CourtListener 2993559

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IN THE COURT OF APPEALS OF IOWA

No. 15-0876
Filed September 23, 2015

IN THE INTEREST OF D.S.,
Minor Child,

T.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel Block,

Associate Juvenile Judge.

A mother appeals from the order terminating her parental rights.

AFFIRMED.

Nina Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant

mother.

Michael Lanigan of Law Office of Michael Lanigan, Waterloo, for father.

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

Hoffman, Assistant Attorneys General, Linda Fangman, County Attorney, and

Steven Halbach, Assistant County Attorney, for appellee State.

Melissa Anderson-Seeber of the Juvenile Public Defender’s Office,

Waterloo, for minor child.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, C.J.

A mother appeals from the juvenile court’s order terminating her parental

rights to her child, D.S.1 The mother maintains the juvenile court abused its

discretion by admitting the testimony of a substance abuse counselor. She

claims the counselor shared “privileged and confidential” information. She also

maintains D.S. could be returned to her care at the time of the termination

hearing, or, in the alternative, she should have been given a six-month extension

to work towards reunification. Lastly, the mother argues that due to the

closeness of the bond she and D.S. share and because D.S. was in a relative

placement, the juvenile court should have exercised its discretion not to

terminate her parental rights.

Because medical privilege is not a ground for excluding evidence at a

termination hearing, the district court did not abuse its discretion is admitting the

report and testimony of the substance abuse evaluator. The statutory grounds

for termination have been met, and a six-month extension is not warranted.

Termination is in D.S.’s best interests, and no permissive factor weighs against

termination. We affirm the juvenile court’s order.

I. Background Facts and Proceedings.

D.S. was born in August 2011. The family first came to the attention of the

Iowa Department of Human Services (DHS) in June 2014, when D.S.—who was

not yet three years old—was found wandering by himself outside on a street for

approximately twenty minutes. The mother was found sleeping in the home.

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The father’s parental rights were also terminated. He does not appeal.
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Due to concerns regarding lack of proper supervision and use of

methamphetamine, D.S. was removed from the parents’ custody.

On October 6, 2014, D.S. was adjudicated a child in need of assistance

(CINA) pursuant to Iowa Code section 232.2(6)(c)(2). He was placed in the

custody of his maternal relatives on November 20, 2014, where he remained

throughout the proceedings.

The mother was ordered to complete a mental health evaluation and a

substance abuse evaluation. She completed the substance abuse evaluation in

August 2014. Due to the answers the mother provided the evaluator, substance

abuse treatment was not recommended. The mother maintained she was not

using drugs, and DHS encouraged her to complete drug testing as ordered to

establish that she was not using. The mother largely refused, although she did

appear for testing twice. She appeared once in November 2014, and the test

results showed the mother had used methamphetamine and amphetamine. A

second test completed in late December 2014 returned clean.

The mother completed a mental health evaluation in February 2015. She

was diagnosed with antisocial disorder, and a minimum of three months of

mental health counseling was recommended. In the evaluation, the doctor

noted, “Given [the mother’s] oppositional attitude, her denial of needing parenting

assistance, and the results of this evaluation, her prognosis is poor.” The mother

did not attend any mental health counseling.

In early March 2014, the mother contacted the social worker to discuss

entering the Heart of Iowa drug rehabilitation program. The program is a

residential treatment facility where parents and their children reside together
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while the parent receives drug treatment. The mother was advised that she

would need to take another drug evaluation since the first one did not

recommend treatment. On March 31, 2015—the day before the scheduled

termination hearing—the mother obtained the drug evaluation. At the evaluation,

the mother admitted to using methamphetamine daily, usually intravenously.

She told the evaluator she had used methamphetamine earlier that same day.

The mother stated she was last clean during her pregnancy with D.S. and for a

short time following. Based on the mother’s self-reporting, the evaluator

determined the mother met the criteria for amphetamine dependence and

recommended residential treatment.

The termination hearing was held on April 1, 2015. The mother did not

attend. The mother’s attorney stated that she anticipated the mother being at the

hearing and she had spoken with her about it the day before. It was unknown

why the mother did not attend as she had not yet began residential treatment.

The mother’s attorney was not able to contact her during the proceedings.

At the hearing, the social worker testified that the mother was currently

unemployed. DHS was unaware where the mother was residing as she had

been kicked out of her mother’s home and would not provide DHS with a new

address to reach her.

The juvenile court terminated the mother’s parental rights to D.S. pursuant

to Iowa Code section 232.116(1)(e) and (h) (2015). The mother appeals.

II. Standard of Review.

Our review of termination decisions is de novo. In re P.L., 778 N.W.2d 33,

40 (Iowa 2010). We give weight to the juvenile court’s findings, especially
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assessing witness credibility, although we are not bound by them. In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010). An order terminating parental rights will be

upheld if there is clear and convincing evidence of grounds for termination under

section 232.116. Id. 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.

III. Discussion.

A. Testimony by Substance Abuse Counselor.

The mother maintains the juvenile court abused its discretion by admitting

the report completed by and the testimony of the substance abuse evaluator

because “privileged and confidential” information was admitted. The mother

argues that even though she signed a release that allowed the evaluator to share

information with DHS and the Heart of Iowa, the mother was unaware the

information would be provided to the court.

In Iowa, there is no common law physician-patient privilege. In re A.M.,

856 N.W.2d 365, 371 (Iowa 2014). The privilege is strictly statutory. Id. Iowa

Code section 232.96(5) provides an exception to the privilege:

Neither the privilege attaching to confidential communications
between a health practitioner or mental health professional and
patient nor the prohibition upon admissibility of communications
between husband and wife shall be ground for excluding evidence
at an adjudicatory hearing.

Section 232.96(5) applies to termination hearings as well as CINA proceedings.

See State ex rel. Leas In re O’Neal, 303 N.W.2d 414, 420 (Iowa 1981). Thus, the

juvenile court did not abuse its discretion in admitting the testimony and report of

the evaluator. Id. (“The admissibility of opinion testimony, lay or expert, has not
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been distilled to distinct rules. Rather, it rests in the sound discretion of the trial

court, and the trial court’s determination will not be disturbed no appeal unless

manifest abuse of that discretion causing prejudice to the complaining party is

shown.”).

B. Grounds for Termination.

Iowa Code chapter 232 termination of parental rights follows a three-step

analysis. P.L., 778 N.W.2d at 39. The court must first determine whether a

ground for termination under section 232.116(1) has been established. Id. If a

ground for termination has been established, the court must apply the best-

interest framework set out in section 232.116(2) to decide if the grounds for

termination should result in termination of parental rights. Id. Finally, if the

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

court must consider if any of the statutory exceptions set out in

section 232.116(3) weigh against the termination of parental rights. Id.

On appeal, we may affirm the juvenile court’s termination order on any

ground we find supported by clear and convincing evidence. D.W., 791 N.W.2d

at 707. One of the grounds upon which the juvenile court terminated the

mother’s parental rights to D.S. was pursuant to Iowa Code section

232.116(1)(h). The juvenile court may terminate a parent’s parental rights

pursuant to section 232.116(1)(h) when, at the time of the termination hearing,

the child was three years of age or younger, had been adjudicated a CINA, had

been removed from the parent’s care for at least six months, and could not be

returned to the parent’s care.
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Here, the mother only disputes the juvenile court’s determination that D.S.

could not be returned to her care at the time of the termination hearing. The

mother failed to appear for the termination hearing, and it was unclear why she

did not attend. No one knew where she was residing, although the mother had

told the social worker previously she would be allowed to return to her mother’s

home if D.S. was in her custody.

The mother also admitted to the substance abuse evaluator less than

twenty-four hours before the termination hearing that she was using

methamphetamine daily and had been for multiple years. The mother was

unemployed. She had not followed through with any mental health or substance

abuse treatment in spite of being diagnosed with antisocial disorder and

amphetamine dependence. There is clear and convincing evidence D.S. could

not be returned to the mother’s care at the time of the termination hearing.

The mother also maintains that even if D.S. could not be returned to her

care at the time of the hearing, she should have been given a six-month

extension to pursue reunification. Pursuant to Iowa Code section 232.104(2)(b),

the court may order a six-month extension if the need for the removal of the child

from the child’s home will no longer exist at the end of the additional period.

Here, we cannot say a six-month extension is warranted. Although the mother

recently completed the mental health and substance abuse evaluations as

ordered, she had yet to obtain any forms of treatment or rehabilitation. The

doctor who completed her mental health evaluation believed her prognosis was

poor. The child’s life should not be held in limbo for six additional months when
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the parent does not appear for the termination hearing and the parent’s

whereabouts are unknown.

C. Best Interests.

The mother maintains termination of her parental rights is not in D.S.’s

best interests. She argues that, as his mother, she is best suited to meet his

physical, emotional, and mental needs.

D.S. has been in the care of his maternal aunt and uncle during the

pendency of the case. The care coordinator testified that while he is “semi-

bonded” to his mother, he is more bonded with the aunt and uncle. He is doing

well in the relative placement. Permanency in the form of termination of the

mother’s parental rights and adoption is in D.S.’s best interests. See In re J.E.,

723 N.W.2d 793, 800 (Iowa 2006) (“[I]t is in [the child’s] best future interests to be

free for adoption so he may be placed in a permanent and stable home with

consistent care.”).

D. Permissive Factors.

The mother maintains the juvenile court should have exercised its

discretion not to terminate her parental rights because of the closeness of the

bond between D.S. and the mother and because D.S. is in a relative placement.

See Iowa Code § 232.116(3)(a), (c).

Upon our de novo review of the record, the permissive factors do not

weigh against termination of the mother’s parental rights. We have addressed

the mother’s claim of her bond to the child, and it does not weigh against

termination. The guardian ad litem recommended termination. Additionally,
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although D.S. is placed with a relative, the maternal aunt and uncle caring for

D.S. stated they no longer have a relationship with the mother.

IV. Conclusion.