In the Interest of A v. Minor Child, T v. Mother, C.S., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-0290
Filed April 6, 2016

IN THE INTEREST OF A.V.,
Minor child,

T.V., Mother,
Appellant,

C.S., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Carroll County, Adria Kester,

District Associate Judge.

The mother and father separately appeal the termination of their parental

rights to their minor child. AFFIRMED ON BOTH APPEALS.

Kevin E. Hobbs, West Des Moines, for appellant mother.

Mark J. Rasmussen of Rasmussen Law Office, Jefferson, for appellant

father.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd and Janet

L. Hoffman, Assistant Attorneys General, for appellee State.

Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie Center, for minor

child.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2

POTTERFIELD, Judge.

The mother and father of A.V., born in November 2014, separately appeal

the termination of their parental rights. The mother and father both maintain the

statutory grounds for termination were not proved by clear and convincing

evidence, termination is not in A.V.’s best interests, and two permissive factors

weigh against terminating their parental rights—the closeness of the parent-child

relationship and a relative having care of the child.

I. Background Facts and Proceedings.

The Iowa Department of Human Services (DHS) became involved with the

family in December 2014 following allegations the mother was selling

methamphetamine out of the family home. Initially, A.V. remained in her

mother’s care. The father was in and out of county jail, with one of the pending

charges against him involving a domestic incident with A.V.’s paternal

grandmother. That incident had taken place while the paternal grandmother was

holding or caring for A.V., and the father was charged with child endangerment

as a result.

The State filed a petition alleging A.V. was a child in need of assistance in

February 2015. The petition stated that the mother had admitted using

methamphetamine and marijuana.

An adjudicatory hearing was held on April 8, 2015, and the parents

stipulated that the facts in the petition were true and A.V. was a child in need of

assistance. A.V. remained in her mother’s custody with the protective

supervision of DHS. The father was being held in county jail.
3

A.V. was removed from her parents’ custody on April 15, 2015. The

mother had missed multiple appointments for evaluations that would enable her

to enter a drug rehabilitation program. Additionally, a drug test taken by the

mother came back positive for methamphetamine. When questioned about the

result, the mother admitted using methamphetamine, marijuana, and alcohol.

The court ordered A.V.’s custody with DHS and placed A.V. with the maternal

grandparents.

During the pendency of the case, the father was convicted of four crimes:

felon in possession of a firearm, domestic abuse assault, burglary in the third

degree, and child endangerment. In July 2015, he was sentenced to a term of

incarceration not to exceed five years.

On October 19, 2015, the State filed a petition to terminate both the

mother’s and the father’s parental rights pursuant to Iowa Code section

232.116(1)(d), (e), (h), (j), and (l) (2015).

A hearing was held on the State’s petition on January 7, 2016. The father

appeared telephonically from prison. He testified he had a parole hearing

scheduled in mid-February 2016, and he believed he would receive parole at that

time. Otherwise, he had eleven more months before his sentence was

discharged. Since he became incarcerated, the father had not had visits with,

made phone calls to, or sent letters to A.V. He testified he was taking classes

geared toward correcting his issues with criminal thinking, domestic violence, and

anger. The father believed he had a place to live and an employment opportunity

that he could take advantage of whenever he was released from prison. The

father testified that he wanted to be a part of A.V.’s life, although his family
4

members testified they had never seen the father parent A.V., even before he

was incarcerated.

At the hearing, the mother testified that she been sober for thirty-four

days. On December 2, 2015, she had been admitted to a residential drug

treatment program. The program was intended to last one to two years, and the

mother intended to take advantage of the full two years of treatment. The mother

admitted that she had been using methamphetamine throughout the entire case

until the day she entered the rehabilitation program. She testified she first used

methamphetamine approximately fourteen years earlier. She had maintained

sobriety for “five to seven” years since then, but otherwise she had consistently

used methamphetamine. The mother had been “successfully discharged” from

drug treatment at least seven times previously, but she admitted that she had

never stopped using during those treatments. The mother testified that A.V.

would be allowed to move into the residential program with her almost

immediately after the hearing, but the DHS social worker questioned whether that

was possible. Typically the program only allowed children to move in with

parents after the parent had met certain expectations, and the mother had not yet

been in treatment long enough for that to have occurred.

The maternal grandmother had cared for A.V. since she was removed

from the mother’s care in April 2015. She was also responsible for supervising

visits between the mother and A.V. The mother admitted that she had attended

less than a quarter of the weekly visits she was scheduled to have. The maternal

grandmother testified that the mother had only seen A.V. three times since

August 2015. When she did visit, the mother did not bring toys, food, or diapers
5

with her. The maternal grandmother also testified she believed there was “no

bond” between A.V. and the mother.

On February 1, 2016, the juvenile court terminated the mother’s parental

rights pursuant to Iowa Code section 232.116(1)(d), (e), and (h). The father’s

parental rights were terminated pursuant to section 232.116(1)(d), (e), (h) and (j).

The mother and father separately appeal.

II. Standard of Review.

We conduct a de novo review of termination of parental rights

proceedings. In re H.S., 805 N.W.2d 737, 745 (Iowa 2011). An order terminating

parental rights will be upheld if there is clear and convincing evidence of grounds

for termination under section 232.116. In re D.W., 791 N.W.2d 703, 706 (Iowa

2010). Evidence is considered “clear and convincing” when there are no serious

or substantial doubts as to the correctness of conclusions of law drawn from the

evidence. Id.

III. Discussion.

Iowa Code chapter 232 follows a three-step analysis governing the

termination of parental rights. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010).

The three-step framework is well established and need not be repeated here.

See id.

When the juvenile court terminates parental rights on more than one

ground, we may affirm the order on any ground we find supported by clear and

convincing evidence in the record. See D.W., 791 N.W.2d at 707. We choose to

address each of the parents’ grounds-for-termination challenges under
6

paragraph (h).1 Paragraph (h) requires the State to establish by clear and

convincing evidence the child is three years of age or younger, has been

adjudicated a child in need of assistance, has been removed from the physical

custody of the parents for at least six of the last twelve months, and cannot be

returned to the custody of the child’s parents as provided in section 232.102.

See Iowa Code § 232.116(1)(h)(1)-(4). Each parent challenges the fourth

element—that the child could not be returned to the parent’s custody.

The father maintains the statutory grounds for termination were not met

because A.V. could have returned to the mother’s care at the residential

treatment program and because “he believed he would be released in a short

period of time and therefore could establish a meaningful relationship upon his

release.” First, we note that it is well-established that one parent does not have

standing to advocate for the other’s parental rights. See In re K.R., 737 N.W.2d

321, 323 (Iowa Ct. App. 2007). Insofar as we are addressing the father’s appeal,

we do not consider whether A.V. could have been returned to the mother’s care.

Next, we are unconvinced by the father’s argument that the grounds were not

met because he anticipated receiving parole approximately five weeks after the

hearing. Even if the father was correct, A.V. could not be returned to father’s

care even upon his release because the father had not seen A.V. in several

months, and as the social worker testified, “[A.V.] wouldn’t know who [the father]

is because she has not had any kind of contact with him.” Additionally, the father

cannot use the incarceration as a justification for his lack of relationship with A.V.

1
Although they appeal separately, the mother and father raise the same arguments and
we will address them as one when possible.
7

See In re C.A.V., 787 N.W.2d 96, 101 (Iowa Ct. App. 2010). The grounds for

terminating the father’s parental rights to A.V. pursuant to Iowa Code section

232.116(1)(h) have been met.

The mother maintains A.V. could have been returned to her care because

she was sober and living at the residential facility; she faults the State for

pursuing termination of her parental rights on a “‘too little too late’ theory.” “The

legislature has established time frames to balance the need to provide parents

with a reasonable opportunity to resume care of their [child] and the [child’s] long

term best interests.” In re A.M., 843 N.W.2d 100, 109 (Iowa 2014). The mother

continued to use methamphetamine for over seven months after A.V. was

removed from her care before she sought treatment. It is undisputed that the

mother did not enter treatment until after the petition to terminate had been filed.

We acknowledge the progress the mother made leading up to the termination

hearing, but the mother’s month of sobriety was not enough to establish that she

could parent A.V. full-time going forward. The social worker summed it up when

she testified:

[The mother] has a very lengthy history of drug abuse, she
has two other children that she has been unable to care for on a
full-time basis, and only recently has engaged in treatment. And,
you know, although I am glad that she has sought that treatment,
one month isn’t enough of a time frame for me to be convinced that
she's going to be able to maintain sobriety when we have such a
long history of drug abuse in the past and some other treatment
programs that have failed to result in sobriety.

Moreover, the mother often failed to exercise her to right to see A.V. throughout

the pendency of the case, and the maternal grandmother testified there was “no

bond” between the mother and A.V. In child welfare cases, we must follow the
8

statutory time line for permanency. See In re N.F., 579 N.W.2d 338, 341 (Iowa

Ct. App. 1998). The grounds for terminating the mother’s parental rights to A.V.

pursuant to Iowa Code section 232.116(1)(h) have been met.

Both parents maintain termination of their parental rights is not in A.V.’s

best interests. A.V. is a young child who has not had much of a relationship, if

any, with her mother or father for approximately half of her life. At the time of the

termination hearing, she was being cared for by her maternal grandparents and

her maternal aunt, and her aunt was a possible option for adoption. Neither

parent has established that they can properly care for A.V. or provide her with a

stable environment. Termination of the mother’s and father’s parental rights will

enable A.V. to achieve permanency, which is in her best interests. See In re

A.M., 843 N.W.2d 100, 113 (Iowa 2014) (citing In re J.E., 723 N.W.2d 793, 802

(Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in a

child’s best interest” are the child’s safety and her “need for a permanent

home”)).

Lastly, the parents maintain termination is not necessary because a

relative had care of A.V. and termination would be detrimental to A.V. due to the

closeness of the parent-child relationship. See Iowa Code § 232.116(3)(a), (c).

Iowa Code section 232.116(3)(a) allows the court to decline to terminate where a

relative has legal custody of a child. Here, although A.V. was placed in the care

of a maternal relative, she was still in the legal custody of DHS. This permissive

factor is not applicable. Additionally, the record does not support either the

mother’s or father’s assertion that termination of their parental rights would be

detrimental to A.V; this permissive factor does not weigh against termination.
9

IV. Conclusion.

Because the father was incarcerated and the mother had only recently

entered treatment for a longstanding addiction to methamphetamine, A.V. could

not be returned to either parent’s care. Termination of the parental rights is in

A.V.’s best interests, and no permissive factor weighs against termination. We

affirm.

AFFIRMED ON BOTH APPEALS.