In the Interest of M.A., M.G., and M.C., Minor Children ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0107
Filed May 11, 2022
IN THE INTEREST OF M.A., M.G., and M.C.,
Minor Children,
M.A., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
District Associate Judge.
The mother appeals the termination of her parental rights. AFFIRMED.
Reyna L. Wilkens of Wilkens Law Office, Fort Madison, for appellant
mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Heidi D. Van Winkle of The Van Winkle Law Office, Burlington, attorney and
guardian ad litem for minor children.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
2
BOWER, Chief Judge.
The mother appeals the termination of her parental rights to M.A., born in
2012; M.G., born in 2017; and M.C., born in 2019.1 Because no extension is
warranted, grounds for termination exist, it is in the children’s best interests, and
no permissive exception suggests termination is not appropriate, we affirm.
I. Background Facts.
The children were removed from the mother’s care in July 2020 after the
Iowa Department of Human Services (DHS) received a report M.A. was physically
abused by the mother. During a Child Protection Center (CPC) interview, M.A.
described the mother hitting him with her fist, a belt, an extension cord, a broom,
and the hose of a vacuum cleaner. Photographs taken depicted M.A.’s numerous
scars and injuries in different stages of healing all over his body. The physical
examination noted all of these injuries could not be accidental. M.A. and M.G.
were placed in foster care, and M.C. was placed with his father.
On September 16, the children were adjudicated children in need of
assistance (CINA) due to physical abuse to M.A. and risk of physical abuse to M.G.
and M.C., as well as the presence of an illegal drug in M.A.2 The court confirmed
the children’s removal from the mother’s custody, and the children remained in out-
of-home placements with the goal of reunification with the mother.
1 The parental rights of the putative fathers to M.A. and M.G. were also terminated,
and neither appeals.
2 A hair stat test was positive for marijuana.
3
The mother was charged with four counts of child endangerment. She
denied abusing her children but participated in services offered by DHS and
affiliates.
A permanency hearing was held on July 1 and August 13, 2021. On
August 31, the juvenile court found:
During the life of this case, [DHS] has provided numerous
services to the children’s mother in attempts to address the physical
abuse of the children while in her care, her lack of parenting skills,
and her lack of appropriate parent-child interaction. Although the
children’s mother . . . participated in these services, she has not fully
engage[d] herself to address the adjudicatory harms.
The court notes the adjudication order entered September 16,
2020, and the extreme physical abuse inflicted on [M.A.] by his
mother . . . . [who] continues to deny any physical abuse of her
children, including the trauma this physical abuse has inflicted on her
children. Throughout parenting skill sessions, [the mother] has
refused to utilize the positive parenting techniques being taught, and
instead, calls her children “fucking retard,” “cry baby,” “punk,” and
“gay,” and has threatened to “knock out” [M.A.] and that “he needed
a popping,” all during supervised visitations with [the Family Support
Specialist (FSS)] present. Additionally, [the mother] has refused to
acknowledge her substance abuse issues in the face of a positive
marijuana test for both herself and [M.A.], and instead has blamed
[M.A.] for his positive drug test.
The court concluded the children would not be safe if returned to the mother
then—or with an additional six months of services—and ordered the filing of
petitions to terminate the parental rights of the mother.3
On September 20, the mother pleaded guilty to two counts of child
endangerment. The mother admitted she intentionally struck seven-year-old M.A.
with an extension cord at least once, hitting him in the head, which caused him
3 The court also ordered termination-of-parental rights petitions to be filed for the
fathers of M.A. and M.G., who each lived in another state and had not participated
in any services.
4
pain, and struck him with the extension tube of a vacuum cleaner at least once,
hitting him on the back, which caused him pain. The other two child-endangerment
counts were dismissed.
The termination-of-parental-rights hearing was held on November 17, and
the mother testified.4 The juvenile court characterized the mother’s testimony as
acknowledging
she was not calm and overreacted to situations in the home where
she hit [M.A.] in the nose with a belt[5] and also struck him in anger
with a hand-held vacuum cleaner, extension cord, and broom
handle[6] and also drug him up the stairs resulting in a carpet burn on
his back. When addressing the trauma her children have
experienced, [the mother] stated her belief that both [M.A.] and
[M.G.] have been more traumatized by the removal from her care
and the intervention of [DHS] than by any physical abuse they have
endured while in her care.
The court listed the services provided to the mother, noting the services
“were specifically geared with the understanding that [she] had pending criminal
charges and were presented with generalities instead of forcing her to admit to
specific allegations of abuse.” Both the DHS case manager and FSS provider
noted that though the mother participated in the programs offered, she did not want
to deal with the trauma she had inflicted upon the children and her testimony was
the first time they had heard the mother acknowledge any abuse of the children.
4 She gave birth to another child before the termination hearing. These
proceedings do not address the mother’s rights regarding that child.
5 The evidence shows the mother folded the belt over twice and struck M.A. in the
nose with the belt buckle. The injury on the end of his nose was not treated and
has left noticeable scar tissue.
6 M.A. described his mother breaking the broom’s handle and jabbing him with it,
which left a noticeable scar on his arm. M.A. also stated his mother struck M.G. in
the head with the broom, and service providers noted M.G. has a “dent” on his
head.
5
The court terminated the mother’s rights with respect to M.C. under Iowa
Code section 232.116(1)(h) (2021) and with respect to M.A. and M.G. under
section 232.116(1)(f). The mother appeals.
II. Scope of Review.
We review termination-of-parental-rights proceedings de novo. In re A.S.,
906 N.W.2d 467, 472 (Iowa 2018).
III. Discussion.
Extension. We first address the mother’s claim the juvenile court erred in
not granting her another six months to seek reunification. She asserts the issue is
preserved by seeking an extension in the permanency hearing and at termination.
The mother did ask for more time at the permanency hearing, and the
juvenile court found the extension was not warranted in its August 31 ruling. The
juvenile court noted M.A. “has been forthcoming” with service providers about “the
physical abuse he has suffered at the hands of his mother, citing instances of being
hit with a vacuum cleaner, broom, and cords; hit in the nose causing an
embarrassing scar; thrown down the stairs; locked in a closet or his bedroom; and
withheld food.” The court also noted M.A.’s concerns for M.G. because his mother
had hit him with a broom and shoved him down the stairs.
The mother asserts the “biggest barrier” to her “success was the fact that
she asserted her constitutional right against self-incrimination in her pending
criminal matters.” She implies that because those criminal proceedings are now
concluded, she should be given more time to seek reunification.
Our courts have observed that “[w]hile the State may not specifically require
an admission of guilt as part of treatment because it impinges a person’s right
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against self-incrimination, ‘a person’s exercise of a constitutional right may indeed
have consequences’ in the parental rights realm.” In re D.D., 955 N.W.2d 186,
195 (Iowa 2021) (Christensen, C.J., concurring specially) (quoting In re C.H., 652
N.W.2d 144, 150 (Iowa 2002)).
Here the juvenile court found:
The court finds that [the mother] did have the right against self-
incrimination throughout the underlying CINA action due to her
pending criminal charges and does not penalize the mother for
exercising this right. However, with this right comes certain
consequences, of which is her failure to address and internalize her
role in the abuse of her children and the resulting physical, mental,
and emotional trauma to her children. Although [the mother] has
participated in the services offered to her, the court finds the mother
has essentially checked the boxes and went through the motions
without fully internalizing the extreme abuse she inflicted on her
children and their resulting mental and emotional issues. [She]
continues to minimize the abuse inflicted on her children and blames
[DHS] for [M.A.]’s and [M.G.]’s continued trauma and subsequent
behaviors. [She] has not fully embraced the services offered to her
to ensure the safety of the children if returned to her care and her
deficiencies in her parenting and discipline techniques. . . . [M.A.] is
a young child covered with physical scars at the hands of his mother.
These are the scars we can see. The emotional wounds we cannot.
Even after tailored services, the court concluded “the mother’s lack of
acknowledgment of the physical and emotional abuse she inflicts on her children
places all three children in immediate risk of continued physical and emotional
harm and/or death if they are returned to her care.” The court was not convinced
an extension of time would result in the children’s return “because of the lack of
any progress toward reunification made by the children’s mother.”
The mother made no request for an extension at the time of the termination
hearing. We will pass on whether the request should have been made to preserve
7
error,7 because even after three more months, the mother had made little progress
beyond minimally acknowledging the abuse:
Q. Shifting back to the case involving these three kids, what
is the reason that you are involved with DHS? A. Because of child
abuse.
Q. Can you be more specific? A. Um, because, um, child
abuse.
Q. On which child? A. [M.A.]
Q. Any on [M.G.]? A. No.
Q. Any on [M.C.]? A. No.
Q. And when you say “child abuse,” can you tell us what you
mean by that? A. For—I mean, like, um, not disciplining the right
way.
The State pursued what the mother meant by “not disciplining him the right
way,” and the mother eventually acknowledged she was angry and struck M.A.
with a belt and a vacuum hose.
Q. So all you can remember hitting your child with were—was
a belt in the nose and then one time in the bottom with a vacuum
cleaner; is that right? A. Uh-huh.
Q. Have you seen the CPC pictures? A. Yeah, I did, but, um,
my child is very clumsy, and I—when they play outside they hurt
themselves and get scratches and everything like that.
Q. So the many, many scars all over [M.A.] that were seen at
the CPC, you’re saying the only one that you're saying you inflicted
was the nose; is that right? A. And then there was one on his back,
too, like when he wasn’t listening and, you know, and go to bed. And
then the stairs, like, I drug him up the stairs by his arm and he
scraped his back.
....
Q. You drug him up the stairs? And when did that occur in
reference to when the CPC interview was? A. That happened like
way—like months before that.
Q. So you’re saying that a carpet burn that he received was
still there months later? A. Yeah, that I can remember. Because it
was the day that it happened, it wasn’t nothing going on. I got him
with—didn’t with him that day or nothing.
7 Cf. In re T.R., 705 N.W.2d 6, 11 (Iowa 2005) (“[T]he portion of the permanency
order . . . directing the county attorney to institute termination proceedings is not a
final appealable order.”)
8
Q. So the day that DHS— A. That wasn’t like a normal thing
that I would do anyway.
This minimal acceptance of partial responsibility after the mother
participated in a more than a year of services and parenting programs weighs
against granting the mother more time. See In re N.F., 579 N.W.2d 338, 341 (Iowa
Ct. App. 1998) (“[A] good prediction of the future conduct of a parent is to look at
the past conduct.”). The juvenile court properly denied the mother’s request for a
six-month extension.
Grounds for termination. The two paragraphs the juvenile court found were
proved are applicable to different ages of children and require a different statutory
period of out-of-home placement. See Iowa Code § 232.116(1)(f), (h). Paragraph
“h” governs when a child who is three years of age or younger has been
adjudicated CINA, been out of parental custody for at least six of the last twelve
months, and cannot be returned to the parent’s custody at the present time.
Paragraph “f” governs when a child who is four years of age or older has been
adjudicated CINA, been out of parental custody for at least twelve of the last
eighteen months, and cannot be returned to the parent’s custody at the present
time. “At the present time” means at the time of the termination hearing. See In
re D.W., 791 N.W.2d 703, 707 (Iowa 2010). The mother argues the children can
be returned to her custody at present. We disagree.
The mother’s visits have not moved beyond supervised visits. Even during
supervised visits the mother cruelly berated M.A. and threatened physical contact.
After more than a year of services, the mother continues to minimize her physical
abuse of M.A., denies abuse of M.G., blames DHS for the children’s trauma, and
9
fails to recognize the effect her abuse has had on the children. “Our caselaw has
long acknowledged ‘the requirement that the parents acknowledge and recognize
the abuse before any meaningful change can occur is essential in meeting the
child’s needs.’” D.D., 955 N.W.2d at 196 (Christensen, C.J., concurring specially)
(quoting In re H.R.K., 433 N.W.2d 46, 50 (Iowa Ct. App. 1988)). We conclude
there is clear and convincing evidence returning the children to the mother’s
custody at the time of the termination hearing would place them at imminent risk
of harm.
Best interests. Giving primary consideration to the children’s safety, to the
best placement for furthering their long-term nurturing and growth, and to their
physical, mental, and emotional condition and needs, see Iowa Code
§ 232.116(2)(a), we conclude termination of the mother’s rights is in the children’s
best interests. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (“Once the
limitation period lapses, termination proceedings must be viewed with a sense of
urgency.”) These children are doing well and have integrated into their current
placements. See Iowa Code § 232.116(2)(b). It is time to afford them the
permanency and stability they deserve.
Permissive exceptions. The mother contends that if grounds for termination
exist, termination should be avoided under exceptions provided Iowa Code section
232.116(3)(a) (M.C.) and (c) (all children). The exceptions to termination provided
in section 232.116(3) “are permissive, not mandatory.” A.S., 906 N.W.2d at 475
(citation omitted). Simply because M.C. is in his father’s custody does not
countermand our conclusion that termination of the mother’s rights is in the child’s
best interests. The mother provides no compelling reason why we should elect to
10
apply section 232.116(3)(a) to preclude termination. See id. at 476 (noting it is the
parent’s burden to prove an exception to termination). And we agree with the
juvenile court that while there is a bond between the children and the mother, “the
bond is riddled with physical, mental, and emotional abuse.” We will not apply
section 232.116(3)(c) here.8 We affirm the termination of the mother’s parental
rights.
AFFIRMED.
8 A court “need not terminate” the parent-child relationship if “[t]here is clear and
convincing evidence that the termination would be detrimental to the child at the
time due to the closeness of the parent-child relationship.” Iowa Code
§ 232.116(3)(c).