In the Interest of A.W., Z.H., Z.W., and Z.W., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0205
Filed June 5, 2019
IN THE INTEREST OF A.W., Z.H., Z.W., and Z.W.,
Minor Children,
D.H., Mother,
Appellant,
A.W., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,
Judge.
A mother and a child appeals the termination of the mother’s parental rights.
AFFIRMED ON BOTH APPEALS.
Jamie L. Schroeder of The Sayer Law Group, P.C., Waterloo, for appellant
mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Melissa A. Anderson-Seeber of Juvenile Public Defender’s, Waterloo,
attorney and guardian ad litem for minor children Z.H, Z.W., and Z.W. and attorney
for A.W.
Heather Feldkamp of Feldkamp Law Office, Waterloo, guardian ad litem for
minor child A.W.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
A mother appeals the termination of her parental rights to four of her seven
children, born in 2006, 2012, 2014, and 2017. She contends (1) the State failed
to prove the grounds for termination cited by the district court; (2) the district court
should have granted her additional time to work towards reunification;
(3) termination is not in the children’s best interests; and (4) the district court should
have placed the oldest child in a guardianship with the child’s maternal
grandmother. The oldest child also appeals the termination decision. She argues
the court should not have terminated her mother’s parental rights and should have
placed her in a guardianship with her maternal grandmother.
I. Mother’s Appeal
A. Grounds for Termination
The district court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(e), (f), and (h) (2018). We may affirm if we find clear and
convincing evidence to support any of the grounds cited by the court. In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). We elect to focus on subsections (f) and (h),
which are identical but for the ages of the children and the time the children must
have been removed from the parent’s care. Iowa Code § 232.116(1)(f), (h).
Subsection (f) requires proof the child is four or older. Id. § 232.116(1)(f)(1).
Subsection (h) requires proof the child is three or younger. Id. § 232.116(1)(h)(1).
The court terminated the mother’s parental rights to the oldest child under
subsection (f) and the remaining three children under subsection (h). Both
subsections require proof the child cannot be returned to the parent’s custody.
Id. § 232.116(1)(f)(4), (h)(4).
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We begin with the children’s ages. The oldest child clearly fell within the
age parameters of subsection (f) and the youngest two children clearly fell within
the parameters of subsection (h). The third child was three when the termination
petition was filed but turned four several days before the termination hearing. The
district court noted that the child was four but invoked section 232.116(1)(h) rather
than (f) to terminate the mother’s parental rights to him.
Age is determined at the time of the termination hearing. See In re N.N.,
692 N.W.2d 51, 53 (Iowa Ct. App. 2004) (examining ages “at the time of the
termination hearing”). Under similar circumstances, we entered a limited remand
order to allow the State to plead the correct age provision. See In re M.T., 613
N.W.2d 690, 693 (Iowa Ct. App. 2000). Here, we need not employ the same
procedure because the State pled both age provisions and the district court found
the child was three but turned four. In effect, the court terminated the mother’s
parental rights to the third child under subsection (f) rather than (h). See id.We turn to the critical question—whether the children could be returned to
the mother’s custody. See Iowa Code § 232.116(1)(f)(4), (h)(4). Our de novo
review of the record reveals the following facts.
The father of two of the mother’s seven children was charged with and
apparently convicted of domestically abusing the mother after his children saw him
punch the mother in her face several times. The district court issued a criminal no-
contact order, which required him to stay away from the mother until 2022. The
mother allowed the father to babysit five of her children while she was at work.
The father punched one of the children in the chest, resulting in the child’s death.
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Another child was diagnosed with multiple bruising. The father was arrested for
first-degree murder and child endangerment.
Following the child’s death, the department of human services intervened
and developed a safety plan under which the mother was not to have any
unsupervised contact with her children. The children’s maternal grandmother was
designated the supervising contact. Almost immediately, the mother violated the
plan by taking two of the children out alone. The department sought and obtained
an order to have the four children in her care temporarily removed from her
custody. The mother agreed to the children’s continued removal and stipulated to
their adjudication as children in need of assistance. The children remained out of
the mother’s custody throughout the proceedings.
Although the mother engaged in therapy and other services, the district
court found her progress insufficient and recommended the filing of a termination
petition. The State filed a petition seeking termination of the mother’s parental
rights and the parental rights of the fathers.1
At the termination hearing, the department social worker managing the case
testified to the mother’s serial relationships with men who physically abused her or
who had a history of aggressive and violent behavior. Shortly after her child died
at the hands of one of the fathers, the mother began a relationship with a man who,
according to the social worker, “had domestic assault charges that included a no-
contact order against a woman and children” as well as “robbery-second charges.”
Although the social worker did not testify to the disposition of the charges and
1
The fathers had little involvement with the children and did not appeal the termination of
their parental rights to the children.
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conceded there were no abuse findings of abuse perpetrated against this mother,
she stated, “[W]ho [the mother] associate[s] with has a direct impact on [the
mother’s] safety and the safety of her children. And [the mother] really struggled
with accepting that as a concern.”
The mother also began another relationship with a man who “had a
domestic-assault charge.” The relationship was short-lived but resulted in a
pregnancy and the birth of the mother’s seventh child just before the termination
hearing.
On our de novo review, we conclude the mother was not in a position to
have the four children returned to her custody at the time of the termination
hearing. We affirm the statutory grounds for termination of her parental rights to
the older two children pursuant to Iowa Code section 232.116(1)(f) and the
younger two children pursuant to Iowa Code section 232.116(1)(h).
B. Additional Time
The mother seeks additional time to correct the situation. See id.§§ 232.104(2)(b); 232.117(5). She notes that she was working with her therapist
“for approximately eleven months” and met with the oldest child’s therapist to
“better understand” that child’s trauma.
The mother’s efforts to obtain help were commendable. But, despite sixteen
months of services, she did not internalize the safety concerns posed by her
relationships with violent men. As the department social worker testified, “I don’t
believe that she has gained the insight on how her choices impact her safety let
alone the safety of her children.”
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The child’s therapist seconded the social worker’s opinion. While conceding
the child “loves her mom” and “want[s] to go home,” she expressed “concerns that
we have not made enough progress with [the mother] being able to address or
support [the child’s] needs, that [the child] would not be able to feel safe, that she
would be safe, or that she would be able to ask [the mother] to keep her safe.”
She further testified, “Due to [the child’s] significant trauma history, she would
benefit from a caregiver who is very self-aware and self-controlled about their own
reactions to trauma.” The mother had yet to reach that stage. Accordingly, we
conclude termination of her parental rights is the appropriate remedy.
C. Best Interests
Termination also must serve the children’s best interests. In re L.T., 924
N.W.2d 521, 529 (Iowa 2019). The children’s safety is the paramount
consideration. Id. As discussed, the children’s safety was significantly
compromised at the time of removal, and the mother did not make sufficient
progress to alleviate concerns about future harm by the men in her life.
D. Guardianship
We are left with the question of whether the court should have granted the
maternal grandmother guardianship over the oldest child. We will address that
question in connection with the child’s appeal.
II. Child’s Appeal – Best Interests/Guardianship
The oldest child contends termination of the mother’s parental rights is not
in her best interests and the district court should have ordered a guardianship with
her maternal grandmother. She cites the fact that, in the sixteen months following
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her removal, she was placed in five different foster homes and the fifth home was
only a temporary placement.
The multiple placements give us pause. But, despite the many moves, the
child made progress in dealing with her traumatic past.
The child’s progress had much to do with the fact that the fifth foster parent
was herself a therapist. Had she served as a pre-adoptive placement, there is no
question the children’s best interests would have been served by remaining in her
care. See In re A.S., 906 N.W.2d 467, 477 (Iowa 2018) (“When a court terminates
parental rights, there is no statutory preference for placement with a relative.”).
As it stood, the child was slated to move a sixth time. The question then
becomes why not have her move to the home of a relative who is willing to care
for her and had guardianship over the child’s cousin.
While this option is facially appealing, it was not feasible because the child’s
mother was living with the maternal grandmother at the time of the termination
hearing. There was also a more fundamental issue—the reason behind the child’s
desire to return to her mother. The child informed a court appointed special
advocate that she wished to live with her mother because she wanted to keep her
mother safe. The district court characterized her statement as “a perplexing
turnabout of roles,” a statement with which we agree. At the end of the day, the
child’s concerns about her mother’s safety speak volumes about her own safety in
her mother’s care. Notwithstanding the child’s heartfelt desire to return to her
mother’s custody, we conclude termination is in the child’s best interests and a
guardianship with her maternal grandmother is not warranted.
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We affirm the termination of the mother’s parental rights to four of her
children.
AFFIRMED ON BOTH APPEALS.