’s mother is deceased.
2
We review termination decisions de novo. In re M.W., 876 N.W.2d 212, 219 (Iowa
2016).
3
long-term nurturing and growth; and to their physical, mental, and emotional
condition and needs. Iowa Code § 232.116(2).3
Jeremy’s methamphetamine abuse and dealing has long been an issue
for the family. Because of that drug exposure, as well as domestic violence, the
Iowa Department of Human Services (DHS) removed the children from their
home in December 2012 through January 2014. The children’s second
removal—which led to these termination proceedings—took place in February
2018.4 The primary danger again was Jeremy’s involvement with
methamphetamine. Following the children’s removal, the State convicted Jeremy
3
The best-interests consideration may include:
(a) Whether the parent’s ability to provide the needs of the child is
affected by the parent’s mental capacity or mental condition or the
parent’s imprisonment for a felony.
(b) For a child who has been placed in foster family care by a
court or has been voluntarily placed in foster family care by a parent or by
another person, whether the child has become integrated into the foster
family to the extent that the child’s familial identity is with the foster family,
and whether the foster family is able and willing to permanently integrate
the child into the foster family. In considering integration into a foster
family, the court shall review the following:
(1) The length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
that environment and continuity for the child.
(2) The reasonable preference of the child, if the
court determines that the child has sufficient capacity to
express a reasonable preference.
(c) The relevant testimony or written statement that a foster
parent, relative, or other individual with whom the child has been placed
for preadoptive care or other care has a right to provide to the court.
Iowa Code § 232.116(2) (a)–(c).
4
When Jeremy learned police had a warrant for his arrest, he went “on the run.” The
children’s stepmother tested positive for methamphetamine, so the DHS placed the
children with their maternal grandmother. They have remained in her care throughout
the case.
4
of possession with intent to distribute methamphetamine. He received an
indeterminate prison sentence of twenty-five years in prison.5
In the years between the children’s two removals, they were present in the
home while their father perpetrated domestic violence against their mother and
then their step-mother, their mother overdosed and ultimately died, and the
police conducted a drug raid. After their second removal, the children reported
having often gone without food while in Jeremy’s care. They also recalled a
turbulent household, where Jeremy would break televisions, phones, plates, and
cupboards. The children would cower in their bedroom when their father was
acting violently.
Despite having inflicted that trauma, Jeremy refused to allow the children
to participate in counseling while in his custody. Only after they entered their
grandmother’s care did they start therapy.
As for his own mental health, Jeremy did not engage in therapy or drug
treatment between the second removal and his arrest.6 Neither was he
participating in substance-abuse or mental-health programming while in prison.
Since Jeremy’s incarceration, the DHS has facilitated visitation with the
children. When the Department of Corrections placed him at Clarinda, the visits
were by Skype technology. When Jeremy moved to Anamosa, the children
started to visit twice a month in person. As she has learned about her father’s
5
The social worker testified Jeremy “could be out in three years,” according to his prison
counselor.
6
Jeremy’s addiction is deep-seated. He first used methamphetamine when he was
fourteen years old. He has participated in substance-abuse treatment and relapse
prevention in the past. Jeremy completed substance-abuse evaluations in November
2017 and April 2018, but never followed through with the recommendations. He did not
participate in drug testing as requested.
5
situation, eleven-year-old A.R. has been more vocal about her frustrations with
him being unavailable because of his “bad choices.” But the DHS worker
acknowledged both children have a bond with Jeremy and enjoy their visits—
even though they were nervous for the first interaction in the prison setting.7
The DHS worker opined it is not in the children’s best interest to wait for
Jeremy to become a stable parent. In her words, “The children have already
waited 20 months for him and he has made no progress.” The children’s
guardian ad litem also advocated for termination. She aptly summarized why
severing Jeremy’s parental rights serve the children’s best interests:
These children have waited long enough for their father to make
himself a safe, appropriate caregiver for them. The children are in
play therapy addressing grief and loss issues related to the death of
their mother, but also addressing the trauma that they have
endured while they were in the custody of their parents: witnessing
domestic violence, being present when the police raided the home,
finding, I believe, seven grams of methamphetamine and
paraphernalia in the family home, just the food issues that, that
have been described as well. As time goes on more is coming out
from the children, and I think that’s because they are in a safe,
stable environment with their grandmother.
Convinced by those sentiments, we reject Jeremy’s assertion that
termination is not in the long-term best interests of his children. See In re J.E.,
907 N.W.2d 544, 547 (Iowa Ct. App. 2017) (holding it was not in child’s best
interests to wait for permanency while her incarcerated father struggled “to get
his own life together”); see also In re J.E., 723 N.W.2d 793, 802 (Iowa 2006)
(Cady, J., concurring specially) (stating a child’s safety and need for a permanent
home are the “defining elements” in determining best interests). Jeremy’s drug
7
The maternal grandmother has tried to facilitate the children’s ongoing relationship with
Jeremy, putting money in his prison account so he can “get the kids a snack or use the
phone.”
6
dealing and domestic abuse created an unsafe home life for his children.
Because Jeremy has not committed to tackling his addiction, we share the
juvenile court’s concern that he “is unwilling to abstain from the use of illegal
substances and place the children as a priority in his life.” In re A.B., 815 N.W.2d
764, 778 (Iowa 2012) (reiterating that courts can glean insight for determining
children’s long-range best interests from parent’s past performance).
On top of Jeremy’s substance abuse, we consider that his imprisonment
for a felony affects his ability to provide for the children’s needs. See Iowa
Code § 232.116(2)(a). Here, the father will not be starting to rebuild his life
outside prison for at least three years. See In re L.M., 904 N.W.2d 835, 840
(Iowa 2017) (finding termination of parental rights was in child’s best interests
because the incarcerated mother’s “journey is likely a long one and it is far from
complete”).
On the flipside, the children feel safe and well-cared for by their maternal
grandmother. Cf. Iowa Code § 232.116(2)(b)(1) (providing that in determining
best interests, court may consider integration into foster family); In re J.B.L., 844
N.W.2d 703, 706 (Iowa Ct. App. 2014). The grandmother told the juvenile court:
“it makes me cry when I hear that half the time they weren’t being fed, that they
had to crawl underneath their bed because of violence, and it just breaks my
heart.” At the time of the termination hearing, she remained an adoptive option
for the children. See Iowa Code § 232.116(2)(c) (providing that in determining
best interests, courts may consider the statement of a relative caring for
children). The social worker testified the grandmother was “open to” the children
7
having contact with Jeremy “if he’s doing well.” After considering all the factors in
section 232.116(2), we find termination is in the children’s best interests.
Although the parties do not cite In re Q.G., 911 N.W.2d 761 (Iowa 2018),
we take a moment to consider whether its best-interest analysis impacts the
outcome here. Q.G. involved a private, chapter 600A termination, but it relied in
part on section 232.116(2) “to flesh out the best-interest-of-the-child test.” 911
N.W.2d at 771. Like Jeremy, the father in Q.G. physically abused the mother
more than once while the children were present. That father was later charged
with and convicted of domestic abuse assault, child endangerment, and
possession of methamphetamine. Id. at 764. The Q.G. court provided a brutally
honest recitation of the father’s transgressions but ultimately held it was “not
willing to write off” the incarcerated father’s “potential positive contributions” to his
children’s lives. Id. at 771–74; see also In re B.H.A., No. 18-0813, 2019 WL
2385902, at *5 (Iowa Ct. App. June 5, 2019) (opining, also in a chapter 600A
case, “we should not be too quick to find termination of an incarcerated parent’s
rights is in the child’s best interests”).
To be sure, overlap exists between the best-interest considerations in
section 232.116(2) and section 600A.1(2).8 See In re A.H.B., 791 N.W.2d 687,
8
In the private-termination context, the legislature provided this description of best
interests:
The best interest of a child requires that each biological parent
affirmatively assume the duties encompassed by the role of being a
parent. In determining whether a parent has affirmatively assumed the
duties of a parent, the court shall consider, but is not limited to
consideration of, the fulfillment of financial obligations, demonstration of
continued interest in the child, demonstration of a genuine effort to
maintain communication with the child, and demonstration of the
establishment and maintenance of a place of importance in the child’s life.
Iowa Code § 600A.1(2).
8
690 (Iowa 2010) (“We have not provided a complete analytical framework to
determine the best interest of the child under Iowa Code chapter 600A, but we
find the statutory best interest framework described in Iowa Code section
232.116(2), (3) to be useful.”). But we do not apply identical reasoning in both
instances. In chapter 232 terminations, unlike chapter 600A terminations, the
juvenile court is concerned with establishing permanency within a statutory-
prescribed timescale after the State removes a child from his or her parents.
Compare Iowa Code § 232.104(2), with id. § 600A.9; see also In re H.S., 805
N.W.2d 737, 748 (Iowa 2011) (describing distinctions between chapters 232 and
600A and stressing “child’s safety and need for a permanent home are
paramount concerns” under chapter 232); see also In re M.M.S., 502 N.W.2d 4, 9
(Iowa 1993) (observing “[t]here is not always the urgency in chapter 600A
termination cases that we have noted in termination cases under the juvenile
code”).
Thus, in Q.G., it was significant to the court that the incarcerated father
would discharge his sentence in about a year. 911 N.W.2d at 764, 768. The
court placed a stronger emphasis on the long-term interests of the children to
have a relationship with their father. Id. at 774. And the father had demonstrated
strides toward improving his parenting with substance-abuse treatment and
parenting classes. Id. at 767–68; see also B.H.A., 2019 WL 2385902, at *3.
Thus, our legislature and case law do not emphasize a concern with
expeditious permanency in the context of private terminations as they do in
chapter 232 terminations. Given that greater urgency here, we decline to find it
is in these children’s best interest to wait any longer for permanency.
9
As part of his best-interest argument, Jeremy urges a guardianship with
the maternal grandmother would have benefited the children more than
termination. He contends the closeness of the parent-child bond weighs against
termination. See Iowa Code § 232.116(3)(c). Jeremy points to his “strained
relationship” with the maternal grandmother since the death of the children’s
mother. Given that strain, he “does not believe the maternal grandmother will
facilitate contact between him and the children without a guardianship in place.”
We disagree that transferring guardianship and custody of A.R. and S.R.
to the maternal grandmother is the optimal resolution. “[G]uardianship is not a
legally preferable alternative to termination.” In re A.S., 906 N.W.2d 467, 477
(Iowa 2018); see also In re of B.T., 894 N.W.2d 29, 34 (Iowa Ct. App. 2017)
(approving order for guardianship with grandmother rather than terminating
mother’s parental rights where “mother and the grandmother [had] a close,
mature, and healthy relationship that is free of conflict”). A child in a
guardianship remains in flux because a parent can eventually petition for its
closing. See, e.g., Iowa Code §§ 232.104, 633.675. A guardianship is not
permanent, and S.R. and A.R. would not experience the certainty of adoption.
Finally, while the children enjoy a loving relationship with Jeremy, they
have remained outside his custody for nearly two years. They have achieved
stability and are receiving the therapy they need while in their grandmother’s
care. Contrary to Jeremy’s contention, section 232.116(3)(c) does not preclude
termination. See In re M.W., 876 N.W.2d 212, 225 (Iowa 2016).
AFFIRMED.
Greer, J., concurs; Potterfield, P.J., dissents.
10
Potterfield, Presiding Judge (dissenting).
I respectfully dissent. The majority distinguishes the present case with
that of In re Q.G., 911 N.W.2d 761 (Iowa 2018), but I am more persuaded by the
similarities. Each involves an imprisoned father with a history of
methamphetamine use and violent outbursts. In Q.G., our supreme court
focused on the “potential positive contributions” the father could make to his
children’s lives and reversed the termination of the father’s rights. 911 N.W.2d at
774. Similarly, in another case involving an imprisoned father with a history of
drug abuse, this court affirmed the district court’s decision not to terminate,
concluding, “The supreme court’s analysis in Q.G. suggests we should not be too
quick to find termination of an incarcerated parent’s right is in the child[ren]’s best
interests . . . .” In re B.H.A., No. 18-0813, 2019 WL 2385902, at *5 (Iowa Ct.
App. June 5, 2019).9
I recognize that Q.G. and B.H.A. are both cases involving private
terminations under Iowa Code chapter 600A while the present case is governed
by chapter 232. But, unlike the majority, I am not convinced there is a greater
urgency in terminating the rights of an incarcerated parent in one framework over
the other. Moreover, in this case, like in Q.G. and B.H.A., the court’s decision
hinges on the children’s best interests. The best-interests standard is largely the
same under both chapter 232 and chapter 600A terminations. See Q.G., 911
N.W.2d at 771 (“In addition to applying the language of Iowa Code section
600A.1, we have also borrowed from Iowa Code section 232.116(2) and (3) to
9
Because our analysis is based on step two of the three-step analysis, we need not
consider the father’s argument that the closeness of the parent-child bond should
prevent termination. See Iowa Code § 232.116(3)(c).
11
flesh out the best-interest-of-the-child test. We consider the child’s ‘physical,
mental, and emotional condition and needs’ and the ‘closeness of the parent-
child relationship.’” (citations omitted)); In re A.H.B., 791 N.W.2d 687, 690 (Iowa
2010) (“We have not provided a complete analytical framework to determine the
best interest of the child under Iowa Code chapter 600A, but we find the statutory
best interest framework described in Iowa Code section 232.116(2), (3) to be
useful.”).
For these reasons, I would reverse the termination of the father’s parental
rights.