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In re P.S.

Court of Appeals of Iowa

July 3, 2019

IN THE INTEREST OF P.S., T.S., and A.S., Minor Children, E.E., Mother, Appellant.

          Appeal from the Iowa District Court for Palo Alto County, Ann M. Gales, District Associate Judge.

         A mother appeals the termination of her parental rights.

          Scott A. Johnson of Hemphill Law Office, PLC, Spencer, for appellant mother.

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

          Ryan C. Buske of McMahon, Stowater, Lynch & Laddusaw, Algona, guardian ad litem for minor children.

          Considered by Mullins, P.J., Bower, J., and Vogel, S.J. [*]


         A mother appeals the termination of her parental rights to her children. She challenges the sufficiency of the evidence supporting the grounds for termination, contends termination is not in the children's best interests, and requests the application of a statutory exception to termination. The mother also argues the State failed to make reasonable efforts to facilitate reunification, requests additional time for reunification, and maintains a guardianship should be established in lieu of termination. The mother further asserts she received ineffective assistance of counsel.

         I. Background Facts and Proceedings

         E.E. is the mother of three children: A.S., born in 2008; T.S., born in 2011; and P.S., born in 2012. The children came to the attention of the Iowa Department of Human Services (DHS) in December 2016 upon information that the mother was using methamphetamine and marijuana while caring for the children. During the ensuing investigation, the mother admitted using marijuana but not while the children were in her care. She also admitted to using methamphetamine while the children were present. P.S. tested positive for marijuana and methamphetamine, T.S. tested positive for methamphetamine, and A.S. tested negative for all substances. The mother agreed to voluntarily place the children with relatives; all three children were ultimately placed with a maternal uncle.[1] After its investigation, DHS returned a founded child-abuse assessment against the mother for denial of critical care.[2] The mother was charged with neglect of a dependent person and child endangerment. She was released from jail on bond with pretrial supervision.

         In March 2017, the mother and father stipulated to the adjudication of all three children as children in need of assistance. The court also continued the children's placement with the maternal uncle. The court ordered the mother to submit to random drug testing and undergo a substance-abuse evaluation. The court also ordered mental-health therapy for the children. The mother completed an evaluation in March, which recommended extended outpatient treatment.

         DHS provided supervised visitation for the mother. On multiple occasions, the mother struggled with her behaviors during the visits. The mother became defensive when her lack of supervision of the children was brought to her attention. The mother complained about the DHS worker on social media. She also disparaged her brother and his fiancée about their care of her children and argued and yelled when returning the children to the maternal uncle's home. This resulted in the maternal uncle's fiancée wanting to not have any contact with the mother unless the maternal uncle was present. There were also reports that the children's doctor's office forbade the mother from attending the appointments due to her swearing and being loud and socially inappropriate while there.

         The maternal uncle also reported the children were acting out and struggling with aggression and being "out of control." It was noted that P.S. was sexually acting out with the maternal uncle's child. The mother admitted that at one time she had cared for a friend's child and that child had "sexually perpetrated" against P.S. and T.S. In the dispositional order, the court ordered that P.S. undergo a psychiatric evaluation, which was completed at the end of May.

         In July, after the police found the mother passed out in the driver's seat of a car at a gas station, she was arrested and charged with operating while intoxicated and possession of methamphetamine, prescription drugs, and drug paraphernalia. The mother pled guilty to possession of methamphetamine and was sentenced to fifty days in jail. The mother remained in jail until October, when she was released and placed on house arrest. While in jail, DHS provided supervised phone calls with the children.

         The mother entered a substance-abuse treatment program in November. On November 28, P.S. was placed with the mother on the condition that if she left or was discharged unsuccessfully from the treatment program, P.S. would be removed from her care. The other children visited the mother at the treatment facility and it was noted that when all three children were together, they struggled to behave appropriately, which often overwhelmed the mother when she had no assistance. On January 3, 2018, the court placed the other two children with the mother with the same conditions as P.S. The program provider noted that once all three children were placed with the mother, her engagement in treatment decreased and she struggled to balance parenting with her treatment. The mother admitted that while on an approved pass, she smoked methamphetamine. After returning from another approved pass, she refused to drug test until four days later. She tested positive for methamphetamine. She also brought an unauthorized cell phone into the facility. On January 16, facility staff reported the mother slapped one of the children in the face twice. The program discharged the mother the following day after she was not able to successfully complete the program, due to noncompliance and rule infractions. Due to the mother's discharge, the children were placed into separate foster homes. DHS provided supervised visitation.

         In February, the mother was jailed due to her unsuccessful discharge from the treatment program, which constituted a violation of her pretrial supervision. On February 26, the district court accepted her guilty plea to one count of child endangerment and sentenced her to a suspended term of incarceration not to exceed two years. The court ordered the mother's release from jail and placed her on probation. As a condition of her probation, the court ordered the mother report to a residential treatment facility (RTF) once space was available.

         In April, during a permanency review hearing, the court modified the permanency goal from reunification to termination of parental rights. The court also placed A.S. in the care of the paternal grandparents after her foster family provided notice that they could no longer provide A.S. a home. They had noted that after a visit with the mother, A.S. acted out, including lying, hiding things, acting distant, and refusing to listen. After the hearing, the mother was required to submit to a drug test. Officials noted she had a bottle sticking out of her pants. When asked what it was, the mother removed it from her pants and threw it onto the maternal grandmother's lap, who then covered it up. The bottle, filled with a urine-colored liquid was handed over to officials, who notified DHS. The mother's probation officer was also notified. While waiting to complete the test, the mother appeared anxious and fidgety. The mother eventually admitted that she had taken an anxiety pill and "licked a substance" in another individual's home. She claimed that she did not purposefully use any substances. The test was negative.[3]

         DHS conducted a home study and approved the paternal grandparents as a possible placement for the children. DHS, through interstate compact, also conducted a home study and approved the mother's cousin as a possible placement. The mother's cousin lives in Oklahoma.

         The mother entered an RTF program in early June. On June 20, the State petitioned to terminate the mother's parental rights. It sought to terminate the mother's rights pursuant to Iowa Code section 232.116(1)(b), (e), (f), and (l) (2018). The court conducted a contested hearing over the course of five days from June to October 2018. The court filed its ruling on February 11, 2019, terminating the mother's parental rights to all three children.[4] The court terminated the mother's parental rights to P.S. pursuant to section 232.116(1)(e) and her rights to A.S. and T.S. pursuant to paragraphs (e) and (f). As noted, the mother appeals.[5]

         II. Standard of Review

         We review termination-of-parental-rights proceedings de novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). "We are not bound by the juvenile court's findings of fact, but we do give them weight, especially in assessing the credibility of witnesses." Id. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). "Our primary concern is the best interests of the child." In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

We use a three-step analysis to review termination of parental rights. First, we "determine whether any ground for termination under section 232.116(1) has been established." If we determine "that a ground for termination has been established, then we determine whether the best-interest framework as laid out in section 232.116(2) supports the termination of parental rights." Finally, if we conclude the statutory best-interest framework supports termination, "we consider whether ...

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