In the Interest of R.D., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0763
Filed July 21, 2021
IN THE INTEREST OF R.D.,
Minor Child,
H.R., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda Belcher,
District Associate Judge.
The mother appeals the termination of her parental rights to her child.
AFFIRMED.
Robert (Ben) Stone of Parrish, Kruidenier, Dunn, Gentry, Brown, Bergmann
& Messamer, L.L.P., Des Moines, for appellant mother.
Thomas J. Miller, Attorney General and Mary A. Triick, Assistant Attorney
General, for appellee State.
Michael Sorci of Youth Law Center, Des Moines, attorney and guardian ad
litem for minor child.
Considered by Doyle, P.J., and Tabor and Greer, JJ.
2
GREER, Judge.
In May 2021, the juvenile court terminated the mother’s rights to her child,
born about two years earlier.1 Addressing issues of drug use, domestic violence,
and lack of protective capacity to care, the juvenile court relied upon Iowa Code
section 232.116(1)(h) (2021)2 as a basis for termination. Without disputing proof
of the elements necessary to terminate under this section, the mother crafts an
argument that the State must first demonstrate “it made reasonable efforts ‘to
prevent and eliminate the need for removal’ and[,] ultimately, termination.” We
read this as a challenge to the reasonable efforts made by the State to return the
child to the mother, rather than a dispute of the “strict substantive” elements under
section 232.116(1)(h). See In re C.B., 611 N.W.2d 489, 494 (Iowa 2000) (“[T]he
reasonable efforts requirement is not viewed as a strict substantive requirement of
termination. . . . The State must show reasonable efforts as part of its ultimate
proof the child cannot be safely returned to the care of a parent.”)
1 The child was born in June 2019. The father’s parental rights were terminated
as well, but he did not appeal.
2 Under this section, a juvenile court will terminate parental rights 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,
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).
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I. Error Preservation and Standard of Review.
The State raises a preservation-of-error argument as to any claim that it
failed to prove the grounds for termination. Still, the mother argues the child could
have been returned to her “at the present time,” if: (1) she can get into residential
substance-abuse treatment and (2) she is allowed to care for the child in that
setting. But, this request rings more like a separate request for more time to work
toward reunification. The mother points to her “recent achievement” in leaving the
abusive relationship she had with the father, her “confession of sporadic drug use”
and her “sincere interest in residential drug treatment,” as support for a six-month
extension under Iowa Code section 232.104(2)(b). As a final theory, the mother
argues it was not in the best interests of the child to terminate her rights.
We review the termination of parental rights de novo. In re A.B., 815 N.W.2d
764, 773 (Iowa 2012). “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.” Id. at 774. “We will uphold an order terminating
parental rights when there is clear and convincing evidence of the statutory
grounds for termination. Evidence is clear and convincing when there is no serious
or substantial doubt as to the correctness of the conclusions of law drawn from the
evidence.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).
Our primary concern is the best interest of the child. In re J.E., 723 N.W.2d 793,
798 (Iowa 2006).
II. Facts.
The involvement of the Iowa Department of Human Services (DHS) with
this family began after learning of allegations of drug use, domestic violence by the
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father against the mother, and a lack of protective capacity for the child.3 The
eight-month-old child tested positive for methamphetamine, and the State moved
for ex-parte removal in February 2020. The maternal and paternal grandmothers
shared placement of the child during the pendency of these proceedings until June,
at which point the maternal grandparents took over care.
In May 2020, the child was adjudicated to be a child in need of assistance
(CINA). The case permanency plan offered the mother mental-health services,
drug screening, drug treatment, and participation in parenting education offered by
DHS. Unfortunately, she opted out of services. Related to the mother’s drug issue,
she refused to engage in twenty-six random drug screens during the fourteen
months the child was removed. At the termination hearing, she admitted her use
of methamphetamine such that she would have tested positive on some of the
missed drug screens. She confirmed her last use of methamphetamine in early
2021.
To her credit, she did participate in one drug test in February 2021, which
was negative. While the mother testified to her involvement in counseling, a March
2021 client report confirmed she completed her evaluation for substance-abuse
counseling in early December 2020. Yet, the substance-abuse counselor noted
the mother attended only one counseling session during that month and missed a
session. Despite the limited effort in substance-abuse counseling, the mother
3 Other concerns in late 2019 and early 2020 came to DHS. The mother was
hospitalized for liver failure because of overconsumption of alcohol and Tylenol.
As for the lack of protective capacity, DHS cited an incident where during a fight
with the father, the mother fled the home with the child in inappropriate clothing for
the weather.
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alerted the juvenile court at the termination hearing to her plan to submit to a
residential substance-abuse treatment center. But, she had not been assessed
for the program guidelines, was not on a waiting list, and had not been accepted
into any program.
Throughout these proceedings, domestic abuse by the father against the
mother permeated their relationship. Yet, it was not until the termination hearing
that the mother admitted the extent of the abuse. The mother had not addressed
the mental-health concerns raised by DHS and, in particular, had not pursued any
specific counseling for domestic abuse. At the hearing, the mother described a
“breaking point” on April 10, when she again was a victim of domestic abuse by
the father.4 But her family and DHS urged her to address the domestic abuse early
in these proceedings, which she did not do, and at the termination hearing she
qualified the relationship with the father as not being abusive “all the time.”
At the termination hearing, the mother testified she was living with an aunt
temporarily and was not employed. The mother had not progressed to any trial
home visits and only had visits under the supervision of the professionals involved.
Her participation in visits and contact with DHS was inconsistent over the life of
these proceedings.
In a thorough ruling, the juvenile court terminated the mother’s parental
rights. The mother appeals.
4 The father assaulted the mother by hitting her on April 10, 2021. At the time of
the termination hearing, the father was in jail for a probation violation and this
domestic abuse charge. There was also a pending investigation related to a fire
set in the father’s garage that allegedly burned some of the mother’s possessions.
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III. Analysis.
Sufficient Grounds for Termination.
The mother did not contest proof of the elements under section
232.116(1)(h). While our laws allow a “full measure of patience with troubled
parents who attempt to remedy a lack of parenting skills,” the legislature
incorporated a six-month limitation for a child under the age of three. See In re
D.A., Jr., 506 N.W.2d 478, 479 (Iowa Ct. App.1993) (viewing the limitation period
with “a sense of urgency.”). Here, the child was under three years of age, was
adjudicated a CINA, and had been removed for over fourteen months at the time
of the termination hearing. And the mother addresses the fourth element, not by
contesting the proof offered by the State, but rather suggesting the “reasonable
efforts” mandate for the State requires residential substance-abuse treatment for
the mother. To put it more simply, now that the mother has admitted to her
problems, she believes the State should now make reasonable efforts “to prevent
and eliminate the need for removal” by sending her to treatment. She makes no
argument that the child could be returned to her custody at the present time other
than to suggest the child might live with her in a residential treatment facility.
To the extent the mother is arguing that the State failed to provide
reasonable services, she failed to preserve the issue in this record. A demand for
reasonable services cannot come for the first time at the termination hearing. See
In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App.1997). In our consideration of
the sufficiency of evidence to support termination, our focus is on the services
provided by the State and the response by the mother, not on services the mother
requested for the first time at the termination hearing. C.B., 611 N.W.2d at 494.
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Still, for the first time at the termination hearing, the mother requested an
opportunity to attend a residential drug-treatment program. She asserted the child
could safely be placed with her at the program, thus allowing her to participate in
services DHS required along with a return of the child to her care “at the present
time.” But see In re J.H., 952 N.W.2d 157, 170 (Iowa 2020) (noting a substantial
difference between meeting a child’s needs with the supervision and guidance of
others and being able to independently care for a child). Her intentions, while
admirable, are not helpful with the task we face. We have no crystal ball to know
if she could even access the residential treatment, if the child would be allowed to
reside there, and most importantly, if the treatment would be successful. A return
of the child “at the present time” means at the time of the hearing. See In re A.S.,
906 N.W.2d 467, 473 (Iowa 2018).
With that focus in mind, we find the State proved all elements for termination
under 232.116(1)(h). We do not see how the child could have been returned to
the mother at the “present time.” See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010)
(concluding the court need not discuss a step of the analysis when the parent did
not dispute it). Admittedly, the mother realized this condition was not met when
she alternatively requested a six month extension, so we address that next.
Six-Month Extension.
The mother ties part of her best-interests-of-the-child argument to a request
for a six-month extension. At the termination hearing, the mother discussed that,
as of the assault on her by the father on April 10, she would no longer tolerate
domestic violence in her life. Focusing on the impact of the domestic abuse, she
advocates for time to “recover from her profoundly traumatizing and violent
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experience” within her relationship with the father. She admitted she was
previously more focused on her relationship with the father, rather than reuniting
with the child. And at the termination hearing, she requested time to address her
admitted substance abuse in a residential treatment setting with the child present
at the facility. With six more months to work on reunification, the mother maintains
custody could be returned to her.
True, the mother needed support to address the impact of the “traumatizing
and violent experience” with the father. But the mother had an additional eight
months past the six-month limitation under section 232.116(1)(h) to address these
issues, and time is a critical element in termination cases. “A parent cannot wait
until the eve of termination, after the statutory time periods for reunification have
expired, to begin to express an interest in parenting.” C.B., 611 N.W.2d at 495.
And we are unable to “enumerate the specific factors, conditions, or expected
behavioral changes which comprise the basis for the determination 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.” See Iowa Code § 232.104(2)(b). Thus, we cannot
support an additional six-month extension to work toward reunification.
Best Interests of the Child.
Last, we consider if termination is in the best interests of the child under
section 232.116(2). The mother claims termination is not in the child’s best
interests, pointing to: the bond she and the child have; her efforts to visit as
consistently as she could; her acknowledgement of her substance abuse; and her
realization that she was in an abusive relationship. But all of this comes “too little,
too late.” C.B., 611 N.W.2d at 495 (finding after eighteen months of removal of the
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children, changes made two or three months before the termination hearing came
too late).
Two weeks before the termination hearing, the mother finally separated
from the abusive father. We note he was incarcerated at the time, making it difficult
to know if the new-founded awareness was real. Likewise, when asked about the
mother’s request for residential treatment, the DHS supervisor offered, “I have not
had that conversation with her.” Again, we question the sincerity of the mother’s
quest for treatment. And, while the child is bonded to the mother, the maternal
grandparents share a strong bond as well and are willing to adopt and provide the
stability the child deserves. See Iowa Code § 232.116(2)(b). After considering the
issues addressed above and our primary consideration of finding the “best
placement for furthering the long-term nurturing and growth of the child, and to the
physical, mental and emotional condition and needs of the child,” we conclude
termination is in the child’s best interests. Id. § 232.116(2); see In re M.W., 876
N.W.2d 212, 224 (Iowa 2016).
IV. Conclusion.
Unlike the mother’s central focus on her relationship with the father, “[a]t
some point, the rights and needs of the child rise above the rights and needs of
the parents.” J.L.W., 570 N.W.2d at 781. Here, we have reached that point. In
the child’s short life, more time has been spent outside of the mother’s care than
with the mother. As our supreme court noted, “[t]he crucial days of childhood
cannot be suspended while parents experiment with ways to face up to their own
problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). We find the State
established grounds for termination under Iowa Code section 232.116(1)(h) by
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clear and convincing evidence; the child could not be returned to the mother at the
present time. See C.B., 611 N.W.2d at 492. We decline to extend the time for
termination and find no statutory exceptions to termination apply here.
AFFIRMED.