Opinion
23-1055
10-25-2023
IN THE INTEREST OF K.H., Minor Child, v. A.V., Mother, Appellant.
David R. Fiester, Cedar Rapids, for appellant mother. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State. Lanny M. Van Daele of Van Daele Law, LLC, North Liberty, attorney and guardian ad litem for minor child.
Appeal from the Iowa District Court for Linn County, Carrie K. Bryner, District Associate Judge.
A mother appeals the termination of her parental rights to her child. AFFIRMED.
David R. Fiester, Cedar Rapids, for appellant mother. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State.
Lanny M. Van Daele of Van Daele Law, LLC, North Liberty, attorney and guardian ad litem for minor child.
Considered by Greer, P.J., and Schumacher and Badding, JJ.
BADDING, JUDGE.
A mother awaiting sentencing on a federal criminal charge appeals the termination of her parental rights to her child, born in 2012, under Iowa Code section 232.116(1)(f) (2022). She challenges the sufficiency of the evidence supporting that ground for termination and argues termination is not in the child's best interests because of their strong bond. Following our de novo review of the record, see In re L.B., 970 N.W.2d 311, 313 (Iowa 2022), we affirm.
The father's rights were also terminated. He does not appeal.
I. Background Facts and Proceedings
Since March 2021, the child "has been on a roller coaster of ups and downs," according to the juvenile court. That month, the mother drove her boyfriend and another man to the home of a drug dealer. Armed with guns, the boyfriend and his accomplice went inside, where the boyfriend "pistol-whipped" the dealer and demanded marijuana and money from him. The mother drove them away from the scene. One week later, the mother was stopped for a traffic violation with the boyfriend. Police found guns, ammunition, plastic bags of marijuana, THC candy, a drug scale, money, and a black ski mask in the car. More guns and drugs were found at the mother's apartment, where she lived with the boyfriend and the child.
While investigating these incidents, the Iowa Department of Health and Human Services learned the mother's boyfriend was a felony sex offender and reportedly had "unfettered access" to the child, who called him dad. With the mother evading the department's attempts to contact her, the State obtained an order in April 2021 temporarily removing the child from her custody. The mother stipulated that the child was in need of assistance, and he was placed with his paternal aunt.
The mother immediately got to work on the services the department offered to her. She completed mental-health and substance-abuse evaluations in May, participated in outpatient substance-abuse treatment, and provided negative drug screens. Because of her "steady progress," the mother's visits with the child quickly moved to semi-supervised. But in September, they went back to fully supervised when the child reported the mother called him names at a visit and told him "that, once the case was done, he would not be seeing his aunt."
The mother responded to the setback by completing a parenting class and participating in behavioral intervention services with the child. Her visits returned to semi-supervised in January 2022. By then, the mother had obtained employment, housing, and reinstatement of her driver's license. She continued to provide negative drug screens, and there was no sign of the boyfriend. With these positive steps, the juvenile court granted the mother more time to work toward reunification, and the mother's visits became unsupervised in mid-March. But just a couple of weeks later, the child found marijuana blunts in the mother's car. So the mother's visits returned to fully supervised. By May, however, they were back to unsupervised because the mother continued to test negative for illegal substances. Like before, this didn't last long-this time because the mother's boyfriend resurfaced.
In June, the mother's boyfriend was arrested on an outstanding warrant after he jumped out of her apartment's second story window. Near where he jumped, officers found a bag with a gun, ammunition, and marijuana. The boyfriend admitted that, the day before his arrest, the mother drove him to the apartment building of his accomplice in the March 2021 crime. Once there, the boyfriend "fired at least 24 shots, striking the apartments in the apartment building at least 23 times, with 17 bullet holes found" in the accomplice's apartment. The mother voluntarily entered a psychiatric unit at a hospital after the boyfriend's arrest. That same month, the mother was indicted in federal court on two criminal charges for the March 2021 incident-conspiracy to interfere with commerce by robbery and possession of firearms by a drug user.
After the mother's release from the hospital, she began participating in weekly individual therapy. And, as had been the case since the department became involved, her drug screens were negative. So the mother's visits with the child once again progressed to unsupervised by November. Yet in December, the department recommended proceeding to termination of parental rights. The State filed a petition that month, and a pretrial conference was set for January 2023.
In the weeks before the pretrial conference, the department was considering an overnight visit with the mother. But the child told providers that while he liked visits with his mother, he did not "want to start staying overnight," preferring instead to go "home [to his aunt] at the end of the visit." Around the same time, the child got in trouble at school for punching a teacher in the stomach. And two days before the pretrial conference, the mother pleaded guilty to conspiracy to interfere with commerce by robbery in exchange for dismissing the firearms charge pursuant to a plea agreement with the federal prosecutor. The agreement did not provide for any "guarantee concerning the actual sentence to be imposed," which could be as much as twenty years in prison without the possibility of parole. The mother did not know when the sentencing would take place, although she agreed it might not happen until August.
Complicating matters further, a concern arose at the pretrial conference that the maternal grandmother, who was living with the mother, was using illegal substances. So the juvenile court ordered the grandmother to provide a drug screen that day. Rather than complying, the grandmother moved out of the mother's apartment. Suspicious, the caseworker moved the mother's visits back to fully supervised. As a result, no overnight visits ever took place.
A termination hearing began in February and concluded in March. At the hearing, when questioned about the pending federal sentencing, the mother claimed ignorance: "I don't understand federal stuff so I'm still working on it." While the mother said she was ready for the child to be placed in her custody that day, she was still working on a plan for him if she was sentenced to prison, testifying it was "a work in progress." And when asked details about the shooting in June 2022, the mother "plead[ed] the fifth" on the advice of her attorney, who said there "[c]ould be a pending criminal investigation." In the end, the mother testified that it was best for the child "to wait and see what happens" with her criminal case because "being with him makes me happy, makes me better."
Following the hearing, the juvenile court terminated the mother's parental rights under Iowa Code section 232.116(1)(f). The court found that even though the mother was "cooperative with a lot of services in this case," she has shown a pattern of unsafe relationships and dangerous criminal activity within at least one of those relationships. There appears to be little insight as to how serious these actions are and how they have placed [the child] in danger and that they could continue to do so. The mother has progressed to unsupervised visits on several occasions, only to regress due to her interactions and alleged criminal activity with [the boyfriend], marijuana found in her vehicle and poor interactions with the child. She has not been able to maintain stability with interactions for more than a few months.... This case has been open for almost 2 years at the time of trial and [the child] absolutely needs permanency. The Court finds it incredulous that [the mother] thinks it is ok for her child to continue to live in limbo waiting for her to make the changes necessary to be a safe parent.
The mother appeals.
II. Analysis
We apply a three-step analysis in conducting our de novo review of terminations of parental rights, asking whether (1) a statutory ground for termination is satisfied, (2) the child's best interests are served by termination, and (3) a statutory exception applies and should be exercised to preclude termination. See L.B., 970 N.W.2d at 313; see also Iowa Code § 232.116(1)-(3). The mother challenges each of these three steps.
A. Ground for Termination
As is often the case with terminations under section 232.116(1)(f), the mother only contests the State's proof on the final element-that the child could not be returned to her custody at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(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"). She argues that despite "address[ing] the case plan expectations . . . no matter how successful she was, there was always a shadow hanging over the proceedings"-the "possibility of serving a federal prison sentence." But that was a big shadow.
See In re B.W., No. 23-0518, 2023 WL 4759462, at *3 n.5 (Iowa Ct. App. July 26, 2023) (discussing the two different interpretations in our case law for finding that children "cannot be returned" to parental custody). Our conclusion is the same under either interpretation.
On the charge she pleaded guilty to, the mother was facing up to twenty years in prison. While she hoped for probation, the mother reluctantly agreed that even when the federal sentencing guidelines were viewed "in a light most favorable to" her, she was "looking at fifty-one to sixty-three months in prison." The mother's attorney also raised the specter of new charges from the June 2022 incident when he advised the mother to invoke her Fifth Amendment privilege against self-incrimination at the termination hearing.
Despite her criminal woes, the mother complied with many of the case plan expectations. But we do not gamble with a child's future by asking the child "to continuously wait for a stable biological parent." D.W., 791 N.W.2d at 707 (citation omitted); see also In re A.R., No. 17-1631, 2017 WL 6523475, at *2 (Iowa Ct. App. Dec. 20, 2017) (affirming termination of a mother's parental rights where she was in jail awaiting sentencing on a federal charge); accord In re Y.R., No. 08-1427, 2008 WL 4877759, at *3 (Iowa Ct. App. Nov. 13, 2008) (affirming termination where the mother "is facing a substantial federal prison sentence and will be unavailable to parent"). And even as the mother was checking the boxes on the case plan, she continued her relationship with the sex-offender boyfriend, appearing to be-as the juvenile court found-"non-plussed by the criminal acts" he committed and "in which she has participated." See In re A.B., 957 N.W.2d 280, 293 (Iowa 2021) (deferring to the court's credibility determinations). With these facts, we find the State met its burden under section 232.116(1)(f).
B. Best Interests and Statutory Exception
Combining the next two steps in the analysis, the mother argues that "termination is not in the child's best interests due to the bond between the child and his mother." Separating those claims, and addressing the child's best interests first, 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). The defining elements of a child's best interests are safety and need for a permanent home. In re H.S., 805 N.W.2d 737, 748 (Iowa 2011). We consider a parent's past performance in determining whether those elements can be met. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000). We also "look to the child's long-range as well as immediate interests. This requires considering what the future holds for the child if returned to the parents." In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (citation omitted).
Here, looking both behind and ahead, we find it is in the child's best interests to terminate the mother's parental rights. After close to two years of services, the mother never progressed to overnight visits. She came close, only to fall back to supervised visits after serious lapses in judgment-like driving the get-away car for her boyfriend in the June 2022 apartment-building shooting. The mother failed to acknowledge fault in any of the actions that led to the regressions in her visits with the child. Those ups and downs harmed the child, who struggled with his behaviors as his parents kept him on that roller-coaster ride.
While on that ride, the child was missing out on a "normal childhood," according to his paternal aunt, who was his placement for most of the case. She explained that he "always has to prepare for a visit. He can't make plans in advance or plans have to get canceled," which is embarrassing to tell his friends. The aunt testified, and the caseworker agreed, that the child "wants structure and permanency." And he wants that with the aunt, who said the child told her, "I want to stay with my [aunt], this is home." See Iowa Code § 232.116(2)(b) (considering integration into a foster family and the "reasonable preference of the child" in the best-interests analysis).
As for the mother's bond with the child, see id. § 232.116(3)(c), we first note the application of a statutory exception to termination, if one exists, is "permissive, not mandatory." In re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (citation omitted). The parent "resisting termination bears the burden to establish an exception." In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). The mother points to the testimony of a family support specialist, who stated the mother had a bond with the child that would be harmed by termination. But that specialist had only been involved with the family for five months. The caseworker, who had been managing the case since September 2021, testified the child "looks to [his aunt] to meet all of his basic needs. And he knows that [she] can keep him safe." So while there is a connection between the child and the mother, we must give greater weight to the child's safety and need for a permanent home, which are best served out of the mother's care. See H.S., 805 N.W.2d at 748.
III. Conclusion
We affirm the termination of the mother's parental rights.
AFFIRMED.