In the Interest of A.W. and A.W., Minor Children , 919 N.W.2d 769 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0598
Filed June 20, 2018
IN THE INTEREST OF A.W. and A.W.,
Minor Children,
C.W., Father,
Appellant,
C.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
District Associate Judge.
A mother and father each appeal the order terminating their parental rights
to their two daughters. AFFIRMED ON BOTH APPEALS.
Ryan P. Tang of Law Office of Ryan P. Tang, P.C., Marion, for appellant
father.
Michael M. Lindeman of Lindeman Law, Cedar Rapids, for appellant
mother.
Thomas J. Miller, Attorney General, and Anagha Dixit, Assistant Attorney
General, for appellee State.
Patricia J. Meier of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar
Rapids, guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2
TABOR, Judge.
Parents Cameron and Cassandra1 challenge the order terminating their
legal relationship with two daughters, six-year-old Ad.W. and two-year-old Al.W.2
On appeal, both parents argue the children could be returned home. Cameron
also contends termination of his parental rights was not in his daughters’ best
interests. Given the parents’ histories of unabated drug use, mental-health
challenges, and incidents of domestic violence, we agree with the conclusions of
the juvenile court and affirm the termination order.3
In the spring of 2016, the Iowa Department of Human Services (DHS)
received a report that Cassandra was using cocaine while caring for her
daughters.4 Cassandra had completed a substance-abuse program at the Heart
of Iowa but relapsed in February 2016. She stopped attending outpatient
treatment in March. The DHS also received a report that Cameron assaulted
Cassandra in the presence of the children and was abusing pain medication. In a
July 2016 order adjudicating Ad.W. and Al.W. as children in need of assistance
(CINA), the juvenile court chronicled the parents’ long struggles with drug abuse
1
Cameron and Cassandra are not married, but lived together and sometimes refer to one
another as husband and wife.
2
The juvenile court approved the removal of a third child, Z.W., from the home five days
after his birth in November 2017. But that child is a not a subject of this termination-of-
parental-rights appeal.
3
We review child welfare proceedings de novo, which means examining both the facts
and law and adjudicating anew those issues properly preserved and presented. In re L.G.,
532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We are not bound by the juvenile court’s
factual findings but give them weight, especially when witness credibility is a key
consideration. See In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). As the petitioning
party, the State must offer clear and convincing proof, which means we see no “serious
or substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (quoting In re C.B., 611 N.W.2d
489, 492 (Iowa 2000)).
4
Cassandra’s parental relationship with an older daughter, A.E., was terminated in 2010.
3
and their criminal records. The court also noted the parents’ difficulty in
maintaining stable housing and employment.
The girls remained in their parents’ home until December 2016 when both
Cassandra and Cameron submitted to hair-stat tests which revealed the presence
of cocaine. The court then ordered tests of the children’s hair; Ad.W. tested
positive for exposure to methamphetamine, cocaine, benzoylecgonine, and
norcaine. The girls have been in foster care since January 2017.
During the intervening year, neither Cassandra nor Cameron engaged in
substance-abuse treatment as expected by the DHS. Both tested positive for
drugs in the summer of 2017 and failed to submit to drug testing requested by the
DHS since the fall of 2017. Addressing their mental-health needs has also been
an ongoing issue for both parents. Cassandra has been diagnosed with anxiety
and major depressive disorder; Cameron has been diagnosed with anxiety,
depression, bipolar disorder, and attention-deficit disorder. Neither consistently
followed through with counseling or medication management, according to the
testimony of their caseworker.
Domestic violence was also an issue. Cassandra reported an incident in
January 2018, when Cameron struck and strangled her. She testified that in the
process of trying to stop the assault, she broke his necklace and phone.
Cassandra also acknowledged Ad.W. had witnessed domestic violence when
living at home. Cameron admitted unhealthy aspects to his relationship with
Cassandra, specifically “the arguing and the drug use.” Housing too was a
concern. The parents had been evicted multiple times. At the time of the
4
termination hearing, the father was staying with his brother, and the mother was
incarcerated and had been homeless.
Another problem was inconsistency in the parents’ interactions with Ad.W.
and Al.W. The DHS offered them supervised visitation three times per week. But
the parents frequently arrived late or cancelled visits, which disappointed the girls,
especially the older daughter. And although encouraged to attend the girls’
medical appointments and gymnastics classes, the parents failed to take
advantage of these additional opportunities to engage in their children’s lives.
In December 2017, the State filed a petition for termination of parental
rights. In February 2018, the juvenile court heard testimony from both parents and
the DHS caseworker. In March 2018, the juvenile court granted the petition, relying
on Iowa Code section 232.116(1)(f) (2017) as to the older child and paragraph (h)
as to the younger child, as well as paragraph (l) as to both children.
In their separate petitions on appeal, both parents contest the sufficiency of
the State’s evidence supporting the statutory grounds. To affirm, we need to find
facts to support just one of the grounds.5 In re J.B.L., 844 N.W.2d 703, 704 (Iowa
Ct. App. 2014). We focus our analysis on paragraphs (f) and (h).6
5
We note the parents do not address any of the statutory grounds under paragraph (l).
The State contends they have waived challenges to termination of their parental rights to
both children on that ground. Nonetheless, we address the grounds under paragraphs (f)
and (h).
6
Under paragraph (f), the State must prove:
(1) The child is four years of age or older.
(2) The child has been adjudicated a [CINA] pursuant to section
232.96.
(3) The child has been removed from the physical custody of the
child’s parents for at least twelve of the last eighteen months, or for the last
twelve consecutive months and any trial period at home has been less than
thirty days.
5
On appeal, the parents challenge the fourth element of both paragraphs,
claiming the children could have been returned to their custody “at the present
time.” See D.W., 791 N.W.2d at 707 (interpreting “present time” to mean the date
of the termination hearing). Cameron acknowledges his continued struggle to
maintain sobriety but asserts he had secured suitable and stable housing by the
time of the hearing. The State counters that Cameron was relying on his brother
for financial support and had not been engaged in services. Like the juvenile court,
we find clear and convincing evidence the girls could not be safely returned to
Cameron’s custody. He had not committed to substance-abuse or mental-health
treatment and was not in a position to resume parenting two young children.
As for Cassandra, at the February 9 termination hearing, she testified she
would not be released from jail until mid-March and then would have to search for
housing and employment. She knew the children could not be returned to her care
at the time of the hearing and asked only for a six-month extension to gain stability.
(4) There is clear and convincing evidence that at the present time
the child cannot be returned to the custody of the child’s parents as
provided in section 232.102.
Iowa Code § 232.116(1)(f).
Under paragraph (h), the State must prove:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a [CINA] 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).
6
We find the State proved the grounds for termination by clear and convincing
evidence.7
Cameron also contends termination of his parental rights was not in the best
interests of his daughters and, in fact, would be detrimental to them because of the
closeness of the parent-child relationship. See Iowa Code §§ 232.116(2),
232.116(3)(c). Our determination of best interests must track section 232.116(2).
See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (rejecting court’s use of an
unstructured best-interests test). That provision focuses on the children’s safety;
the best placement for furthering their long-term nurturing and growth; and their
physical, mental, and emotional condition and needs. See Iowa Code
§ 232.116(2). As the case worker testified, Cameron’s continued use of controlled
substances and violence toward Cassandra placed his children at risk of harm.
And while the children “obviously loved” their parents, the bond was not
necessarily healthy. See Iowa Code § 232.116(3)(c). The older child, Ad.W.,
“really worries about her parents” and “their well-being” which placed a great
weight on the child, according to the DHS case worker. Moving the children toward
a permanent placement was in their best interests.
AFFIRMED ON BOTH APPEALS.
7
Although not setting out the argument under a separate heading, both parents appear to
challenge the DHS’s “reasonable efforts” toward reunification. In particular, Cameron
claims the parents did not receive adequate assistance with transportation. Because
Cameron did not raise this issue before the juvenile court in a timely manner, he did not
preserve it for appeal. See In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005) (“The
Department has an obligation to make reasonable efforts toward reunification, but a parent
has an equal obligation to demand other, different, or additional services prior to a
permanency or termination hearing.”).