                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0392
                               Filed July 6, 2017


IN THE INTEREST OF N.F. and Z.M.,
Minor Children,

A.G., Mother,
      Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

District Associate Judge.



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

AFFIRMED.



      Chira L. Corwin of Corwin Law Firm L.L.C., Des Moines, for appellant

mother.

      Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

      Brent M. Pattison of Drake Legal Clinic, Des Moines, guardian ad litem for

minor children.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                            2


TABOR, Judge.

       A mother, Alexis, appeals from a juvenile court order terminating her

parental rights to two children—N.F., born in 2012, and Z.M., born in 2013.1

Alexis challenges the sufficiency of the State’s proof of the statutory grounds for

termination. Alternatively, she argues the juvenile court should have granted her

additional time to achieve reunification with her children. After independently

reviewing the record,2 we find clear and convincing evidence to support the

findings of the juvenile court.

       I.     Facts and Prior Proceedings

       These children came to the attention of the juvenile court in November

2015, when Alexis’s youngest child, I.G., tested positive for amphetamine and

methamphetamine at his birth. N.F. and Z.M. tested positive for amphetamine

and methamphetamine as well, and Z.M. tested positive for cannabinoids.

Alexis consented to the removal of her children, and the court ordered the

children to be placed in foster care. The Iowa Department of Human Services

(DHS) placed N.F. and Z.M. in the same foster home and I.G. in another.

       Alexis, who had an extensive history of substance abuse, sought

treatment in November 2015, shortly after the removal of her children. After

completing a substance-abuse evaluation at the House of Mercy, she began

1
  The court also terminated Alexis’s parental rights to her youngest son, I.G. Alexis does
not appeal the termination of her parental rights to I.G.
2
  We review child-welfare cases de novo. See In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). We are not bound by the fact findings of the juvenile court, but we do give them
weight, particularly regarding the credibility of witnesses. See id. “We will uphold an
order terminating parental rights if there is clear and convincing evidence of grounds for
termination under Iowa Code section 232.116.” In re D.W., 791 N.W.2d 703, 706 (Iowa
2010). We find evidence to be “clear and convincing” when there are no “serious or
substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” See M.W., 876 N.W.2d at 219 (alteration in original) (citation omitted).
                                         3


inpatient treatment on December 3, 2015. Alexis left treatment six days later and

lost contact with the Family Safety, Risk, and Permanency (FSRP) provider.

       In the next twelve months, Alexis completed three more substance-abuse

evaluations. She participated in treatment only sporadically. Alexis completed

her fourth evaluation in August 2016, around the time she learned she was

pregnant. The resulting report revealed the extent of Alexis’s substance-abuse

history:

              Alexis reported that she drank alcohol for the first time at age
       10, and reported that she typically drinks approximately six beers
       every three or four days. She reported that in the last thirty days
       she has consumed alcohol on most days. . . .
              Alexis reported that she began using marijuana at age 14.
       She reported that she uses the substance about two-three days per
       week, smoking about four grams every thirty days.
              Alexis reported that she first tried methamphetamine when
       she was 11 years old, and that she has snorted, smoked, and
       injected the substance since she began using it. She reported that
       she typically uses about 1/4 g daily, and reported her last use as
       two days ago when she smoked 3.5 grams. She reported that she
       attempted to inject the substance two days ago, but was
       unsuccessful . . . .

Alexis began the recommended inpatient treatment program on September 14

but, at her request, was transferred to outpatient treatment on September 26.

She moved in with her mother—who, according to Alexis, also abused drugs—

and then with her unborn child’s father, whom she described as emotionally

abusive and a drug user.       She discharged from the treatment program on

November 16 with the recommendation for a lower level of treatment.

       On November 17, at a joint permanency and termination hearing, Alexis

testified she had not used marijuana or methamphetamine for thirty days, the

longest she had abstained from use of those substances since her children were
                                          4


removed.      But she admitted using methamphetamine while pregnant and in

treatment, explaining she started smoking the drug, rather than injecting it, upon

learning of the pregnancy.

         Alexis also failed to fully address her mental-health issues. Despite the

DHS recommendation to engage in therapy, it took her more than a year to

schedule an appointment.         In June 2016, Alexis completed a psychiatric

evaluation. The evaluation revealed a diagnosis of recurrent major depressive

disorder, which was currently active with a moderately severe episode, as well as

posttraumatic stress disorder and severe methamphetamine abuse.              Alexis

received prescriptions for depression and anti-anxiety medications, but she did

not consistently take them as prescribed.        Nor did she follow up with any

recommended treatment.

         Finally, Alexis’s inconsistent contact with her children was a concern

throughout the case. The DHS initially offered Alexis supervised visitation two to

three times per week, but her inconsistency resulted in a reduction in visitation to

once a week. Social workers reported Alexis attended less than one-half of her

scheduled visits, and at one point, more than a month passed without any

contact between Alexis and her children. When Alexis did attend visits, she was

often unprepared and failed to provide for their basic needs, such as diapers or

meals.

         As a result of Alexis’s irregular visits, N.F. began experiencing emotional

problems. N.F., who was then four years old, exhibited frustration, anxiety, and

negative behaviors related to her mother’s absences. N.F. began therapy to
                                             5


address these issues. Despite the therapist’s request for Alexis to be involved in

the therapy sessions, she participated only twice in over a year.

       Z.M. has special needs. Specialists at Blank Children’s Hospital

diagnosed him with autism-spectrum disorder after his removal from his mother’s

custody. He is mostly nonverbal and does not communicate his needs. He

began receiving services, including speech therapy. Alexis did not follow his

care and was unfamiliar with the extent of his diagnosis or his progress.

       The State filed a petition to terminate Alexis’s parental rights on

October 16, 2016. The juvenile court held a joint permanency and termination

hearing on November 17.3 In a detailed order issued on December 21, 2016, the

court found clear and convincing evidence to terminate Alexis’s rights with

respect to Z.M. under Iowa Code section 232.116(1)(h) (2016)4.                  The court

explained:

       Alexis is not in position to have the children in her care at this time.
       She has not yet taken adequate steps to permanently address her
       substance abuse, mental health, and stable living issues, and she
       has not maintained . . . her bond with these children. This remains
       true in spite of just under a year of services offered to address
       these very issues.

       But with respect to N.F., the court found the State’s proof lacking under

232.116(1)(f)5 because she had been removed from Alexis’s custody one day


3
  The court terminated the rights of the children’s fathers at this hearing. They are not
parties to this appeal.
4
  Subsection (h) requires proof the child (1) is three years old or younger; (2) has
previously been adjudicated a child in need of assistance (CINA); (3) has been removed
from the parent’s custody for at least six of the past twelve months, or the last six
consecutive months and any trial period at home has been under thirty days; and (4)
cannot be returned to the parent’s custody at the present time.                 Iowa Code
§ 232.116(1)(h).
5
  Subsection (f) requires proof the child (1) is at least four years old; (2) has previously
been adjudicated a CINA; (3) has been removed from the parent’s custody for at least
                                             6

short of the statutorily required time period. See Iowa Code § 232.116(1)(f)(3).

The court also found grounds for termination had not been established under

section 232.116(1)(l),6 reasoning that after Alexis’s diagnosis of severe

amphetamine use disorder, she completed treatment.

         The court reasoned it was not in the best interests of the children to

terminate Alexis’s parental rights with respect to Z.M. and I.G. when her parental

rights to N.F. would remain intact. Accordingly, the court directed the State to file

another petition to terminate Alexis’s parental rights within thirty days. The State

did so on January 5, 2017.

         Following the November 2016 hearing, Alexis continued to use drugs. On

January 19, 2017, she obtained another substance-abuse evaluation at the

House of Mercy, which found she had severe amphetamine use disorder and

severe     cannabis    use   disorder.      Alexis    reported    she    had   last   used

methamphetamine and marijuana two days before the evaluation. She entered

residential treatment.

         On February 15, the juvenile court held a second termination hearing and

found clear and convincing evidence to terminate Alexis’s parental rights to N.F.

and Z.M. under Iowa Code section 232.116(1)(f) and (h), respectively.                    In

addition, the court found clear and convincing evidence existed to terminate



twelve of the past eighteen months, or the last twelve consecutive months and any trial
period at home has been under thirty days; and (4) cannot be returned to the parent’s
custody at the present time. Iowa Code § 232.116(1)(f).
6
  Subsection (l) requires proof (1) the child has been adjudicated CINA and removed
from the parent’s custody; (2) the parent has a severe substance abuse problem and
presents a danger to self or others; and (3) the parent’s prognosis indicates the child will
not be able to be returned to the parent’s custody within a reasonable period of time.
Iowa Code § 232.116(1)(l).
                                        7

Alexis’s parental rights to both children under 232.116(1)(l), reasoning Alexis’s

substance-abuse disorder put herself and others at risk.

      Alexis appeals the termination order.

      II.    Analysis

      Statutory Grounds.       To terminate parental rights under Iowa Code

sections 232.116(1)(f) and (h), the State must prove, among other things, the

children cannot be returned to the parent’s custody at the present time. See

Iowa Code § 232.116(1)(f)(4), (h)(4). “At the present time” refers to the date of

the termination hearing. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014).

Alexis contests only this requirement, asserting, because she was living at the

House of Mercy—which allows children to be in the care of their treating parent—

at the time of the termination hearing, the children could have been returned to

her care.

      We find clear and convincing evidence the children could not be safely

returned to Alexis’s care. At the first termination hearing in November 2016,

Alexis acknowledged she was unable to have the children in her custody. She

also recognized her inconsistent contact negatively impacted the children. But in

the three months following that hearing, Alexis made no significant effort to

change her behavior. See M.W., 876 N.W.2d at 223 (holding mother’s lack of

consideration for the impact her decisions had on children was a factor

supporting termination). In December 2016, she unsuccessfully discharged from

outpatient treatment for lack of attendance. And at her fifth substance-abuse

evaluation in January 2017, Alexis indicated she had used methamphetamine
                                           8


three times in the previous month. The same evaluation revealed she had never

stopped using marijuana and never attempted to cut down or control her use.

       As the juvenile court pointed out, Alexis’s admittance into the House of

Mercy was just a few weeks before the second termination hearing. “Iowa courts

look skeptically at ‘last-minute’ attempts to address longstanding issues, finding

them inadequate to preclude termination of parental rights.” In re A.D., No. 15-

1508, 2016 WL 902953, at *2 (Iowa Ct. App. Mar. 9, 2016) (citing In re C.B., 611

N.W.2d 489, 494 (Iowa 2000)). Alexis’s “last-minute” attempt to address her

longstanding substance-abuse issues, more than a year after her children were

removed, is inadequate to support the conclusion her parental rights should be

preserved, particularly considering her persistent inconsistency in visitation and

mental-health treatment throughout the case. See C.B., 611 N.W.2d at 495 (“A

parent cannot wait until the eve of termination, after the statutory time periods for

reunification have expired, to begin to express an interest in parenting.”).

       Because Alexis did not take meaningful steps to address her substance-

abuse and mental-health issues, we agree with the juvenile court that clear and

convincing evidence supports the conclusion the children could not be returned

to her care at the time of the termination hearing.7


7
  Finding clear and convincing evidence supporting the statutory grounds for termination
under Iowa Code section 232.116(1)(f)(4) and (h)(4), we do not consider her argument
regarding section 232.116(1)(l). D.W., 791 N.W.2d at 707 (“On appeal, we may affirm
the juvenile court’s termination order on any ground that we find supported by clear and
convincing evidence.”).
        On appeal, Alexis also notes she disagrees with the juvenile court’s finding “she
has not maintained her bond with this child.” To the extent this is an argument the
juvenile court should have declined to terminate Alexis’s parental rights because
termination would not be in the children’s best interests, see Iowa Code § 232.116(2), or
because of the strength of the parent-child bond, see id. § 232.116(3)(c), we reject her
argument. At the hearing, a DHS worker testified Alexis’s lack of engagement and
                                            9


       Additional Time. Alternatively, Alexis argues the juvenile court erred by

not granting her additional time for reunification efforts. To grant a six-month

extension under Iowa Code section 232.102, the court must determine the need

for removal will no longer exist at the end of that time. In re A.A.G., 708 N.W.2d

85, 89 (Iowa Ct. App. 2005). We are unable to make such a determination here.

Alexis had more than a year to address the issues identified at the start of the

CINA proceedings. Her repeated failure to complete recommended substance-

abuse and mental-health treatment, along with her inability to abstain from drug

use, indicate it is doubtful she will be able to provide a stable home at the end of

the requested six-month extension. See In re A.B., 815 N.W.2d 764, 778 (Iowa

2012) (finding “evidence of the parent's past performance . . . may be indicative

of the quality of the future care that parent is capable of providing” (quoting C.B.,

611 N.W.2d at 495)).        N.F.’s difficulty in dealing with Alexis’s inconsistency

demonstrates her need for permanency. Z.M.’s need is even greater, given his

autism diagnosis. Alexis’s children cannot be deprived of permanency based on

her unrealistic hope they will someday be able to return to her care. See In re

P.L., 778 N.W.2d 33, 40 (Iowa 2010). Additional time was not justified here.

       Accordingly, we affirm the juvenile court order terminating Alexis’s

parental rights.

       AFFIRMED.




inconsistency in visitation diminished her relationship with the children. We agree with
the juvenile court’s determination, Alexis did not maintain a close tie with her children.
