In the Interest of M.M. and C.M., Minor Children ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1293
Filed November 6, 2019
IN THE INTEREST OF M.M. and C.M.,
Minor Children,
I.M., Mother,
Appellant,
C.M., Father of M.M.,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Mary L. Timko,
Associate Juvenile Judge.
The mother and father separately appeal the termination of their parental
rights to their respective children. REVERSED ON BOTH APPEALS AND
REMANDED.
Lori J. Kolpin of Kolpin Law Firm, P.C., Aurelia, for appellant mother.
T. Cody Farrens of Fankhauser, Farrens & Rachel, P.C., Sioux City, for
appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Lisa K. Mazurek of Miller, Miller, Miller, P.C., Cherokee, attorney and
guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BLANE, Senior Judge.
The mother of C.M. and M.M. and the father of M.M. separately appeal the
termination of their parental rights to their respective children.1 The mother
challenges the statutory grounds relied upon by the juvenile court for termination,
argues the State failed to make reasonable efforts to reunify her and the children,
and maintains we should forgo termination because of the closeness of the parent-
child bond. The father challenges the statutory grounds relied upon by the juvenile
court and maintains termination of his rights is not in M.M.’s best interests. In the
alternative, both parents request additional time to work toward reunification with
their respective children.
Because of our ruling on de novo review, laid out below, we find it necessary
to address only the final issue. See In re K.R., No. 19-0090, 2019 WL 1486612,
at *1 (Iowa Ct. App. Apr. 3, 2019) (declining to consider the three-step analysis of
Iowa Code section 232.116 for termination of parental rights when the court
deemed an extension of time was appropriate).
I. Background Facts and Proceedings.
This family came to the attention of the Iowa Department of Human Services
(DHS) in August 2018 after the mother, while at the hospital giving birth to M.M.,
admitted using methamphetamine within the previous twenty-four hours. DHS
learned the mother had also tested positive for methamphetamine at a prenatal
visit in March 2018 and that the father has a history of drug-related criminal
convictions. The mother had been living with the maternal grandparents off and
1
The identity of C.M.’s biological father is unknown, but the parental rights of any putative
fathers were terminated. No father of C.M. appeals.
3
on, while C.M. had generally lived with them since her birth in early 2016. The
grandparents were able and willing to begin caring for M.M. as well, and both
children were placed in their care.
About a week later, the father was arrested and charged with domestic
abuse assault. It was alleged he spit at and struck the mother in the face. A no-
contact order was entered, and the mother moved into a shelter for those escaping
domestic violence. The parents’ separation was short-lived. Each was charged
with violating the no-contact order before mid-September, when the mother sent a
letter to the court asking that both the no-contact order and the domestic abuse
assault charge be dismissed.
Meanwhile, the father was arrested and charged with operating while
intoxicated (OWI) on September 2 and again on October 14.
The mother entered inpatient residential treatment for substance abuse on
October 18. She admitted to service providers that she used cocaine,
methamphetamine, marijuana, and alcohol between the time the children were
removed from her care and when she entered the treatment facility.
The mother completed the entire twenty-eight-day program. Upon her
discharge in mid-November, she was allowed to move into the home of the
maternal grandparents and live with her children.
The father avoided all contact with DHS from October 8 until November 23.
When the father completed a substance-abuse evaluation in late November, he
was diagnosed with alcohol use disorder (moderate). It was reported the father
had lost control over the amount of alcohol he drank and the duration of his use.
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The father was told to participate in outpatient services for his substance abuse
and to work on his anger-management skills.
From late November until late March, the mother participated in both
substance-abuse and mental-health treatment in the community. She also
obtained employment, working at a local grocery store approximately thirty hours
per week. The father began seeing a dual-diagnosis counselor for both issues
with anger and substance abuse, and he attended substance-abuse meetings
locally. The father was hired for a full-time job, which he continued to hold through
the time of the termination hearing, and both parents worked toward paying down
their fines for their various criminal charges.
Then in March 2019, after several months of sobriety, the mother relapsed
on methamphetamine. When she was asked to drug test on March 20, she
reported it would be positive for alcohol and methamphetamine. The next day, the
mother was arrested for OWI; she admitted to the arresting officer that she was
eight or nine weeks pregnant.
Almost immediately after, the mother voluntarily entered long-term
residential inpatient treatment. The mother remained in this treatment at the time
of the termination hearing, which took place on June 5 and 24. She testified her
tentative discharge date was August 1 but believed she might remain in treatment
until October, noting she was only in the first of four phases of treatment, in order
to achieve long-term sobriety. At the termination hearing, the mother was able to
verbalize what she had learned and how her thought process was changing. She
also testified that the treatment center would allow her children to come stay with
her and had moved her into a larger room for that purpose. In the meantime, she
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had been helping to provide childcare to other women’s children in the facility, and
there was no indication of any concerns with the care she provided.
As he had repeatedly reported, the father testified his sobriety date was
October 15, 2018. Although the father missed some drug and substance tests
after that date, he did not have any positive tests after it. The father was continuing
to see his counselor for help with his substance-abuse and anger issues. The
father admitted he showed some reticence in discussing domestic violence with
the counselor, but he signed up for a domestic-violence class in between the two
days of the termination hearing and was set to begin it in late June. The father
had maintained his full-time employment, and a letter admitted into evidence from
his employer praised the father’s “great attitude” and noted the father did not have
any issues with attendance or readiness to work.
Despite the prior history of domestic abuse in their relationship, both the
mother and father were working on this issue, continuing their relationship, and
planning to marry.
The juvenile court terminated the mother’s parental rights to C.M. and M.M.
pursuant to Iowa Code section 232.116(1)(d), (h), (i) and (l) (2019). The court
terminated the father’s parental rights to M.M. under section 232.116(1)(d), (h),
and (i). Both parents appeal.
II. Standard of Review.
We review termination proceedings de novo. In re H.S., 805 N.W.2d 737,
745 (Iowa 2011). As always, in child-welfare cases, our paramount concern is the
best interests of the children. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App.
2011).
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III. Discussion.
Both parents dispute that termination of their parental rights was proper
under the framework of Iowa Code section 232.116. In the alternative, they both
contend they should have been given more time to reunify with their respective
children pursuant to section 232.104(2)(b).
We agree with the juvenile court that it would have been premature to return
the children to the parents’ full-time care at the time of the termination hearing.
The father was just getting ready to start his course on domestic violence, and the
mother, though in a secured facility and with a number of months of sobriety, had
never parented the two children full-time before. But these parents made strides
in the year DHS was involved with their lives. The father had achieved eight
months of sobriety from alcohol, was working full-time—and by all accounts was
an excellent employee, and was continuing to see his counselor for help with
issues involving substance abuse and anger. His issues were not completely
resolved, and we understand the concern that he was abstaining from alcohol
rather than recovering from his addiction, but six more months will give the father
time to establish that he has made serious, substantial changes in his life. See
Iowa Code § 232.104(2)(b) (allowing the court to delay permanency for six months
when the court can name “specific factors, conditions, or expected behavioral
changes” that establish “the need for removal of the child from the child’s home
will no longer exist” at the end of the extension).
Similarly, the mother has voluntarily maintained her place in a treatment
facility for a number of months. She recognized the need for additional treatment
and remained committed to completing it, even when DHS refused to allow the
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children to spend overnights with the mother. The treatment facility has taken
steps for the mother to care for her children while in treatment and supports the
children spending time in the facility with the mother. There have been no
concerns with the care the mother has provided for the children of other mothers
in treatment. Based on a letter the mother admitted into evidence, the mother will
be able to regain employment at the grocery store after she completes her
treatment. See In re R.M., No. 12-1886, 2013 WL 264326, at *2 (Iowa Ct. App.
Jan. 24, 2013) (granting mother’s request for six-month extension where there
were no safety concerns regarding the mother’s parenting and the mother had
established sobriety and obtained employment). Additionally, the maternal
grandparents remain supportive of the mother, and, based on their ongoing
support and their past behavior, it seems she would be welcome in their home after
she leaves treatment if she is not immediately able to maintain her own home. Six
additional months will give the mother time to complete her treatment and show
she can maintain her sobriety outside of an institutional setting. See id.“While time is of the essence in achieving permanency for children,” “we
cannot lose sight of the competing principle that ‘termination is an outcome of last
resort.’” In re B.M., No. 13-1704, 2013 WL 6700309, at *4 (Iowa Ct. App. Dec. 18,
2013) (quoting In re B.F., 526 N.W.2d 352, 356 (Iowa Ct. App. 1994)). Because
we believe six additional months will give these parents the time they need to show
they can maintain their individual sobriety safely and safely parent these children,
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we reverse the termination of the mother’s and the father’s parental rights. We
remand to the juvenile court for the implementation of a six-month extension.2
REVERSED ON BOTH APPEALS AND REMANDED.
Greer, J., concurs; Vaitheswaran, P.J., dissents.
2
We leave it to the juvenile court to determine the date from which the six-month extension
should commence under Iowa Code section 232.104(2)(b).
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VAITHESWARAN, Presiding Judge (dissenting).
I respectfully dissent. In denying the parents’ request for additional time,
the juvenile court stated:
The court cannot find that in six months the need for removal
will no longer exist. [The mother] needs to demonstrate the ability
to remain clean and sober following treatment. She was not able to
do so after her initial placement in inpatient care. She must also be
able to protect herself from further domestic violence in whatever
form. [The father] still needs to take the first step of
acknowledgement. Six more months will not be long enough. Too
many unanswered questions remain and [the father and mother]
often refuse to answer them. At many times, if they do provide an
answer, it is often a lie.
In my view, the record supports the court’s conclusion.
The mother admitted using methamphetamine while she was pregnant with
her second child. She successfully completed a twenty-eight day inpatient drug
treatment program and maintained her sobriety for approximately five months.
However, she relapsed on methamphetamine and alcohol less than three months
before the termination hearing. At the time, she knew she was pregnant with her
third child. She entered another inpatient drug treatment program and had yet to
complete the program at the time of the termination hearing. Following her
expected release in two to four months, she planned to reunite with the father of
the children, a man against whom a no-contact order was entered for assaulting
the mother. See In re M.F., No. 10-1344, 2010 WL 3894639, at *2 (Iowa Ct. App.
Oct. 6, 2010) (affirming denial of six-month extension where mother tested positive
for drugs four months before the termination hearing and chose “to move back in”
with a drug user).
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Notably, the father testified he did not “focus on” domestic violence with his
therapist even though the therapist “brought it up.” Although he stated he was
willing to attend “domestic classes,” he acknowledged he had not done so. The
father also did not consistently appear for drug testing. He was scheduled for a
drug test less than three months before the termination hearing but did not go in,
and he also failed to appear for a drug test the following month. In addition, the
father was reported to have missed supervised visits with the children and did not
attend sessions with his substance-abuse counselor as scheduled.
I would affirm the juvenile court’s denial of six additional months to work
toward reunification and the termination of parental rights to the children.