Opinion
23-2059
03-06-2024
IN THE INTEREST OF E.R., T.R., and J.F., Minor Children, S.F., Mother of J.F., Appellant, T.R., Father of E.R. and T.R., Appellant.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant mother. Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant father. Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney General, for appellee State. Lisa A. Allison of Allison Law Firm LLC, Des Moines, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.
A mother and father separately appeal the termination of their parental rights.
Jeremy M. Evans of Carr Law Firm, P.L.C., Des Moines, for appellant mother.
Karen A. Taylor of Taylor Law Offices, P.C., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Natalie Hedberg, Assistant Attorney General, for appellee State.
Lisa A. Allison of Allison Law Firm LLC, Des Moines, attorney and guardian ad litem for minor children.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
BOWER, CHIEF JUDGE.
A mother appeals the termination of her parental rights to J.F., born in 2011. A father appeals the termination of his parental rights to E.R., born in 2022, and T.R., born in 2020. Both claim the State failed to prove the grounds for termination cited by the juvenile court, termination is not in the children's best interests, the court should apply a permissive exception to preclude termination, and a guardianship should have been entered in lieu of termination. Upon our review, we affirm both appeals.
The parental rights of J.F.'s father were also terminated. He did not appeal.
The mother's parental rights to E.R. and T.R. were also terminated. The termination orders in those cases were filed one day prior to the termination order in J.F.'s case. The mother appealed all three termination orders, but her notices of appeal were one day late in E.R.'s and T.R.'s cases. The supreme court directed her to file a statement "as to why the appeal[s] should not be dismissed as untimely," which she did not do. The court then dismissed her appeals in those cases and ordered her appeal to "proceed in [J.F.'s] case only."
I. Background Facts and Proceedings
This family came to attention of the attention of the Iowa Department of Health and Human Services (department) most recently in July 2022, when police pulled the mother over and found illegal substances and paraphernalia in the car. The department learned the mother was using methamphetamine and heroin while caring for the children. The children were safety-planned to relative placements. Ten days later, the mother and father were pulled over and "[p]olice again found methamphetamine and heroin as well as drug paraphernalia." The mother reported the drugs "were hers." J.F. reported observing the parents buying and using heroin, fentanyl, and methamphetamine and driving with the children while under the influence. Police also found identification "belonging to other people" in the vehicle, despite the parents being "on probation for identity theft." Several weeks later, the parents disregarded the safety plan and took the younger two children from the relative placement. At that point, the children were formally removed from the parents' custody, adjudicated CINA, and placed with maternal relatives.
In 2016, J.F. was previously removed from the mother's care and adjudicated a child in need of assistance (CINA), due to the mother's unresolved substance use and mental-health issues. That case was closed in 2018. The father's parental rights were terminated to three other children in 2014, 2015, and 2016, due to his own unresolved substance use issues.
E.R. and T.R. are placed with a maternal cousin. J.F. is placed with a maternal aunt.
The mother was incarcerated on possession charges, but she entered an inpatient substance-use program at Clearview Recovery in September. The mother subsequently moved to House of Mercy. Due to an outstanding warrant for her arrest, the mother was unable to have consistent visits with the children. The mother reported she was "waiting for [the father] to have his hearing because he is supposed to be taking accountability for all the charges and hopefully hers will be dropped." The court entered a review order in March 2023, which noted the mother
continues to have outstanding warrants on a class "B" felony and several "D" felonies. She is aware of these warrants and has made a clear decision not to address those, not only at this time, but also back in October, after she left Clearview Recovery and before started services at House of Mercy in November of 2022. [The parents] are co-offenders and it seems [the mother]'s intention is to hope [the father] will take responsibility for the charges. Court's review of those files, through judicial notice, indicate that Mother was aware of the methamphetamine in the home and made admission to having possession of this substance. The court cannot move in a direction to return a child to a parent with active warrants for . . . felonies.
The mother was unsuccessfully discharged from House of Mercy shortly thereafter, but "[i]nstead of turning herself in to address her warrant, which remained outstanding, [she] remained in the community." The mother continued to use drugs, and she "ended up OD'ing." She was arrested in July, which forced her to address "both her prior probation violation as well as the new pending felony charges."
Meanwhile, the father "had been in custody almost the entirety of the CINA case," which included hospitalization for several months following mental-health episodes relating to his diagnoses of "[p]sychosis and schizophrenia." He was deemed competent in May 2023, and was awaiting hearings on his various pending criminal charges.
The State initiated termination-of-parental-rights proceedings in August 2023. The termination hearing took place the following month. Both parents were incarcerated, and neither had a definitive release date. The father had not seen the children "in over a year" and testified "the plan" was for him "to take the fall for the criminal charges" to "release [the mother] from criminal liability on her charges." Meanwhile, the mother "refuse[d] to take accountability for her role in where she is at," and stated she "wasn't given a chance" to address her substance use. She maintained, "My substance abuse at this moment is because I'm without my children, and I have not dealt with that correctly." The parents requested a sixmonth extension. The guardian ad litem and department recommended termination of parental rights. The court thereafter entered an order terminating the parental rights of both parents. The mother and father separately appeal.
The mother's parental rights to J.F. were terminated pursuant to Iowa Code section 232.116(1)(e), (f), and (l) (2023). The father's parental rights to E.R. and T.R. were terminated pursuant to section 232.116(1)(e), (g), and (h).
II. Standard of Review
We review termination-of-parental-rights proceedings de novo. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Upon our review, our primary consideration is the best interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining elements of which are the children's safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011).
III. Analysis
A. Grounds for Termination.
The mother and father both challenge the sufficiency of the evidence supporting the grounds for termination cited by the juvenile court. We conclude the State proved grounds for termination of parental rights under Iowa Code section 232.116(1)(f) (as to the mother) and section 232.116(1)(h) (as to the father), so we do not address the other grounds found by the court. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) ("When the juvenile court terminates parental rights on more than one statutory ground, we may affirm the juvenile court's order on any ground we find supported by the record.").
Regarding these grounds, the parents claim the State failed to show by clear and convincing evidence the children could not be returned safely to their care at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4), (h)(4). We disagree. Both parents' "incarceration at the time of the termination hearing prevented the children's return to [their] custody." See In re J.M., No. 23-1018, 2023 WL 5949193, at *2 n.2 (Iowa Ct. App. Sept. 13, 2023). The parents conceded this much at the termination hearing. Moreover, "[a] long history of substance abuse, repeated relapses, and demonstrated inability to maintain sobriety outside a supervised setting demonstrates the children could not have been returned to [the parents'] care at the time of the termination hearing." In re W.M., 957 N.W.2d 305, 313 (Iowa 2021).
B. Best Interests of the Children.
"We next consider whether termination is in the best interests of the children under section 232.116(2)." Id. In making this determination, we consider "the child[ren]'s safety, . . . the best placement for furthering the long-term nurturing and growth of the child[ren], and . . . the physical, mental, and emotional condition and needs of the child[ren]." Iowa Code § 232.116(2). "It is well-settled law that we cannot deprive a child of permanency after the State has proved a ground for termination under section 232.116(1) by hoping someday a parent will learn to be a parent and be able to provide a stable home for the child." In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (citation omitted).
One month prior to the termination hearing, J.F. expressed "[w]hile [she] would like to be able to be with her mother and loves her, she has come to the conclusion that she believes adoption would be the better option for [the children]." J.F. reported viewing domestic violence incidents involving the mother, frequent substance use, and she had been removed from her mother's care previously. The court observed, "Children love their parents regardless of their mistakes or struggles, and for a child to recognize [the mother] is not in a position to care for her and is not going to be in a position to take care of her any time soon speaks volumes to this court." At the termination hearing, the mother pointed to her bond with J.F. and the child's recent statement indicating her preference for an extension and guardianship. But the mother admitted J.F. changed her position only after the mother pleaded with the child to "bad-mouth her placement" and write a letter to the court "requesting her mother's rights not be terminated." Although J.F. clearly cares about the mother and wants to please her, the child has learned she is not safe or secure in her mother's care. Termination of the mother's parental rights is in the best interests of J.F.
Although E.R. and T.R. are much younger than J.F., and "may not bear emotional scars to the same extent, repeatedly bouncing in and out of [their parents'] chaotic life cannot be healthy for [them], either." See W.M., 957 N.W.2d at 314. Despite the father's claim that "sober" he is a "tremendous" parent, his parental rights to three other children have been terminated due to unresolved substance use and mental-health issues. Those same concerns, along with active criminal charges, are present in this case. Declining to terminate parental rights and waiting for these parents to show an ability to provide permanency is not in the best interests of these children. See id. (observing "we cannot deprive these children of a stable home on the hope [their parents] will someday be able to succeed in [their] efforts to remain sober" and crime free).
C. Exceptions to Termination.
Once the State has proven grounds for termination, the burden shifts to the parent to prove a permissive exception under section 232.116(3). In re A.S., 906 N.W.2d 467, 475-76 (Iowa 2018). The mother mentions her bond with the children as a reason the court should have not terminated her parental rights. The exception under section 232.116(3)(c) "requires clear and convincing evidence that 'termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.'" In re A.B., 956 N.W.2d 162, 169 (Iowa 2021) (quoting Iowa Code § 232.116(3)(c)). For the reasons set forth above, the mother has not established termination of her rights will be detrimental to J.F.
The mother made this claim in her best-interests argument.
The father further claims "[t]ermination is generally not necessary when custody of the child is with relative placement." However, the children are in the legal custody of the department, not a relative, making inapplicable the exception under section 232.116(3)(a) where a relative has legal custody of the child. See id. at 170 ("[T]his exception can come into play only when a relative has 'legal custody.'").
D. Guardianship.
The parents also claim the court should have entered a guardianship, which "would have provided sufficient protection for the children to allow the case to close." However, "a guardianship is not a legally preferable alternative to termination." A.S., 906 N.W.2d at 477 (citation omitted). On this issue, the guardian ad litem opined:
[The father] has not seen his sons in over a year.... The boys do not share a bond with [the father]. He remains in jail on felony drug possession charges and has a history of severe mental health diagnoses. These diagnoses are so severe that he had to be hospitalized by the court in his criminal case for restoration of his competency. His competency has since been restored, but he has still not completed a drug treatment program and he is not engaged in individual mental health services while at the jail outside of medication management. He has not attended a parenting course and has no stable housing or job. He is not in a position to care for these boys tomorrow or even in six months. [The children] need
permanency in their lives. They are in a pre-adoptive home, where they are doing very well. It is in their best interest for [the father's] parental rights to be terminated. ....
[J.F.] reported through her attorney that she would like her mother's rights to not be terminated. She would prefer a guardianship or to be returned home. Unfortunately, the mother's phone calls make it incredibly clear that no matter where [J.F.] is, the mother will continue to be an incredibly disruptive force to her stability. [The mother] clearly states she will go anywhere her kids are no matter how many times it takes to get them back. She has no problem threatening physical harm against herself or others to get what she wants. She will lie and manipulate her own child to get what she wants. None of these traits are the mark of a safe, stable parent. There is no indication [the mother] has the ability to become a safe, stable parent within six months given her lack of progress and poor choices throughout this case.... [T]he only option for these children's best interest is termination of the mother's parental rights.
We affirm the denial of the parents' request for a guardianship.
Having addressed the issues raised on the parents' appeals, we affirm the termination of their parental rights.
AFFIRMED ON BOTH APPEALS.