In the Interest of O.J. and L.J., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0039
Filed April 15, 2020
IN THE INTEREST OF O.J. and L.J.,
Minor Child,
K.J., Mother,
Appellant,
J.J., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights to their children. AFFIRMED ON BOTH APPEALS.
David C. Shinkle of Shinkle & Lynch, Des Moines, for appellant mother.
Larry L. Ball, Jr., Altoona, for appellant father.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Lynn Vogan of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor children.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.
A mother and father separately appeal the termination of their parental
rights to their children. Each contends the State failed to prove the grounds for
termination by clear and convincing evidence, termination of their parental rights
is not in the best interests of the children, and the court should allow an additional
six months to achieve reunification. We affirm on both appeals.
I. Background Facts & Proceedings
K.J., mother, and J.J., father, are the parents of O.J. and L.J., both born in
2016, and two teenage children not part of this action. In March 2018, the parents
voluntarily placed the toddlers with the mother’s sister. The parents were
subsequently reported to the department of human services (DHS) for using illegal
substances, leading to a court-ordered removal of the children in July. The
children were adjudicated children in need of assistance (CINA) in late August.
The termination hearing was held on September 19 and October 21, 2019.
The children have chronic respiratory and other health issues requiring a
moderately high level of care and frequent medical appointments. The mother
missed some of O.J.’s medical appointments, and the father missed most medical
appointments. Neither parent was aware of the necessary care for either child at
the first day of the termination hearing. The parents completed a fraction of
recommended parent-child therapy sessions, scheduling monthly instead of
weekly sessions.
The father struggled with substance-abuse addiction throughout the CINA
proceedings. He tested positive for methamphetamine and amphetamines
multiple times. The father had a prescription for opiate medications and claimed
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to take his opiate medications as prescribed. However, several of his drug tests
came back negative of all substances—including no evidence of his opiate
prescription. The father’s opiate prescription was cut off in May, but he testified he
continued to take leftover pills for two more months. He started an inpatient
treatment program in July 2019 but left after just three days. The father then
started an outpatient substance-abuse treatment program, which he was still
participating in at the time of the termination hearings. He was not participating in
the program at the recommended levels, but he did attend individual therapy on a
regular basis. He tested positive for methamphetamine about a week before the
first day of the termination hearing.
The mother was diagnosed with mental-health issues. She attended
individual therapy on a regular basis. The mother successfully completed her
recommended low-level substance-abuse treatment in January 2019. The mother
attended some of the father’s substance-abuse treatment group sessions. She
testified she was in the process of looking for employment but had not applied for
any jobs yet.
Both parents smoke cigarettes despite the children’s ongoing respiratory
issues. They stopped smoking in their home and cleaned it, but they acknowledge
smoking in their vehicles. The mother conceded she has only “sort of” and “barely”
attempted to stop smoking. The father identified smoking as an addiction he
wishes to address in the future as part of his substance-abuse treatment.
There were allegations of domestic violence and verbal abuse in the past
perpetrated by each parent against the other. At times the parents argued and
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yelled at each other in front of the older children. The parents maintain their
relationship and downplayed the reports.
The mother had previously told the court the father could not return home
until finishing substance-abuse treatment. Yet, when the father left the inpatient
program after less than a week, he moved back into the family home. After his
September relapse, the father set up an apartment at his place of work but
remained in the home through the termination hearing.
The court terminated each parent’s rights as to the children under Iowa
Code section 232.116(1)(h) (2019). Each parent separately appeals.
II. Standard of Review
We review termination-of-parental-rights cases de novo. In re M.D., 921
N.W.2d 229, 232 (Iowa 2018). “There must be clear and convincing evidence of
the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219
(Iowa 2016). The paramount concern in termination proceedings is the best
interests of the child. M.D., 921 N.W.2d at 232.
III. Analysis
A. Grounds for termination. Each parent contends the State did not
prove the grounds for termination by clear and convincing evidence. The court
terminated each parent’s rights under Iowa Code section 232.116(1)(h).
Under Iowa Code section 232.116(1)(h), the court may terminate the
rights of a parent to a child if: (1) the child is three years old or
younger, (2) the child has been adjudicated a CINA under section
232.96, (3) the child has been out of the parent’s custody for at least
six of the last twelve months or the last six consecutive months, and
(4) “[t]here 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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In re A.M., 843 N.W.2d 100, 110–11 (Iowa 2014) (quoting Iowa Code
§ 232.116(1)(h)). There is no dispute the first three elements are met as to both
children. Each parent only contests the final element—whether the children could
be returned to the parents’ custody.
The father claims the State failed to establish the mother could not resume
custody of the children at the present time and the father should be allowed an
additional six months to achieve reunification. The father does not have standing
to assert legal arguments on behalf of the mother in order to prevent the
termination of his parental rights. See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct.
App. 2007). Considering the father’s relapse less than ten days before the first
part of the termination hearing, clear and convince evidence supports he could not
take custody of the children at the present time.
Whether the children could return to the mother is more complicated.
However, incidents and concerns that individually might be trivial or nebulous can,
when considered in the overall context, establish the children cannot be returned
to the parent’s care. See A.M., 843 N.W.2d at 112. The mother testified she did
not have concerns about the father’s substance abuse, and her lack of awareness
of the father’s relapses indicates she has been unable to identify when the father
has been using illegal substances. She recognizes actions she should take to
resume custody of the children—such as quitting smoking, attending counseling,
and obtaining a job—but has not taken any steps to accomplish these tasks. The
mother expressed a desire to maintain her relationship with the father and has not
demonstrated an ability to care for or support the children on her own. Despite the
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mother’s participation in services, neither service providers nor the guardian ad
litem were able to recommend reunification with the mother.
We find clear and convincing evidence supports termination of each
parent’s rights.
B. Six-month extension. Each parent requests an additional six months
to achieve reunification. “[O]ur legislature has carefully constructed a time frame
to provide a balance between the parent’s efforts and the child[ren]’s long-term
best interests.” In re D.W. 791 N.W.2d 703, 707 (Iowa 2010). We do not require
young children to wait for a stable and responsible parent. Id. Here, that time
frame passed many months before the State filed the termination petition. To grant
a six-month extension, the court must “enumerate specific factors, conditions, or
expected behavioral changes” providing a basis to determine removal will no
longer be necessary at the end of that time period. Iowa Code § 232.104(2)(b).
The father recognizes steps he needs to take to resume care of the
children—including completing substance-abuse treatment and stopping
smoking—but seems unwilling or unable to follow through. The children had been
out of the house over eighteen months at the time of the termination hearing, yet
the father had made little progress in addressing his substance-abuse problems
and committing to treatment and a permanent end to his use of illegal substances.
He referred to his drug use as “dabbling,” failed to recognize the effect his use of
illegal substances could have on the children’s lives, and continued to have contact
with the children during his relapses. An extension is not warranted under these
circumstances.
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The mother also recognizes steps to resume care of the children, including
to find employment and stop smoking. She took no steps to achieve either, despite
indicating to the court months earlier she planned to take action. The mother gave
the court no reason to believe she was able to care for the children apart from the
father, and, given her history of failing to follow through on actions she knows are
necessary, we find an extension is unwarranted.
C. Best interests of the children. Each parent claims termination of their
individual parental rights is not in the children’s best interests. We “give primary
consideration to the child[ren]’s safety, to the best placement for furthering the
long-term nurturing and growth of the child[ren], and to the physical, mental, and
emotional condition and needs of the child[ren].” Id.§ 232.116(2). Once the State
has proved a ground for termination, we do not deprive children of permanency in
hopes that “someday a parent will learn to be a parent.” A.M., 843 N.W.2d at 112
(citation omitted).
No one disputes the love between the parents and the children. However,
the parents have only seen the children in relatively short visits for more than a
year and a half. Despite the extended period of time, the father continues to
relapse while in the home. The parents have made little to no effort to stop
smoking cigarettes despite the children’s chronic respiratory problems. The
parents have not resolved the issues leading to the children’s removal. The
parents are not the best placement to further the children’s growth and health, and
termination of the parents’ rights is in the best interests of the children.
AFFIRMED ON BOTH APPEALS.