In the Interest of G.S., Minor Child ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0902
Filed August 9, 2023
IN THE INTEREST OF G.S.,
Minor Child,
J.J., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, William Owens,
Associate Juvenile Judge.
A mother appeals the termination of her parental rights. AFFIRMED.
Ryan J. Mitchell of Orsborn, Mitchell & Goedken, P.C., Ottumwa, for
appellant mother.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney
General, for appellee State.
Samuel K. Erhardt of Erhardt & Erhardt, Ottumwa, attorney and guardian
ad litem for minor child.
Considered by Bower, C.J., and Ahlers and Chicchelly, JJ.
2
BOWER, Chief Judge.
A mother appeals the termination of her parental rights. Finding no basis
for an extension and determining a guardianship is not in the child’s best interests,
we affirm.
I. Background Facts & Proceedings.
J.J. is the mother of G.S., born in 2021. 1 G.S. tested positive for
methamphetamine at birth. 2 The child was discharged from the hospital to relative
placement and has never been in the mother’s physical custody.
The mother resided with the child and the custodial relative for a short time,
but she was unable to maintain sobriety and left. She was given the opportunity
to visit as much and as long as she wanted, supervised by the relative placement.
Initially, she visited frequently, but over time her visits decreased and became
intermittent because of health and substance-abuse issues. Some of her health
issues stemmed from domestic violence by the child’s father.
In January 2022, as part of the child-in-need-of-assistance (CINA)
adjudication order, the court ordered the mother to “complete a mental health
evaluation and follow all professional recommendations”; “complete a substance
abuse evaluation and follow the recommendations”; “not use alcohol, illegal
substances, or possess any drug paraphernalia”; and to “participate in drug testing
as required.”
1 The father’s parental rights were also terminated. He does not appeal.
2 The mother’s first child, born in 2019, also tested positive for methamphetamine
exposure at birth. That child is in a legal guardianship with a maternal relative.
3
The mother was accepted into family treatment court. Her mental-health
treatment attendance was inconsistent, and she did not participate in domestic
violence services. Although she scheduled multiple substance-abuse evaluations,
she did not follow recommendations and was discharged from or did not begin
scheduled treatment programs. The mother often refused or did not show up for
drug testing, would not respond to attempted contacts by caseworkers, and
maintained an on-and-off relationship with the child’s father despite a history of
domestic violence and a no-contact order in place throughout the case.
In December, the mother gave birth to another child, and both the mother
and child tested positive for methamphetamine. The mother and baby once again
moved in with her relative, where she cared for the new baby and assisted caring
for G.S. However, she would leave the house at night and not return until the early
morning hours, and she moved back out in late January. The youngest child was
adjudicated CINA, removed from the mother, and placed in the relative’s care. The
mother visits and helps with the children most days.
The juvenile court found the child could not be returned to the care of the
mother at the time of the hearing and found an extension for reunification was not
warranted. The juvenile court held a guardianship was not in the child’s best
interests and terminated the mother’s parental rights under Iowa Code section
232.116(1)(h) (2023).3
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For the juvenile court to terminate a parent’s rights under section 232.116(1)(h),
the State must establish:
(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.
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II. Standard of Review.
“We review termination of parental rights de novo.” In re W.M., 957 N.W.2d
305, 312 (Iowa 2021). We give weight to, but are not bound by, the juvenile court’s
findings of fact. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).
III. Analysis.
We normally use a three-step analysis to review the termination of parental
rights considering the grounds for termination, the best interests of the child, and
if an exception to termination should apply. Id. at 472–73; see also Iowa Code
§ 232.116. We need not discuss any step the parent does not dispute. See In re
P.L., 778 N.W.2d 33, 40 (Iowa 2010).
On appeal, the mother does not challenge the ground for termination of her
parental rights or claim an exception to termination should apply. Rather, she
asserts the court should have granted her additional time for reunification,
termination is not in the child’s best interests, and the court should have placed the
child in a guardianship.
Extension. The mother argues she is “actively participating in visitations
and her sobriety.” She states an extension should be granted to place G.S. on the
same timeline as her child born in December 2022.
(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.
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In order to grant an extension, the juvenile court must “enumerate the
specific factors, conditions, or expected behavioral changes which comprise the
basis for the determination that 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.” Iowa Code
§ 232.104(2)(b).
Following the birth of the youngest child in December 2022 and the filing of
the termination petition, the mother made efforts to help care for the children and
arranged for treatment again. However, the mother has not shown an ability to
care for the child on her own or sustain positive change in any needed area.
Without any demonstrated change in behavior, the court had no basis to grant an
extension.
Guardianship. The mother’s arguments as to the child’s best interests and
in favor of guardianship overlap, and we address them together. The mother
explains her older child is in a guardianship under the relative’s care, and the
guardianship has been successful to date. Therefore, she argues, G.S. should
similarly be placed in a guardianship. She speculates the children will be confused
why the parents’ rights are terminated as to G.S. and intact as to the older child.
“[A] guardianship is not a legally preferable alternative to termination.” In re
B.T., 894 N.W.2d 20, 32 (Iowa Ct. App. 2017). Relevant factors in determining
whether to terminate parental rights or place a child in a guardianship include the
child’s age, the length of the removal, the viability of other permanency options,
and the relationship between the parent and guardian. See A.S., 906 N.W.2d at
478; B.T., 894 N.W.2d at 34. A guardianship requires a written report to the court
every six months and is inherently uncertain as, at any time, a parent can challenge
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the guardianship or the court could appoint a different guardian. See Iowa Code
§§ 232.117–.118; A.S., 906 N.W.2d at 477–78.
The relative placement testified she was willing to be guardian to the child
but would adopt the child in the case of termination. The relative stated either way,
the child would “be in the same home with the same people and doing the same
thing every day at my house regardless of adoption or guardianship.” The
guardian’s primary concern was to keep the child with the older sibling because of
their strong bond.
The mother’s history shows cyclical behavior. First, she is attentive to the
child, obtains substance-abuse evaluations and arranges treatment, and attends
her mental-health and medication management appointments. Next, she
becomes unreliable in visitation attendance, stops going to treatment, and spends
time with the father. Then, the cycle begins again; this pattern has continued since
2019.
When considering the possibility of guardianship, the juvenile court stated,
While it is true that [G.S.’s] sibling, [J.], is in a guardianship
there was never formal juvenile court action in that case. Given the
history shown here had the juvenile court assumed jurisdiction in
[J.’s] case it is quite likely her case would have ended much like
[G.S.’s] case. Simply because [J.’s] guardians beat the department
to the courthouse and established a guardianship for her does not
mean guardianship is the most appropriate solution for [G.S.].
By their very nature, guardianships can be modified or
terminated. So placing [G.S.] in a guardianship would prevent her
from reaching the permanency she deserves. Aside from [J.’s]
guardianship status neither parent has offered a compelling reason
[G.S.’s] case warrants establishment of a guardianship instead of
termination.
In sum, given the age of the child, the length of time the child
has been removed, the lack of any substantial progress toward
reunification, and the availability of other viable permanency options
it is clear guardianship would not be appropriate.
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The placement is the only home the child has ever known, and the child
looks to the relative as the primary caregiver. “[I]t is well-settled law that we cannot
deprive a child of permanency after the State has proved a ground for termination
under section 232.116(1) by hoping someday a parent will learn to be a parent and
be able to provide a stable home for the child.” W.M., 905 N.W.2d at 314 (citation
omitted). The child deserves a full-time parent who places the child’s interests
above her own. The mother has yet to do so. Permanency for the child and the
child’s interests are best served through termination of parental rights and adoption
rather than a guardianship. We affirm.
AFFIRMED.