In the Interest of K.L., Minor Child, D.F., Mother ( 2015 )


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  •                      IN THE COURT OF APPEALS OF IOWA
    No. 15-0444
    Filed July 22, 2015
    IN THE INTEREST OF K.L.,
    Minor Child,
    D.F., Mother,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Rachael Seymour,
    District Associate Judge.
    A mother appeals the termination of her parental rights to her seven-year-
    old son. AFFIRMED.
    Judy Johnson of Borseth Law Office, Altoona, for appellant.
    Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
    Attorney General, John P. Sarcone, County Attorney, and Amanda Johnson,
    Assistant County Attorney, for appellee.
    Alexandra Nelissen of Nelissen Law Firm, Des Moines, for father.
    Nicole Nolan of Youth Law Center, Des Moines, attorney and guardian ad
    litem for minor child.
    Considered by Tabor, P.J., McDonald, J., and Scott, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
    2
    TABOR, P.J.
    Although Dawn asserts she is “comfortable in her sobriety,” she has been
    unwilling to end her relationship with a paramour who continues to use
    methamphetamine. The juvenile court concluded Dawn’s dishonesty about her
    continuing intimacy with that drug user posed a risk to her seven-year-old son
    K.L. and, therefore, terminated the parent-child relationship.
    Dawn challenges the juvenile court’s decision, claiming the State did not
    offer clear and convincing evidence of the grounds for termination. See 
    Iowa Code § 232.116
    (1)(d), (f) (2013). Dawn also contends termination is not in her
    son’s best interests because of the closeness of their relationship. See 
    Iowa Code § 232.116
    (2), (3)(c). After a de novo review of the record, but with due
    deference to the juvenile court’s credibility determinations, we affirm the
    termination of Dawn’s parental rights.
    Authorities took notice of Dawn’s family in May 2012. Law enforcement
    executed a search warrant at the house where Dawn and her son were living
    with her mother and brother.          Officers found various drugs and drug
    paraphernalia in the home.          Dawn and K.L. both tested positive for
    methamphetamine. Dawn also tested positive for marijuana and amphetamines.
    The Iowa Department of Human Services (DHS) removed K.L. from his mother’s
    custody on May 14, 2012, and placed him with his paternal aunt. On June 5,
    2012, the juvenile court adjudicated K.L. as a child in need of assistance (CINA)
    under Iowa Code section 232.2(6)(b), (c)(2), (n), and (o) (2011).
    3
    Dawn entered treatment at the House of Mercy and made significant
    improvements regarding her addiction.         But counselors expressed concerns
    Dawn did not fully grasp certain insights needed to maintain sobriety; she was
    discharged from substance abuse treatment for lack of behavioral changes.
    Dawn did not attend meetings for Alcoholics Anonymous or Narcotics
    Anonymous (AA/NA) and did not line up a sponsor to help her deal with
    substance abuse issues.        But the biggest concern was Dawn’s inability to
    recognize the danger of continuing her long-term relationship with Marshall, who
    still used drugs, including methamphetamine.           Dawn had associated with
    Marshall for fifteen years, though Marshall was not K.L.’s father.            Despite
    advising her case workers that she did not have an ongoing intimate relationship
    with Marshall, the two had a child together during the course of the CINA
    proceedings involving K.L.1
    The State filed a petition to terminate her parental rights in August 2013.
    But the petition was dismissed when the State agreed that Dawn had improved in
    obtaining stability and addressing her substance abuse issues.                    This
    improvement continued to the point that K.L. was returned to Dawn’s care on
    February 4, 2014. But later that spring, the State learned that Marshall had
    relapsed into drug use and Dawn continued her interaction with him. In May
    2014, the State sought to again remove K.L. from Dawn’s care because she was
    not being honest with the DHS and service providers regarding the safety plan,
    which prohibited contact between K.L. and Marshall.
    1
    Dawn had custody of that child until the second day of the termination hearing when
    the State asked for the child to be removed. The juvenile court signed a removal order.
    4
    The juvenile court determined Dawn allowed Marshall to have contact with
    K.L. on at least three occasions, even after she reported Marshall had relapsed
    into drug use. At the removal hearing, the court warned Dawn that contact with
    Marshall would be an impediment to reunification with K.L., and Dawn said she
    understood. The court removed K.L. from Dawn’s care and required supervised
    visitation.
    The State filed the second petition to terminate parental rights on
    September 12, 2014.      The juvenile court held a hearing on the termination
    petition on December 16 and 17, 2014. The bulk of the testimony concerned
    Dawn’s association with Marshall. Dawn gave inconsistent responses regarding
    the status of their relationship. Eventually, she testified: “My relationship with
    Marshall right now is confusing.     Right now it’s not an intimate committed
    relationship. It still remains an on-the-table relationship. I don’t know what’s
    going to happen with it.” Dawn also insisted her “grown-up relationship with
    Marshall, whatever it may be, does not reflect on the care or the love or the
    relationship or bond I have with my child.”       The Family Safety, Risk and
    Permanancy (FSRP) worker, who initially was supportive of reunification,
    changed her opinion when informed of the ongoing relationship.
    In its ruling terminating parental rights, the juvenile court viewed Dawn’s
    testimony as lacking insight regarding “how her relationships with others impact
    her children.” The court faulted Dawn for turning a blind eye to the severity of
    Marshall’s relapse into methamphetamine use and minimizing his impact on her
    own recovery and parenting abilities.       The court’s March 1, 2015, order
    5
    terminated Dawn’s parental rights under Iowa Code sections 232.116(1)(d) and
    (f) (2013).2 Dawn now appeals.
    We review termination of parental rights proceedings de novo. In re A.M.,
    
    843 N.W.2d 100
    , 110 (Iowa 2014).                 We defer to the district court’s factual
    findings, especially when determining the credibility of witnesses, but are not
    bound by them. In re A.B., 
    815 N.W.2d 764
    , 773 (Iowa 2012). The child’s best
    interest is the paramount concern. In re C.B., 
    611 N.W.2d 489
    , 492 (Iowa 2000).
    I.         Statutory Grounds
    Clear and convincing evidence of the statutory grounds is required for
    termination. In re D.W., 
    791 N.W.2d 703
    , 706 (Iowa 2010). Evidence is clear
    and convincing when there is no serious or substantial doubt as to the
    correctness of the conclusions of law drawn from the evidence. 
    Id.
     When the
    juvenile court orders termination of parental rights on more than one statutory
    ground, we need only find support for one ground to affirm. In re J.B.L., 
    844 N.W.2d 703
    , 704 (Iowa Ct. App. 2014). We conclude the State proved by clear
    and convincing evidence that termination was appropriate under section
    232.116(1)(f).
    To terminate under paragraph (f), the State must prove the child is four
    years old or older, has been adjudicated CINA, has been removed from the
    home for the required period of time, and the court could not return the child to
    the parent’s custody at the present time pursuant to section 232.102. Iowa Code
    2
    The father’s parental rights were also terminated, but he is not a party to this appeal.
    6
    § 232.116(1)(f)(1)–(4). Only the fourth element is at issue: could K.L. be safely
    returned home?
    “At the present time” refers to the point of the termination hearing. See
    A.M., 843 N.W.2d at 111. A child cannot be returned to the custody of a parent
    under section 232.102 if by doing so the child would be exposed to any harm
    amounting to a new CINA adjudication or that the child is imminently likely to
    suffer that harm if returned. In re A.M.S., 
    419 N.W.2d 723
     725 (Iowa 1988); see
    also In re M.M., 
    483 N.W.2d 812
    , 814 (Iowa 1992) (explaining the threat of
    probable harm will justify termination).
    Dawn argues on appeal that the evidence did not show K.L. was
    “imminently likely to suffer an adjudicatory harm” if he was returned to her care.
    She contends Marshall’s “incidental contact with the minor child and the general
    statements by Dawn that [he] may have relapsed at some unknown point in time,
    do not rise to the level of clear and convincing evidence.”
    It is true that the focus of these termination proceedings was not on
    Dawn’s own substance abuse, but her unwillingness to end a fifteen-year
    relationship with Marshall despite knowing his drug problems were not resolved.
    Dawn testified she was “comfortable in her sobriety” and was seeing a therapist
    to address the challenges of staying off drugs.       But the case workers were
    concerned about her disinclination to participate in NA/AA meetings and lack of a
    sponsor, believing those circumstances would make relapse more likely. And
    they were very worried about her close association with Marshall.
    7
    Marshall has a long history of drug abuse and controlled substance
    convictions. When K.L. was returned to Dawn’s care in February 2014, Marshall
    was providing clean drug screens and complying with DHS recommendations.
    But in May 2014, Marshall stopped attending services and even Dawn suspected
    he had begun to use drugs again. At the June 2014 removal hearing, months
    prior to termination, the court warned Dawn about interacting with Marshall:
    The Court: [Dawn] under no circumstance while you are
    having contact with the child should Marshall be near the child,
    period. This court does not care if it’s for five minutes or five
    seconds. If that was not clear by the [DHS] or the FSRP worker,
    this court is making it part of the order of this court that Marshall not
    be around the child of interest. Do you understand?
    Dawn: Yes, Your Honor.
    In October 2014, Marshall was arrested and pleaded guilty to possession
    of drug paraphernalia.     He admitted using methamphetamine.           Nevertheless,
    Dawn continued to maintain a romantic relationship with him and allowed him to
    have at least some level of contact with K.L. Dawn allowed K.L. to be considered
    an inaccurate reporter when the child told social workers about his interactions
    with Marshall.
    During the course of the proceedings, Dawn has been untruthful with
    service providers and the juvenile court. The court noted her dishonesty in the
    termination order, and found it unlikely Dawn would truly end the relationship with
    Marshall, regardless of the cost to K.L. We give deference to the juvenile court’s
    credibility determinations, especially given the court’s opportunity to observe this
    family over the three-year course of the CINA proceedings.
    8
    We acknowledge the significant progress that Dawn has made during the
    course of this case. The FSRP worker described Dawn’s parenting style as
    “warm” and “affectionate.” Dawn was playful with K.L. and found creative ways
    to interact with him during visits.     Dawn has maintained steady part-time
    employment and suitable housing, though the record suggested that she may
    have been relying on financial support from Marshall to make ends meet.
    But in the end, we share the district court’s concern that Dawn’s blind spot
    for the danger posed by her paramour’s use of methamphetamine cannot be
    overlooked. Our supreme court has recognized the hazards of unaddressed
    methamphetamine addictions. In re A.B., 815 N.W.2d at 776. Dawn’s continued
    association with a drug user, despite knowing it could result in the termination of
    the parental rights of her child, shows K.L. could not be returned to her care at
    the time of the hearing.
    II.    Best Interests
    Even if the statutory grounds are met, termination must be in the child’s
    best interest.     We determine a child’s best interests by giving “‘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.’” In re P.L., 
    778 N.W.2d 33
    , 39 (Iowa 2010)
    (quoting 
    Iowa Code § 232.116
    (2)). Dawn argues termination was not in the best
    interests of K.L. because she was prepared to meet his physical, mental, and
    emotional needs.
    9
    While Dawn has made progress in achieving stability, the record shows
    she is unwilling to place her child’s long-term needs ahead of her own
    complicated relationship with a drug user.        In a telling passage from her
    testimony at the termination hearing, Dawn acknowledged that if she were not
    maintaining contact with Marshall, she could be reunited with K.L., but
    expressed: “They’re both important [to me].”
    The record reflects K.L. is doing well in his current placement. Meanwhile,
    given the reasons stated above, K.L.’s safety would remain a concern if he were
    to be returned to Dawn’s care.      K.L.’s needs must take priority over Dawn’s
    confusion about her romantic relationship. See In re C.S., 
    776 N.W.2d 297
    , 299
    (Iowa Ct. App. 2009). Termination is in K.L.’s best interests.
    III.   Factors Allowing Court to Forgo Termination
    Finally, Dawn argues the juvenile court should have applied section
    232.116(3)(c) to save the parent-child relationship. The court need not terminate
    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). This factor is permissive and the court
    has the discretion to weigh the strength of the bond against the child’s welfare.
    See A.M., 843 N.W.2d at 113; P.L., 
    778 N.W.2d at 39
    .
    We have no doubt that Dawn and K.L. love each other, but we do not find
    clear and convincing evidence in the record that termination would be detrimental
    to K.L. because of the closeness of their relationship.
    AFFIRMED.