T.M., Mother, Appellant. v. << (2023)

The mother appeals the termination of her parental rights to her three-year-old child, K.P. She claims the State failed to prove a ground for termination, show that termination was in K.P.’s statutory best interest, or provide reasonable efforts. The mother also asserts that the district court should have applied a permissive exception to termination given her and K.P.’s bond. On our de novo review, we disagree with the mother's claims and affirm.

I. Background Facts and Proceedings

The mother gave birth to K.P. in June 2020. Two years later, the Iowa Department of Health and Human Services (HHS) received a report that K.P.’s father was “dealing illegal substances” out of the home he shared with the mother. After several unsuccessful attempts, an investigating HHS worker made contact with the parents six days later. The worker “did not observe any indicators of drug sales” or drug use in the home but requested the parents undergo drug testing by sweat patch “since they had avoided [the] worker for so long.”

The mother tested positive for amphetamines and methamphetamine. She told the worker she had not used methamphetamine in two-and-a-half years. But, when confronted with the test results, the mother admitted to using more recently—claiming she smoked methamphetamine the same day the worker showed up. HHS assessed the child abuse report as founded for denial of critical care based on the mother's use of methamphetamine while caring for K.P.

This wasn't the mother's first run-in with HHS. In 2021, HHS also temporarily removed K.P. from the mother's care due to methamphetamine use. The mother complied with court-ordered services at that time, and HHS returned K.P. to her in January 2022. The juvenile court also previously terminated the mother's rights to three older children in 2016. That termination was based on physical abuse and methamphetamine use by the older children's father and the mother's inability to separate from him and comply with mental-health services. While HHS did not report any methamphetamine use by the mother at that time, it did note concerns about the mother wanting to use her prescription medications to “feel numb.” The three older children were adopted.

Because of the mother's positive drug-test results, HHS placed K.P. in the care of the maternal uncle's girlfriend and the mother was allowed supervised visitation. K.P. also spent two to four days a week with her biological siblings’ adoptive family.

The mother obtained a substance-abuse and mental-health evaluation in September 2022. The evaluator had previously diagnosed her with depression and attention-deficient disorder in 2018. The evaluator updated the mother's assessment to include post-traumatic stress disorder, generalized anxiety disorder, and severe tobacco and amphetamine-use disorders. The evaluator recommended treatment, including both individual and group therapy, and told the mother to “not engage with any use of mood-altering substances, except those prescribed and monitored by a medical professional.”

The same month as her evaluation, the mother tested positive for amphetamines, methamphetamine, and THC. But she had a prescription for amphetamines and a medical marijuana card. A few weeks later, she tested negative for methamphetamine in a urine test.

Around the same time, the family who adopted the older siblings—and had been licensed foster parents in the past—moved to intervene in the juvenile proceedings. Their petition asserted they had been watching K.P. at least once a week since she was three weeks old, and they requested the juvenile court place K.P. in their care while reunification efforts were ongoing. K.P.’s guardian ad litem (GAL) also requested she be placed with her siblings and thus the foster parents.

The juvenile court adjudicated K.P. as a child in need of assistance (CINA) in November. The court ordered the mother to “participate in substance abuse services and follow all recommendations of her evaluation,” and delayed ruling on the foster parents’ motion to intervene.

Following the CINA adjudication, the mother told an HHS worker that she had started weekly one-on-one therapy with a local mental-health provider. She also told HHS she was looking into group therapy and support groups in the area. Despite the mother's avowed steps toward treatment, she again tested positive for methamphetamine.

As for K.P., HHS moved the child's placement to the foster parents. The mother had supervised visits from Wednesday morning until Friday evening. Neither HHS nor the local provider had safety concerns about the mother and K.P.’s visits. In November, the person supervising the overnight visits “need[ed] to step away” from the case. The mother moved to three supervised visits per week and video-chatted with the child on FaceTime in the evenings. A provider described the mother as “affectionate, nurturing, and attentive with [K.P.] during visits.” The two would watch television, read books, sing, use TikTok, make crafts, and play with K.P.’s toys. The mother fed K.P., changed her, and assisted in potty training. The provider reported one particular occasion where the mother brought Secret Santa gifts to the foster parents’ residence for all of her children.

By the time of the juvenile court's March 2023 permanency hearing, the mother was complying with services but still struggling with controlled-substance abuse. She tested positive for methamphetamine twice in December and once in January. By February, official sweat-patch tests and a private hair test showed negative results.

An HHS worker reported that the mother was attending two support groups “on alternating weeks.” The mother's therapist reported that the mother was generally “doing well in therapy” and engaging in treatment, although she missed almost a third of her appointments. The juvenile court reminded the mother that, “[i]n order to achieve reunification, [she] will need to maintain sobriety and continue to engage in her own mental health and substance use services as recommended.”

By May, HHS was increasingly concerned about the mother's lack of progress. She had not attended therapy since February and was once again abusing methamphetamine, as evidenced by positive test results in March and April. A private hair test in late April was reportedly negative for methamphetamine. Her attendance at support groups also grew inconsistent.

Meanwhile, a provider opined that the mother's visitation with K.P. continued to go well. The two were now visiting twice per week under supervision, and the mother talked to K.P. daily by phone or FaceTime. The mother planned appropriate activities for K.P. during visits and parented appropriately when the child was throwing tantrums, potty training, or suffering from eczema. But an HHS worker reported that K.P. was also “thriving in her environment with [the foster parents] and her biological siblings, who have been a vital part of her life since birth.”

At a permanency hearing in May, the juvenile court directed the State to petition for termination based on the mother's persistent controlled-substance abuse and her lack of attendance in therapy. Shortly after this hearing, the mother reported mental-health concerns with her depression to a provider. She described how she was having flashbacks to her “goodbye visit” with her older children and relayed how traumatic that termination case was for her. Based on these concerns, the mother requested she be admitted to a hospital for evaluation and potential treatment. She continued to call K.P. daily. Four days after admission to the hospital, the mother was successfully discharged with changes to her medication.

Following her discharge, the mother's methamphetamine abuse temporarily declined as evidenced by two test results negative for methamphetamine. She told HHS that she was attending multiple substance-abuse support groups weekly. She was also attending therapy consistently, but her therapist was not providing substance-abuse treatment. The mother and K.P. continued to have positive visits. During their last reported visit, the mother gave K.P. an early birthday present and K.P. told her “I love it, thank you mommy.”

Based on her progress, the mother and the State agreed to continue the termination trial to work toward reunification if “she continued to do well.” But the mother began abusing methamphetamine again, with a positive test result in June.

The termination trial took place in July. The HHS case manager testified that K.P. could not be returned to the mother's care due to her controlled-substance abuse, as evidenced by the numerous positive test results. The case manager also criticized the mother's substance-abuse-treatment attendance, explaining: “[W]e're in the same place we were when this case started. Methamphetamine continues to be a concern. I commend [the mother] for attending some groups, but she has not attended consistently.”

The case manager also testified that K.P. was bonded to the foster family: “She's placed with her siblings. In my observations of [K.P.] in the home, that is home to her, and she calls [the foster parents] mom and dad. She seems to be very close to her siblings.” Based on integration into the foster parents’ home, the HHS manager opined that placing K.P. with them was in K.P.’s best interests. This particular HHS manager had never observed K.P. and the mother's visits but agreed it appeared the mother was committed to K.P and loved her.

A provider who had observed the mother and K.P. together opined, “[K.P.] is young, but there seems to be a pretty strong bond there. And [the mother] is very receptive to teaching if there's something that needs to be tweaked or changed in her parenting style that she senses her needs and interacts with her during the visit.” As far as this provider could tell, the mother appeared sober when interacting with K.P. during visits.

The mother testified and claimed she had not used methamphetamine since June 2022 and the most recent drug screens were false positives. She also testified that she had regularly attended her two support groups and narcotics anonymous. Despite a claim that she “wouldn't pick drugs over [her child],” the mother also testified, “I honestly couldn't tell you what the [drug-testing] patch is going to bring up in my system next.” She asked the court for an extension to work toward reunification, describing herself as “begging” for more time.

The juvenile court terminated the mother's parental rights to K.P, consistent with the GAL's recommendation. The court also terminated K.P.’s father's parental rights. Only the mother appeals.

II. Standard of Review

We review termination decisions de novo. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). “We are not bound by the factual findings of the juvenile court, though we give them respectful consideration, particularly with respect to credibility determinations.” Id. The State must present clear and convincing evidence to support the grounds for termination. Id.

III. Discussion

The mother advances four arguments challenging termination. First, in her view, the State did not offer clear and convincing evidence of a ground for termination under Iowa Code section 232.116(1) (2023). Next, she asserts that termination is not in K.P.’s best interests. See Iowa Code § 232.116(2). Third, she contends that severing her parental rights would harm K.P. because of the closeness of the parent-child bond. See id. § 232.116(3)(c). And last, she contends HHS did not provide reasonable efforts toward reunification. See id. § 232.102A. We address each of these arguments in turn.

A. Statutory Elements

The juvenile court terminated the mother's parental rights to K.P. under Iowa Code section 232.116(1)(e), (g), (h), and (l). The mother challenges each of those grounds on appeal, but we need only find clear and convincing evidence of one to affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa Ct. App. 1999).

We focus our analysis on paragraph (h). For the court to terminate on that ground, the State must prove:

(1) The child is three years of age or younger.

(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 six months 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.

Iowa Code § 232.116(1)(h). The mother directs her argument to the fourth element, asserting, “There was no evidence offered to suggest that there was any threat of harm to K.P.” or that “she would not have been well cared for.”

We find the mother's claim is contradicted by the record. Her abuse of methamphetamine, punctuated by sporadic negative test results, was ongoing through the date of termination. Methamphetamine is a particularly pernicious controlled substance, and controlling case law recognizes the hazard a caregiver's addiction to methamphetamine poses to children in an addict's care. In re A.B., 815 N.W.2d 764, 776 (Iowa 2012) (citing State v. Petithory, 702 N.W.2d 854, 859 (Iowa 2005)). Here, the mother has not meaningfully addressed her addiction, and she admitted under oath she could not say whether she would test positive for controlled substances on the date of the termination trial. K.P. could not be safely returned to her care. See In re J.P., No. 19-1633, 2020 WL 110425, at *2 (Iowa Ct. App. Jan. 9, 2020) (concluding that a child couldn't be returned to the parents’ care because the parents’ “relationship with methamphetamine” was not over). We affirm the juvenile court's analysis of section 231.116(1)(h).

In addition to the substance-abuse concerns, we recognize the mother's visits remained fully supervised as of the termination trial. This also weighs against returning the children to her care. See In re C.N., No. 19-1861, 2020 WL 567283, at *1 (Iowa Ct. App. Feb. 5, 2020) (“[The mother] never progressed to unsupervised visits or trial home visits. Without this necessary progression, we cannot say the children could have returned to the mother's care.”).

B. Best Interests of the Child

The mother next maintains that termination of her parental rights was not in K.P.’s best interests. Under our statutory best-interests framework, we primarily weigh “the child's safety, ․ the best placement for furthering the long-term nurturing and growth of the child, and ․ the physical, mental and emotional conditions and needs of the child.” Iowa Code § 232.116(2). On this question, we are mindful that “we cannot deprive a child of permanency after the State has proved a ground for termination under section 232.116(1) by hoping someday a parent will learn to be a parent and be able to provide a stable home for the child.” In re P.L., 778 N.W.2d 33, 41 (Iowa 2010).

We find termination is in K.P.’s best interests. While the mother made some positive changes, she took at least one step backward for every step forward. She has not meaningfully acknowledged her methamphetamine addiction or demonstrated a consistent period of sobriety that would enable her to safely parent. Meanwhile, K.P. has been involved in these proceedings for most of her life and she deserves permanency. She is integrated into a foster family which includes her siblings. See Iowa Code § 232.116(2)(b) (directing us to consider integration of the child into the foster family). We agree with the juvenile court that termination is in K.P.’s best interests.

C. The Permissive Bond Exception

The mother also claims that the juvenile court should have found and applied a permissive exception to termination because of the bond between her and K.P. Section 232.116(3)(c) allows the juvenile court to decline termination if it “would be detrimental to the child at the time due to the closeness of the parent-child relationship.” Id. § 232.116(3)(c). A parent resisting termination has the burden to prove this permissive exception by clear and convincing evidence, and our case law recognizes that—without more—neither a parent's love nor the mere existence of a bond is enough to prevent termination. See In re A.B., 956 N.W.2d 162, 169–70 (Iowa 2021); In re D.W., 791 N.W.2d 703, 709 (Iowa 2010).

Before reaching the merits, there is a substantial question as to whether this issue is properly preserved for our review. The mother's attorney did not argue any permissive exceptions below, though some of the questions posed to the mother, local provider, and HHS case manager developed facts concerning the bond between the mother and K.P. It is unclear whether the juvenile court ruled on any of the permissive exceptions, as the court cited the relevant code section but then only evaluated whether termination was in the child's best interests. Because we reject the mother's claim on the merits, we assume without deciding that error was preserved.

There is no dispute on this record that the mother loves her child, and K.P. appeared to enjoy spending time with the mother. But this, on its own, is not enough to preclude termination. See A.B., 956 N.W.2d at 169–70; D.W., 791 N.W.2d at 709. We must weigh the strength of this bond against the considerations that support termination. D.W., 791 N.W.2d at 709. Like the juvenile court, our greatest concern is the mother's chronic methamphetamine addiction and her inability to maintain sobriety. Perhaps most striking is that the mother cannot even admit she has a problem. While we acknowledge the loving bond between the mother and K.P., we find the mother has not carried her burden to prove by clear and convincing evidence that any harm from severing the bond outweighs the safety and stability that will attend termination. We decline to apply this or any other permissive exception.

D. Reasonable Efforts

Last, we consider the mother's assertion that HHS did not make reasonable efforts to reunify her with K.P. Iowa law requires HHS “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.” See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (quoting Iowa Code § 232.102([6])).

The mother agrees HHS offered her services. But she claims HHS did not provide enough services specifically targeted “at maximizing contact” with K.P., such as by completing background checks for other family members to assist in visitation or placement. And she argues that HHS failed to provide her with an alternative to sweat-patch testing or “contamination testing” of her home. In our review of the record, we find the mother never made these requests for changes to visitation or substance-abuse testing to the juvenile court. While the State must make reasonable efforts toward reunification, parents must also “object when they claim the nature or extent of services is inadequate.” In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017). Because the mother did not raise her complaints about reasonable efforts to the juvenile court at a permanency hearing or before the termination trial, the issue is not preserved for our review. See In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005). In any event, if we could reach the merits, we would agree with the juvenile court that HHS made reasonable efforts toward reunification.

IV. Disposition

After considering all of the mother's preserved arguments on appeal, we affirm the termination of her parental rights to K.P.

AFFIRMED.

BULLER, Judge.