In the Interest of K.W., K.W., A.M., and D.M., Minor Children ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1946
Filed March 4, 2020
IN THE INTEREST OF K.W., K.W., A.M., and D.M.,
Minor Children,
S.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mary L. Timko,
Associate Juvenile Judge.
A mother appeals the termination of her parental rights to four children.
AFFIRMED.
Kaitlin T. Boettcher of Moore, Heffernan, Moeller & Meis, L.L.P., Sioux City,
for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Maxine Buckmeier of Maxine M. Buckmeier, P.C., Sioux City, attorney and
guardian ad litem for minor children.
Considered by Mullins, P.J., May, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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MAHAN, Senior Judge.
A mother appeals the termination of her parental rights to four children, born
in 2014, 2015, 2016, and 2018.1 She contends (1) the State failed to prove the
grounds for termination cited by the juvenile court; (2) the juvenile court should
have granted her additional time to work towards reunification; and (3) termination
was not in the children’s best interests. We affirm.
I. Background Facts and Proceedings
This family most recently came to the attention of the department of human
services in September 2018,2 when three-month-old K.W. was admitted to the
emergency room with a traumatic brain injury, including several acute subdural
hemorrhages. K.W. was also malnourished. When questioned about K.W.’s
injury, the mother responded she was unsure what happened but pointed out that
the child’s father, F.M.,3 reported to hospital staff that K.W. fell off the couch two
weeks prior. The father also stated he had thrown K.W. in the air to play with him.
Physicians determined the child had old and new brain injuries, from at least two
incidents, and that he could not have received the injuries from falling from a couch
or being played with. Physicians opined K.W.’s injury was the result of someone
shaking him in a “whiplash” type motion or throwing him with excessive force.
1 The parental rights of children’s fathers were also terminated. They do not
appeal.
2 The department first became involved with the family in 2014, due to alleged drug
use by the mother, which was not confirmed. In 2015, the department
implemented services for the family after A.M. tested positive for marijuana at birth.
In 2017, the department again implemented services for the family upon reports of
domestic violence in the home between the parents.
3 F.M. is the father of the two younger children, and he lives with the family.
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When the mother learned there was going to be a search of the family home,
she started screaming and left the hospital. During the search, officers found
marijuana and paraphernalia. K.W. tested positive for marijuana and
methamphetamine. The older K.W. tested positive for marijuana. The children
were removed from the home and adjudicated in need of assistance.
The oldest child, D.M., was interviewed about K.W.’s injury. D.M.
expressed fear of the father and reported that he hurt the mother and the children.
With regard to K.W., D.M. said the father “bust his head right open.” D.M. showed
the therapist what happened to K.W. by picking up a doll and throwing it on the
floor, stating, “Like throw him.” When asked who threw K.W., D.M. consistently
responded the father. D.M. stated the mother saw what happened and did not do
anything.
The children’s maternal grandmother cared for the children occasionally.
Prior to K.W.’s admission to the hospital, the grandmother expressed concern to
the mother about K.W.’s head and difficulty breathing. The mother said she had
taken K.W. to the hospital and he was fine. The mother continued to deny
involvement in K.W.’s injury and alleged the grandmother caused the injury to K.W.
The mother also stated D.M. was lying about K.W.’s injury. The mother admitted
the father had dropped K.W. a couple times. The father acknowledged he had to
clean blood off the floor because the children fell. Unexplained marks were found
on the older children.
The department implemented rehabilitative services, including supervised
visitation, individual and family therapy, substance-abuse evaluation and
treatment, and a psychological evaluation. The mother’s psychologist noted
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concerns about the mother’s lack of insight and opined the children were at high
risk for future abuse and neglect if returned to her care. The mother and father
resumed their relationship in March 2019, despite warnings that their relationship
would affect reunification with the children.
The State filed a petition to terminate the mother’s parental rights in August
2019. The termination hearing was held over two days in September and
November 2019. The record before the juvenile court indicated the children had
been removed from the mother’s home for over one year, her visits with the
children remained supervised, and she had not made progress to address
concerns about abuse and violence in the home. The mother continued to
minimize the father’s violence, and she stated she did not believe he would hurt
the children. She requested the children be returned to her care or that she be
given an additional six months to work toward reunification. The department and
guardian ad litem recommended termination of the mother’s parental rights.
Following the termination hearing, the court entered its order terminating
the mother’s parental rights pursuant to Iowa Code section 232.116(1)(d), (h), (f),
and (i) (2019). The mother appeals.
II. Standard of Review
Appellate review of termination-of-parental-rights proceedings is de novo.
In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Our primary consideration is the
best interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the
defining elements of which are the children’s safety and need for a permanent
home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
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III. Discussion
The mother challenges the sufficiency of the evidence supporting the
grounds for termination cited by the juvenile court. We may affirm if we find clear
and convincing evidence to support any of the statutory provisions. See In re A.B.,
815 N.W.2d 764, 774 (Iowa 2012). We will focus on Iowa Code section
232.116(1)(h) and (f), which requires proof of several elements including proof the
children could not be returned to the mother’s custody.
At the time of the termination hearing, the mother had met some of the case
plan requirements. She completed substance-abuse treatment and had submitted
negative drug tests. But concerns regarding the mother’s mental-health needs and
protective capacity remained addressed. The mother continued to deny knowing
anything about how K.W. was injured, and she maintained that D.M. was lying
about the father’s abuse. But she acknowledged the father had “dropped” the child
and that he had been violent toward her in the past. In September 2019, the
mother stated she did not believe the father would hurt the children. Despite the
mother’s awareness that her protective capabilities were one of the main hurdles
toward reunification with her children, she made no progress to gain insight or
accept responsibility for her decisions. The juvenile court stated:
While [the mother] has “checked the boxes,” her actions and
statements continue to put into question her ability to keep her
children safe from neglect and abuse. She continues to display
anger and frustration during visits, especially toward [D.M.]. She
remains in a relationship with the man who has harmed her and her
children and continues to defend him, if not herself as she failed to
seek immediate medical attention for [K.W.] and continues to defend
[F.M.].
....
Participating in services is not enough. There appears to be
a lack of bonding between [the mother] and the children. She has a
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lack of insight, poor judgment, poor knowledge of what Is
developmentally age-appropriate care, and has engaged in activities
that are harmful and illegal. Her marijuana usage is the least of the
issues that exist. She has clearly not addressed her anger. She has
clearly chosen to protect [F.M.] and herself rather than her children.
These children would not be safe if returned to the custody of their
mother now or at any time in the foreseeable future pursuant to Iowa
Code section 232.102. It is clear to this court that her children are
not her priority.
We concur in the court’s finding that the children could not be returned to
the mother’s custody at the time of the termination hearing. Iowa Code section
232.116(1)(h) and (f) was satisfied.
The mother also claims she should be granted a six-month extension to
work toward reunification. Although the juvenile court observed the mother clearly
loved the children, the court observed that visitation continued to be fully
supervised and no meaningful progress toward reunification had been made:
Despite services offered/provided, each of these parents has
been unable or unwilling to stabilize their lifestyles. The
circumstances leading to the adjudication of these children continue
to exist. The risk of harm to these children continues to exist due to
[the mother] and [F.M.]’s continued failure to acknowledge their part
in what happened to [K.W.]; their neglect of the children’s emotional,
physical or financial needs; leaving the children to be cared for by
known drug users; and exposing the children to verbal/emotional
abuse, domestic violence and possibly sexual activity/abuse. There
is clear and convincing evidence that the abuse/neglect posed a
significant risk to the lives of these children or constituted imminent
danger to the children. [K.W.] was at risk of death had he not
received immediate medical attention. All of the children were
malnourished and underweight. [F.M.] has gone through the motions
of participating in services, but there is no indication he has
internalized those services. . . . There is no evidence that would
indicate these children would not suffer from the same fate if returned
to the custody of their mother and [F.M.]
Under these facts and circumstances, we do not find the court erred in
denying the mother’s request for an extension.
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Termination also must serve the children’s best interests. See Iowa Code
§ 232.116(2). The mother argues that the children have a “strong connection and
bond” to her and considering their “immediate and future needs,” termination is not
in their best interests. See id. § 232.116(3)(c). The exceptions to termination of
parental rights found under section 232.116(3) are permissive, not mandatory. In
re A.S., 906 N.W.2d 467, 45 (Iowa 2018). For the reasons set forth above, we
conclude termination is in the children’s best interests, and no permissive statutory
exception should be applied to preclude termination. We affirm the decision of the
juvenile court to terminate the mother’s parental rights.
AFFIRMED.