In the Interest of N.B., Minor Child, L.A., Mother, J.B., Father

IN THE COURT OF APPEALS OF IOWA

No. 15-2080
Filed March 9, 2016

IN THE INTEREST OF N.B.,
Minor Child,

L.A., Mother,
Appellant,

J.B., Father,
Appellant.
________________________________________________________________

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

District Associate Judge.

A mother and father each appeal from the order terminating their

respective parental rights. AFFIRMED ON BOTH APPEALS.

Jennie L. Wilson-Moore of Wilson Law Firm, Marshalltown, for appellant

mother.

Douglas E. Cook of Cook Law Firm, Jewell, for appellant father.

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

Attorney General, for appellee State.

Darrell G. Meyer, Marshalltown, attorney and guardian ad litem for minor

child.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

Jerry, the father, and Lindy, the mother, of N.B., appeal from the order

terminating their respective parental rights. On appeal, they contend the juvenile

court erred in determining the best interest of the child was served by termination

of their parental rights and the juvenile court erred in not granting them an

additional six months’ time to pursue reunification with the child.

I.

N.B., born in 2009, is the only child of Jerry and Lindy. The parents have

struggled to provide for N.B. due to their criminal conduct, unresolved substance

abuse, and unresolved mental health conditions. The Iowa Department of

Human Services (IDHS) founded reports against Lindy for failure to provide

proper supervision in 2010 and again in 2011. A guardianship was initiated in

2011, and the child’s paternal uncle and aunt were appointed the child’s

guardians. The guardianship was established because neither parent was

available to care for N.B.; Jerry was in prison, and Lindy was in and out of jail.

Jerry was released from prison on parole on November 20, 2013, and the

guardianship was terminated on May 1, 2014. By August 2014, Jerry was on his

way back to prison, and Lindy was unavailable due to her placement in a six-

month drug treatment program. At that time, N.B. was formally removed from his

parents’ custody and placed with IDHS. Ultimately, the child was placed with the

paternal uncle and aunt. The child has remained in their physical care

throughout these proceedings.

N.B. was adjudicated in need of assistance in September 2014. Following

the adjudication of the child, the parents continued as they had in the past. In
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August 2014, when N.B. was removed from the parents, Jerry had criminal

charges pending and was in jail. Lindy was in a drug treatment program at a

residential facility in Ames. In November 2014, Jerry was transferred to a

residential facility in Marshall County. Lindy had supervised phone contact with

the child in November 2014, which was her first contact with N.B. since January

2012. In December 2014, Jerry visited with the child. Both parents were

maintaining employment. Late in December 2014, Lindy’s work locker was

searched. The search uncovered prescription pills that were not prescribed to

her. Her employment was terminated and a revocation hearing was scheduled.

In January 2015, Jerry canceled a visit with the child and failed to return to the

residential facility following work. He was picked up two weeks later and taken to

jail in Marshall County. In February 2015, Lindy and the child had a visit during

which Lindy violated her probation by using a cell phone and by getting money

from outside resources without approval. Lindy was transferred to Hardin County

Jail. At her revocation hearing, it was determined Lindy would be moved to the

halfway house in Ames again; however, because of the additional charges from

earlier that month, she was transferred back to Hardin County Jail. Later in

February 2015, Jerry was transferred to prison in Fort Dodge. In March 2015,

Lindy was transferred from Hardin County Jail to a residential treatment facility in

Clinton. By April, however, there was a warrant for her arrest out of Story County

for forgery and illegal use of a credit card. Lindy left the treatment facility and

stated she was unsure if she would return; she did return to the facility after less

than a day, but she did not immediately turn herself in on the warrant. As a

result, visitation was postponed due to the risk of Lindy being arrested while on a
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visit with N.B. A day later, Lindy was in Clinton County Jail before being

transferred to Story County Jail. At that point, visitation with both parents was

suspended due to their instability.

On April 15, 2015, Lindy was released from jail and told to contact her

probation officer within twenty-four hours. She returned to the treatment facility

in Clinton but did not contact her probation officer. On April 17, she was sent

back to Story County Jail for contempt of court. On April 22, she left the jail,

stating she could return to the Clinton facility. She did not return to the facility;

instead, she apparently went to stay with a friend in Clinton. On April 28, she

was admitted to a Clinton hospital for injuries sustained following a serious

domestic assault in which she was the victim. On April 30, she was transferred

to Hardin County Jail. On June 1, 2015, Lindy was transferred to prison in

Mitchellville.

On September 14, 2015, the State filed its petition to terminate the

parents’ rights in N.B. At the time of the termination hearing in November 2015,

both parents were in prison. Both anticipated they might be paroled by January

or February 2016. Following parole, it was anticipated that Lindy would have

inpatient treatment and Jerry would have to transition into a halfway house.

Lindy testified that children could visit her at the facility upon her parole. She

further testified she could stay there up to two years. Jerry testified he believed

he would be able to leave the halfway house within ninety days. Jerry noted that

he had been in halfway houses twice before, completing one program

successfully. The unsuccessful stay was in January 2015, when he absconded
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due to a belief that the workers were not treating him fairly. On November 23,

2015, the juvenile court terminated the parents’ respective rights in N.B.

II.

We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). We examine both the facts and law,

and we adjudicate anew those issues properly preserved and presented. See In

re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). We will uphold an order

terminating parental rights only if there is clear and convincing evidence

establishing the statutory grounds for termination of the parent’s rights. See In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000). Evidence is “clear and convincing”

when there are no serious or substantial doubts as to the correctness of the

conclusions of law drawn from the evidence. Id.

Termination of parental rights under Iowa Code chapter 232 follows a

three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the

court must determine if a ground for termination under section 232.116(1) has

been established. See id. Second, if a ground for termination is established, the

court must apply the framework set out in section 232.116(2) to decide if

proceeding with termination is in the best interests of the child. See id. Third, if

the statutory best-interests framework supports termination of parental rights, the

court must consider if any statutory exceptions set forth in section 232.116(3)

should serve to preclude termination. See id.
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III.

We have little trouble concluding the State proved grounds for termination

pursuant to Iowa Code section 232.116(f). That code section authorizes the

termination of parental rights if the court finds all of the following have occurred:

(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance pursuant
to section 232.96.
(3) The child has been removed from the physical custody of the child’s
parents for at least twelve of the last eighteen months, or for the last
twelve consecutive months and any trial period at home has been less
than thirty days.
(4) There is clear and convincing evidence that at the present time the
child cannot be returned to the custody of the child’s parents as
provided in section 232.102.

Iowa Code § 232.116(f) (2013). None of the elements are in dispute. N.B. was

older than four at the time of the termination hearing. The child was adjudicated

a child in need of assistance in September 2014. N.B. has not lived with either

parent since August 2014. At the time of the termination hearing, the child could

not be returned to the custody of either parent because each was incarcerated.

We next address the best interests of the child. The second part of the

analysis compels us to “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). In doing so, we may consider whether the parent’s ability to

provide for the needs of the child is affected by the parent’s mental capacity,

mental condition, or imprisonment for a felony; the child’s ability to integrate into

any foster family, when applicable; and the relevant testimony of an individual

with whom the child has been placed. Id.
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There is clear and convincing evidence neither parent can provide for the

physical, mental, and emotional needs of the child. Although past conduct is not

determinative of future conduct, it is probative. See In re K.F., No. 14–0892,

2014 WL 4635463, at *4 (Iowa Ct. App. Sep. 17, 2014) (“What's past is

prologue.”); see also In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (noting a

parent's past conduct is instructive in determining future behavior); In re C.K.,

558 N.W.2d 170, 172 (Iowa 1997) (concluding a parent's past behavior is

indicative of “the quality of care the parent is capable of providing in the future”).

As set forth above, both parents have a long history of substance abuse and

criminal behavior. Neither parent has been able to maintain a residence outside

placement with the Department of Correctional Services for years. Both parents

have founded reports with IDHS. This history, as a predictor of future behavior,

militates in favor of terminating the parents’ respective rights. See, e.g., In re

C.M., No. 14–1140, 2015 WL 408187, at *4–5 (Iowa Ct. App. Jan. 28, 2015)

(affirming termination of parental rights where the parents sought more time but

evidence established they were unlikely to resolve their substance abuse

problems); In re H.L., No. 14–0708, 2014 WL 3513262, at *4 (Iowa Ct. App. July

16, 2014) (affirming termination of parental rights where the father had history of

substance abuse and criminal conduct); In re J.L., No. 02–1968, 2003 WL

21544226, at *3 (Iowa Ct. App. July 10, 2003) (concluding that relapse of parent

despite offer of services supported termination of parental rights); In re N.F., 579

N.W.2d 338, 341 (Iowa Ct. App. 1998) (“[I]n considering the impact of a drug

addiction, we must consider the treatment history of the parent to gauge the
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likelihood the parent will be in a position to parent the child in the foreseeable

future.”).

In contrast, the paternal aunt and uncle have demonstrated an ability to

provide stability for and meet the needs of the child. N.B. has been placed with

their aunt and uncle during the pendency of this case. N.B. has bonded with

them and their children and integrated into their family. When a service provider

raised an issue related to the safety of their home, they made arrangements to

move into a safer home.

Jerry and Lindy contend the juvenile court should have granted them an

additional six months to attempt reunification. To defer permanency for six

months, the juvenile court must “enumerate the specific factors, conditions, or

expected behavioral changes which comprise the basis for the determination that

the need for removal of the child from the child’s home will no longer exist at the

end of the additional six-month period.” Iowa Code § 232.104(2)(b). Both

parents argue their anticipated parole dates as reasons to grant the extension.

As an initial matter, it is not clear that either parent will be paroled or in a position

to assume custody of the child. Lindy may be required to stay up to two years in

a transitional facility. The child would not be allowed to reside with her in the

facility. Jerry believes his stay in a halfway house may only last ninety days

following his expected release in January, but that is uncertain. Further, based

on the parents’ past conduct, it is unlikely the need for removal will no longer

exist at the end of the six-month period. The parents have engaged in the same

patterns of behavior for years without change. The last time Jerry was paroled,

he absconded from the halfway house and was subsequently incarcerated. The
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argument fails. See, e.g., In re L.W., No. 12-0072, 2012 WL 1247131, at *1

(Iowa Ct. App. Apr. 11, 2012) (affirming termination of parental rights and

declination of additional time where both “parents also have significant criminal

histories, repeated incarcerations, and several founded child abuse

assessments”); In re C.T., No. 08-0139, 2008 WL 783361, at *2 (Iowa Ct. App.

Mar. 26, 2008) (affirming termination where father lacked bond with the child due

to history of incarceration).

AFFIRMED ON BOTH APPEALS.