Opinion
23-1835
03-27-2024
IN THE INTEREST OF N.D. and C.D., Minor Children, S.M., Mother, Appellant, D.D., Father, Appellant.
Danielle M. Ellingson of Noah, Smith, Sloter &Ellingson PLC, Charles City, for appellant mother. Mark A. Milder of Mark Milder Law Firm, Denver, for appellant father. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State. Sarah A. Reindl of Reindl Law Firm PLC, Mason City, attorney and guardian ad litem for minor children. Nellie O'Mara of O'Mara Wilson Law PLLC, Mason City, attorney for minor children.
Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, Judge.
A mother and father separately appeal the termination of their parental rights to their children. AFFIRMED ON BOTH APPEALS.
Danielle M. Ellingson of Noah, Smith, Sloter &Ellingson PLC, Charles City, for appellant mother.
Mark A. Milder of Mark Milder Law Firm, Denver, for appellant father. Brenna Bird, Attorney General, and Tamara Knight, Assistant Attorney General, for appellee State.
Sarah A. Reindl of Reindl Law Firm PLC, Mason City, attorney and guardian ad litem for minor children.
Nellie O'Mara of O'Mara Wilson Law PLLC, Mason City, attorney for minor children.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
BOWER, CHIEF JUDGE
A mother and father separately appeal the termination of their parental rights to their children, born in 2011 and 2009. Both contend the State failed to prove the grounds for termination cited by the juvenile court, termination is not in the children's best interests, and the court should apply a permissive exception to preclude termination. Upon our review, we affirm both appeals.
I . Background Facts and Proceedings
This family came to the attention of the Iowa Department of Health and Human Services (the department) in May 2021, due to reports of "self-harming behaviors," drug use, pornography, truancy, and "suicidal ideations" by then-eleven-year-old C.D. Several months prior, the child was hospitalized for self-harm and threatening to kill others, including the father. The father acknowledged "being a heavy drinker," and the child reported her self-harm tendencies were exacerbated by the father's drinking. Therapy had been "recommended for [the child] multiple times over the past year." The juvenile court determined the parents "need[ed] ongoing support to help address the risk factors to the child." C.D. was adjudicated in need of assistance (CINA), and services were initiated for the family.
The parents were uncooperative with and unresponsive to the department's efforts. They did not complete paperwork to allow C.D. to engage in treatment. The mother maintained "she did not want anyone coming into their home." The court's dispositional review order noted, "The problems for which the court became involved have not resolved. The level of compliance by family members is indicative of the family's progress."
The court's October review order noted the mother "refused to consider submitting to a psychological evaluation," believing the focus should be on C.D. The court observed C.D.'s "significant mental health and behavioral issues" "did not develop in a vacuum, and as we can see with [the f]ather's unresolved issues with alcohol abuse, sometimes parents have problems too." Meanwhile, the father's drinking had "escalated," and he had recently assaulted C.D., resulting in the mother and the children fleeing the home. A no-contact order was entered against the father, and the father was ordered to leave the family home. In December, the father was arrested for his third operating-while-intoxicated offense, driving while barred, and assault on a peace officer.
The court entered a modification order in March 2022, noting C.D. was refusing to go to school or counseling sessions, would not take her medications, and had increased incidents of self-harm and aggression toward the mother and N.D. The mother completed a psychological evaluation; her "intellectual capacities and constant state of being overwhelmed by the routine daily requirements of parenting ha[d] raised concerns about her ability to provide adequate care of [the children]." The mother continued to take N.D. to see the father, despite the fact the father was "actively drinking there." The parents also violated the no-contact order by allowing the father to be around the children. The mother consented to C.D.'s placement outside her home, agreeing a higher level of care was needed for C.D. to "get the help she needs." The court transferred custody of C.D. to the department for shelter placement, pending placement in a psychiatric medical institution for children (PMIC).
A few months later, N.D. was adjudicated CINA. The court's September review order observed the mother "continue[d] to provoke a number of issues," including C.D.'s negative behaviors and allowing the children to be around the father in violation of the no-contact order. The father evaded contact with the department but for an incident when the caseworker happened to see him outside and was able to have a conversation. The father admitted his continued substance use and having accompanied the mother and N.D. to see C.D. at her placement. When the mother learned the caseworker had spoken to the father, she accused the caseworker "of stalking her family." The court found, "This family is making things worse for the children and are doing nothing to improve the situation. This will not continue." N.D. was removed from the mother's care and placed in family foster care. The court ordered the mother's visits to be supervised.
The court's January 2023 review order noted the mother had not attended family therapy with C.D. "with any regularity." The mother had attended only one in-person family session, "which was four months ago," and she had canceled three others and "no showed" for five. Meanwhile, C.D. completed her placement at the PMIC and moved to a temporary placement in family foster care until a more permanent home was identified. The mother's phone calls to N.D. at his foster home were supervised due to her "inappropriate" communications with the child, including telling him "the foster home was to blame for [his] removal." The mother's cognitive evaluation showed her adaptive functioning was "significantly impaired in all seven components" and opined she would "require supervision in order to be around her children and minors." The mother continued to refuse to allow the department in her home, which "raise[d] a number of concerns." The mother reported she "would like to resume [a] relationship" with the father if he "were to resolve his issues." Meanwhile, the father had had one visit with N.D. since the child's removal. The father was on probation and had "several jail sentences to complete." There were "on-going concerns about his honesty," including whether he was living with the mother. The father was in jail from April to June.
In May, C.D. and N.D. were placed together in the same foster home, where they have remained since. The department's July report opined the placement was "going well" and the children were attending therapy and participating in behavioral services. The department noted the mother continued to "frequently call and send inappropriate text messages to the foster parent, as she did to previous placements." The department reported the children "cannot return to the care of their parents; both parents have shown that they do not have their children's best interests in mind."
The State initiated termination-of-parental-rights proceedings in August 2023. The termination hearing took place in November. The guardian ad litem and department recommended termination of parental rights.
At the time of the hearing, C.D. had been out of the parents' care for twenty months and N.D. had been out of their care for over one year. The children had been placed together for six months. The caseworker reported C.D. and the foster mother had "established a trusting and good bond." C.D. expressed "that she wishes to remain in the current foster home." N.D. was "less talkative and less assertive, [but] he's definitely wanting to get his cat back." Since May 2021, the parents had made little progress on the issues precipitating the department's initial involvement. The court entered an order terminating parental rights pursuant to Iowa Code section 232.116(1)(f) (2023). The mother and father appeal separately. 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). 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 . Discussion
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. They claim the State failed to show by clear and convincing evidence the children could not be returned safely to their custody at the time of the termination hearing. See Iowa Code § 232.116(1)(f)(4). At the termination hearing, the father acknowledged the children could not be returned to his custody. Instead, he requested the children be returned to the mother's care while he "work[ed] through the process to getting back involved with them." The mother did not testify but requested through her attorney "that the children be returned or an extension of time be given for the children to return." According to the mother, she "followed through with services that were requested of her by the Department," and the evidence "did not clearly establish the child[ren] would be unable to return to [her] care." We disagree.
She does not request additional time on appeal.
The mother has knowingly and repeatedly allowed the father to be around the children in violation of court and department orders. Moreover, after years of failing to provide C.D. with mental and behavioral help the child needed at a critical time in her young life, the mother continued to ignore the "psychological pain" she caused to C.D. up to the time of the termination hearing. The caseworker testified C.D. had "recently" engaged in self-harm triggered by contact with the mother. The juvenile court found:
Both parents maintain that they have done everything they need to. Father admits that the children cannot return to him today, which establishes the grounds for termination as to him. (Termination must be determined on the existing situation today.) He does ask that they be permitted to return to Mother as she "can take very good care of them" and that she has done everything she needs to. Having sat through the testimony earlier today, it is alarming that he feels Mother is in a position to safely parent the children. As the termination hearing has approached, Mother has bombarded [C.D.] with text messages and calls (also outside the scheduled times when she is permitted to call) that are so upsetting to [C.D.] that she resumed cutting. Neither parent seems at all concerned that [C.D.] hurt herself, and both seem utterly oblivious to the fact that Mother's words alone are so painful to [C.D.] that she engaged in self-harm- just as she did frequently when she was residing with her parents.
Based on these and other facts replete in the record, we agree with the court's finding the children could not be returned to the custody of either parent at the time of the termination hearing. Iowa Code section 232.116(1)(f) was satisfied.
B. Best Interests
Termination also must serve the children's best interests. See Iowa Code § 232.116(2). Our statutory best-interests framework considers "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]." Id. "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).
In the month prior to the termination hearing, the mother disclosed concerns about the father's continued alcohol use. In the same timeframe, C.D. reported she could hear the father in the background during phone calls with the mother. In that vein, the department had "concerns that the parents may still be together." The caseworker testified the father "realized that he was kind of late starting to truly engage in services but that he was starting to participate now," but she opined, "[U]nfortunately, we're at a point where we're not allowed an unlimited amount of time for children to wait on their parents to do what they need to to return home. They've had plenty of time and we're not to that point yet." The court noted the mother needed assistance from the former family-centered-services provider "each and every single day when the children aren't even in her care." While the mother argues she should have been allowed to progress to semi-supervised or unsupervised contact with the children, the court responded, "We don't let unsafe parents be alone with their kids to see if something bad happens."
We must consider what the future likely holds for the children if returned to their parents. "We gain insight into the child[ren]'s prospects by reviewing evidence of the parent's past performance-for it may be indicative of the parent's future capabilities." In re M.S., 519 N.W.2d 398, 400 (Iowa 1994), holding modified by In re P.L., 778 N.W.2d 33, 35 (Iowa 2010). These children need stability and attention to meet their needs. They have integrated into a foster home "where they are well cared for." Termination is in the children's best interests.
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). Both parents claim the closeness of the parentchild bonds should prompt the court to apply an exception to termination. See Iowa Code § 232.116(3)(c). Although the children and the mother do have a bond, to apply the exception under paragraph (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)). The mother has not established termination of her rights will be detrimental to the children. Likewise, even considering the father's bond with the children, which as it relates to C.D. the father acknowledged was "not at all" as "strong as it once was," he has not established termination of his rights will be detrimental to the children.
We affirm the termination of the parents' parental rights.
AFFIRMED ON BOTH APPEALS.