In the Interest of E.P., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1783
Filed March 4, 2020
IN THE INTEREST OF E.P.,
Minor Child,
E.P., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Linnea M.N. Nicol,
District Associate Judge.
A mother appeals the termination of her parental rights to her minor child
under Iowa Code chapter 232 (2019). AFFIRMED.
Cory R. Gonzales of Law Office of Cory R. Gonzales PLLC, Strawberry
Point, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Andrew Thalacker of Juvenile Public Defender’s Office, Waterloo, attorney
and guardian ad litem for minor child.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
2
GREER, Judge.
A mother appeals the termination of her parental rights to her minor child
under Iowa Code chapter 232 (2019).1 On appeal, the mother argues the State
failed to prove grounds for termination, she was not provided sufficient reunification
services, an exception should be applied to prevent termination, and she should
have been granted a six-month extension to regain custody of the child. We
disagree and affirm.
I. Background Facts and Proceedings.
E.P. is the mother of Ev.P., born in 2016. In October 2018, the child was
removed from the mother’s care after the mother’s arrest for possession of
methamphetamine. This incident led to a founded child abuse assessment against
the mother. The mother admitted to using methamphetamine daily in the three or
four days before the child’s removal, and a drug test confirmed the child had
methamphetamine in her system. At the time, the mother did not have a job or
stable housing. After being placed briefly with family members, the child was
moved to foster care. The foster care parents continue to care for the child, who
arrived with significant behavioral delays. The child is now thriving.
The Iowa Department of Human Services (DHS) created a case
permanency plan requiring the mother to participate in services, including Family
Safety, Risk, and Permanency (FSRP) services, mental-health and substance-
1 At the time of the termination hearing, the father’s whereabouts were unknown,
but there was credible information that he had returned to Mexico. His parental
rights were terminated. He does not appeal.
3
abuse evaluations and any recommended treatment, and random drug screens.
The plan offered visits between the mother and child three times per week.
The mother completed a mental-health and substance-abuse evaluation,
but she only attended two other appointments throughout this case. She has not
participated in any drug testing, although she was set to test twice per month.
She attended visits without issue for the first few months. To the mother’s
credit, she appropriately cared for the child during these visits and the child was
always happy to see her. But over time the mother began to confirm her visitation
times inconsistently and had several no-shows. These no-shows caused
significant distress to the child. The mother would also “fall off the radar” for
periods of time and have no contact with the child. The FSRP worker tried to
accommodate the mother by changing the visits from three, two-hour visits per
week to two, three-hour visits. Still, the mother continued to miss visits. She never
requested more visits or progressed beyond supervised visits.
Throughout this case, the mother has depended on others for
transportation. Both the DHS and FSRP workers discussed the mother’s options
with her and offered to provide her and the child with transportation or to provide
gas cards to anyone who gave the mother a ride. Several times, however, a worker
would transport the child to the visit location—at one time over an hour from the
child’s foster placement—and the mother would not show up, often without
explanation. At a family team meeting in August 2019, after several no-shows, the
mother was encouraged to find her own transportation to visits but was also told
that DHS could provide gas cards. The mother did not request more assistance
with transportation.
4
The child was adjudicated a child in need of assistance in December 2018.
The juvenile court held a dispositional hearing in February 2019 and directed the
mother to continue to comply with the DHS permanency plan. After a permanency
hearing in May, the court ordered the State to proceed with termination.
The State filed a termination petition, and the district court held a termination
hearing in October. At the time of the termination hearing, the mother still did not
have stable housing or employment. Between February and November 2019, the
mother had reported moving to seven residences, almost all in different towns.
The mother claimed she was sober, but she had not completed substance-abuse
treatment or participated in any drug testing. She was not participating in mental-
health treatment. She failed to communicate with her DHS and FSRP workers for
long stretches of time, and the FSRP worker was concerned that the mother’s
failure to communicate may have been substance-abuse related. Both the DHS
and FSRP workers testified they would not be comfortable returning the child to
the mother or giving the mother additional time to work toward reunification.
The juvenile court terminated the mother’s parental rights under Iowa Code
section 232.116(1)(e) and (h). The court concluded DHS had made reasonable
efforts toward reunification, declined to apply a permissive exception to
termination, and declined to grant a six-month extension. The mother appeals.
II. Standard of Review.
We review termination of parental rights proceedings de novo. In re L.T.,
924 N.W.2d 521, 526 (Iowa 2019). We give weight to, but are not bound by, the
juvenile court’s factual findings. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).
Our primary concern is the best interests of the child. Id.5
III. Analysis.
On appeal, the mother argues (A) the State failed to prove the statutory
grounds for termination; (B) DHS failed to make reasonable efforts toward
reunification; (C) the court should have applied a permissive exception to
termination based on the closeness of the parent-child relationship; and (D) the
court should have granted her a six-month extension to reunify with the child.
A. Grounds for Termination. The mother argues the State failed to prove
grounds for termination under section 232.116(1)(e) or (h). “On appeal, we may
affirm the juvenile court’s termination order on any ground that we find supported
by clear and convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
As for section 232.116(1)(h),2 the mother only challenges the final
element—that the child could not be returned to her custody at the time of the
termination hearing. The mother claims that because no issues arose when caring
for her daughter at visitations and no one proved she is using drugs, the State
failed to show by clear and convincing evidence that the child could not be returned
to her care at the time of the termination hearing.
2 Iowa Code section 232.116(1)(h) provides that termination is appropriate if,
h. 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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Meeting the case plan terms offers a parent an opportunity to show his or
her stability. Here the mother used few services and met few conditions. She
frames her lack of participation in substance-abuse and mental-health services
and her failure to participate in any drug testing as evidence that she is sober and
stable enough to regain custody of her child. Yet, the plan called for participation
in drug testing and substance-abuse treatment. The mother avoided drug testing.
Likewise the FSRP worker offered to help the mother get to the drug testing facility,
yet the mother failed to undergo testing. The FSRP worker worried that the
mother’s habit of “going off the radar” for weeks at a time was a warning sign of
continued drug use.3 Coupled with the concerns about the mother’s sobriety, at
the time of the termination hearing, it was unclear where the mother was living and
whether she had a job. In addition, although the mother appropriately cared for
the child at visits, she infrequently attended these visits and had not participated
consistently enough to progress beyond supervised visits. For all of these
reasons, the State proved by clear and convincing evidence that the mother could
not regain custody of the child at the time of the termination hearing. See In re
A.M., 843 N.W2d 100, 111 (Iowa 2014).
B. Reasonable Efforts. At the termination hearing, the mother argued for
the first time that DHS did not provide her with adequate access to transportation
and therefore did not make reasonable efforts to reunify her with the child. See In
re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (“The State must show reasonable
3The mother went weeks without responding to text messages or phone calls
designed to arrange contact with her child. The visitations were sporadic, even
when the FSRP worker provided transportation.
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efforts as a part of its ultimate proof the child cannot be safely returned to the care
of a parent.” (quoting In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (en banc))).
“[T]he State has the obligation to provide reasonable reunification services,” but
the parent “had the obligation to demand other, different, or additional services
prior to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App.
1999) (emphasis added). “Where a parent ‘fails to request other services at the
proper time, the parent waives the issue and may not later challenge it at the
termination proceeding.’” In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015)
(quoting In re M.Y.R., No. 11-1139, 2011 WL 5389436, at *7 (Iowa Ct. App. Nov.
9, 2011)).
Transportation has been an issue for the mother throughout this case but
she raised no concerns about the transportation provided to her until the
termination hearing. For that reason, she has waived this issue on appeal. The
mother attempts to avoid the waiver issue by referencing an August 2019 text
exchange with the FSRP worker where she asked when transportation would be
provided again and if there was a certain distance limit on the worker providing
transportation. The mother did not request other, different, or additional services
in her text messages, and raised no concerns with the juvenile court. This text
exchange does not satisfy the mother’s burden to request services prior to the
termination hearing.
C. Permissive Exception to Termination. The mother argues the court
should have applied the permissive exception to prevent termination based on the
closeness of the parent-child relationship. See Iowa Code § 232.116(3)(c). These
factors “are permissive, not mandatory.” A.M., 843 N.W.2d at 113 (quoting In re
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D.S., 806 N.W.2d 458, 474–75 (Iowa Ct. App. 2011)). “[O]ur consideration must
center on whether the child will be disadvantaged by termination, and whether the
disadvantage overcomes [the parent’s] inability to provide for [the child’s]
developing needs.” D.W., 791 N.W.2d at 709.
While we acknowledge the child is bonded to and loves the mother,4 we
cannot agree that the disadvantages of termination outweigh the mother’s inability
to provide for the child’s needs. Together with the mother’s housing instability and
unemployment, she inconsistently participated in visitation, often going stretches
of time without seeing the child. The mother points to the child’s distress when the
mother no-showed for visits as evidence that they share a close bond that should
prevent termination. Throughout this case, however, the mother has failed to take
responsibility for and remedy her lack of stability and follow-through that caused
the child’s distress. By all accounts, the child is thriving in her foster placement.
She has developed close bonds with her foster family and they have given her the
stability she needs. We find the permissive exception to termination in section
232.116(3)(c) inapplicable here.
D. Six-Month Extension. For the court to provide additional time for
reunification, it must determine that the need for removal “will no longer exist at the
end of the additional six-month period.” Iowa Code § 232.104(2)(b); accord T.S.,
868 N.W.2d at 442 (“Simply put, a parent must do something, must make some
effort to move; neither standing still nor cruise control on a status-quo path will
defeat an impending termination.”). Here, the mother had almost one year to
4 The mother-child bond was described as “warm” at the termination hearing,
however the foster parents are filling the parental role for the child.
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correct the issues that caused DHS’s involvement with the family and failed to do
so. We agree with the juvenile court’s denial of a six-month extension.
IV. Disposition.
For these reasons, we affirm the juvenile court’s termination of the mother’s
parental rights.
AFFIRMED.