In the Interest of A.G. and R.G., Minor Children , 919 N.W.2d 768 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0496
Filed June 6, 2018
IN THE INTEREST OF A.G. and R.G.,
Minor Children,
M.G., Mother,
Appellant,
D.A., Father of R.G.,
Appellant,
T.P., Father of A.G.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Amy L. Zacharias,
District Associate Judge.
A mother and two fathers separately appeal the termination of their parental
rights. AFFIRMED ON ALL APPEALS.
Justin R. Wyatt of Woods & Wyatt, P.L.L.C., Glenwood, for appellant
mother.
Sarah M. Hart of Reisinger Booth and Associations, P.C., L.L.O., Omaha,
Nebraska, for appellant father D.A.
C. Kenneth Whitacre of C. Kenneth Whitacre Law Office, Glenwood, for
appellant father T.P.
Thomas J. Miller, Attorney General, and John B. McCormally, Assistant
Attorney General, for appellee State.
Vicki R. Danley, Sidney, guardian ad litem for minor children.
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Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
The mother of R.G., born in 2014, and A.G., born in 2016, appeals the
termination of her parental rights. R.G.’s father appeals the termination of his
parental rights to R.G., and A.G.’s father appeals the termination of his parental
rights to A.G.
I. Background Facts and Proceedings
The family came to the attention of the Iowa Department of Human Services
(DHS) most recently in April 2017 due to allegations the mother was using
methamphetamine while taking care of the children. Previously, R.G. was
adjudicated a child in need of assistance (CINA) in February 2016 in Montgomery
County upon concerns the mother was using methamphetamine. The DHS offered
the mother services including substance-abuse treatment, mental-health
evaluations, and family programs. A.G. was born in May 2016, and for
approximately one year, the mother attended services sporadically, but sufficiently
enough to have the CINA case closed in February 2017. The mother’s success
was short-lived as the DHS removed the children from their mother’s care in April
2017 upon allegations the mother was again using methamphetamine while caring
for the children. The DHS placed R.G. with the maternal cousins with whom she
had previously stayed during the DHS’s first involvement. A.G. was initially placed
with the maternal grandmother but later transitioned to placement with the
maternal cousins and R.G.
On July 8, 2017, the children were adjudicated CINA under Iowa Code
section 232.2(6)(c)(2) and (n) (2017). Reunification services were offered to all
three parents.
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The State filed a petition for termination of all three parents’ parental rights
on December 28, 2017, after no parent demonstrated sufficient compliance or
progress to be able to care for the children. After a February 15, 2018 hearing, at
which all three parents testified, the district court entered an order terminating the
parental rights of the mother, R.G.’s father, and A.G.’s father pursuant to Iowa
Code section 232.116(1)(e) and (h) (2017).
The mother and both fathers appeal.1
II. Standard of Review
We review termination of parental rights proceedings de novo, giving
deference to the district court’s findings but not being bound by them. In re C.B.,
611 N.W.2d 489, 492 (Iowa 2000).
III. Mother’s Appeal
The mother contends the district court erred in finding clear and convincing
evidence supported termination under Iowa Code section 232.116(1)(e) and (h).
“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, 776 (Iowa 2012).
Paragraph (h) provides termination is warranted if:
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,
1
Although the district court took judicial notice, without objection, of various criminal
charges and convictions of the mother and R.G.’s father, the specific documents were not
made part of the record on appeal.
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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.
Iowa Code § 232.116(1)(h). The first three subsections are undisputed as both
A.G. and R.G. are three years of age or younger, they have been adjudicated
CINA, and they have been removed from the mother’s physical custody for the last
six consecutive months. The mother challenges subsection (4), asserting the
children could be returned to her care soon after she could be released from jail.
After the children were removed, the mother sporadically engaged in
services to address not only her substance abuse but also mental-health issues.
Although she would show some limited progress, she would regularly relapse into
drug use and criminal activity leading to incarceration. In December 2017, the
mother tested positive for methamphetamine. On January 3, 2018, the State
charged the mother with possession of a firearm or offensive weapon by a felon,
in violation of Iowa Code section 724.26(1). The mother remained incarcerated at
the time of the termination hearing and, although she testified her attorney was
working on getting “all charges thrown out,” all of the charges remained pending
with no indication of the ultimate outcome of the criminal proceedings.2 The DHS
caseworker testified, “There have been short bursts where [the mother] was able
to demonstrate some sobriety. I would say maybe two months, two to three
2
Also pending at the time of the termination hearing was the mother’s probation revocation
proceeding. In December 2017, the mother previously pled guilty to charges of
possession of a controlled substance and possession of contraband in a correctional
institution, in Fremont County. She was then facing probation revocation pending the
outcome of the Mills County weapon charge.
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months, and then closely followed by another relapse or some kind of a criminal
activity that ended up where she’s incarcerated again.” Based on our review of
the record, we agree with the district court’s conclusion the State proved by clear
and convincing evidence the children could not be safely returned to the mother.
See Iowa Code § 232.116(1)(h)(4).
In making a best-interest determination, 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].” Iowa Code § 232.116(2). The DHS caseworker
testified that R.G. and A.G. are doing well with the maternal cousins. In addition,
the mother has not been able to successfully attend to her substance-abuse issues
that led to the DHS involvement. Despite the children’s young age, the family has
been involved with the DHS twice, and the mother continued to have positive drug
screens. “[W]e cannot deprive a child of permanency after the State has proved a
ground for termination under section 232.116(1) by hoping someday a parent will
learn to be a parent and be able to provide a stable home for the child.” In re P.L.,
778 N.W.2d 33, 41 (Iowa 2010). Termination of the mother’s parental rights will
give the children the safety and stability they need. Accordingly, we agree it was
in the children’s best interests to terminate the mother’s parental rights.
The mother then asserts her bond with A.G. and R.G. should preclude
termination. See Iowa Code § 232.116(3)(c). The factors set forth in section
232.116(3)(c) are permissive, not mandatory. See In re J.L.W., 570 N.W.2d 778,
781 (Iowa Ct. App. 1997), overruled on other grounds by P.L., 778 N.W.2d at 33.
Any bond the mother claims to have with the children has been strained by the
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mother’s drug use and criminal activity, and it is diminished due to the children’s
young age. Therefore, we agree with the district court that Iowa Code section
232.116(3)(c) does not preclude termination.
Finally, the mother requested an extension of three to six months to work
out her issues once her criminal charges are resolved and upon the hope she
would be released from jail. See Iowa Code § 232.104(2)(b) (providing a court
may authorize a six-month extension of time if it determines “the need for removal
of the child from the child’s home will no longer exist at the end of the additional
six-month period”). At the termination hearing the mother failed to explicitly
request a six-month extension, and she did not give anything of substance that
would support a finding that the need for removal would not exist in six months.
She merely testified it would take a “couple months” for her to be in a position to
take care of her kids. Because the mother has made so little progress on resolving
her substance-abuse and mental-health issues and continues to engage in
criminal activities, the record does not indicate the mother would be able to safely
care for her children with a six-month extension of time.
Accordingly, we affirm the district court’s termination of the mother’s
parental rights.
IV. A.G.’s Father’s Appeal
A.G.’s father contends the district court erred in finding clear and convincing
evidence supported termination under Iowa Code section 232.116(1)(e). As he
does not contest the court’s findings made under paragraph (h), we affirm the
termination of his parental rights under that subsection. See Hyler v. Garner, 548
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N.W.2d 864, 870 (Iowa 1996) (“[O]ur review is confined to those propositions relied
upon by the appellant for reversal on appeal.”).
The district court also found termination was in the best interests of the
child. Iowa Code § 232.116(2). A.G.’s father did not engage in services until
January 2018, just one month before the termination hearing. He then attended
approximately three visits with A.G. but chose to end each prematurely after about
thirty minutes. His lack of compliance with offered services and his general
disinterest in parenting A.G. show that termination is in A.G.’s best interests. A.G.
is doing well in the care of relatives, and his permanency, safety, and stability are
best served by terminating the father’s parental rights. See id. We agree it was in
the child’s best interests to terminate A.G.’s father’s parental rights and nothing
mitigated against termination. See id. § 232.116(3). Accordingly, we affirm the
district court’s order terminating A.G.’s father’s parental rights.
V. R.G.’s Father’s Appeal
R.G.’s father contends the district court erred in finding clear and convincing
evidence supported termination under Iowa Code section 232.116(1)(e) and (h).
See A.B., 815 N.W.2d at 776. As he does not contest the court’s findings made
under paragraph (h), we affirm the termination of his parental rights under that
subsection. See Hyler, 548 N.W.2d at 870.
The district court also found termination to be in R.G.’s best interests. Iowa
Code § 232.116(2). R.G.’s father was incarcerated at the time of the termination
hearing on three separate felony charges. He also testified that he used drugs two
months prior to the termination hearing. In addition, as this is the DHS’s second
involvement with R.G., termination is in her best interests to provide safety and
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stability in her life and to avoid any further DHS involvement. See id.; see also In
re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (looking “to the parents’ past
performance because it may indicate the quality of care the parent is capable of
providing in the future” (citation omitted)).
R.G.’s father asserts R.G.’s placement with a relative and her strong bond
with him should preclude termination. See Iowa Code § 232.116(3)(a), (c). The
record shows that three-year-old R.G. has not lived with her father because he has
not complied with services. Furthermore, the father testified he could not
remember when his last visit with R.G. was and that particular visit ended poorly.
Because of R.G.’s young age, the time spent out of her father’s care, and her need
for stability, we agree the permissive considerations found in section 232.116(3)(a)
and (c) do not overcome the conclusion that termination is in R.G.’s best interests.
See J.L.W., 570 N.W.2d at 781 (noting the factors set forth in this section are
permissive). Accordingly, we affirm the district court’s order terminating R.G.’s
father’s parental rights.
R.G.’s father also argues the DHS did not make reasonable efforts for
reunification with R.G. See Iowa Code § 232.102(5)(b). He asserts that services
offered to the mother, including drug screens, home studies, or relative care
placement, were not offered to him. After the July 6 CINA adjudication, R.G.’s
father failed to make contact with the DHS, and he failed to follow through with
offered services or visitation, as found in the December 12 permanency order. He
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was arrested on January 2, 2018, and remained incarcerated at the time of the
termination hearing.3
R.G.’s father had an “obligation to demand other, different, or additional
services prior to a permanency or termination hearing.” In re A.A.G., 708 N.W.2d
85, 91 (Iowa Ct. App. 2005) (emphasis added). Because he did not make a
demand for services prior to the termination hearing, he has not preserved this
claim for our review on appeal.
VI. Conclusion
Because the State proved by clear and convincing evidence the children
could not be returned to their parents at the time of the termination hearing and the
children are doing well in their placement, we affirm.
AFFIRMED ON ALL APPEALS.
3
On January 3, 2018, R.G.’s father was charged under multiple case numbers, and awaits
adjudication on, the following:
(1) - Count I: Possession of Contraband On/In Grounds of
Correctional Facility, in violation of Iowa Code section 719.7(1),
719.7(3)(a), and 719.7(4).
Count II: Possession of Methamphetamine, a Schedule II Controlled
Substance, First Offense, in violation of section 124.401(5).
(2) - Count I: Theft in the Second Degree, in violation of section
714.1(1) and 714.2(2).
Count II: Burglary in the Third Degree, in violation of section 713.1 and
713.6A.
(3) - Count I: Theft in the Second Degree, in violation of section
714.1(1) and 714.2(2).
Count II: Burglary in the Third Degree, in violation of section 713.1 and
713.6A.
(4) - Driving Under Suspension, in violation of section 321.218.
(5) - Registration Violation, in violation of section 321.34.
(6) - Operating a Non-Registered Vehicle, in violation of section
321.17.