In the Interest of O.H. and V.H., Minor Children, S.H., Mother, B.H., Father ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2127
Filed March 22, 2017
IN THE INTEREST OF O.H. and V.H.,
Minor Children,
S.H., Mother,
Appellant,
B.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother and a father separately challenge a juvenile court order
terminating their parental rights. AFFIRMED ON BOTH APPEALS.
Raya D. Dimitrova of Carr & Wright, P.L.C., Des Moines, for appellant
mother.
Bonnie J. Heggen, Ankeny, for appellant father.
Thomas J. Miller, Attorney General, and David M. Van Compernolle,
Assistant Attorney General, for appellee State.
Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem
for minor child.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge.
These termination-of-parental-rights appeals involve two children: seven-
year-old O.H. and his one-year-old sister, V.H. The relationship of their parents,
Stephanie and Braden, has been plagued by domestic violence and substance
abuse. In granting the State’s petition to terminate parental rights, the juvenile
court decided those issues continued to endanger the children. In their separate
appeals, Stephanie and Braden contend the State did not offer clear and
convincing evidence to support the statutory grounds for terminating their
parental rights. Stephanie also argues termination was not in the children’s best
interests and asks for six additional months to achieve reunification. After an
independent review of the record, we conclude clear and convincing evidence
supports the juvenile court’s order.1
I. Facts and Prior Proceedings
O.H., born in November 2009, and V.H., born in August 2015, are the
biological children of Braden and Stephanie. Stephanie has an older daughter,
L.S., who is not a subject of this appeal. O.H. and L.S. came to the attention of
the Iowa Department of Human Services (DHS) in June 2015 upon reports
Braden and Stephanie were abusing methamphetamine, marijuana, and illegal
prescription drugs; Braden was selling drugs from the home; and Braden had
1
We review termination proceedings de novo, which means we examine both the facts
and the law and judge anew those issues properly preserved and presented. See In re
M.W., 876 N.W.2d 212, 219 (Iowa 2016); In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App.
1995). We give weight to the juvenile court’s factual findings, especially when it comes
to assessing the credibility of witnesses, but are not bound by them. See In re D.W.,
791 N.W.2d 703, 706 (Iowa 2010). The clear-and-convincing-evidence standard is less
onerous than the standard of proof beyond a reasonable doubt but more burdensome
than proof by a preponderance of the evidence; it means “there must be no serious or
substantial doubt about the correctness of a particular conclusion drawn from the
evidence.” In re B.B., 826 N.W.2d 425, 428 (Iowa 2013) (citation omitted).
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assaulted Stephanie in the presence of the children.2 The juvenile court
adjudicated O.H. and L.S. as children in need of assistance (CINA) and issued
an order for removal of the children. L.S.—who was placed with her biological
father, Chad—told child abuse investigators she and O.H. witnessed domestic
violence in their home, including Braden placing Stephanie “in a chokehold” while
Stephanie was pregnant with V.H.
Despite the pending CINA case for her older children, Stephanie did not
inform DHS workers that she was pregnant or had given birth. The juvenile court
ordered removal of the new baby, V.H., in September 2015 and adjudicated her
as a CINA due to ongoing concerns about domestic violence and substance
abuse. The DHS placed O.H. and V.H. with extended family members; both
families have taken steps to become pre-adoptive homes.
The parents did not exhibit progress regarding their substance-abuse
issues during the case. Stephanie reported struggling with drug abuse since her
teens. In September 2015, she tested positive for Oxycodone and
Oxymorphone, which were prescribed to her following complications with her
Caesarean section. But during the course of the case, Stephanie failed to
recognize her reliance on opiates as a problem. The medical clinic she attended
flagged her files for drug-seeking behavior. As part of her case plan, Stephanie
was called to provide drug screens, which she frequently missed; she also
tampered with the urine samples or tested positive.
2
The juvenile court also noted O.H. was present during a drug raid at the father’s home
in September 2014.
4
Braden also has a history of substance abuse dating back to high school.
His participation in outpatient treatment in 2015 was sporadic. In December
2015, Braden was arrested for a probation violation and remained in jail until
March 1, 2016, when he was released to an in-patient treatment program. He
was unsuccessfully discharged from that program after only one week when he
snuck out of the facility to meet with Stephanie. A warrant was pending for his
arrest between March and July 8, 2016, when he was found at Stephanie’s
residence. Braden has been incarcerated since that time.
Domestic violence also persists as a problem in this family. Both parents
have sought civil protective orders alleging abuse by the other. During the CINA
case, both parents played down the seriousness of the domestic violence
perpetrated by Braden against Stephanie and did not appreciate its negative
impact on the children.
On July 15, 2016, the State filed a petition to terminate parental rights.
The juvenile court heard the matter on several trial dates in August and
September 2016. On November 30, 2016, the juvenile court issued an order
terminating the parental rights of both Braden and Stephanie based on Iowa
Code section 232.116(1)(f) (2016) for O.H. and section 232.116(1)(h) for V.H.
The court found Stephanie to be dishonest in both her dealings with service
providers and during her trial testimony. The court expressed concerned about
Stephanie’s minimization of her addiction to pain medication and her “clear
intent” to maintain a relationship with Braden despite the history of domestic
violence. The court also found Braden was “not in a position to resume custody
of these children as he has not successfully addressed any of the issues which
5
led to removal.” The court pointed out that for the majority of 2016, Braden had
been “in custody or on the run with an active warrant.” At the time of the
termination proceedings, Braden was serving a ten-year prison sentence with a
mandatory one-third minimum.
Both parents filed petitions to appeal the court’s termination order.
II. Father’s Claims Not Preserved
At the termination hearing, Braden argued only that the juvenile court
should delay permanency until the children could be placed with him. See Iowa
Code § 232.104(2)(b) (allowing court to delay “placement of the child for an
additional six months at which time the court shall hold a hearing to consider
modification of its permanency order”).3
But in his petition on appeal, he contends the State failed to meet its
burden to offer clear and convincing evidence to support the statutory grounds
for termination. Braden’s appellate argument was not preserved for our review.
See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012) (holding general rule that an
argument may not be raised for the first time on appeal applies in termination-of-
parental-rights cases). Additionally, to the extent Braden is mounting a
reasonable-efforts challenge on appeal, the juvenile court record also shows that
he failed to preserve that issue for our review. See In re A.A.G., 708 N.W.2d 85,
91 (Iowa Ct. App. 2005). We affirm the juvenile court on Braden’s appeal.
3
Braden acknowledged that because of his incarceration, he would not be in a position
to resume custody even after six months.
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III. Mother’s Claims Refuted by the Record
A. Statutory Grounds
The juvenile court based its termination order on paragraphs (f) and (h) of
Iowa Code section 232.116(1).4 Both paragraphs require the State to prove, by
clear and convincing evidence, the children cannot be returned to the custody of
their parents at the present time. See Iowa Code § 232.116(1)(f)(4), (h)(4). It is
that element in both statutes that Stephanie contests.
Stephanie argues she lives in a home that is ready for the children’s
return. She acknowledges the home is in Braden’s name, but she asserts that
entanglement is not a problem because he is currently incarcerated. Stephanie
also asserts she has been “compliant with services” and “has made progress.”
Deferring to the juvenile court’s grave concerns about Stephanie’s
honesty, we find a return to their mother’s care at the present time would not be a
safe option for O.H. and V.H. The record includes clear and convincing evidence
of Stephanie’s unresolved substance-abuse issues and a dangerous co-
dependency between Stephanie and Braden. Stephanie testified she did not
believe Braden was a safe person “yet”—that he needed to seek treatment for
anger management and drug addiction. But the juvenile court did not believe,
based on the evidence of Stephanie’s ongoing communication with Braden, that
she would place the safety and well-being of the children ahead of her desire to
continue an intimate relationship with Braden. See In re T.S., 868 N.W.2d 425,
4
Paragraph (f) requires proof the child is four years of age or older and has been
removed for at least twelve of the last eighteen months, while paragraph (h) requires
proof the child is three years of age or younger and has been removed for at least six
months of the last twelve months. Iowa Code § 232.116(1)(f), (h).
7
435 (Iowa Ct. App. 2015) (finding that returning child to mother was “contrary to
his welfare” where record disclosed mother “gained very little insight over the
course of the proceedings about her domestic violence issues and the dangers
they pose to the children”).
The State’s evidence demonstrated Stephanie lacked any steady
employment, instead selling Braden’s sports memorabilia on eBay for income.
The juvenile court also doubted testimony from service providers indicating
Stephanie was making progress with the issues of substance abuse or domestic
violence because they were working with selective and misleading information
provided by Stephanie. Reviewing the evidence in its entirety, we conclude
Stephanie cannot provide the children a stable home at the present time.
B. Best Interests of the Children
Stephanie next argues termination of her parental rights was not in the
best interests of the children. She highlights her “close, loving relationship” with
O.H. and V.H., as documented by her own testimony, as well as by the
observations of the social workers. We acknowledge the record shows a loving
bond between Stephanie and her children. But that emotional connection is not
enough to preserve the legal relationship if a return to parental custody poses a
risk of harm to the children.
Our determination of the children’s best interests must track Iowa Code
section 232.116(2). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (rejecting
judicial use of an unstructured best-interests test). That provision focuses our
attention on the children’s safety; the best placement for furthering their long-
term nurturing and growth; and their physical, mental, and emotional condition
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and needs. See Iowa Code § 232.116(2). In assessing best interests, the
juvenile court wrote: “These children’s future can be gleaned from evidence of
the parent’s past performance and motivations.” In re T.B., 604 N.W.2d 660, 662
(Iowa 2000). We agree. Stephanie has not been able to offer the children a
safe, stable environment, free from the specter of domestic violence and
substance abuse. Their physical, mental, and emotional needs appear to be
best served by terminating her parental rights and moving toward permanent
placements.
C. Request for Six-Month Extension
As an alternative argument, Stephanie asks for six more months to allow
reunification. See Iowa Code § 232.104(2)(b).5 She contends her willingness to
engage in services and anticipated employment would enable her to successfully
resume custody of O.H. and V.H. with an extension of time.6
For the reasons discussed above, we decline to defer the children’s
permanency. While Stephanie may be able to achieve greater stability in her
housing and employment over time, the record offers little hope she will
5
That section reads, in relevant part:
After a permanency hearing the court shall . . . [e]nter an order . . . to
continue placement of the child for an additional six months at which time
the court shall hold a hearing to consider modification of its permanency
order. An order entered under this paragraph shall enumerate the
specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal of the
child from the child’s home will no longer exist at the end of the additional
six-month period.
6
Stephanie contends on appeal that the juvenile court’s refusal to delay permanency
was a Due Process violation. Because it does not appear Stephanie alerted the juvenile
court to a constitutional claim, we decline to consider a separate Due Process argument
on appeal. See In re K.C., 660 N.W.2d 29, 38 (Iowa 2003) (“Even issues implicating
constitutional rights must be presented to and ruled upon by the district court in order to
preserve error for appeal.”).
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appreciate the peril posed by her continued association with Braden or will fully
address her addiction in the near future. Because the children had been out of
the home for twelve months at the time of the termination hearing, “we view the
proceedings with a sense of urgency.” In re A.A.G., 708 N.W.2d at 93. From our
de novo review of the record, we are unable to make a finding the need for
removal would no longer exist after a six-month extension.
AFFIRMED ON BOTH APPEALS.