In the Interest of S.R. and R.C., Minor Children, A v. Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-0838
Filed July 9, 2015

IN THE INTEREST OF S.R. and R.C.,
Minor Children,

A.V., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Wapello County, William S. Owens,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights to two children.

AFFIRMED.

Sarah Wenke of Wenke Law Office, Ottumwa, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes and Kathrine S.

Miller-Todd, Assistant Attorneys General, Gary Oldenburger, County Attorney,

and Elizabeth Kenyon, Assistant County Attorney, for appellee.

Jeffrey Logan of Patrick F. Curran, P.C., Ottumwa, for father of S.R.

Stephan H. Small of Stephan H. Small, P.C., Fairfield, attorney and

guardian ad litem for minor child.

Robert Bozwell Jr. of Bozwell Law Office, Centerville, for father of R.C.

Considered by Tabor, P.J., McDonald, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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TABOR, P.J.

Amanda is the mother of six-year-old S.R. and two-year-old R.C. She

contends her close relationship with the children should have precluded

termination under Iowa Code section 232.116(3)(c). The juvenile court

considered this factor, but did not find clear and convincing evidence of such a

strong attachment that termination would be detrimental to the children. We

agree with the juvenile court’s assessment of the evidence and affirm the

termination order.

This family first came to the attention of the Iowa Department of Human

Services (DHS) in 2011. The report alleged Amanda was using illegal drugs

while caring for her daughter S.R., who was then three years old, prompting

removal and adjudication of S.R. as a child in need of assistance (CINA) in April

2011. S.R. was returned to Amanda’s custody after more than two years, and

the court dismissed those CINA proceedings in August 2013. By then Amanda

had a second daughter, R.C.

But the family again came to the attention of DHS in January 2014, when

Amanda and her paramour were alleged to be under the influence of illegal

drugs, putting both S.R. and R.C. at risk. Amanda took a drug test and the

results came back positive for methamphetamine, marijuana, and a prescription

medication. Amanda admitted taking prescription pain medication but denied

any other drug use. The children were removed from Amanda’s care and on

February 26, 2014, the court adjudicated them as CINA. The court held a
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dispositional hearing on April 2, 2014, affirming the children’s placement in foster

care.

Despite recommendations from DHS, Amanda has not fully addressed

either her mental health or substance abuse needs. She participated in a mental

health assessment in July 2014 and received a diagnosis of anxiety and

depression, but she failed to follow up with the recommended individual therapy.

As for substance abuse treatment, she did enroll at the Heart of Iowa facility in

August 2014. But at admission she tested positive for amphetamines, marijuana,

and benzodiazepines. Amanda was lax in her participation and left the program

nine days later against medical advice.1

In the fall of 2014, Amanda failed to exercise visitation with S.R. and R.C.

for a seven-week stretch. “She just kind of went off the grid, Amanda did, for a

while,” according to the case worker. When Amanda resumed visits, she

revealed she was five months pregnant with a third child. Amanda denied using

drugs during her pregnancy, but the baby’s umbilical cord tested positive for

methamphetamines, amphetamines, opiates, and marijuana when she was born

in March 2015.2

On January 13, 2015, the State filed a petition seeking to terminate

Amanda’s parental rights.3 The guardian ad litem for the children filed a

response in support of termination. The court held a hearing on April 20, 2015.

In support of its petition, the State offered testimony from the case workers who

1
She did not re-enter substance abuse treatment until February 2015.
2
That child is not part of these proceedings.
3
The petition also sought to terminate the rights of both fathers. The court granted
those terminations, but neither father is a party to this appeal.
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recommended termination based on Amanda’s unaddressed mental health and

substance abuse issues. Amanda took the stand in opposition to the termination.

On April 27, 2015, the juvenile court issued an order terminating Amanda’s

parental rights under Iowa Code section 232.116(1)(f)4 (2013) as to S.R. and

section 232.116(1)(h)5 as to R.C. Amanda now appeals.

We review termination of parental right proceedings de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014).

Amanda does not contest the statutory grounds for termination under

section 232.116(1) nor does she allege termination was not in the best interest of

the children under section 232.116(2). Accordingly, she waives any claim of

error related to those grounds. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa

1996) (“[O]ur review is confined to those propositions relied upon by the

appellant for reversal on appeal.”). Therefore, we affirm the termination of her

parental rights under section 232.116(1)(f) as it relates to S.R. and (h) as it

relates to R.C. We also find termination serves the best interests of the children

under the framework in section 232.116(2).

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To terminate under section 232.116(1)(f), the State must show by clear and convincing
evidence the child is four years of age or older; has been adjudicated in need of
assistance; has been removed from the physical custody of the parents for at least
twelve of the last eighteen months, or the last twelve consecutive months; and there is
clear and convincing evidence that at the time of the termination hearing the child could
not be returned to the parent’s custody as provided in section 232.102. See Iowa Code
§ 232.116(1)(f).
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Under section 232.116(1)(h), the court must find clear and convincing evidence that the
child is three years old or younger, has been adjudicated a child in need of assistance,
has been removed from the parent’s physical care for the requisite period of time (at
least six months), and cannot be returned to the parent’s custody at the time of
termination. See Iowa Code § 232.116(1)(h).
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Amanda’s only challenge involves subsection (3). “A finding under

subsection 3 allows the court not to terminate” even when the statutory grounds

are met under subsection (1). A.M., 843 N.W.2d at 113. The factors weighing

against termination in subsection (3) are permissive, not mandatory; the juvenile

court may use its discretion, “based on the unique circumstances of each case

and the best interests of the child,” in deciding whether to apply the factors in this

subsection to save the parent-child relationship. Id.

Amanda argues clear and convincing evidence existed that termination

would be detrimental to the children because of the closeness of their

relationship with her. See Iowa Code § 232.116(3)(c). She asserts “the family

was happy to see and spend time with each other.”

The witnesses indicated the sisters shared a strong bond and did not

dispute that Amanda had a warm relationship with her daughters. But the

evidence did not show the girls were so close to their mother that termination

would result in long-term harm to S.R. and R.C. After reviewing the evidence

anew, we agree with the juvenile court’s conclusion:

Amanda loves her children, but there is no evidence to show she
has such a closely bonded relationship with them that severing that
relationship would be detrimental to the children. The children are
doing well in foster care, and based on the record presented, . . .
the children are in need of permanency. The record shows the best
way for that to be achieved is through termination and adoption.

Amanda has continued to use drugs during the course of these proceedings and

has been dishonest about that drug use. While we do not diminish the

satisfaction the children take from visits with their mother, their prospects are

brighter when their mother’s illicit drug use is not an ongoing concern. The
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children are adoptable and need permanency that Amanda is unable to provide.

S.R. has been out of Amanda’s care for all but ten months in the past four years.

R.C. has been out of Amanda’s care for fifteen months, a majority of the child’s

life. The children’s bond with Amanda does not outweigh their need for

permanency. See In re D.W., 791 N.W.2d 703, 708-09 (Iowa 2010) (holding

courts must consider whether disadvantage caused by termination would be

more compelling than parent’s inability to care for children’s developing needs).

Therefore, we affirm the termination.

AFFIRMED.