In the Interest of W.N., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1099
Filed November 30, 2020
IN THE INTEREST OF W.N.,
Minor Child,
T.N., Father,
Appellant,
D.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Deborah Farmer
Minot, District Associate Judge.
A mother and father each challenge termination of parental rights to their
now one-year-old son. AFFIRMED ON BOTH APPEALS.
David R. Fiester, Cedar Rapids, for appellant father.
Zachary D. Crowdes, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Andrew R. Wiezorek of Jacobsen, Johnson, & Wiezorek, P.L.C., Cedar
Rapids, attorney and guardian ad litem for minor child.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
W.N.’s life started with adversity. Born two months premature, W.N. tested
positive for methamphetamine. His mother, Dominique, had no prenatal care. His
father, Timothy, did not have housing appropriate for a baby. The parents agreed
the Iowa Department of Human Services (DHS) could place W.N. with his maternal
grandmother. In the ten months since W.N.’s removal from their care, neither
parent scheduled a substance-abuse evaluation; neither cooperated with drug
testing; and neither found a residence where W.N. could live with them. Seeing
their inaction, the juvenile court decided the State offered clear and convincing
evidence supporting termination of parental rights. Both Dominique and Timothy
appeal that decision. After our independent review of the record, we uphold the
termination ruling.1
The DHS intervened at the hospital in September 2019 after newborn
W.N.’s drug test came back positive. W.N.’s grandmother agreed to take care of
him; Dominque also moved into her mother’s home under a safety plan. But
Dominique left without explanation after only one month. Since then, neither
parent has been consistent in their interactions with W.N., showing up for less than
one-third of the offered visitations. And neither parent attended W.D.’s medical
appointments when he had health issues.
1 We review these proceedings de novo. In re Z.P., 948 N.W.2d 518, 522–23 (Iowa
2020). We give weight to the juvenile court’s factual findings, but we do not
consider them binding. Id. As petitioner, the State must offer clear and convincing
evidence of the grounds for termination. Iowa Code § 232.117(3) (2020).
3
In the case plan provided to the parents, the DHS expected them to
undertake substance-abuse evaluations and submit to drug tests. The parents did
not live up to those expectations. Even after receiving reminders over a six-month
period, neither completed a single substance-abuse evaluation. And, despite
service providers offering dozens of screening opportunities, the parents never
participated in any drug testing. Because Timothy had several drug- and
alcohol-related criminal charges over the past few years, the DHS worker
suspected his refusal to submit to drug testing signaled ongoing drug use. That
signal was even stronger for Dominique. The DHS learned in February 2020 that
Dominique was again pregnant. A prenatal screening in April returned positive
for methamphetamine.
On top of concerns over the parents’ drug use, the DHS worried about their
lack of stable housing. When the parents eventually moved into an apartment in
February 2020, they did not notify the DHS of their new address. Timothy testified
at the termination-of-parental-rights hearing in July that they were “just getting
established in [their] new place, and it [was] under renovation.” He added: “I
wouldn’t recommend a kid to be in the house with all the dust and stuff going on
with me doing the work in the house at the time.”2
The court terminated the parental rights of both Dominique and Timothy
under Iowa Code section 232.116(1)(e) and (h). The court found termination to be
in W.N.’s best interests because he would be “at high risk of drug exposure and
lack of supervision” if returned to the parents’ custody. See Iowa Code
2 Dominique opted not to testify at the hearing.
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§ 232.116(2). The court also decided none of the countervailing factors in section
232.116(3) weighed against termination. Both parents appeal.3
We may affirm the termination order on any ground supported by clear and
convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We focus on
paragraph (h). To terminate parental rights under that provision, the State must
prove these four elements:
(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.
The parents challenge only the fourth element.
For her part, Dominique contends her living arrangement is now stable. Yet
the DHS had not been inside her residence. And Timothy admitted the apartment
was not ready for W.N. to live there. Then beyond the physical set-up, safe
parenting remains a huge question mark.
Dominique deflects the DHS concerns about drug use. She asserts on
appeal that “substance abuse is not a genuine issue for her. While it is true that
Dominique had not participated in drug testing or substance abuse treatment, there
were no reported concerns of behavioral indicators of drug use in the months
leading up to the trial.” This assertion contradicts the juvenile court’s findings that
3 Both parents raise the same issues in their petitions on appeal. We will address
them together, making note of differences specific to either Timothy or Dominique.
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both parents have been under the influence at least once during a scheduled
visitation with W.N. It also discounts the worker’s testimony that Dominique tested
positive for methamphetamine during a prenatal screening in April 2020. Like the
juvenile court, we find clear and convincing proof that W.N. could not be safely
placed back in Dominique’s care. See D.W., 791 N.W.2d at 707 (“The record does
not provide any evidence that D.W. could safely be returned home with A.W. at the
time of the termination hearing.”).
For his part, Timothy acknowledges facing personal challenges during this
child-welfare case, including “periods of unemployment, homelessness, and
[being] sometimes left unable to communicate with providers due to his phone
service being cut off several times.”4 He also blames W.N.’s grandmother for his
spotty visitation record. Timothy contends she did not welcome him into her home
and would not supervise his visits with W.N. He also points to his “unpredictable
work schedule” and in-person visitation restrictions from “the COVID-19 crisis” as
impediments to reunification with W.N.
Like the juvenile court, we reject the parents’ “unconvincing excuses” for not
making progress toward reunification with W.N. As the court noted: “They were
resistant to services from the beginning, and utterly failed to follow through with
any aspects of the case plan. They did not visit [W.N.] regularly or make any
4 Timothy’s attorney also contends “the record does not indicate any instance
where the department provided any services to Timothy to alleviate these
concerns.” If that sentence is meant to challenge the reasonable-efforts aspect of
the State’s ultimate proof, we find the argument waived because the passing
reference is insufficient to invoke our review. See In re O.B., No.18-1971, 2019
WL 1294456, at *2 (Iowa Ct. App. Mar. 20, 2019).
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progress before, during or after the pandemic prevented face-to-face contacts with
providers and children.” Granted, the public health emergency changed the
available method of interacting with W.N. to video conference. But it did not push
the trajectory of this case toward termination. See In re W.L., No. 20-0880, 2020
WL 5229199, at *2 (Iowa Ct. App. Sept. 2, 2020) (“[C]urtailment of visits due to
the pandemic had little, if anything, to do with the decision to terminate” parental
rights). Instead, the State proved the elements of section 232.116(1)(h) by clear
and convincing evidence.
Apart from the statutory ground, the parents argue the juvenile court should
have denied the termination petition based on Iowa Code section 232.116(2) and
(3). See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (clarifying that once the State
proves a basis for termination under section 232.116(1), the court must apply the
factors in sections 232.116(2) and (3)). The parents argue termination worked to
W.N.’s detriment because he had a loving bond with them. See Iowa Code
§ 232.116(3)(c). They also stress termination was unnecessary because W.N.
resided with a relative. See id. § 232.116(3)(a).
We decide best interests within section 232.116(2)’s framework. We focus
on W.N.’s safety, as well as the best placement for furthering his “long-term
nurturing and growth” and his “physical, mental, and emotional condition and
needs.” See P.L., 778 N.W.2d at 40 (rejecting use of unstructured best-interests
test). We also consider W.N’s integration into his placement and whether those
caregivers are willing to adopt him. See Iowa Code § 232.116(2)(b). The record
shows Dominique and Timothy love W.N., but they have not put in the effort to
become safe and reliable parents. By contrast, W.N.’s grandmother has taken
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excellent care of the child in his first year, has forged a strong bond with him, and
is willing to adopt him. Moving toward that stability is in W.N.’s best interests.
Finally, the factors in section 232.116(3) do not stand in the way of
termination. Under paragraph (c), the record does not reveal that either parent
had such a close relationship with W.N. that he would be harmed by the
termination. See D.W., 791 N.W.2d at 709. In fact, the service providers’ reports
suggest that W.N. did not always recognize his parents. Likewise, paragraph (a)
does not apply because the court did not bestow “legal custody” of W.N. on his
grandmother. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014).
We affirm the termination of both parents’ legal relationships with W.N.
AFFIRMED ON BOTH APPEALS.