In the Interest of A.W., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-1366
Filed December 15, 2021

IN THE INTEREST OF A.W.,
Minor Child,

Z.T., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Linnea M.N. Nicol,

District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Kimberly S. Lange, Edgewood, attorney and guardian ad litem for minor

child.

Considered by Bower, C.J., Badding, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
2

DOYLE, Senior Judge.

A mother appeals the termination of her parental rights to her child. 1 She

contends the State failed to prove the grounds for termination by clear and

convincing evidence. In the alternative, she asks for more time to reunite with the

child. She also contends termination is not in the child’s best interest. We review

her claims de novo. See In re B.H.A., 938 N.W.2d 227, 232 (Iowa 2020). In doing

so, we give weight to the juvenile court’s fact findings, especially those about

witness credibility, although we are not bound by them. See Iowa R. App. P.

6.904(3)(g); In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010).

The child was removed from the mother’s care after testing positive for

methamphetamine at birth. The juvenile court placed the child in the care of the

paternal grandmother, who is a licensed foster parent and has custody of the

child’s siblings. The child was adjudicated a child in need of assistance (CINA) in

June 2020.

In the six months that followed the CINA adjudication, the mother completed

a substance-abuse evaluation and began mental-health services. But she missed

visits with the child early on and did not attend appointments regularly. Although

the mother maintained her sobriety for a period, she missed three drug tests in

December before testing positive for methamphetamine in January 2021. The

mother again failed to provide a sample for testing on many occasions before and

after testing positive for marijuana and methamphetamine in May 2021. Because

1 The father’s parental rights were also terminated. He did not appeal.
3

the safety concerns that existed when the case began continued, the juvenile court

directed the State to start termination proceedings.

The juvenile court terminated the mother’s parental rights under Iowa Code

section 232.116(1)(h) and (l) (2021). We may affirm if the record supports

termination on either ground. See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012).

The court may terminate under section 232.116(1)(h) if it finds:

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

The only issue is whether the child could be returned to the mother’s care at the

time of the termination hearing. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(interpreting the term “at the present time” to mean “at the time of the termination

hearing”).

The mother argues that she fulfilled all expectations during the CINA

proceedings “except that she struggled with relapse and sobriety.” But her

substance use is, of course, what led to the CINA adjudication. The mother has a

long history of methamphetamine and marijuana use and lost her parental rights

to four other children as a result. Yet the mother continued to use

methamphetamine while pregnant with this child, who tested positive for

methamphetamine at birth. Despite the services offered to the mother to help her
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maintain sobriety, she failed to do so.2 Her ongoing substance use prevents the

return of the child to her care. See In re J.S., 846 N.W.2d 36, 42 (Iowa 2014)

(holding it is reasonable for the court to conclude “a parent’s active addiction to

methamphetamine is ‘imminently likely’ to result in harmful effects to the physical,

mental, or social wellbeing of the children in the parent’s care”); A.B., 815 N.W.2d

at 776 (noting “an unresolved, severe, and chronic drug addiction can render a

parent unfit to raise children”).

2 In the termination ruling, the juvenile court made these observations about the
mother’s demeanor during her testimony at the termination hearing based on its
familiarity with the mother at many other court hearings:
On August 6, 2021, the Court observed the mother to be “tweaking”
as she testified. The mother was unable to sit still, was shaking her
leg, and picking her teeth during her testimony. The mother’s
behavior was beyond what would be expected of one who would be
nervous while testifying and exhibited involuntary muscle
movements that are common when someone is using or coming
down from methamphetamine. The Court does not find the mother’s
testimony regarding her recent abstinence to be credible.
The mother argues this finding is “without basis” because “[n]o other party brought
this up during questioning and the court did not submit any evidence that it was
qualified as an expert to determine whether or not the mother was under the
influence of methamphetamine.”
We credit the juvenile court’s observations because of its unique ability to
view “the ‘witness’s facial expressions, vocal intonation, eye movement, gestures,
posture, body language, and courtroom conduct.’” Albert v. Conger, 886 N.W.2d
877, 880 (Iowa Ct. App. 2016) (citation omitted). In contrast, we have only a cold
transcript to review. See id. The juvenile court can determine whether a witness
is exhibiting something more than nervous behavior common to those
unaccustomed to testifying in legal proceedings. And the court’s familiarity with
the mother placed it in a position to judge her behavior specifically. The juvenile
court can also determine whether a party’s courtroom behavior suggests
methamphetamine use. See, e.g., In re L.B., No. 17-1439, 2017 WL 6027747, at
*2 (Iowa Ct. App. Nov. 22, 2017) (crediting the district court’s observation that the
mother’s behavior pointed to methamphetamine use in determining the child could
not be safely returned to the mother’s care). But, regardless, the most damning
evidence of the mother’s continued substance use are the positive drug screens
from January and May 2021 and her many missed tests over the last nine months
of the proceedings, which we presume would have been positive.
5

The mother makes a passing reference to the requirement that the State

“make every reasonable effort to return the child to the child’s home as quickly as

possible consistent with the best interests of the child.” Iowa Code § 232.102(7).

She claims the State “failed to make more efforts in assisting [the mother] in

obtaining drug testing as this appeared to be the only major issue of concern.”

Even if this single statement is enough to raise a challenge to reasonable efforts

on appeal, the mother failed to preserve the claim below. See In re C.H., 652

N.W.2d 144, 148 (Iowa 2002) (noting a parent must complain to the juvenile court

about the adequacy of the services “at the removal, when the case permanency

plan is entered, or at later review hearings”).

The mother also asks, in the alternative, for more time to reunite with the

child. Iowa Code section 232.104(2)(b) allows the court to continue the child’s

placement for another six months if doing so will eliminate the need for the child’s

removal. But to delay permanency, the 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). Based on the mother’s history, we are unable to make such a

finding. See B.H.A., 938 N.W.2d at 233 (noting a parent’s past performance shows

the quality of the future care that parent can provide).

Finally, the mother contends termination is not in the child’s best interest.

To terminate parental rights, the evidence must show termination is in the child’s

best interest. See In re R.K.B., 572 N.W.2d 600, 602 (Iowa 1998). In determining

a child’s best interest, we look to the framework described in section 232.116, see
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In re A.H.B., 791 N.W.2d 687, 690-91 (Iowa 2010), which requires that we “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).

The child was removed from the mother’s care at birth and has never been

returned. More than one year passed from removal to the termination hearing—

twice the time required by statute—and yet the mother failed to address her

substance use and show she can maintain sobriety. This child is not equipped

with a pause button. See In re A.M., 843 N.W.2d 100, 112 (Iowa 2014) (holding a

court must not deprive children permanency on the hope that someday the parent

will be able to provide a stable home); In re A.C., 415 N.W.2d 609, 614 (Iowa 1987)

(noting that if the plan to reconcile parent and child fails, “all extended time must

be subtracted from an already shortened life for the children in a better home”).

While her mother has squandered her time, the child has thrived in the care of the

paternal grandmother along with two siblings. Termination is in the child’s best

interest.

We affirm the termination of the mother’s parental rights.

AFFIRMED.