In the Interest of M.B. and R.B., Minor Children ( 2020 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 19-1884
    Filed February 5, 2020
    IN THE INTEREST OF M.B. and R.B.,
    Minor Children,
    S.B., Father,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
    District Associate Judge.
    A father appeals the termination of his parental rights. AFFIRMED.
    David R. Fiester, Cedar Rapids, for appellant father.
    Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
    General, for appellee State.
    Kimberly A. Opatz of Linn County Advocate, Inc., Cedar Rapids, attorney
    and guardian ad litem for minor children.
    Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
    2
    AHLERS, Judge.
    Claiming that he had a constitutional right to refuse drug and mental-health
    testing, the father challenges the termination of his parental rights to the children.
    At the time of the termination-of-parental-rights hearing, M.B. was four years
    old (born in November 2014) and R.B. was three years old (born in January 2016).
    The juvenile court terminated the parental rights of both the father and mother.
    The father appeals. The mother does not.
    I.     Background Facts and Proceedings
    The Iowa Department of Human Services (the DHS) became involved with
    this family when the younger child tested positive for THC at birth.1 In addition to
    the positive drug test, the DHS also had concerns of domestic violence in the
    home. These events led to a CINA adjudication in April 2016. The children
    remained with the mother during the previous CINA cases, during which time the
    father did not participate in visits. The previous CINA cases closed in March 2017
    after entry of a bridge order2 awarding sole custody of the children to the mother.
    In awarding sole custody to the mother in the bridge order, the juvenile court made
    the following findings:
    The [father] is not a suitable custodian for the children. There are
    concerns that [the father] has ongoing substance abuse (marijuana)
    issues and unmet mental health (depression, non-compliance with
    medication management) needs. [The father] has chosen not to
    involve himself with his children and has only had minimal contact
    with them in the past 8 months. [The father] is not participating in the
    offered visitation with the children through the provider. [The mother]
    1 The older child had also tested positive for THC at birth, but the DHS did not
    pursue a child-in-need-of-assistance (CINA) action at that time.
    2 See 
    Iowa Code § 232
    .103A (2017) (permitting the juvenile court to close a CINA
    case by transferring jurisdiction over the child’s custody, physical care, and
    visitation to the district court through a bridge order).
    3
    has facilitated some limited visitation last Thanksgiving and
    Christmas. [The father] has refused to participate in the Child in
    Need of Assistance cases or even complete Social History
    information as ordered. The psychological and emotional needs, as
    well as the growth and development of the children, will best be
    addressed with the children in the sole legal and physical custody of
    the [mother]. The safety of the children would be jeopardized by the
    awarding of joint legal custody, or by unsupervised or unrestricted
    visitation with the children’s father.
    No appeal was taken of these findings or the bridge order.
    From the time of M.B.’s birth in November 2014 until the start of the
    underlying CINA proceedings that led to the current termination proceedings, there
    were numerous founded child abuse assessments completed on this family.
    Investigations involving the family in February and March 2018 led to the discovery
    that the home in which the children were living was filthy, the children were being
    left outside unattended wearing only diapers and about to wander into the street
    before a passerby stopped them, and the mother was using methamphetamine
    around the children. The children were adjudicated to be children in need of
    assistance in April 2018. Orders for drug testing of the children were thwarted
    when the mother had the children’s heads shaved to avoid the testing. The
    children were removed from parental care on May 7, 2018, after the mother, while
    under the influence of methamphetamine or other drugs, barricaded herself in front
    of the door to prevent law enforcement entry. Law enforcement eventually gained
    entry. Due to the children’s condition, they were taken to the hospital for evaluation
    where it was discovered that the children had not been bathed for days to weeks,
    they were in heavily soiled diapers found to contain glass shards, they had
    significant tooth decay, they were behind on their immunizations, they had high
    lead levels, and R.B. had a staph infection in her nasal cavity. The father saw the
    4
    children at the hospital and noted their deplorable condition. This was the father’s
    first contact with the children since 2016.
    As part of the CINA process, the father was ordered to submit to drug testing
    and complete a mental-health evaluation. The father refused both, claiming the
    orders violated his constitutional rights. Due to the father’s refusal to demonstrate
    being drug-free and to be evaluated for mental-health issues, he has not
    progressed beyond supervised visits. While the father has exercised a significant
    amount of the offered visitation, the guardian ad litem reported that the children
    have frequently expressed that they do not wish to attend visitation and they show
    signs of anxiety before and after visits, including sometimes having diarrhea and
    vomiting before or after visits. Also, the father knows the children have speech
    development delays, but the father has refused to sign paperwork needed to allow
    the children to participate in services such as speech therapy and receive other
    medical treatment.
    After assessing the situation and the facts, the juvenile court terminated the
    parental rights of both parents.       The father appeals, raising three largely
    intertwined issues.
    II.       Standard of Review
    We review termination proceedings de novo. In re P.L., 
    778 N.W.2d 33
    , 40
    (Iowa 2010). Our de novo review includes constitutional claims raised during the
    termination proceeding. In re C.M., 
    652 N.W.2d 204
    , 209 (Iowa 2002). We give
    weight to the juvenile court’s factual findings, but they do not bind us. In re M.D.,
    
    921 N.W.2d 229
    , 232 (Iowa 2018). The paramount concern is the children’s best
    interests. 
    Id.
    5
    III.   Statutory Grounds for Termination
    The father claims that the statutory grounds for termination were not met.
    The first way the father claims that the grounds were not met involves an error
    regarding the applicable paragraph of the Iowa Code referenced by the juvenile
    court in its ruling in M.B.’s case. In the petitions filed to start the termination
    proceedings, the State sought termination of parental rights with respect to M.B.
    pursuant to Iowa Code section 232.116(1)(f) (2019) and with respect to R.B.
    pursuant to Iowa Code section 232.116(1)(h).3 The differences between sections
    232.116(1)(f)4 and 232.116(1)(h)5 involve the ages of the children at issue and the
    3 The State also asserted grounds for termination with regard to both children
    pursuant to Iowa Code section 232.116(1)(a). Section 232.116(1)(a) involves
    termination based on the consent of the parents. Since neither parent consented
    to termination of their parental rights, the grounds under section 232.116(1)(a)
    were not established and those grounds are not an issue in this appeal.
    4 Under section 232.116(1)(f), the court may terminate parental rights if it finds all
    of the following:
    (1) The child is four years of age or older.
    (2) The child has been adjudicated a child in need of
    assistance pursuant to section 232.96.
    (3) The child has been removed from the physical custody of
    the child’s parents for at least twelve of the last eighteen months, or
    for the last twelve consecutive months and any trial period at home
    has been less than thirty days.
    (4) There is clear and convincing evidence that at the present time
    the child cannot be returned to the custody of the child’s parents as provided
    in section 232.102.
    5 Under section 232.116(1)(h), the court may terminate parental rights if it finds all
    of the following:
    (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.
    (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.
    6
    length of the period of removal. In pertinent part, section 232.116(1)(f) applies to
    children four years of age or older with a period of removal of twelve of the last
    eighteen months or the last twelve months, and section 232.116(1)(h) applies to
    children three years of age or younger with a period of removal of six of the last
    twelve months or the last six months. In terminating the father’s parental rights,
    the juvenile court cited Iowa Code section 232.116(1)(h) for both children. As the
    father correctly points out, section 232.116(1)(h) could not serve as a basis for
    terminating the parental rights of M.B., as M.B. was four years old at the time of
    the hearing, so the age requirement of section 232.116(1)(h) could not be satisfied.
    While this is true, it does not lead to the result urged by the father. On appellate
    review of a termination of parental rights, we must “affirm an appeal where any
    proper basis appears for a trial court’s ruling, even though it is not one upon which
    the court based its holding.” In re M.W., 
    876 N.W.2d 212
    , 221 (Iowa 2016) (quoting
    State v. Maxwell, 
    743 N.W.2d 185
    , 192 (Iowa 2008)). Although the juvenile court
    referenced terminating the father’s parental rights with regard to M.B. pursuant to
    section 232.116(1)(h), this was fairly clearly a typographical error, with the correct
    section being section 232.116(1)(f).       The typographical error has no legal
    significance in this case.    In the petition filed to start M.B.’s case, section
    232.116(1)(f) was the statutory ground alleged, and thus the only remaining ground
    upon which the juvenile court could base its termination decision. The erroneous
    reference to section 232.116(1)(h) as the ground for terminating parental rights of
    (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.
    7
    M.B.’s parents may have caused us more pause if the juvenile court had neglected
    to make factual findings that satisfied the elements of section 232.116(1)(f), as
    then we may have had concern that the juvenile court applied the wrong
    subsection. In this case, however, the juvenile court made factual findings that
    demonstrate that the juvenile court was contemplating the correct section.
    Specifically, the juvenile court made findings that M.B. was almost five years old,
    had been adjudicated as a child in need of assistance, had been removed from
    parental care for seventeen consecutive months (from May 2018 until the
    termination hearing in September 2019), there had been no trial home placements
    with either parent, and neither parent was a viable placement option. Due to these
    findings that satisfy the elements of section 232.116(1)(f) with regard to M.B., we
    find the typographical error to have no legal significance in this case.
    The father also asserts that the State failed to prove the fourth element of
    termination in sections 232.116(1)(f) and 232.116(1)(h), specifically that “there is
    clear and convincing evidence that at the present time the child cannot be returned
    to the custody of the child’s parents as provided in section 232.102.” See 
    Iowa Code § 232.116
    (1)(f)(4), (h)(4); In re D.W., 
    791 N.W.2d 703
    , 707 (Iowa 2010)
    (interpreting the statutory language “at the present time” to mean “at the time of
    the termination hearing”). In support of this argument, the father highlights the fact
    that he has not lived with the mother since approximately June 2016, which was
    prior to the filing of the current CINA petitions. In addition, the father argues that
    the State presented no evidence that his current home6 was inappropriate for the
    6   The father lives with his own father (i.e., the children’s paternal grandfather).
    8
    children. The father’s focus on the condition of the home where he resides is
    misplaced in this instance. The problem with placing the children with the father
    was not the condition of the grandfather’s home, but the deficiencies in the father’s
    parenting. The father has a history of drug abuse and mental-health problems,
    plus the father was taking prescription narcotics for a serious back injury. In spite
    of these circumstances, the father refused to submit to drug testing to confirm his
    claimed sobriety and refused to submit to a mental-health evaluation. These
    refusals contributed to his inability to progress beyond supervised visits. At the
    termination hearing, he refused to answer questions about his marijuana use and
    mental-health history. He also failed to attend the children’s medical appointments
    and caused delay in the children receiving needed services by refusing to sign
    necessary releases. Under these circumstances, it was appropriate to restrict the
    father to supervised interactions with his children, and it was appropriate for the
    juvenile court to terminate the parental rights of the father who had not progressed
    past supervised visitation in spite of over seventeen months of services being
    offered. We agree with the juvenile court that the statutory grounds for termination
    were properly established. See 
    Iowa Code § 232.116
    (1)(f), (h). We also agree
    that the father was not entitled to an additional six months to work toward
    reunification.   See 
    Iowa Code § 232.104
    (2)(b) (allowing the juvenile court to
    provide an additional six months for reunification if it determines “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”); see also In re D.S., 
    806 N.W.2d 458
    , 474 (Iowa Ct.
    App. 2011) (“We will not gamble with a child’s future by asking him to continuously
    wait for a stable biological parent, particularly at such a tender age.”).
    9
    IV.    Best Interest of the Children
    The father challenges the juvenile court finding that it was in the best
    interest of the children to terminate the father’s parental rights. In making this
    finding, the juvenile court relied on the recitation of facts that formed the basis for
    the finding that the children could not be safely returned to either parent. See 
    Iowa Code § 232.116
    (2) (requiring “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”). We find
    no error in the juvenile court’s conclusion that it was in the best interest of the
    children to terminate the father’s parental rights. Like the juvenile court, we refer
    to the factual findings that form the basis for the conclusion that the children cannot
    be safely returned to either of the parental homes as support for the determination
    that it is in the best interest of the children to terminate the father’s parental rights.
    In arguing that the juvenile court erred in finding that it was in the children’s
    best interest to terminate the father’s parental rights, the father largely blends the
    best-interest-of-the-child analysis with an argument that the statutory exceptions
    set forth in Iowa Code section 232.116(3) should prevent termination.                See
    
    id.
     § 232.116(3)(c) (“The court need not terminate the relationship between the
    parent and the child if” it finds “that the termination would be detrimental to the
    child at the time due to the closeness of the parent-child relationship.”). The father
    argues that termination will disrupt the integrity of the family unit and runs the risk
    that the children will be broken up when it comes time for them to be adopted. The
    father’s arguments are not persuasive. The integrity of the family unit has already
    been disrupted due to the ongoing parental deficiencies of both parents. The
    10
    father has gone long periods of time where he has been absent from the lives of
    these children, including being so detached from the children that he was unaware
    of the deplorable conditions in the mother’s home. Even when he resurfaced, his
    refusal to take even basic steps to demonstrate that he is a viable placement option
    have resulted in him progressing no further than supervised visits with the children.
    While there is a risk the two children may not be adopted into the same family,
    there is no reason to believe that such an unfortunate outcome will result. Even in
    the unlikely event it does, the children would still be better in separate adoptive
    homes than being returned to a father who neglected them for much of their lives.
    We find termination of the father’s rights to be in the children’s best interest.
    We also reject the father’s argument that any bond between the father and
    children should prevent termination of his rights. See id. While the children appear
    to have a bond with the father, his extended absence from their short lives limits
    this bond. Further, the record shows the children exhibit signs of stress before and
    after visitation. As explained above, the father failed to demonstrate he is ready
    to progress beyond supervised visits after seventeen months of involvement from
    the DHS. Therefore, his bond with the children does not preclude termination.
    V.     Refusal to Submit to Testing and Evaluation
    The father argues the juvenile court had no authority to order him to submit
    to drug testing without probable cause, and, in using his refusal against him, the
    father’s constitutional rights were violated.7 See U.S. Const. amend. IV (prohibiting
    7In addition to his argument on unreasonable search and seizure, the father’s
    petition to us also mentions the fifth amendment. See U.S. Const. amend. V. This
    mention of the fifth amendment is not sufficient for us to consider such rights on
    11
    unreasonable searches and seizures). In his petition to us, he presents the issue
    as whether “the taking of a bodily specimen, particularly breath, blood, hair or
    urine, without probable cause, constitutes an unreasonable search and seizure.”
    In analyzing this issue, we need not decide whether the father has the right
    claimed because, even if it is assumed that he has such a right, that right was not
    violated for multiple reasons. First, the only way the father’s refusal to cooperate
    by submitting to drug testing was used against him was that such refusal formed
    part of the basis for limiting the father’s interaction with the children to supervised
    visits. He was not physically forced to submit to testing, and no effort was made
    to hold him in contempt of court for disobeying the order for testing. The fact that
    the father suffered an adverse consequence from exercising his claimed rights
    does not constitute a violation of the claimed rights. See In re C.H., 
    652 N.W.2d 144
    , 150 (Iowa 2002) (“Contrary to [the father’s] assertions, a person’s exercise of
    a constitutional right may indeed have consequences. One such consequence
    may be a person’s failure to obtain treatment for his or her problems.”).
    Second, once the juvenile court adjudicated the children to be in need of
    assistance, the court had statutory authority to order the father to submit to drug
    testing because his ability to care for the children was at issue. See 
    Iowa Code § 232.98
    (2) (“Following an adjudication that a child is a child in need of assistance,
    the court may after a hearing order the physical or mental examination of the parent
    . . . if that person’s ability to care for the child is at issue.”).
    appeal. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of
    an issue may be deemed waiver of that issue.”).
    12
    Third, the father’s entire argument is based on the premise that the order
    for drug testing lacked probable cause. We do not decide whether the probable
    cause standard applies in this context. That said, there was ample reason for
    ordering the father to submit to drug testing. As detailed above, both children
    tested positive for marijuana at birth. The father was the subject of a March 2017
    bridge order entered in conjunction with closing of the previous CINA proceedings.
    The bridge order included factual findings that the father had ongoing substance-
    abuse issues and unmet mental-health issues. Just over one year later, the
    children returned to the attention of the DHS because of the mother’s deplorable
    behavior in caring for them.     However, the fact that the mother’s atrocious
    parenting led to the DHS involvement did not mean that the DHS or the juvenile
    court should have assumed that the father had fixed his problems over the prior
    year. The DHS and the juvenile court justifiably continued to have the same
    concerns with the father that they had over a year earlier when the bridge order
    was entered. His recent prescription for narcotic pain medicine raised additional
    concerns. As a result of those concerns, the court ordered the father to engage in
    the very simple task of submitting to drug testing to help determine whether he had
    improved to the point of being a viable placement option. He refused to submit to
    such testing. As a result, he never established that he had adequately addressed
    his drug use or that he was a viable placement option. Under these circumstances,
    there was no violation of his claimed rights, assuming he possessed those rights.
    Finally, it was not just the father’s refusal to submit to drug testing that
    caused concern to the DHS workers and the juvenile court. His refusal to submit
    to a mental-health evaluation also raised concerns. On appeal, the father raises
    13
    no constitutional challenge to the order for mental-health evaluation and treatment.
    Even with no consideration of the evidence of the father’s drug use, our de novo
    review of the record finds clear and convincing evidence supporting termination,
    as described above. Therefore, even if it was assumed for the sake of argument
    that it was improper to order the father to submit to drug testing, the father was not
    prejudiced by such impropriety because the other evidence in the record, including
    his refusal to submit to a mental-health evaluation and treatment, independently
    support termination of his parental rights by clear and convincing evidence.
    VI.    Conclusion
    We find the State proved the statutory grounds for terminating the father’s
    parental rights to both children, termination is in the children’s best interest, and
    consideration of the father’s refusal to participate in drug testing does not violate
    the constitutional prohibition on unreasonable search and seizure. Therefore, we
    affirm the termination of the father’s parental rights to both children.
    AFFIRMED.
    

Document Info

Docket Number: 19-1884

Filed Date: 2/5/2020

Precedential Status: Precedential

Modified Date: 4/17/2021