In the Interest of K.B., Minor Child, B.D., Mother ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1685
Filed January 13, 2016
IN THE INTEREST OF K.B.,
Minor Child,
B.D., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Mary L.
Timko, Associate Juvenile Judge.
The mother appeals from the order terminating her parental rights to one
child. AFFIRMED.
Karla J. Henderson of Henderson Law Firm, Holstein, for appellant.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee.
Theresa Rachel of Deck Law, L.L.P., Sioux City, attorney and guardian ad
litem for minor child.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
Becky appeals from the order terminating her parental rights in her child
K.B. Becky contends (1) the juvenile court erred in finding termination of her
parental rights was in the child’s best interest and (2) the juvenile court erred in
placing the child in the custody of the Iowa Department of Human Services
(“IDHS”) for purposes of adoption when Shirley, the child’s maternal
grandmother, was available to adopt the child or serve as the child’s guardian.
I.
Becky has mental-health and substance-abuse issues that preclude her
from taking adequate care of her children. K.B. is the third of Becky’s four
children and is the only child at issue in this proceeding. Becky gave up her
youngest and oldest child for adoption to the same family. Becky’s second child,
A.D., resides with her father in New York. The circumstances under which A.D.
ended up in New York are interrelated with K.B.’s story.
In October 2013, Becky left K.B. and A.D. with a couple she met at work,
the Kellers. Two days later, A.D.’s father, concerned about A.D., picked her up
and took her with him to New York where he resides.1 A.D. continues to reside
with her father. A few days later, Becky went back to the Kellers and took K.B.
home with her. Three days later, Becky was arrested, and she left K.B. in the
care of her paramour. Becky’s paramour then called the Kellers and asked them
to take care of K.B. The Kellers agreed to do so. After a week without any
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A.D.’s father had her examined by a doctor when he noticed injuries on her face and
back. A.D. told the doctor Becky and her paramour had hit her with a belt. The Kellers
reported that K.B. would cower and run away whenever Mr. Keller removed his belt.
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contact from Becky, the Kellers called her to inquire about K.B. Becky said she
would pick K.B. up the next day. Becky failed to do so. After another week had
passed, the Kellers contacted IDHS, and K.B. was removed. The court placed
K.B. in the custody of IDHS for foster care placement, where he has remained
throughout these proceedings. K.B. was adjudicated a child in need of
assistance (“CINA”) in December pursuant to Iowa Code section 232.2(6)(a)
(abandonment), (b) (physical or sexual abuse or neglect), and (c)(2) (failure to
supervise) (2013).
In May 2014, the juvenile court entered a permanency order giving Becky
an additional six months to work toward reunification with K.B. In its March 2015
permanency modification order, the court found the additional time for
reunification “has not proved positive.” Becky had moved out of her apartment
and moved in with her mother, with whom Becky has a turbulent relationship.
Becky’s participation in therapy was poor. She continued to associate with
criminals and substance abusers. Her behavior had become increasingly
concerning, to the point it was unclear if she “was actually exhibiting extreme
paranoia and having some kind of psychotic episode.” Consequently, the court
ordered the State to file a petition to terminate Becky’s parental rights.
After a hearing over two days in August 2015, the court ordered Becky’s
parental rights to K.B. terminated pursuant to section 232.116(1)(d) (physical
abuse, services have not corrected circumstances), (e) (failure to maintain
significant and meaningful contact), (h) (child three or younger cannot be
returned to parent’s care at present time), and (i) (physical abuse posed
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significant risk to child, services would not correct conditions within reasonable
time) (2015). Concerning the child’s best interests, the court noted:
There is no indication from the evidence exactly where
Becky will be mentally, emotionally, financially, or physically on a
consistent basis enough to ensure that [K.B.]’s emotional, physical,
and emotional health and basic needs will be met on a consistent
basis if he is placed in the care of Becky alone. . . .
Becky has made progress at times, and she has been
applauded for that progress. Her progress was recognized and she
was given an additional six months, which turned into eight months,
to work towards reunification with [K.B.]. Unfortunately, that time
was not enough to warrant the return of [K.B.] to her care at this
time. This is a pattern of parenting that must cease. . . .
The court considered the effect of termination on the parent-child bond and
concluded “the history of this case and [K.B.]’s needs override the bond as it
stands to date.” The court also considered and rejected a guardianship for K.B.,
given his age and need for “a steady, long-term, committed parent.”
II.
We review de novo proceedings terminating parental rights. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). While giving weight to the findings of
the juvenile court, our statutory obligation to review termination proceedings de
novo means our review is not a rubber stamp of what has come before. We will
uphold an order terminating parental rights only if there is clear and convincing
evidence of grounds for termination. See In re C.B., 611 N.W.2d 489, 492 (Iowa
2000). Evidence is “clear and convincing” when there are no serious or
substantial doubts as to the correctness of the conclusions of law drawn from the
evidence. See id.
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Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) has
been established. See id. Second, if a ground for termination is established, the
court must apply the framework set out in section 232.116(2) to decide if
proceeding with termination is in the best interests of the child. See id. Third, if
the statutory best-interests framework supports termination of parental rights, the
court must consider if any statutory exceptions set forth in section 232.116(3)
should serve to preclude termination. See id.
III.
In an all-inclusive statement of her first issue on appeal, Becky contends
the court erred in finding clear and convincing evidence to support the grounds
for termination, it was not in K.B.’s best interest to have Becky’s parental rights
terminated, and the closeness of the parent-child bond weighs against
termination. See Iowa Code § 232.116(1)-(3); In re P.L., 778 N.W.2d at 40
(setting forth the three-step analysis).
Where, as here, the court terminates a parent’s rights on more than one
statutory ground, we may affirm if any of the grounds is supported by clear and
convincing evidence. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).
We focus on paragraph (h), requiring proof of several elements, including proof
the child could not be returned to the parent’s custody at the time of the
termination hearing. See Iowa Code § 232.116(1)(h)(4). A child cannot be
returned to a parent’s care if the child would remain a CINA or would be at risk of
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adjudicatory harm. See In re R.R.K., 544 N.W.2d 274, 277 (Iowa Ct. App. 1995),
overruled on other grounds by In re P.L., 778 N.W.2d at 39; see also In re M.M.,
483 N.W.2d 812, 814 (Iowa 1992).
On de novo review, we conclude there is clear and convincing evidence
supporting this ground for termination. First, Becky tacitly admits the child could
not have been returned to her care at the time of the termination hearing, arguing
there was not “clear and convincing evidence that K.B. could not be returned to
his mother or to his grandmother as a relative placement for purposes of
guardianship or adoption at this time.” Most, if not all, of Becky’s petition on
appeal discusses the care Becky and Shirley, together, could provide for the
child. Nowhere does Becky argue the child could be returned to her care.
Whether the grandmother was a suitable placement is immaterial to the question
presented. Second, Becky’s mental-health and substance-abuse issues
precluded return of K.B. to her care. Becky has been diagnosed with bipolar
disorder and ADHD. At times, she takes her prescribed medications and attends
therapy. However, she stops taking her medication and stops attending therapy
and instead uses marijuana, testifying, “I found a way to cope on my own through
the use of marijuana. Marijuana makes me mellow. It makes me more clear
headed.” The evidence shows Becky’s inability to manage her mental health and
inability to refrain from substance abuse places K.B. at risk while in her care.
Accordingly, we affirm the ground for termination pursuant to section
232.116(1)(h).
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Considering K.B.’s best interests, we “give primary consideration to the
child’s safety, to 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.” Iowa Code § 232.116(2); see In re P.L., 778 N.W.2d at 40.
We consider both the child’s immediate and long-term interests and what the
future likely holds for the child if returned to a parent. See In re J.E., 723 N.W.2d
793, 798 (Iowa 2006). Insight into what the future likely holds for a child if
returned to a parent is gleaned from evidence of the parent’s past performance
because it may be indicative of the quality of future care the parent is capable of
providing. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012); In re J.E., 723
N.W.2d at 798. We give substantial weight to case history records in assessing
a parent’s ability to provide care in the future. See In re S.N., 500 N.W.2d 32, 34
(Iowa 1993).
Becky has unresolved mental-health and substance-abuse issues that
affect her ability to provide consistent care for K.B. She has not demonstrated
the ability to live on her own for any period of time. IDHS and the juvenile court
noted concerns with Becky’s associates. Her view that illegal drug use is
effective mental-health treatment does not bode well for her ability to care for
K.B. We conclude, after considering the statutory factors, see Iowa Code
§ 232.116(2), that termination of Becky’s parental rights is in K.B.’s best
interests.
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Becky contends the court should not have terminated her parental rights
due to the strength of the parent-child bond. See id. § 232.116(3)(c). The
“exceptions” to termination are permissive and not mandatory. See In re A.M.,
843 N.W.2d 100, 113 (Iowa 2014). “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, 474 (Iowa Ct. App. 2011). Based on the circumstances before
us, we conclude that the parent-child bond should not preclude termination of
Becky’s parental rights. See In re D.W., 791 N.W.2d 703, 709 (Iowa 2010)
(considering the parent-child bond and centering on “whether the child will be
disadvantaged by termination, and whether the disadvantage overcomes [the
mother]’s inability to provide for [the child]’s developing needs”).
Becky also contends the court erred in placing K.B. with IDHS to pursue
adoption when the maternal grandmother “was ready, willing, and able to provide
full care of K.B., up to and including guardianship or adoption.” She argues
“such a change in custody is not in K.B.’s best interests.” We first note there was
no change in custody. When K.B. was removed in November 2013, the court
placed him in the temporary custody of IDHS. The December 2013 adjudication
order placed him in the custody of IDHS. The February 2014 disposition order
placed him in the custody of IDHS. Subsequent orders continued that
placement. The only change in the permanency order on appeal was the
permanency goal of the custody with IDHS—changing from foster placement to
adoption.
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Becky asserts her mother is ready, willing, and able to care for K.B., and
the court should have placed him with his grandmother. A November 2014 home
study of the grandmother’s home recommended that she be considered for
placement. By the time of the termination hearing in August 2015, the paternal
grandparents had moved to intervene and to be considered for guardianship.
The foster parents also had asked to intervene. The court concluded “a
guardianship for a child this age is not appropriate,” noting a guardianship that
could last sixteen years “is not in the child’s best interest.”
A guardianship is not a legally-preferable alternative to termination
followed by adoption. See In re L.M.F., 490 N.W.2d 66, 67-68 (Iowa Ct. App.
1992). Nor should an appropriate decision to terminate a parent’s parental rights
“be countermanded by the ability and willingness of a family relative to take the
child.” See In re C.K., 558 N.W.2d 170, 174 (Iowa 1997). We conclude the court
acted properly under the circumstances.
IV.
For the foregoing reasons, we affirm the order terminating Becky’s
parental rights to K.B. We also affirm the permanency order placing K.B. in the
custody of IDHS for adoption.
AFFIRMED.