In the Interest of N.S. and M.S., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0533
Filed June 5, 2019
IN THE INTEREST OF N.S. and M.S.,
Minor Children,
M.S., Father,
Appellant,
P.A., Mother,
Appellant.
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Appeal from the Iowa District Court for Polk County, Colin J. Witt, District
Associate Judge.
A mother appeals the termination of her parental rights to two children, and
a father appeals the termination of his parental rights to the older child. AFFIRMED
ON BOTH APPEALS.
Blake D. Lubinus of Lubinus Law Firm, Des Moines, for appellant father.
Heidi Young of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann, LLP, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Yvonne C. Naanep, Des Moines, attorney for minor children.
Teresa Pope of Branstad Law, PLLC, Des Moines, guardian ad litem for
minor children.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
This appeal involves two children, born in 2009 and 2010. The juvenile
court terminated the mother’s parental rights to both children and the father’s
parental rights to the older child. On appeal, both parents contend the State failed
to prove the grounds for termination cited by the court and termination is not in the
children’s best interests.
I. Mother
The juvenile court terminated the mother’s parental rights under four
statutory provisions. We may affirm if we find clear and convincing evidence to
support any of the grounds. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010).
On our de novo review, we focus on Iowa Code section 232.116(1)(f) (2019), which
requires proof of several elements, including proof the child cannot be returned to
the parent’s custody.
The family came to the attention of the department of human services in
2016 after the mother gave birth to a child with opiates in her system. That child
is not a subject of this appeal. Nor is the third of the mother’s four children. This
appeal involves the first two children.
The children were temporarily removed from the mother’s custody with her
consent. The juvenile court later adjudicated them in need of assistance. Although
the mother obtained a substance-abuse evaluation and completed an extended
outpatient drug-treatment program, she was unsuccessfully discharged from
another treatment program, and the department reported that she “appear[ed] in
denial regarding her substance abuse.” Nonetheless, reunification remained the
goal.
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At the end of 2016, the mother tested positive for cocaine and, in February
2017, she failed three drug tests. Later that year, the district court placed the two
children with their maternal grandmother.
The placement did not go well. According to the State, the grandmother
was unable to set appropriate boundaries with the mother, who appeared to be
using drugs and was unengaged in services. The younger child was transferred
to his father in South Dakota for a trial home visit. The older child was returned to
foster care, where she remained through the termination hearing.
After several months, the department discovered that the father had moved
from South Dakota to Minnesota “without notifying anyone.” The younger child
was removed from his care and was returned to Iowa, where the court ordered him
placed with his mother for a thirty-day trial home stay.
The mother failed to get the child to school on time, missed a therapy
appointment and, according to the department social worker overseeing the case,
“was using drugs at that time.” The juvenile court returned the younger child to
foster care.
The State petitioned to terminate parental rights. At an evidentiary hearing,
the department social worker testified the mother “never really truly felt that she
needed treatment.” When asked if substance-abuse concerns were resolved, the
worker stated, “No, not at all.” She also testified to the absence of regular contact
between the mother and children for four months.
The mother also testified. When asked whether she consented to
termination of her parental rights to the children, she responded, “I agree in a sense
of a way there’s no way that I can get them. So I agree.” Later, she stated it would
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not be appropriate to return the children to her custody “[c]onsidering where” she
lived. Her concessions confirm the children could not be returned to her custody,
as set forth in section 232.116(1)(f)(4).
We turn to the mother’s argument that termination is not in the children’s
best interests. See Iowa Code § 232.116(2). The case was opened almost three
years prior to the termination hearing. The juvenile court afforded the mother every
opportunity to resume care of her children, including regular visits and a trial home
placement of the younger child. The mother continued to use non-prescribed
opiates and showed herself unable to safely parent the younger child. The older
child was doing well in foster care and wished to remain there. We conclude
termination is in the children’s best interests.
In connection with her best-interests argument, the mother also contends
the court should have placed the children in a guardianship with their maternal
grandmother. The district court tried that option, without success. There was no
reason to try again.
On our de novo review, we affirm the district court’s termination of the
mother’s parental rights to these two children.
II. Father
As noted, the father of the two children involved in this appeal lived in South
Dakota and Minnesota. The district court denied the State’s petition to terminate
the father’s parental rights to the younger child, reasoning that the father did not
abandon or desert the child as alleged in section 232.116(1)(b) and made efforts
to have meaningful contact with the child, contrary to section 232.116(1)(e). The
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father argues the court also should have declined to terminate his parental rights
to the older child. On our de novo review, we disagree.
The father concedes he had little contact with the older child. He attempts
to excuse the absence of contact by citing his limited resources. We do not doubt
that travel to Iowa was financially burdensome. But the department attempted to
alleviate the burden by offering him gift and gas cards. The department also
afforded the father phone calls with the older child, an option the father admitted
he did not regularly utilize. We are persuaded he failed to make “a genuine effort
to maintain communication with the child.” See id. § 232.116(1)(e)(3). The State
proved termination of the father’s parental rights to the older child is warranted
under section 232.116(1)(e).
The father also argues termination is not in the older child’s best interests.
See Iowa Code § 232.116(2). We disagree. The father did not participate in
therapy to repair his frayed relationship with the child. After almost three years,
the child expressed a strong desire to remain where she was. On our de novo
review, we conclude the emotional well-being of the child militated against
reunification. We affirm the termination of the father’s parental rights to the older
child.
AFFIRMED ON BOTH APPEALS.