In the Interest of R.B., Minor Child ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2180
Filed April 3, 2019
IN THE INTEREST OF R.B.,
Minor Child,
T.B., Father,
Appellant,
L.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Lynn Poschner, District
Associate Judge.
The mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Richard Hollis, Des Moines, for appellant father.
Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Karl Wolle of Juvenile Public Defender’s Office, Des Moines, guardian ad
litem for minor child.
Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Chief Judge.
The mother and father both appeal the termination of their parental rights to
their child. The mother argues the State failed to prove by clear and convincing
evidence that grounds for termination exist under Iowa Code section 232.116(1)(h)
(2018), the district court should have granted her a six-month extension,
termination was not in the best interests of the child, and termination was
precluded due to relative placement and a strong bond between her and the child.
Alternatively, the mother claims the district court should have established a
guardianship. The father similarly argues he should be granted additional time to
work toward reunification, termination is not in the best interests of the child,
relative placement precludes termination, and a guardianship should have been
established. We affirm the district court’s determinations.
I. Background Information
R.B. was born in January 2016. The Iowa Department of Human Services
(DHS) became involved with this family in October 2017, after concerns the mother
was using methamphetamine while caring for R.B.1 The mother admitted to using
marijuana and methamphetamine on and off for fifteen to twenty years. She
reported she does not use while R.B. is in her care, but she admitted to resuming
care within twenty-four hours after using methamphetamine. R.B. was removed
from her mother’s care on December 20 and placed in the care of her maternal
aunt; R.B. was later placed in the care of the mother’s cousin.
1
When R.B. was born, she tested positive for THC. A child protective assessment was
created, but DHS later closed that case.
3
The mother participated in a substance-abuse evaluation on January 11,
2018, and while it was recommended she attend treatment, she never sought
treatment. In March, the mother’s hair-stat test was positive for
methamphetamine. After this test, the mother refused to provide any further
samples for hair-stat tests. The mother also struggled with mental-health issues
but failed to properly address them. Despite hearing voices, the mother believed
she did not need to see a therapist or inform her medication provider that her
medication did not stop the voices. In one of DHS’s reports to the court, DHS
recounted an incident during a visit on May 16, where the mother was “yelling and
swearing at people who were not present and looking at [R.B.] while she did this.”
The father was incarcerated for trafficking methamphetamine at the time
DHS began this assessment, but he was released on parole on March 9, 2018.
After he was released, the father had a total of seven visits with R.B., one of which
he fell asleep during. He was arrested again in August for six counts of forgery
and was incarcerated while awaiting trial at the time of the termination hearing.
The State filed a petition to terminate both parents’ parental rights on August
18. On December 7, the district court found the State proved by clear and
convincing evidence the grounds for termination under Iowa Code section
232.116(1)(h). The mother and father both appeal.
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re M.W.,
876 N.W.2d 212, 219 (Iowa 2016). “We are not bound by the juvenile court’s
findings of fact, but we do give them weight, especially in assessing the credibility
of witnesses.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “We will uphold an
4
order terminating parental rights if there is clear and convincing evidence of
grounds for termination under Iowa Code section 232.116.” Id.; accord Iowa Code
§ 232.117(3) (“If the court concludes that facts sufficient to sustain the petition
have been established by clear and convincing evidence, the court may order
parental rights terminated.”). “‘Clear and convincing evidence’ means there are no
serious or substantial doubts as to the correctness [of] conclusions of law drawn
from the evidence.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
III. Grounds for Termination
The mother argues the State did not meet its burden of proving by clear and
convincing evidence that her parental rights should be terminated under Iowa
Code section 232.116(1)(h). Specifically, she challenges the State’s
establishment of the fourth requirement, which provides the child could not be
returned to the mother’s custody “at the present time.”2 Iowa Code
§ 232.116(1)(h)(4). She claims the only negative interaction between her and R.B.
occurred when she yelled at the voices she heard, and she argues there is no
indication that hearing voices eliminates her ability to parent appropriately.
However, she does not claim R.B. could have been returned to her care at the time
2 Iowa Code section 232.116(1)(h) provides termination is warranted if,
The court finds that all of the following have occurred:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(3) The child has been removed from the physical custody of the
child’s parents for at least six months of the last twelve months, or for the
last six consecutive months and any trial period at home has been less
than thirty days.
(4) There is clear and convincing evidence that the child cannot be
returned to the custody of the child’s parents as provided in section 232.102
at the present time.
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of the termination hearing; instead, she concedes she has “additional steps to take”
and argues a six-month extension should have been granted.
At the termination hearing, the mother testified that her medications only
quieted the voices, she did not inform her medication provider she still heard
voices, and she refused to attend therapy. The district court noted the mother,
“continued to hear voices while testifying during the termination hearing.” Also, the
mother has admitted to using marijuana and methamphetamine for the past fifteen
to twenty years, but she has not sought any substance-abuse treatment. She
testified she would care for R.B. when “coming down” from a high and stated, “I
don’t think that the issues, per se, have anything to do with me raising my
daughter.” A DHS worker opined that termination was appropriate since the
mother had not fully addressed her substance-abuse and mental-health issues.
At the time of the termination hearing, the mother had not properly
addressed her many issues and refused to acknowledge her issues affected her
ability to parent. Additionally, the mother fails to argue R.B. could have been
returned to her care at the time of the hearing and concedes to needing additional
time to work toward reunification. Therefore, we agree with the district court the
State proved by clear and convincing evidence that grounds for termination exist.
See Iowa Code § 232.116(1)(h).
IV. Additional Time
Both parents argue the district court should have granted an additional six
months before termination. First, the mother asserts the additional time was
warranted because she was appointed new counsel two months before the
termination hearing. She also argues her desire to parent, her “capacity to address
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[substance-abuse] issues,” and her “insight into her own use” demonstrates she
could resume care of R.B. if additional time were granted. The father argues
additional time should be granted because, “assuming he is found not guilty with
respect to pending criminal charges and with respect to any violation of parole
proceedings, he will not be incarcerated.”3
Iowa Code section 232.104(2)(b) provides the court may authorize a six-
month extension of time if it finds “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.” In its order,
the district court noted “[v]ery little has changed since the permanency hearing.”
With regard to the mother, the only changes noted were the mother’s visits with
R.B. became inconsistent and the mother refused to provide hair samples for drug
testing. The mother testified she did not believe her issues affected her ability to
parent, refused to seek substance-abuse treatment, and refused to seek further
mental-health treatment. At the termination hearing, a DHS worker provided that
if the district court granted additional time, the mother would “need to engage in
extensive mental-health treatment and address hearing of voices and talk with her
medication management team about still hearing voices and maybe adjusting her
3
In his petition, the father also claims additional time should have been granted because
the mother has participated in mental-health services to some degree, which undermines
the State’s assertion R.B. could not be returned to either parents’ care. He further claims
if additional time had been granted, “both parents would have had an opportunity to
address [DHS’s] concerns” and removal would no longer be necessary. However, the
father may not raise arguments for the mother and may not use the mother’s progress to
bolster his claim. See In re D.G., 704 N.W.2d 454, 459 (Iowa Ct. App. 2005) (noting
parents may not join their arguments because “in termination of parental rights
proceedings each parent’s parental rights are separate adjudications, both factually and
legally”). On appeal, the father must argue why his parental rights should not be
terminated based on his own strengths and weaknesses. See id. at 460. Therefore, we
will only address the father’s arguments as they pertain to him.
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medication. She would need to provide drug screens for the department and
engage in substance-abuse treatment.” Due to the mother’s unwillingness to
acknowledge her issues and their effects on R.B., the district court was correct in
not granting an extension of time. See Iowa Code § 232.104(2)(b).
With regard to the father, the district court noted he had been arrested again
after being released for only a few months. The father’s future is uncertain
because of the pending criminal charges. “We will not gamble with a child’s future
by asking him [or her] to continuously wait for a stable biological parent, particularly
at such a tender age.” In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011). His
lack of effort to improve his situation to be able to parent R.B. supports the district
court’s finding that additional time would not extinguish the need for removal. See
Iowa Code § 232.104(2)(b).
V. Best Interests of the Child
The mother and father both argue termination was not in the best interests
of the child. The mother argues termination is not in the best interests of the child
because of her strong bond with R.B. However, this argument is misplaced, since
such consideration falls under Iowa Code section 232.116(3) as to why termination
should not occur rather than the best-interests determination under Iowa Code
section 232.116(2).4 The father claims termination is not in the best interests of
the child because he has participated in “at least eight visits.”
4
The mother also asserts it is in the best interests of R.B. to either grant her additional
time or establish a guardianship; however, these arguments are addressed in other
sections of this opinion.
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“In considering whether to terminate the rights of a parent . . . , the court
shall 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 condition and needs of the child.” Iowa Code § 232.116(2).
The district court found termination was in the best interests of R.B. because of
R.B.’s young age, the parents’ inability to resume care after nearly one year of
offered services, the mother’s dependency on R.B. to help the mother’s mental
health, and the father’s failure to develop a “strong or safe relationship” with R.B.
Also, the district court noted R.B. was doing well out of her parents’ care and
deserved permanency. We agree that termination was in R.B.’s best interests.
See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially)
(noting a child’s safety and need for permanency are the “defining elements” under
the best-interests determination).
VI. Nothing Precludes Termination
Once the State has proved grounds for termination exist, the parent
resisting termination has the burden of proof to establish a permissive factor under
Iowa Code section 232.116(3) precludes termination. In re A.S., 906 N.W.2d 467,
476 (Iowa 2018). Both parents assert relative placement should preclude
termination. Iowa Code section 232.116(3)(a) provides a court may decline to
terminate parental rights if “[a] relative has legal custody of the child.” Here, no
relative had “custody” of R.B., only placement during the pendency of the juvenile
case. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (finding DHS’s placement
of a child with a relative does not amount to legal “custody” under Iowa Code
section 232.116(3)(a)).
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Nevertheless, “[a]n appropriate determination to terminate a parent-child
relationship is not to be countermanded by the ability and willingness of a family
relative to take the child. The child’s best interests always remain the first
consideration.” In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). As previously
discussed, the mother has failed to address her issues and fails to acknowledge
her ability to parent is affected. Also, the father’s future was uncertain, and even
if he is found not guilty of the pending charges, he has failed to establish a
relationship with R.B. or address his own issues. Therefore, we find R.B.’s
placement with her relatives does not preclude termination.
The mother next argues her close bond with R.B. precludes termination. “A
strong bond between parent and child is a special circumstance which mitigates
against termination when the statutory grounds have been satisfied.” In re N.F.,
579 N.W.2d 338, 341 (Iowa Ct. App. 1998); see Iowa Code § 232.116(3)(c).
However, this “is not an overriding consideration, but merely a factor to consider.”
N.F., 579 N.W.2d at 341. The district court noted after the permanency hearing,
the mother became inconsistent with her visits with R.B. The mother refuses to
fully address her mental-health and substance-abuse issues and believes her
issues do not inhibit her ability to parent. Thus, we agree with the district court,
the bond between the mother and R.B. is insufficient to preclude termination. See
Iowa Code § 232.116(3)(c).
VII. Guardianship
Finally, the parents both argue the district court should have established a
guardianship rather than terminate their parental rights. However, “a guardianship
is not a legally preferable alternative to termination.” A.S., 906 N.W.2d at 476
 10
(quoting In re B.T., 894 N.W.2d 29, 32 (Iowa Ct. App. 2017)). In the termination
order, the district court stated, “The arguments the parents make in support of
guardianship relate only to the parents[’] interests and not [R.B.’s].” The district
court also found guardianship was not appropriate given R.B.’s young age and
found termination was in her best interests. We agree that termination in this case
is preferred over guardianship. See id. at 478 (finding a two-year-old child is
unable to express any preference to guardianship and determining a safe, stable
home is in the best interests of the young child).
VIII. Conclusion
We conclude the State proved by clear and convincing evidence the
grounds for termination of the mother’s parental rights, additional time would not
extinguish the need for removal, termination is in the best interests of the child,
and nothing in the record precludes termination. Furthermore, we find the district
court appropriately rejected a guardianship.
AFFIRMED ON BOTH APPEALS.