In the Interest of J.S. and R.D., Minor Children, A.S., Mother, R.D., Father ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0081
Filed May 3, 2017
IN THE INTEREST OF J.S. and R.D.,
Minor Children,
A.S., Mother,
Appellant,
R.D., Father,
Appellant.
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Appeal from the Iowa District Court for Marshall County, Paul G. Crawford,
District Associate Judge.
A mother and father appeal separately from the order terminating their
parental rights. AFFIRMED ON BOTH APPEALS.
Breanna M. Nelson of Grimes, Buck, Schoell, Beach & Hitchins,
Marshalltown, for appellant mother.
Jennie L. Wilson-Moore of Wilson Law Firm, Marshalltown, for appellant
father.
Thomas J. Miller, Attorney General, and David M. Van Compernolle,
Assistant Attorney General, for appellee State.
Mary Cowdrey of State Public Defender’s Office, Marshalltown, for minor
children.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.
A mother and father separately appeal the termination of their parental
rights. The mother claims she received deficient notice concerning the
termination hearing and exceptions should have been applied to preclude
termination. The father claims he should have been granted an extension of time
and exceptions should have been applied. We find the termination of the
mother’s rights was not precluded by failure to give proper statutory notice, the
father should not be granted an extension of six months, and no exceptions
should be applied to either party. We affirm the juvenile court’s termination of
parental rights.
I. Background Facts and Proceedings
J.S. was born in July 2011, and R.D. was born in October 2012.1 The
children were brought to the attention of the Iowa Department of Human Services
(DHS) due to the mother’s inability to properly supervise the children. During
DHS’s assessment, the mother assaulted the maternal grandmother in front of
the children. A no-contact order was issued and the children were placed in the
care of the maternal grandmother. A child-in-need-of-assistance (CINA) petition
was filed for both children and both the mother and father stipulated to the
petition. The mother was uninvolved during much of the CINA and termination
proceedings and did not contact her attorney between the CINA adjudication and
the dispositional hearing.
A permanency hearing was held February 25, 2016, at which neither the
father nor mother appeared. The parents’ attorneys reported they had had no
1
Only R.D.’s father is involved in this appeal.
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contact with either parent. After a DHS worker testified neither parent had
responded to telephone calls or letters seeking their involvement in services
offered to improve parenting and address mental-health and substance-abuse
concerns, a petition for termination of parental rights was filed.
The mother entered substance-abuse treatment in Waterloo, but was
unsuccessfully discharged. She then participated in outpatient treatment in
Marshalltown and worked part time while living at a Youth and Shelter Services
facility. The mother missed a small number of drug tests and admitted to a
relapse a few weeks prior to the termination hearing. During the period of her
relapse she admitted to visiting the children but testified she did not feel under
the influence at the time of the visit. The mother also tested positive for
methamphetamine and marijuana near the time of the termination hearing.
The father testified he had previously used methamphetamine two or three
times a week, but he had not used the drug since December 2015. He also
testified the extent of his interaction with R.D. in the year leading up to the
termination hearing was about four hours total. Between January and March
2016, he stopped by the maternal grandmother’s house four or five times and
talked with R.D. for ten to fifteen minutes on each occasion. He testified he
stopped visiting because he felt uncomfortable at the grandmother’s house. The
father was employed and paid $114.00 a month in child support for R.D. He had
also given the child birthday and Christmas presents.
At the time of the hearing, the father was not living in a DHS-approved
residence. At a family team meeting on September 14, 2015, the father stated
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he was not ready to be involved with R.D. From the meeting in September until
the termination hearing in August, the father only contacted DHS twice.
The termination hearing was held August 25, 2016, and was continued
and concluded September 12. The father was drug tested at the time of the
hearing and told the judge he had no doubt the test would be clean. The test
was positive for marijuana. Both parents’ parental rights were terminated on
January 9, 2017. Both parents now separately appeal.
II. Standard of Review
The scope of review is de novo in termination cases. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to
establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa
2006). Where there is clear and convincing evidence, there is no serious or
substantial doubt about the correctness of the conclusion drawn from the
evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the
juvenile court’s findings of fact, but are not bound by them. In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is
the best interests of the child. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
III. Termination
The mother’s parental rights to J.S. and R.D. were terminated pursuant to
Iowa Code section 232.116(1)(e), (f), and (h) (2016), and the father’s rights to
R.D. were terminated pursuant to section 232.116(e) and (h). The parents only
claim termination was inappropriate under subsection (e). When a ground for
termination is not disputed, we need not discuss if termination on that ground is
appropriate. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). Therefore, we affirm the
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terminations on the unchallenged grounds and will only discuss the mother’s
claim that notice was deficient, the father’s claim for an extension of time, and
both parents’ claims for exceptions.
IV. Notice
The mother claims she did not receive proper notice, and as a result, her
due process rights were violated. Iowa Code section 232.112(1) requires
reasonable notice be given to parties involved in a termination of parental rights
hearing. A party must be personally served at least seven days before the
hearing or fourteen days before the hearing if the service is by certified mail.
Iowa Code § 232.112(3). The mother was personally served only three days
before the termination hearing.
However, the mother appeared at the hearing having been located and
personally served outside of the statutory timeframe. The mother had prior
knowledge of the date and had already begun to prepare for the hearing with her
attorney when served. Additionally, her attorney had proper notice and the
mother has failed to allege any prejudice, and therefore, termination was proper.
V. Extension
The father claims the juvenile court improperly denied his request for an
additional six months to allow him to assume care of R.D. Our supreme court
has held we must grant a “full measure of patience with troubled parents who
attempt to remedy a lack of parenting skills.” C.B., 611 N.W.2d at 494.
However, this patience is not unlimited, as it can quickly become a hardship for
the children involved. In re R.J., 436 N.W.2d 630, 636 (Iowa 1989).
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The father claims he has made significant progress. He stated he has
consistent employment, suitable housing, and no longer uses illegal substances.
On the day of the termination hearing the father tested positive for marijuana use
after swearing under oath the test would be clean. The father began the process
of having his new home’s suitability assessed only after the first day of the
termination hearing. The father had been living with his sister and her family,
and had recently moved. He stated he would fully cooperate with DHS on having
background checks for any roommates.
The father had only begun to show an interest in a relationship with R.D.
during the six months prior to the termination hearing, which the juvenile court
described as “drive by chats.” This contact totaled approximately one hour and
fifteen minutes in the six months leading up to the hearing. The father has
attempted to begin the process in the last months before termination. His efforts
“are simply too late.” See C.B., 611 N.W.2d at 495.
DHS also reported a gradual visitation process would be necessary to
determine if the father is a fit parent. This process would take at least three
months. Gradual increases in visitation had not begun at the time of the
termination hearing, but the father had not requested or shown an interest in
starting the process. We agree with the juvenile court’s assessment that while
“theoretically, father could still get the job done within six months,” his history of
noninvolvement and participating only at the last moment “has made success
appear unrealistic.” An additional six months would not resolve the issues
requiring termination.
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VI. Exceptions
The juvenile court may decide not to terminate parental rights if any
exception set out in Iowa Code section 232.116(3) is shown. “The court has
discretion, based on the unique circumstances of each case and the best
interests of the child, whether to apply the factors in this section to save the
parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).
The mother and father each claim the rights should not have been terminated as
the children are placed with a relative. The mother also claims her bond with the
children is so strong as to preclude termination.
The children are currently in the care of the maternal grandmother who
received her foster care license. The parents claim placement with a relative
should preclude termination of their parental rights. We disagree. The juvenile
court noted the grandmother was best suited to providing for the children’s
needs, long-term nurturing, and the growth of the children. The mother also
assaulted the grandmother in front of the children. We determine the exception
should not be applied.
The mother also claims her bond with the children, especially J.S., should
preclude termination. She points to emotional issues J.S. has exhibited at times
she was not present or involved in the children’s lives. While J.S. did exhibit
emotional issues and termination may cause emotional distress for the children,
the increased stability of a caring, capable, and certain home will serve the
children’s best interest more than the continued uncertainty of the mother’s care.
AFFIRMED ON BOTH APPEALS.