Opinion
23-1079
10-25-2023
IN THE INTEREST OF C.H. and K.H., Minor Children, B.H., Mother, Appellant.
Tonya A. Oetken of Oetken Law Firm, Inc., Ankeny, for appellant mother. Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for Appellee State. Emily Deronde of Deronde Law Firm, PLLC, Johnston, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for Boone County, James B. Malloy, District Associate Judge.
A mother appeals the termination of her parental rights to her children. AFFIRMED.
Tonya A. Oetken of Oetken Law Firm, Inc., Ankeny, for appellant mother.
Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney General, for Appellee State.
Emily Deronde of Deronde Law Firm, PLLC, Johnston, attorney and guardian ad litem for minor children.
Considered by Bower, C.J. and Ahlers and Chicchelly, JJ.
CHICCHELLY, JUDGE.
A mother appeals the termination of her parental rights to her children. She challenges the evidence supporting the grounds for termination under Iowa Code section 232.116(1)(f) (2023) and the determination that termination is in the children's best interests. She also contends the State failed to make reasonable efforts to return the children to her custody and seeks to avoid termination based on one of the scenarios set forth in section 232.116(3).
In 2021, the juvenile court adjudicated the children in need of assistance (CINA) based on the mother being under the influence of methamphetamine while the children were in her care. The children were removed from her custody in September 2021 because she failed to follow the safety plan. After a brief placement with the father, the children were removed and placed with their paternal grandmother in January 2022. They have remained in her care since then.
During the pendency of the CINA proceedings, the mother entered several substance-abuse-treatment programs but never completed any. She most recently tested positive for methamphetamine use in March 2023, two months before the termination hearing. At the time of the termination hearing, the mother was awaiting placement in another substance-abuse treatment program.
The juvenile court granted the State's petition to terminate the mother's parental rights under Iowa Code section 232.116(1)(f). This section applies to children four years or older who have been adjudicated CINA and removed from the parent's custody for twelve months. See Iowa Code § 232.116(1)(f)(1)-(3). To terminate under this section, the State must also prove by clear and convincing evidence that the child could not be returned safely to the parent's custody at the time of the termination hearing. See In re A.B., 956 N.W.2d 162, 168 (Iowa 2021) (interpreting Iowa Code § 232.116(1)(f)(4)). The mother challenges the evidence showing the children could not be returned to her custody.
Clear and convincing evidence shows that the mother's unresolved substance-abuse issues prevented the children's return to the mother's custody. The mother has a history of substance abuse and was diagnosed with a severe methamphetamine use disorder. Despite the offer of services to address her substance abuse, the mother never completed treatment. During her most recent attempt at House of Mercy, the mother remained on Phase 1 of the program from the time she entered in October 2022 until her unsuccessful discharge in late January 2023. The mother missed several drug tests while at House of Mercy before testing positive for methamphetamine in March 2023, just two months before the termination hearing. On this basis, the State proved the grounds for termination under section 232.116(1)(f). See In re W.M., 957 N.W.2d 305, 313 (Iowa 2021) ("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 her custody at the time of the termination hearing.").
The mother challenges the admissibility of a March 2023 hair test that was positive for methamphetamine based on lack of foundation. But as the State notes, there was other evidence in the record showing the mother tested positive for methamphetamine in March 2023, including testimony from her probation officer, who noted that the mother tested positive for methamphetamine during a test he administered that month before the hair test was conducted.
We turn next to the mother's challenge to the reasonable-efforts requirement. Iowa Code section 232.102(7) (2021) states,
If the court orders the transfer of the custody of the child to the department or other agency for placement, the department or agency shall submit a case permanency plan to the court and shall make every reasonable effort to return the child to the child's home as quickly as possible consistent with the best interests of the child.
But the reasonable-efforts requirement is not a strict substantive requirement for termination, so failure to make reasonable efforts does not itself preclude termination of parental rights. In re L.T., 924 N.W.2d 521, 527 (Iowa 2019). Rather, the scope of the services provided impacts the State's burden of proving the children cannot be safely returned home. Id.
The mother complains that reasonable efforts ended almost two months before the termination hearing. Although the reasonable-efforts requirement continues until there is a final written termination order, the supreme court has clarified that the "obligation to provide reasonable efforts until does not necessarily require [the State] to provide reasonable efforts toward reunification." Id. at 528. "If returning the child to the family's home is not appropriate or not possible, reasonable efforts shall include the efforts made in a timely manner to finalize a permanency plan for the child." Iowa Code § 232.102(10)(a). The mother's positive test for methamphetamine two months before the termination hearing precluded the children's return to her custody. Although the mother does not specify the reasonable-efforts that should have been made in the final two months of the CINA case, we cannot foresee that providing two more months of services would have changed the result here.
The mother also contends that termination is not in the children's best interests. When determining the children's best interests, we "give primary consideration to the child's safety, to the best placement for furthering the longterm nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child." Iowa Code § 232.116(2). "This consideration may include '[w]hether the parent's ability to provide the needs of the child is affected by the parent's mental capacity or mental condition' and the child's integration into a preadoptive home." In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (citing Iowa Code § 232.116(2)(a), (b)).
The evidence shows that termination is in the children's best interests. The children are just five and six years old. At the time of the termination hearing, they had been removed from the mother's custody for twenty months, and the mother's visits with the children remained supervised. The mother's unresolved issues with substance abuse prevented the children's return to her custody both at the time of termination and anytime in the foreseeable future. See In re B.H.A., 938 N.W.2d 227, 233 (Iowa 2020) (noting that the mother's past performance indicates the quality of care she can provide in the future). Meanwhile, the children have spent over a year placed with their paternal grandmother, who was approved to adopt the children. The children are doing well in that placement and wish to remain there. Terminating the mother's parental rights allows the paternal grandmother to adopt the children, which serves their best interests. See In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009) (recognizing that "at some point, the rights and needs of the children rise above the rights and needs of the parent").
Finally, the mother argues against termination based on Iowa Code section 232.116(3). That provision states that the court need not terminate parental rights in some cases. See Iowa Code § 232.116(3). Under section 232.116(3)(a), the court need not terminate the parent-child relationship if a relative has legal custody of the child. Section 232.116(3)(c) provides that termination is unnecessary if clear and convincing evidence shows that "termination would be detrimental to the child at the time due to the closeness of the parent-child relationship." The parent resisting termination bears the burden of proving one of the circumstances listed under section 232.116(3) applies. In re A.S., 906 N.W.2d 467, 476 (Iowa 2018). But the decision to apply section 232.116(3) to avoid termination is "permissive, not mandatory" and depends on the unique facts of each case. Id. at 475.
We decline to preserve the parent-child relationship based on one of the scenarios listed in section 232.116(3). Keeping the children in a long-term but impermanent placement with the grandmother is not preferred over termination. See id. at 477; see also In re C.D., 509 N.W.2d 509, 513 (Iowa Ct. App. 1993) (recognizing "the permanency and stability needs of the children must come first"). Nor does the record support the mother's claim that terminating her parental rights would harm the children. In a statement to the court, the guardian ad litem reported that the children were comfortable in the grandmother's care and wished to remain there. She added that the children "indicated they did not want to see mom any more than they currently do" and mentioned the mother only if asked a direct question about her. Because we decline to apply the provisions of section 232.116(3) to preserve the parent-child relationship, we affirm the termination of the mother's parental rights.
AFFIRMED.