In the Interest of E.T., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-0986
Filed September 12, 2018

IN THE INTEREST OF E.T.,
Minor Child,

J.R., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof,

District Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Steven W. Stickle of Stickle Law Firm, PLC, Davenport, for appellant

mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Christine D. Frederick of Zamora Taylor Woods & Frederick, Davenport,

guardian ad litem for minor child.

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
2

POTTERFIELD, Presiding Judge.

A mother appeals the termination of her parental rights to E.T., born May

2008.1 On appeal, the mother argues termination under section 232.116(1)(d), (f),

(g), and (i) (2018) is not supported by clear and convincing evidence. She also

argues she was denied reasonable efforts at reunification and termination is not in

the child’s best interest.

I. Background Facts and Proceedings.

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

family in 2013, when E.T. and his siblings were adjudicated children in need of

assistance (CINA) for their mother’s failure to keep them safe from physical and

sexual abuse, exposure to domestic violence, and homelessness. E.T. and his

siblings witnessed E.T.’s biological father assault the mother. E.T.’s biological

father was convicted of sexual assault of the mother’s oldest child, and both the

mother and E.T.’s biological father were found to have physically abused all of the

mother’s children, including E.T.

In August 2014, new concerns came to light regarding the mother’s sobriety

and living situation. The mother had trouble maintaining a residence; she moved

between friends, family, and shelters without notifying DHS. She struggled with

substance abuse and did not engage in treatment when recommended. The

mother had voluntarily placed the children with a friend before E.T. and his siblings

were adjudicated CINA in October and formally placed with the mother’s friend.

1
E.T.’s biological father had his rights terminated previously. E.T.’s legal father, his
mother’s husband at the time of his birth, is not at issue in this case. The record is unclear
whether E.T.’s legal father has retained his parental rights.
3

In January 2015, the court ordered the children be returned to the care of

their mother. E.T.’s half-sibling, J.W., refused to return to her mother’s care. The

court found she had true fears of returning to her mother’s care and placed her in

foster care. While in his mother’s care, E.T. began exhibiting problematic

behaviors at school, earning twelve days of suspension and missing nineteen days

of school between January and April. E.T. was reduced to half days at school due

to his major behavioral issues. In May, J.W.’s foster parent reported she smelled

alcohol on the mother. The mother tested positive for alcohol use.

In August, the mother was discharged from her substance-abuse treatment

program for a lack of participation and follow through. DHS made an unannounced

visit to test her for alcohol use. While the test was not completed, the mother

admitted she had relapsed and had been drinking. The mother was also not

consistently taking the children to therapy or school or participating in her own

mental-health treatment. Another concern was the mother’s paramour, a parolee

who also struggles with substance abuse, testing positive for cocaine in August.

A safety plan by DHS restricted contact between the mother’s paramour and the

children. Statements by the children suggest the mother was not following through

on the safety plan: E.T. told the guardian ad litem (GAL) the paramour does not

stay overnight, then turned to his brother and stated, “Is she the one we are

supposed to tell?”

In December, E.T. and his brother were removed. The mother had not

reengaged in substance-abuse treatment and her paramour was arrested in her

car after a short car chase. Cocaine was found in the vehicle, and her paramour
4

tested positive for cocaine use. In April 2016, there were new concerns that the

mother was assaulted by her paramour.

The mother has been inconsistent in reporting the date she became sober,

first saying it was August 28, 2015 then October 31, 2015. A neighbor credibly

reported the mother was intoxicated in January 2016. In May, the mother relapsed.

The mother has never taken it upon herself to self-report a relapse and only admits

to drinking once she is to be tested for alcohol. The mother relapsed again in

August. The mother has also been dishonest about attending therapy and picking

up her prescribed mental-health medications, reporting she was doing both to

family wellness court when the records show she was neither attending therapy

nor taking her prescriptions. In November, the district court’s permanency review

order changed the permanency goal to termination and adoption.

In April 2017, the court dismissed the State’s first petition to terminate

parental rights for E.T., but it granted the petition to terminate the mother’s parental

rights as to E.T.’s siblings J.W. and G.W. The court changed E.T.’s permanency

goal back to reunification. E.T. gradually transitioned to his mother’s custody and

was returned to her care on December 8, 2017. A condition of E.T.’s return was

that the mother’s paramour could not reside in the home until he had completed

two drug tests proving his sobriety. He never completed a drug test, despite DHS’s

efforts to test him beginning in August.

Almost immediately, the mother failed to take full parenting responsibility.

She cancelled therapy appointments for E.T. and herself, and E.T. began missing

school, exhibiting behavioral issues, and had poor hygiene. E.T. began exhibiting

anxious behaviors such as walking on his tiptoes, being distrustful of peers, and
5

needing to frequently remove himself from the classroom to calm down in a de-

escalation room. E.T. reported to his GAL and DHS that he was spending time

with the mother’s paramour, despite his mother’s assertions otherwise. In late

January, E.T. and his mother were required to complete a hair stat test. The

mother refused; E.T.’s hair tested positive for methamphetamine exposure. In

February, the court ordered removal and for reunification services to end. The

permanency goal was changed shortly thereafter. After a termination hearing held

in May, the court ordered the mother’s parental rights terminated.

The mother appeals.

II. Standard of Review.

We review termination proceedings de novo. In re A.B., 815 N.W.2d 764,

773 (Iowa 2012). We are not bound by the factual findings of the district court, but

we do give them weight—especially when assessing witness credibility. Id.

“Grounds for termination must be prove[d] by clear and convincing evidence.” In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “Our primary concern is the best

interests of the child.” Id.

III. Discussion.

The district court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(d), (f), (g), and (i). The mother contends the

requirements of each section were not established by clear and convincing

evidence. “We only need to find grounds to terminate parental rights under one of

the [sub]sections cited by the district court in order to affirm its ruling.” In re R.K.,

649 N.W.2d 18, 19 (Iowa Ct. App. 2002).
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Under section 232.116(1)(f), parental rights may be terminated 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.

The first three prongs of section 232.116(1)(f) are not in dispute: E.T. was

ten years old at the time of the termination hearing, was adjudicated a CINA in

2014, and had been removed from his mother’s custody for sixteen of the last

eighteen months at the time of the termination hearing. The mother argues E.T.

could have been returned home at the time of termination. She argues she had

housing, employment, and a clear record of cooperating with services.

At the time of the termination hearing, the mother did not have utilities at

her residence and was behind on rent. E.T. was exposed to methamphetamine

while in his mother’s care. The mother does not have a record of cooperating with

services. She has a record of sporadic engagement in therapy and substance-

abuse treatment. The mother has had several relapses during the last three and

a half years of services, but she has never self-reported without prompting. She

has lied to the court about her sobriety until substance tests confirm her alcohol

use. She refused to take a drug test when E.T. tested positive for

methamphetamine exposure and continues to have a relationship with her

paramour—an active drug user—against DHS recommendations.
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During the two months the mother had E.T. in her custody, she failed to take

E.T. to his therapy appointments. She told providers E.T. was sick, but E.T.

attended school on those days. The mother was also dishonest about her

relationship with her paramour. She refused to agree to a safety plan, which was

meant to limit contact between E.T. and her paramour until DHS could determine

whether he was using drugs. While the mother reported she was no longer in a

relationship, E.T. reported he had spent ample time in the paramour’s home with

the paramour. The district court found the mother was not credible.

E.T.’s school attendance and performance suffered in his mother’s custody.

He resumed anxious behaviors such as walking on his tiptoes, needing to use the

de-escalation room at school multiple times a day, and having trouble behaving

appropriately and trusting his peers. E.T. lost weight during his stay with his

mother. Once back in foster care, E.T. quickly regained the weight, no longer

needed the de-escalation room, and his behavior at school markedly improved.

The mother demonstrated she does not have a safe or adequate home for

E.T. and cannot meet his needs. E.T. could not be returned to his mother’s care

at the time of the termination hearing. We find the State proved the grounds for

termination by clear and convincing evidence.

Next, the mother argues she was denied reasonable efforts because the

district court’s February 2018 removal order directed that all reunification services

end.2 She argues the court made the decision to terminate when it ordered all

reunification services to end—four months before the termination hearing—and

2
To the extent the mother raises a due process argument, she did not raise the issue
below and we do not consider it here.
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that “holding a contested hearing on the [termination of parental rights] petition is

insufficient to satisfy due process when the deck has already been stacked by a

decision to stop reunification efforts made in the absence of due process.” She

also argues she was never offered further drug testing once reunification efforts

were stopped.

In its removal order, the court did provide for closing visits or “any other

services in E.T.’s best interests.” A contested permanency review hearing held on

February 12 closely followed the removal order. The mother was not present at

that hearing but was represented by counsel. The permanency goal was changed.

Services were not challenged. The time for the mother to challenge whether

reasonable efforts were made has passed. In re A.N., No. 02-1985, 2003 WL

291627, at *3 (Iowa Ct. App. Feb. 12, 2003) (finding the juvenile court did not err

in relieving DHS from providing further reunification services when services were

not challenged before the hearing changing the permanency goal to termination);

see In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005) (holding the DHS “has

an obligation to make reasonable efforts toward reunification, but a parent has an

equal obligation to demand other, different, or additional services prior to a

permanency or termination hearing”); In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App.

1999) (noting the demand for services is necessary to preserve error).

The mother received three and a half years of services. A lack of services

in the last few months of the case did not impact the outcome of the case; the

mother had failed to comply with services for an extended period of time and had

demonstrated multiple times she was not able to provide a safe home for E.T. or

to meet his needs. See In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (finding
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DHS’s failure to provide visitation in the last months before the termination hearing

did not affect the outcome of the case). When the court orders DHS to stop

providing visitation in the time period before termination, the question is whether

the lack of visitation during that time period would have impacted the outcome of

the case. Id. The court’s order discontinuing services days before the permanency

review order, without a challenge by the mother, did not affect the outcome of the

case.

The mother also argues termination is not in E.T.’s best interest because of

the strong bond they share. See Iowa Code § 232.116(2). In reaching our

conclusion, we must “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.” Id. It is apparent

that E.T. and his mother share a bond. However, since the beginning of the case

in 2014, E.T. has spent only thirteen months in his mother’s care and thirty months

in foster care. Each time E.T. is returned to his mother’s care, she is unable to

take care of her or E.T.’s mental-health needs, E.T.’s school attendance declines,

and he develops behavioral issues at school. The mother has not demonstrated

she can stay sober and provide a safe environment for E.T. Our legislature has

limited the period in which parents can demonstrate they are capable of parenting.

In re J.E., 723 N.W.2d 793, 800 (Iowa 2006). “The crucial days of childhood cannot

be suspended while parents experiment with ways to face up to their own

problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). E.T. deserves

permanency and stability. Terminating his mother’s parental rights is in his best

interest.
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We find the State proved the grounds for termination under section

232.116(1)(f) by clear and convincing evidence, the mother was provided

reasonable efforts, and termination is in E.T.’s best interests. We affirm.

AFFIRMED.