In the Interest of R.B., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1346
Filed November 2, 2022
IN THE INTEREST OF R.B.,
Minor Child,
K.L., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Joan M. Black, District
Associate Judge.
The mother appeals the juvenile court ruling waiving the reasonable-efforts
requirement under Iowa Code section 232.102(12)(c) (2022). AFFIRMED.
Robin L. Himes, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
David G. Baumgartner, Strawberry Point, attorney and guardian ad litem for
minor child.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
GREER, Judge.
The mother appeals the juvenile court ruling granting the State’s request to
waive reasonable efforts to reunify the mother with R.B. under Iowa Code section
232.102(12)(c) (2022).1
I. Background Facts and Proceedings.
In April 2022, the mother traveled from Iowa to Utah because she was
contemplating giving up her unborn child for adoption. The mother changed her
mind and, while in the process of returning to Iowa, went into labor at an airport in
Colorado. R.B. tested positive for methamphetamine at birth, and the child was
removed from the mother’s care before being discharged from the hospital. A
worker from the Iowa Department of Health and Human Services2 traveled to
Colorado to take custody of the child; both R.B. and the mother returned to Iowa
on April 19, 2022.
Because the mother had left Iowa while on pretrial release for pending
criminal charges, she was arrested when she returned to the state; she remained
in jail until May 9, 2022.
1 The State filed its application on May 12, 2022, and the district court heard it on
June 30; we apply the 2022 Iowa Code. But we recognize this specific law
changed as of July 1, 2022. See 2022 Iowa Acts ch. 1098 §§ 47 (striking Iowa
Code § 232.102(12)), 49 (creating Iowa Code § 232.102A (Supp. 2022)); see also
Iowa Const. art. III, § 26 (“An act of the general assembly passed at a regular
session of a general assembly shall take effect on July 1 following its passage
unless a different effective date is stated in an act of the general assembly.”); Iowa
Code § 4.5 (“A statute is presumed to be prospective in its operation unless
expressly made retrospective.”).
2 In 2022, the Iowa legislature merged the department of human services with the
department of public health into the Iowa Department of Health and Human
Services, with the transition starting July 1, 2022. See 2022 Iowa Acts ch. 1131
§ 51. We will refer to the department as DHHS.
3
The mother was out of custody from May 9 until June 18. During those
nearly six weeks, the mother attended one visit with R.B.; she missed the first forty
minutes of the ninety-minute visit. She did not begin drug or mental-health
treatment or participate in any drug tests. According to the mother’s testimony,
she used methamphetamine until she went back into jail.
In May, the State filed an application to waive reasonable efforts under
section 232.102(12)(c), which provides:
If the court determines by clear and convincing evidence that
aggravated circumstances exist, with written findings of fact based
upon evidence in the record, the court may waive the requirement
for making reasonable efforts. The existence of aggravated
circumstances is indicated by any of the following:
....
c. The parent’s parental rights have been terminated under
section 232.116 or involuntarily terminated by an order of a court of
competent jurisdiction in another state with respect to another child
who is a member of the same family, and there is clear and
convincing evidence to show that the offer or receipt of services
would not be likely within a reasonable period of time to correct the
conditions which led to the child’s removal.
The juvenile court considered the application in conjunction with the dispositional
hearing on June 30.
At the onset of the hearing, the court took judicial notice of several other
court files, including those establishing the mother’s rights had previously been
terminated to four other children in two separate proceedings.3 The mother’s drug
use and criminal issues were common themes in the prior termination proceedings.
The juvenile court also took judicial notice of criminal file FECR008464, which
3 The mother’s rights were terminated to A.L. and A.L. (both born in April 2017)
and A.L. (born in September 2018) in a September 2019 termination order. Her
rights were also terminated to J.L. (born in March 2021) in October 2021—about
six months before the mother gave birth to R.B.
4
showed the mother had been charged with and pled guilty to gathering where
controlled substances are used, a class “D” felony. The mother was still in jail
pending sentencing, which was scheduled to take place July 25—at which point
R.B. would have been out of the mother’s care for more than three months. The
mother’s guilty plea left the issue of sentencing to the district court’s discretion,
and the court could send her to prison for five years, order her to a supervised-
probation setting, or give her probation and release her. The mother admitted that
she attended only one visit with R.B. during the approximately six weeks she was
out of jail since DHHS became involved with R.B. She testified she missed some
visits due to transportation issues and being unable to find the special formula R.B.
needs but also admitted she missed some because she was using
methamphetamine and did not want to be around her child while high. The mother
resisted the State’s motion to waive reasonable efforts, testifying that once she
was released from jail, she would have more than thirty days sober and would
participate in drug testing, mental-health treatment, substance-abuse treatment,
and any services DHHS requested of her.
The juvenile court granted the State’s application to waive reasonable
efforts, finding:
[The mother] has four older children. None of them are in her
care. The issues that caused [her] to lose care of her older children
are the same issues that brought [R.B.] to the attention of [DHHS].
[The mother] . . . ha[s] a long history of involvement with [DHHS] and
ha[s] demonstrated little if any ability or willingness to change. [The
mother] has not demonstrated an ability to remain drug free, or to
stay out of jail. It is simply unrealistic to believe that the grant of
additional time will result in a different outcome.
The mother appeals.
5
II. Standard of Review.
We perform a de novo review of dispositional orders in child-in-need-of-
assistance (CINA) cases, including an order waiving reasonable efforts. See In re
G.D., No. 17-0874, 2017 WL 4050969, at *2 (Iowa Ct. App. Sept. 13, 2017).
III. Discussion.
DHHS generally has a duty to “make every reasonable effort” to return
children to their parents “as quickly as possible” consistent with the children’s best
interests. Iowa Code § 232.102(7); see also In re C.B., 611 N.W.2d 489, 493 (Iowa
2000) (“[T]he scope of the efforts by the DHS to reunify parent and child after
removal impacts the burden of proving those elements of termination which require
reunification efforts.”). But this mandate is not absolute. The juvenile court may
waive the requirement if it finds by clear and convincing evidence that aggravated
circumstances exist. See Iowa Code § 232.102(12); see also C.B., 611 N.W.2d at
493 (“[T]he reasonable efforts requirement has undergone some transformation.
This is because the family preservation concept which guided our general national
policy for the last two decades was found to be detrimental to children in some
cases. Consequently, the Adoption and Safe Families Act of 1997, Public Law
105–89, 111 Statutes 2115 (codified as amended in scattered sections of 42
U.S.C.), now broadens the focus of reunification to place greater emphasis on the
health and safety of the child, and mandates a permanent home for a child as early
as possible.” (internal citations omitted)).
6
Here, the juvenile court waived the reasonable-efforts requirement, finding
aggravated circumstances existed under section 232.102(12)(c).4 Section
232.102(12)(c) has two elements: (1) the parent’s rights have previously been
terminated with respect to another child who is a member of the same family and
(2) “there is clear and convincing evidence to show that the offer or receipt of
services would not be likely within a reasonable period of time to correct the
conditions which led to the child’s removal.” The mother does not contest the first
element is met. She challenges the second, generally claiming that she planned
to engage in services after her possible July release from jail and she “would be
successful” this time.
Using the past as the best predictor, we agree with the juvenile court’s
finding of aggravated circumstances. See In re T.B., 604 N.W.2d 660, 662 (Iowa
2000) (“The future can be gleaned from evidence of the parents’ past performance
and motivations.”). The mother lost her parental rights to four other children largely
due to her issues with methamphetamine. After losing her rights to J.L. in October
2021 (at which time she was already pregnant with R.B.), the mother continued
using methamphetamine. The mother had about six weeks out of jail during the
pendency of this case; during those six weeks, she did not engage with substance-
abuse or mental-health treatment and she attended only half of one visit with R.B.
4 We presume the juvenile court relied upon this statute, but the order is silent on
the section applied and neither party cited proper authority in this case. The
prosecutor applied for waiver of reasonable efforts citing section 232.101(12) and
the mother’s petition on appeal references section 232.57 (which is about waiving
reasonable efforts in delinquency proceedings—not CINA proceedings). Likewise,
the mother failed to cite to any caselaw in her appellate filing that discussed the
proper code section.
7
Most of the other visits offered to the mother were never confirmed by her and so
they had to be cancelled. And the mother admitted she used methamphetamine
during this period. Even if the mother was released at sentencing in late July—the
earliest date she anticipated possibly leaving custody—R.B. would be out of her
care for more than three months at that time. In other words, less than three
months would remain before the mother’s rights could be terminated to R.B. under
section 232.116(1)(h). See Iowa Code § 232.116(1)(h) (allowing the court to
terminate parental rights to a child three or younger if the child has been removed
from the parent’s care at least six months and cannot return home). Even if DHHS
provided the mother services, based on her track record, those efforts would not
correct the long-standing failure to cooperate with visits and services offered and
the lack of follow through exhibited by the mother towards addressing her
substance abuse problem. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App.
1998) (“[I]n considering the impact of a drug addiction, we must consider the
treatment history of the parent to gauge the likelihood the parent will be in a
position to parent the child in the foreseeable future.”); see also In re Q.A.S.,
No. 13-1182, 2013 WL 5229746, at *3–4 (Iowa Ct. App. Sept. 18, 2013) (affirming
juvenile court’s waiver of reasonable efforts when “the parent[] shows a continuing
pattern of [being] unamenab[le] to services, lack of follow through in the important
areas of drug treatment and mental health treatment, and a continuing
dysfunctional relationship that prevents them from focusing on their child”).
Because we find clear and convincing evidence of aggravated
circumstances based upon the mother’s history and her demonstrated lack of
8
commitment to her parental role, we affirm the juvenile court’s waiver of the
reasonable-efforts requirement.
AFFIRMED.