Opinion
23-1971
03-06-2024
IN THE INTEREST OF J.V., J.G., and J.G., Minor Children, A.V., Mother, Appellant.
Michael A. Horn of Horn Law Offices, Des Moines, for appellant mother. Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for appellee State. Shannon Wallace of Youth Law Center, Des Moines, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.
A mother appeals the termination of her parental rights to her three children.
Michael A. Horn of Horn Law Offices, Des Moines, for appellant mother.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for appellee State.
Shannon Wallace of Youth Law Center, Des Moines, attorney and guardian ad litem for minor children.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
GREER, JUDGE.
The mother appeals the termination of her parental rights to her three children: J.V., born February 2018; J.G., born June 2019; and J.G.E., born August 2021. The mother challenges the statutory grounds for termination, whether termination is in the children's best interests, and whether the juvenile court should have relied on the permissive exception to order a guardianship instead of termination. We affirm.
The biological father is not a party to this appeal.
The putative father is not a party to this appeal.
The biological father is not a party to this appeal.
I. Background Facts and Prior Proceedings.
The family came to the attention of the Iowa Department of Health and Human Services after J.G. was found running around by herself in July 2022. This resulted in a founded assessment for denial of critical care against J.G.'s grandfather, who was supposed to be providing care for the child at the time.
In August, after receiving calls from residents of a homeless camp, the police found J.G. wandering by herself again, naked, and covered in dirt; she had been left at a homeless camp after the mother was involved in a domestic altercation with J.G.E.'s father in front of J.G., during which the mother was hit in the head repeatedly and kicked in the stomach. Residents of the camp reported that a man they believed was J.G.'s father dropped J.G. and a dog off with another person living at the camp, told the person to say "he found it in a field," and then ran off. J.G. was taken to the hospital, where she received a physical; she tested positive for methamphetamine and amphetamine and had bruising on her abdomen and buttocks. At this time, J.V. and J.G.E. were being cared for by their grandparents, but as part of the department's protective assessment, these two children also received physicals; J.V. tested positive for methamphetamine and amphetamine, and J.G.E. tested positive for methamphetamine, amphetamine, and tetrahydrocannabinol (THC). The three children were removed and placed in the custody of the department, which then placed them in the care of fictive kin, the mother's friend. The mother signed a written consent for removal. However, she did not provide the requested drug screen. The mother was homeless at the time. This August incident resulted in a founded assessment for denial of critical care against the mother.
The children, who all have special needs, were adjudicated children in need of assistance (CINA) pursuant to Iowa Code section 232.96A(3)(b), (14), and (15) (2022) in September. Services to the mother and the children were put in place to assist the family. In October, the fictive kin surrendered the children to the police, and the department placed them in foster care.
In January 2023, the mother submitted a sweat patch that tested positive for methamphetamine. The mother denied using methamphetamine but admitted using marijuana. Review hearings in January and April showed little progress by the mother toward the goals set by the department. The court set a permanency hearing in July, at which the department recommended it be allowed to petition for termination of the mother's parental rights. The court entered its permanency order noting the lack of progress by the mother and modifying the permanency goal to termination of parental rights and adoption.
The court held a termination hearing over two days in October and November. The mother testified at the hearing and provided contradictory accounts on her substance use, mental-health treatment, and housing. First, she stated that she had last used an illegal substance-marijuana-in September. Then, she denied using methamphetamine over the four previous months or ever using it more than twice a month. But she also stated that she had not "touched it at all. I mean, I don't really need it." And then she changed her tune to admit that she had used methamphetamine "[j]ust one time." She also admitted that the department social worker had asked her to complete drug screens twice in August and twice in September 2022 but that she had not done so. She acknowledged that she had not yet completed a substance-use-disorder or mental-health evaluation but testified that she has diagnoses of "depression, bipolar, anxiety, and PTSD" and intended to complete residential treatment for substance use. She testified that she did not have a therapist but she considered her boyfriend and her parents as her therapists.
Regarding housing, the mother said, "I just recently moved in with a friend that has a house." She admitted that four people total lived in the home-herself, her boyfriend, the friend, and the friend's girlfriend. When asked for the friend's name, the mother provided his first name and then said, "I don't know his last name right off." The mother was also unable to provide any information about the friend's girlfriend but stated that she knew that her boyfriend did have a criminal history. At the same time, the mother insisted that the home was safe and that she and her boyfriend had their own room. The mother admitted that she missed some of the weekly supervised visits with the children. She was unaware that J.V. had special dietary needs, J.G.E. needed physical therapy, or that J.G. has emotional breakdowns. The mother also testified that she was without employment for three years but was "looking for a job, too, plus I'm going to be trying to get on disability."
The department social worker testified about the family as well. She stated that the children are dysregulated, have regressed in potty training, have trouble eating, and "have some significant emotions" following visits with the mother. For a time, according to the social worker, the mother's supervised visits were limited to two children at a time because the mother "gets very overwhelmed when she has all three of them in her care." The social worker also confirmed that the mother had not completed treatment for substance use, was not regularly taking her medication, and had not begun mental-health therapy. The social worker had been unable to visit the mother's home. Likewise, the court noted the mother showed signs of being under the influence during the termination hearing-slurring her words and being drowsy and inattentive.
The court entered its order terminating parental rights in November, terminating the mother's parental rights to all three children under paragraphs (e) and (l) of Iowa Code section 232.116(1) (2023); to J.V. and J.G. under paragraph (f); and to J.G.E. under paragraph (h). In doing so, it found that the children could not be returned to the mother's care at the time of the termination hearing because they would be subjected to further harm. It also found that the mother "has not addressed her substance use, her history of domestic violence, her instability, or her neglect of the children." The mother appeals.
II. Standard of Review.
We review the termination of parental rights de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). We give careful consideration to the court's factual findings and determinations based on in-person observations, but we are not bound by them. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). "[O]ur fundamental concern" in review of termination proceedings "is the child[ren]'s best interests." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis.
In general, we follow a three-step analysis in reviewing the termination of a parent's rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider whether there is a statutory ground for termination of the parent's rights under section 232.116(1). Id. Second, we look to whether termination of the parent's rights is in the children's best interests. Id. (citing Iowa Code § 232.116(2)). Third, we consider whether any of the exceptions to termination in section 232.116(3) should be applied. Id. Here, the mother challenges the statutory grounds for termination, whether termination is in the children's best interests, and whether the court should have relied on the permissive exception to order a guardianship instead of terminating her rights or whether the closeness of the bond between the mother and the children militates against termination. Thus, we address those issues (although many of these issues are meshed together in the mother's briefing).
A. Statutory Grounds for Termination.
First, the mother argues that the State failed to prove that the children could not be safely returned to her care at the time of the termination hearing. But the court terminated the mother's rights on several grounds and, although the mother's brief challenges the findings under Iowa Code section 232.116(1)(f)(4) and (h)(4), she did not contest the termination ruling based upon paragraphs (e) and (l). Despite claiming to challenge these two grounds in a heading in her petition, the mother does not make any substantive challenge on appeal toward the statutory elements of (e) or (l), so we can summarily affirm on those grounds. See P.L., 778 N.W.2d at 40.
The mother only challenges whether "there is clear and convincing evidence that the child cannot be returned to the custody of the child's parent as provided in Iowa Code section 232.102 at the present time"-an element shared by paragraphs (f) and (h) but not (e) and (l).
Still the record supports the court's ruling on those sections more fully challenged by the mother. "When the juvenile court terminates parental rights on more than one statutory ground, we may affirm . . . on any ground we find supported by the record." In re A.B., 815 N.W.2d 764, 774 (Iowa 2012). "There must be clear and convincing evidence of the grounds for termination of parental rights." In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We choose to address those paragraphs that were the mother's focus: (f) and (h).
The court found the State presented clear and convincing evidence that the children could not be returned to the mother's custody at the termination hearing. See Iowa Code § 232.116(1)(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (interpretating "at the present time" to mean at the time of the termination hearing.). The mother argues she was not "beyond help" and her efforts were compliant with services, making her a better parent. But she admits that she was not as compliant as the department wanted her to be. She also argues that she "loves her children very much and they love her. While [she] may not be an ideal parent, Iowa law only requires a parent to be minimally adequate." While we do not seek perfection in parenting, our standards hinge on whether the children could safely be returned to the mother at the time of the termination hearing. The past does help with that analysis. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) ("When making this decision, we look to the parents' past performance because it may indicate the quality of care the parent is capable of providing in the future.").
Here, the mother's past performance throughout the life of this case has demonstrated that the children could not be safely returned to her care at the time of the termination hearing-specifically her lack of participation in the services she so desperately needs. The mother failed to demonstrate that she grasped the significance of her substance use or made any steps towards addressing it. Further, she failed to complete several drug tests requested by the department, and her January 2023 sweat patch came back positive for methamphetamine despite the mother wavering in her admission that she ever used methamphetamine. The same is true of her insight into her mental-health challenges including her depression, bipolar disorder, anxiety, and PTSD; she admitted that she was not attending therapy at the time of the termination hearing, so she could show no progress on that concern. At best, she argues she secured housing sufficient for herself and the children, but while she insists that she had appropriate housing, she failed to identify concretely who she is living with or whether they have any criminal history or use illegal or dangerous substances. The mother was also not employed. For these reasons, we find that the statutory grounds for termination under paragraph (f) as to J.V. and J.G. and (h) as to J.G.E. were proved by clear and convincing evidence.
B. Best Interests.
We next consider whether termination is in the children's best interests under section 232.116(2). The mother argues "[t]he [c]ourt should have determined that it was in the children's best interest to use its discretion and not terminate their legal relationship with their mother" but is silent on her reasons for this position except to say they will "lose their mother forever." In considering the best interests of the children we "give primary consideration to the child[ren]'s safety, to the best placement for furthering the long-term nurturing and growth of the child[ren], and to the physical, mental, and emotional condition and needs of the child[ren]." Iowa Code § 232.116(2). As our case law provides, the defining elements in children's best interests are the children's safety and need for a permanent home. See J.E., 723 N.W.2d at 801 (Cady, J., concurring specially).
Here, the best interests of the children support termination. The children demonstrated significant issues after visits with the mother, including appearing dysregulated, regressing in potty training, having trouble eating, and displaying emotional distress. Furthermore, the mother failed to acknowledge any awareness of the children's special needs. See In re T.J.O., 527 N.W.2d 417, 421 (Iowa Ct. App.1994) ("The special needs and best interests of each child must be evaluated."). And without awareness of the children's special needs, the mother will not be able to appropriately address them. See In re T.T., 541 N.W.2d 552, 556 (Iowa Ct. App. 1995) ("Considering the . . . special needs of the three children . . .it is evident [the mother] cannot adequately care for these children."). We must look toward what placement will provide the best potential for the children's physical, mental, and emotional health. The court noted the children were together in a placement with a family dedicated to meeting the children's varied needs. And with the history of the neglect and safety concerns and the mother's disregard of her contribution to that history, we find that the best interests of the children support termination.
C. Permissive Exception/Request for a Guardianship.
Third, the mother argues that "there are compelling reasons to grant a guardianship and not terminate her parental rights due to the closeness of the parent-child relationship." In this argument the mother does not identify who would serve as a guardian or how the guardianship would be a proper permanency plan. See W.M., 957 N.W.2d at 315 (noting for the many reasons that militate against a long-term guardianship, it is not a "legally preferable alternative to termination" (citation omitted)). And the mother cannot point to where this request was preserved in the record or ruled upon by the court. Thus error was not preserved and we decline to address the mother's arguments on the merits. See In re C.G., No. 23-1234, 2024 WL 260926, at *2 (Iowa Ct. App. Jan. 24, 2024).
IV. Conclusion.
In sum, we find the statutory grounds for termination were met, the best interests of the children support termination, and we decline to address issues not preserved for our consideration. We affirm the order terminating the mother's parental rights to all three children.
AFFIRMED.