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

IN THE COURT OF APPEALS OF IOWA
No. 19-1778
Filed March 4, 2020
IN THE INTEREST OF G.E.,
Minor Child,
N.E., Father,
Appellant,
A.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William A. Price, District
Associate Judge.
The mother and father of the child separately appeal the juvenile court’s
order terminating their parental rights to the child. AFFIRMED ON BOTH
APPEALS.
Joseph P. Vogel of Vogel Law, PLLC, Des Moines, for appellant father.
Brooke J. Thompson of Miller, Zimmerman & Evans, PLC, Des Moines, for
appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Magdalena Reese of the Des Moines Juvenile Public Defender, Des
Moines, attorney and guardian ad litem for minor child.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
2
AHLERS, Judge.
A mother and father with histories of drug abuse, domestic violence, mental-
health issues, and lack of stability separately appeal an order terminating their
parental rights to their eleven-month-old child. They claim that their efforts
undertaken in the days leading up to the termination hearing warrant additional
time to work toward reunification. Finding their efforts to be a case of “too little, too
late,” we affirm on both appeals.
I. Factual and Procedural Background
At the time of the child’s birth, the mother admitted to hospital staff that she
had used heroin, methamphetamine, and prescription drugs during her pregnancy.
In spite of the mother’s admitted use, the child did not test positive for drugs at
birth. Nevertheless, the Iowa Department of Human Services (DHS) became
involved with the family. With the mother’s approval, the child was placed with the
child’s maternal grandmother. The mother entered and completed substance-
abuse treatment, but she relapsed on heroin shortly thereafter. At around the
same time, the DHS learned that the mother had rekindled a relationship with the
child’s father, who had his own history of abusing methamphetamine and heroin
and also had been physically violent toward the mother in the past. As a result,
the child was formally removed from the care of the parents and child-in-need-of-
assistance (CINA) proceedings were initiated. The child was adjudicated as being
in need of assistance, and placement was ordered to continue with the maternal
grandmother.1
1 The child remained in the care of the maternal grandmother through the time of
the termination hearing. The child is reportedly doing well in that placement.
3
During the course of the CINA proceedings prior to termination proceedings
starting, the father for all intents and purposes abandoned the child. He did not
attend hearings. He did not participate in services, including recommended drug
treatment. He did not visit the child. He continued to use methamphetamine daily.
He was homeless.
The mother struggled in a similar fashion. She visited the child only
sporadically. She dropped out of drug treatment. She continued to use drugs.
She failed to follow through with the recommended mental-health evaluation and
treatment. She was homeless as well.
As a result of the parents’ lack of progress toward reunification, a
permanency order was issued directing the State to initiate termination-of-
parental-rights proceedings. The State filed a petition seeking termination of
parental rights as directed, and a hearing on the petition was held within
approximately one month after such filing.
At the time of the termination hearing, the child was approximately eleven
and one-half months old. The mother and father requested an additional six
months to work toward reunification, claiming they had become clean and sober,
had begun receiving substance-abuse and mental-health services, had addressed
their domestic-abuse history, and had begun to work toward securing housing.
However, a review of the situation shows that the parents were largely as unstable
at the time of the termination hearing as they were when the case began. Although
the father claimed to have achieved sobriety, he admitted he had been using
methamphetamine on a daily basis until approximately two or three weeks prior to
the termination hearing, at which time he entered the Salvation Army as a resident.
4
The father had begun treatment at the Salvation Army, but he admitted he could
not have the child at the facility and was not in a position to take the child into his
care at the time of the hearing. The father had not seen the child in approximately
six months. Prior to entering the Salvation Army, he had been living on the streets
or in tents.
The mother, likewise, had made little progress. The mother’s last admitted
use of drugs was only one and one-half months prior to the termination hearing.
Although the mother had reinitiated drug treatment, it was at a lower intensity level
than had been recommended for her.2 She also waited until one month before the
termination hearing, and after permanency, to complete a mental-health evaluation
and begin mental-health treatment in spite of the fact that she had been directed
to undergo evaluation and treatment since the inception of the CINA proceeding
several months earlier. She also testified that she had qualified for housing
assistance and claimed that she was living with a friend. However, further inquiry
established that the “friend” was someone she met the prior day at the drug
treatment facility, the mother did not know the friend’s last name, and she had
stayed at the friend’s house only the night before (the night between the two
consecutive days of the termination hearing). Prior to that night, the mother had
been living on the street.
The child has remained out of the care and custody of the parents
continuously since the child’s formal removal approximately eight months prior to
2 The mother’s evaluation recommended intensive outpatient treatment, but the
mother chose to partake in the less intensive extended outpatient treatment
program.
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the termination hearing. Neither parent had a single overnight visit and neither
parent progressed to having unsupervised visits. In fact, neither parent had even
seen the child for several months prior to the termination hearing.
Based on the circumstances, the juvenile court declined to give the parents
additional time to work toward reunification. The juvenile court terminated the
parental rights of the father pursuant to Iowa Code section 232.116(1)(b), (h), and
(l) (2019) and of the mother pursuant to Iowa Code section 232.116(1)(h), (i), and
(l). Both parents appeal.
II. Standard of Review
We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40
(Iowa 2010). We give weight to the juvenile court’s factual findings, but they do
not bind us. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018). The paramount
concern is the child’s best interest. Id.Termination of parental rights under chapter 232 follows a three-step
analysis. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). First, the court must
determine if a ground for termination under section 232.116(1) has been
established. Id. If a ground for termination is established, the court must,
secondly, apply the best-interest framework set out in section 232.116(2) to decide
if the grounds for termination should result in a termination of parental rights. Id.at 706–07. Third, if the statutory best-interest framework supports termination of
parental rights, the court must consider if any statutory exceptions set out in
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section 232.116(3) should serve to preclude termination of parental rights. Id. at
707.3
III. Statutory Grounds for Termination
As mentioned, the juvenile court found three statutory grounds for
termination with respect to each parent. When the juvenile court terminates
parental rights on more than one statutory ground, we may affirm the juvenile
court’s order on any ground we find supported by the record. In re A.B., 815
N.W.2d 764, 774 (Iowa 2012). We will confine our discussion to the ground set
forth in Iowa Code section 232.116(1)(h).
Under section 232.116(1)(h), termination may be ordered if the court finds
all of the following to 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.
Here, there is no bona fide dispute that the first three elements have been
established. Instead, the parents focus on the fourth element. Their arguments
are not persuasive. At the time of the termination hearing, the child could not be
returned to either parent, as the father was living in a drug-treatment facility that
did not allow children and the mother was living on the street, with the exception
3 Neither party has raised an issue over whether the statutory exceptions set out
in section 232.116(3) should serve to preclude termination of parental rights, so
we will not address that step of the analysis.
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of the night before the second day of the termination hearing when she slept at the
home of a generous stranger she met at her drug-rehabilitation facility. All
statutory requirements for termination of parental rights of both parents pursuant
to section 232.116(1)(h) have been met.
IV. Best Interest of the Child
Both parents argue that, even if statutory grounds for termination have been
established, it is not in the child’s best interest to terminate parental rights. 4 They
argue the juvenile court did not give adequate consideration to the strides they
made in their progress. We disagree.
The juvenile court considered the claimed strides and properly dismissed
them as inadequate for avoiding termination or granting an additional six months
to work toward reunification. The juvenile court aptly observed that, at the time of
the termination hearing, the case had been open for eight months without the
issues that led to removal being fixed. The juvenile court noted that the father
admitted to significant abuse of methamphetamine and heroin throughout the
entire period the case had been pending. He had been kicked out of one drug
rehabilitation facility for stealing. He admitted he did not even know the child. The
father claimed to have completed a substance-abuse evaluation, but he was not
aware of the treatment recommended. Although he was living at the Salvation
4 It is not entirely clear whether the mother’s argument includes a claim that the
State failed to establish that termination is in the best interest of the child.
However, since the line between arguments regarding satisfaction of statutory
grounds and best interest is sometimes murky and we need to address the best-
interest analysis with regard to the father anyway, we will give the mother the
benefit of the doubt and assume she has properly raised a best-interest-of-the-
child issue.
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Army and receiving drug treatment there, the father admitted to having only gone
approximately three weeks without using drugs leading up to the termination
hearing. He had taken minimal to no steps to address his mental-health or
domestic-violence issues.
Similarly, the juvenile court noted that the mother had refused to submit to
drug testing, failed to comply with services, used methamphetamine and heroin
less than two months before the termination hearing in spite of having reinitiated
drug treatment, followed a recommended drug-treatment course that was less
intensive than that recommended for her, not established a residence suitable for
herself or the child, not addressed her mental-health treatment by consistently
participating in treatment, and intended to resume living with the father in spite of
his history of domestic violence directed at the mother.
Upon our de novo review of the record, we agree with the juvenile court’s
factual findings and conclusion that termination of the parents’ rights to the child is
in the child’s best interest. While the parents took some steps toward improvement
in the last couple weeks prior to the termination hearing, it was too little, too late.
The parents had eight months to demonstrate a willingness to improve and
become viable placement options for the child, and they failed to do so. Since the
parents waited until a matter of days leading up to the termination hearing to take
any discernable steps at improvement, they wasted the opportunity to demonstrate
that such steps are going to take hold. This child should not be left to wait any
longer in an experiment to see if the parents’ claimed progress is a long-term
change or a mirage. See In re D.W., 385 N.W.2d 570, 578 (Iowa 1986) (noting
courts are not to gamble with a child’s future by waiting for a parent to finally face
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the parent’s problem). This is especially true given the child’s young age. See
D.W., 791 N.W.2d at 707 (noting a child should not be asked to continuously wait
for a stable biological parents, particularly at a tender age).
V. Conclusion
We find the State proved the statutory grounds for terminating the parental
rights of both parents and termination is in the child’s best interest. Therefore, we
affirm the termination of the parental rights of both parents.
AFFIRMED ON BOTH APPEALS.