In the Interest of A.R., Minor Child, M.R., Father, M.L., Mother ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-070 / 13-1975
Filed February 19, 2014
IN THE INTEREST OF A.R.,
Minor Child,
M.R., Father,
Appellant,
M.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Stephen A.
Owen, District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
John J. Haney of Hinshaw, Danielson & Haney, P.C., Marshalltown, for
appellant-father.
Jeffrey P. Hazen of Grimes, Buck, Schoell Beach & Hitchins,
Marshalltown, for appellant-mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Jennifer Miller, County Attorney, and Luke B. Hansen,
Assistant County Attorney, for appellee.
Mary Cowdrey of Public Defender’s Office, Marshalltown, attorney and
guardian ad litem for minor child.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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TABOR, J.
The juvenile court terminated the parental rights of A.R.’s mother and
father—reaching the “unmistakable” conclusion they could not reunite with their
six-year-old daughter because they failed to timely address their long history of
serious drug abuse. The parents separately appeal the termination order. The
mother, Megan, asserts A.R. can be returned to her care at the House of Mercy,
an in-patient addiction treatment program and argues terminating her parental
rights is not in A.R.’s best interests. The father, Michael, argues the State did not
meet its burden of proof on the statutory grounds for termination.
The district court engaged in thorough fact finding and sound legal
analysis. Our de novo review of the record leads us to the same conclusion:
clear and convincing evidence supports severing the legal ties of A.R.’s birth
parents. A.R.’s need for stability, safety, and long-term nurturing and growth are
best served by allowing her maternal great aunt to move toward adoption. We
affirm on both appeals.
I. Background Facts and Proceedings
Her parents’ entanglement with methamphetamine first endangered A.R.
when she was just three months old. A drug raid at her home in April 2008
resulted in a court-ordered removal. The Department of Human Services (DHS)
placed A.R. with her maternal grandmother. Megan lived there as well, and she
completed outpatient treatment and complied with drug testing. The DHS closed
its case.
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But Megan started using methamphetamine again in 2011. The court
adjudicated A.R. as a child-in-need-of-assistance (CINA) in January 2012. A.R.
has been living with her great aunt since that time. Megan has had supervised
visitation. By her own admission, Megan used drugs consistently between July
and November of 2012. She entered outpatient treatment in October 2012 and
reported completing that program in March 2013. Megan did not receive any
substance abuse treatment between March and August 2013.
A.R.’s father, Michael, also has an extensive history of using illegal drugs,
as well as a criminal record including domestic violence offenses. He did not
participate in substance abuse treatment or any counseling services offered by
the DHS. Michael has reported being diagnosed with bipolar disorder and
schizophrenia. According to witnesses, Michael has been angry, aggressive,
and unstable during the CINA case. Court security had to escort him from the
courthouse due to his behavior at a June 2013 hearing. The DHS reported not
having contact with Michael since July 2013.
The State filed a petition to terminate parental rights on July 9, 2013. The
petition cited Iowa Code sections 232.116(1)(f) and (l) (2013). On August 14,
2013, five weeks after the State filed the petition, Megan checked herself into the
House of Mercy’s inpatient substance abuse treatment program. Megan was
homeless and nearly nine months pregnant when she checked into the program.
She gave birth in late August to another daughter, who lived with her at the
House of Mercy at the time of the termination hearing. Michael is also the father
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of that child. Megan is allowed to stay at the House of Mercy for up to two years,
but is free to leave at any time.
The juvenile court held a termination hearing on November 19, 2013.
Megan testified she started using drugs when she was thirteen years old and first
tried methamphetamine at age nineteen. Methamphetamine has been her “drug
of choice” since then. Megan was twenty-eight-years old at the time of the
termination order. She told the juvenile court the last time she used drugs was
November 2, 2012. But the DHS social worker testified it was not likely the
House of Mercy would have admitted Megan into an in-patient substance abuse
program if she was not currently abusing drugs.
Michael failed to attend the termination hearing, despite notice of the
proceedings. Michael’s attorney did not know why his client was not in
attendance. On December 2, 2013, the court issued its order terminating the
rights of the father and mother on both grounds listed in the State’s petition. The
parents filed separate appeals.
II. Standard of Review
We review terminations de novo. In re H.S., 805 N.W.2d 737, 745 (Iowa
2011). We examine both the facts and law, and adjudicate anew those issues
properly preserved and presented. In re L.G., 532 N.W.2d 478, 480–81 (Iowa Ct.
App. 1995). We accord considerable weight to the findings of the trial court,
especially concerning the credibility of witnesses, but are not bound by them. Id.
at 481.
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We will uphold a termination order if we find clear and convincing
supporting any of the statutory grounds relied upon by the juvenile court. In re
D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Evidence is ‘clear and convincing’
when there are no serious or substantial doubts as to the correctness of
conclusions of law drawn from the evidence.” Id. (internal quotation omitted).
III. Analysis
For both parents, the termination order cited two grounds for termination:
Iowa Code section 232.116(1)(f)1 and section 232.116(1)(l).2 When the juvenile
court relies on more than one statutory basis, we may affirm on any ground
supported by clear and convincing evidence. Id. at 707. We will address each
parent’s claim in turn.
A. Father’s appeal
Michael’s petition on appeal makes a bare-bones assertion the State did
not meet its burden of presenting clear and convincing evidence warranting
1
The court may order termination if it finds all of the following have occurred:
(1) The child is four years of age or older. (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 twelve of the last eighteen months, or for the last
twelve consecutive months and any trial period at home has been less
than thirty days. (4) There is clear and convincing evidence that at the
present time the child cannot be returned to the custody of the child’s
parents as provided in section 232.102.
2
The court may order termination if it finds all of the following have occurred:
(1) The child has been adjudicated a child in need of assistance pursuant
to section 232.96 and custody has been transferred from the child’s
parents for placement pursuant to section 232.102. (2) The parent has a
severe substance-related disorder and presents a danger to self or others
as evidenced by prior acts. (3) There is clear and convincing evidence
that the parent’s prognosis indicates that the child will not be able to be
returned to the custody of the parent within a reasonable period of time
considering the child’s age and need for a permanent home.
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termination of his parental rights. Michael does not pinpoint which elements the
State failed to establish. And he does not assert A.R. could have been returned
to his care at the time of the termination hearing.
We affirm the termination of Michael’s parental rights based under section
232.116(1)(f). That section requires clear and convincing proof the child cannot
be returned to the parents “at the present time.” “At the present time,” as used in
section 232.116(1)(f)(4) means at the time of the termination hearing. Despite a
return of service and a publication notice, Michael did not personally appear at
the termination hearing, and his attorney did not know how to contact him. The
father’s disinterest in the proceedings underscores that A.R. could not be
presently returned to his care. Moreover, we share the juvenile court’s concern
regarding Michael’s history of substance abuse, criminality, and unstable
behavior. Michael did not follow through with any evaluations, counseling, or
services recommended by the DHS to address his long-standing substance
abuse problem. Accordingly, the State proved by clear and convincing evidence
he could not provide a safe home environment for A.R.
Michael also raises a hearsay challenge to letters from A.R.’s therapist
describing the child’s high degree of stress during the separation from her
parents. The juvenile court expressly stated that it gave little weight to those
exhibits and would have reached the same conclusion based on other testimony
concerning the child’s anxiety related to the uncertainty of her situation.
Assuming without deciding the disputed exhibits were inadmissible, we
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concluded Michael suffered no prejudice. See In re A.S., 743 N.W.2d 865, 869
(Iowa Ct. App. 2007).
Furthermore, Michael cites Iowa Code section 232.116(3) and notes A.R.
is in a relative placement. A juvenile court “need not terminate” if “a relative has
legal custody of the child.” Iowa Code § 232.116(3)(a); In re D.H., 688 N.W.2d
491, 493–94 (Iowa Ct. App. 2004). It is true A.R.’s great aunt has been her
caretaker throughout the CINA case. But given Michael’s lack of participation in
services and the faint prospect of him renewing safe and meaningful contact with
his daughter, we do not find the relative placement was cause for the juvenile
court to defer termination of the father’s rights.
B. Mother’s appeal
Megan contests the juvenile court’s conclusion that clear and convincing
evidence supported termination of her parental rights under sections
232.116(1)(f) and (l). She argues the court was wrong in determining A.R. could
not be returned to her at the time of the termination hearing. Megan contends
she could provide a secure residence for A.R. at the House of Mercy where she
is engaged in substance abuse treatment.
Like the district court, we conclude the State offered clear and convincing
evidence justifying termination under section 232.116(1)(f). During the more than
two years A.R. has been removed for her care, Megan has never progressed
from fully-supervised visitation. She continually struggled with substance abuse
and housing issues. Only after the State petitioned to terminate her rights to
A.R., and when she was nine months pregnant with A.R.’s sister, did Megan
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seek in-patient drug treatment. At the termination hearing, Megan acknowledged
it would not be in A.R’s best interests to “just up and move her to me.” Megan
testified, “If she was returned to my care, I would prefer that she is transitioned
back to me and start out with, like, weekends, overnights, or you know, slowly
move her back into me and not upset her schooling and not upset, you know, her
whole life.”
We agree with the juvenile court’s determination A.R. could not be
presently returned to Megan’s care. Megan’s attempts to become clean, for her
own sake and that of her new baby, are commendable. But they come too late
and are too nascent to prompt reunification with A.R. As the State points out in
its brief, Megan’s long-term housing situation is still precarious, as she cannot
permanently stay at the House of Mercy. Moreover, Megan’s commitment to
ending her unhealthy relationship with Michael remains untested. A.R. cannot be
kept waiting while Megan works to overcome her addiction and attain stability.
See In re J.A.D.-F., 776 N.W.2d 879, 885 (Iowa Ct. App. 2009).
We also reject Megan’s argument that termination of her parental rights is
not in A.R.’s best interests. See Iowa Code § 232.116(2). “Section 232.116(2)
requires us to ‘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.’” In re P.L.,
778 N.W.2d 33, 40 (Iowa 2010).
The juvenile court succinctly described relevant considerations:
The child’s safety is best ensured by the termination of parental
rights as both the child’s mother and father have severe and
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chronic substance abuse addictions. While the child’s mother has
engaged in inpatient substance abuse services, these services
have only been in place for 3 months. The child has already been
removed from her parents for over two years. As [Megan] testified,
the House of Mercy program may last for up to 2 years. By that
time the child will be nearly 8 years old.
The court rightly recognized A.R. has developed a strong bond with her great
aunt, who is willing to adopt A.R. A.R. enjoys a comfortable routine in the great
aunt’s home; she is making friends at school and has joined Girl Scouts. On her
own, A.R. has started referring to the great aunt as “Mommy.” By contrast, A.R.
has a less strong relationship with Megan. The DHS worker testified A.R. looks
forward to visits with Megan, but mostly because A.R. is excited to see her baby
sister. The worker also believes interactions with the parents have caused A.R.
ongoing anxiety, manifesting itself in bed-wetting and bad dreams.
For the reasons discussed above, we conclude the State proved by clear
and convincing evidence that the parental rights of Megan and Michael should be
terminated. We also agree with the juvenile court’s assessment that termination
is in A.R.’s best interests.
AFFIRMED ON BOTH APPEALS.