In the Interest of B.W. and E.W., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0769
Filed July 24, 2019
IN THE INTEREST OF B.W. and E.W.,
Minor Children,
C.W., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
District Associate Judge.
A mother appeals the termination of her parental rights to her two children.
AFFIRMED.
Robin L. Miller, Cedar Rapids, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Julie Gunderson Trachta of Linn County Advocate, Inc., Cedar Rapids,
attorney and guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
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VAITHESWARAN, Presiding Judge.
A mother appeals the juvenile court’s termination of her parental rights to
two children, born in 2006 and 2012. She contends (1) the State failed to prove
the grounds for termination cited by the juvenile court, (2) termination was not in
the children’s best interests, and (3) the juvenile court should have declined to
terminate her parental rights because the children were placed with a relative.
The juvenile court terminated the mother’s parental rights pursuant to two
statutory provisions. We may affirm if we find clear and convincing evidence to
support either of the grounds. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
On our de novo review, we will focus on Iowa Code section 232.116(1)(f) (2018),
which requires proof of several elements, including proof the children cannot be
returned to the parent’s custody.
The mother has a long history of substance abuse. The department of
human services first intervened in 2009 and again took action in 2013, when drug
tests were positive for marijuana and methamphetamine. The department most
recently became involved with the family in early 2017, after it was reported that
the mother’s boyfriend might be using and manufacturing methamphetamine. The
department offered the mother services to address the family’s needs. The
services were unsuccessful. The department investigated several separate
incidents and found that the mother abused or neglected the children. The juvenile
court removed the children from her custody and adjudicated them in need of
assistance.
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The mother participated in supervised visits with the children three times a
week. A service provider who supervised later visits testified an impediment to
reunification was the mother’s lack of sobriety and consistent drug testing.
The mother’s move toward sobriety was indeed checkered. She tested
positive for marijuana on several occasions and admitted to consuming
methamphetamine in July 2018. At least two drug patches administered after
July—one as recently as January 2019—were positive for methamphetamine
At the termination hearing, the mother was asked about the most recent
positive test. She stated the result could be traced to a nap she took in a
methamphetamine user’s bed. As for the prior positive result, she stated she was
near her father when he ingested methamphetamine. The juvenile court found the
mother’s testimony incredible. We give weight to this finding.
The mother’s explanations for the positive results are especially
questionable given the number of drug tests she missed. According to the
department case manager, she was called for eighty tests in eighteen months.
She did not appear for forty-seven of them.
Despite her continued use of illegal substances, the mother testified she
was “willing and able to take [her] kids” home. We find it unnecessary to recount
the numerous facts that belie her assertion. Suffice it to say that the State proved
the children could not be returned to the mother’s custody at the time of the
termination hearing.
There is also no question termination was in the children’s best interests.
See Iowa Code § 232.116(2). Founded child abuse reports documented the
adverse effects of the mother’s drug use on the children. Additionally, the mother
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lacked a safe and approved home for the children in the city to which she was
moving. Although she testified the cousin with whom the children were placed
would ease the transition to her care, there was scant evidence the transition could
take place in the immediate or near term.
We are left with the mother’s argument that the juvenile court should not
have terminated her parental rights because the children were placed with
relatives. See id. § 232.116(3)(a). Those relatives did not have legal custody of
the child; the department did. Cf. In re A.S., 906 N.W.2d 467, 476 (Iowa 2018)
(stating child’s maternal grandparents had legal custody of child but also rejecting
grandparents’ request for transfer of guardianship and custody to them). In any
event, given the mother’s lack of progress toward sobriety, we conclude the
exception to termination was appropriately not invoked.
We affirm the termination of the mother’s parental rights to her children.
AFFIRMED.