In thе Interest of M.W. and Z.W., Minor Children, R.W., Mother, Appellant.
No. 15-1256.
Supreme Court of Iowa.
March 4, 2016.
ZAGER, Justice.
I. Background Facts and Proceedings.
R.W. is the mother and M.D.W. is the father of M.W. and Z.W. (the children). David A. Dawson, Sioux City (until withdrawal), then Theresa Rachel of Deck Law, L.L.P., Sioux City, for appellant. Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Patrick A. Jennings, County Attorney, and Dewey P. Sloan, Assistant County Attorney, for appellee.
The juvenile court terminated a moth- er’s parental rights to two of her children.
1. The parental rights of M.D.W. to M.W. and Z.W. were terminated at the same time as those of R.W., but M.D.W. did not appeal the termination order. Thus, we only address the termination of parental rights as to R.W.1
M.W. was born in April 2013 and Z.W. was born in March 2012, making them two years old and three years old at the time of the termination hearing.
On the same day L.W. was brought to the hospital, lаw enforcement and CPS officers executed a removal order and removed the children from the home. The children were placed in foster care with nonrelatives. The same day that the children were removed from their parents’ care, law enforcement and CPS officers went to the apartment where R.W., M.D.W., and the children had been residing. The investigators described the conditions of the home as deplorable. On May 1, Dr. Jung visited the apartment with law enforcement officers. He reported, “I inspected all rooms of the residence. I inspected the bedroom where the parents slept. I inspected the children’s bedding in their bedroom. I inspected the bathroom which was very foul smelling with ‘hundreds of flies and gnats surrounding a substantial pile of very old and putrid smelling soiled diapers.’ The children’s bedding was caked with soiling and matted dirt, debris, and body fluid. There was a very strong stench coming from the children’s bedroom. Scatter[ed] throughout the floor on the carpet of the entire apartment were discarded used food containers and garbage which made it difficult to walk through. The carpet was stained and smelled of rotting feces and decaying vegetables and food products. All surfaces, including chairs, floors, and bedding were in an extremely filthy, putrid, and unhealthy state. The stench was sickening and clearly was not safe to inhabit by anyone. It would be my medical opinion that this apartment was not in a safe living condition for anyone, but particularly small dependent children who would be at serious medical and health risk by living in this squalor, filth and fly/gnat infested environment. The conditions of this home are beyond what one could appreciate with a photograph. The stench, the flies, the gnats, the carpet, bedding, the trash, the rotting dirty diapers from months previous created a garbage dump odor and appearance.”
Following their removal, hair stat tests were performed on the children. M.W. tested positive for cannabinoids and carboxy-THC. Z.W. tested positive for cannabinoids, carboxy-THC, and native THC. A test was also performed on the deceased L.W., who tested positive for amphetamines, methamphetamine, cannabinoids, carboxy-THC, and native THC. R.W. initially admitted that both she and M.D.W. had substance abuse problems. She stated that she only used marijuana and denied the use of any amphetamines. However, she did acknowledge that she was uncertain what drugs she had ingested on a number of occasions because “[M.D.W.] would load the pipes and she would not necessarily know what was being loaded in the pipe.” She also admitted that she had given M.D.W. money in the past to buy marijuana to calm his nerves and to buy Adderall so he would be able to stay awake while watching the children. M.D.W. was on probation at the time of the children’s removal, and his probation officer collected a urine sample. This urinalysis tested positive for THC. M.D.W. admitted to using Adderall and signed an admission that the last time he used marijuana was on or around April 26. M.D.W. also has a history of domestic abuse assaults. R.W. was the victim of at least two domestic assaults by M.D.W. On at least one occasion, all three children were present in the apartment when M.D.W. assaulted R.W.
A temporary removal hearing was held on May 8 for M.W. and Z.W. After the hearing, custody of the children remained with the Department of Human Services (DHS) for placement in foster care, subject to visitation at DHS discretion. The juvenile court found that it would be contrary to the welfare of the children for them to be in the custody of their parents. On May 28, CPS finished its investigation into the conditions giving rise to the children’s removal. The report confirmed the allegations as to M.W., Z.W., and L.W. for: (1) the denial of critical care for failure to provide adequate shelter, adequate supervision, or adequate health care; and (2) the presence of illegal drugs in the body of a child.
On May 29, the juvenile court held a combined temporary removal and adjudication hearing. In an order filed June 2, the court noted that R.W. had stipulated to the statutory grounds for adjudication but not the factual grounds. The court found that there was clear and convincing evidence that M.W. and Z.W. were children in need of assistance (CINA) pursuant to the statutory grounds аs alleged in the petition filed by the State on May 1 and the amended petition filed by the State on May 2. The grounds alleged in the State’s amended petition included Iowa Code sections 232.2(6)(6), .2(6)(c)(2) and ,2(6)(■). The juvenile court noted that all parties were in agreement with the pre-dispositional recommendations. Neither parent appealed the CINA adjudication order.
After the CINA adjudication, R.W. underwent another psychological evaluation with Dr. Michael Baker. R.W. reported no history of therapy but indicated she took Lexapro in the past for approximately one month due to feeling overwhelmed taking care of three young children. She reported having suicidal thoughts in the past and cutting herself to gain attention. Both of these statements are contrary to what she told her original evaluator. Dr. Baker summarized his evaluation of R.W., stating, “[R.W.] generally reports a non-traumatic childhood background, a fairly responsible work history, an intellectual and educational level of at least average, and yet remained in this very co-dependent, abusive arrangement with obvious lack of care for her children. ... While feeling overwhelmed by the situation of childcare, employment, and the dysfunction of a substance abusing, non-responsible acting father to her children, she did not approach any constructive options for change, but continued to return to the same dysfunctional, unhealthy and disastrous situation for herself and her children.”
On November 7, the State filed its petition for termination of parental rights concerning M.W. and Z.W. In the petition, the State pled that the parent-child relationship between R.W. and the children should be terminated pursuant to Iowa Code sections 232.116(1)(d), (■) and (i ).3 The petition also set forth specific facts and reasons in support of termination. Some of the facts the petition alleged in support of termination included the following: that both children were three years of age or younger; R.W.’s history of only supervised visitation; that R.W. struggled to parent all three children at once; that the children exhibited negative behavior following visitation; that R.W. made progress with substance abuse treatment but made limited progress with mental health treatment; the psychiatrist’s statement that “continued lack of normal maternal interest in her children’s care (nutrition, medical, safety, etc.) strongly suggests attributеs resistant to change” and his conclusion that “reunification with her children is questionable”; and behavior indicative of the mother’s persistent lack of judgment and co-dependence.4 Even with on-going services being provided to R.W., the State alleged that the conditions which led to the removal of the children and CINA adjudication could not be corrected within a reasonable period of time and that the children could not be returned to the mother’s custody.
3The juvenile court also concluded that M.W. and Z.W. could not be returned to the care of their mother. Finally, it concluded that it was in the best interest of each of the children to terminate the parent-child relationships so that they will have the opportunity to grow and mature in a safe, healthy, and stimulating environment. In its order, judgment and decree, the juvenile court terminated the parental rights to M.W. and Z.W. pursuant to sections 232.116(1)(d) and (i). It also terminated the parental rights to M.W.—but‘not Z.W.—pursuant to section 232.116(1)(■). R.W. appealed, and we transferred the case to the court of appeals.4
4In termination-of-parental-rights cases, we review the proceedings de novo. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). “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 D.W., 791 N.W.2d 703, 706 (Iowa 2010)). There must be clear and convincing evidence of the grounds for termination of parental rights. D.W., 791 N.W.2d at 706; see Iowa Code § 232.117(3). Evidence is considered clear and convincing “when there are no ‘serious or substantial doubts as to the correctness [of] conclusions of law, drawn from the evidence.’” Id. (quoting In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)).5
5Our review of termination ,oi paent-child relationships under Iowa Code chapter 232 is a three-step analysis. D.W., 791 N.W.2d at 706. The first step is to determine whether any ground for termination under section 232.116(1) has been established. Id. If we find 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. Id. at 706-07. Finally, if we do find that the stаtutory best-interest framework supports the termination of parental rights, we consider whether any exceptions in section 232.116(3) apply to preclude termination of parental rights. Id. at 707.
A. Error Preservation. Here, we are confronted with a unique situation. The order, judgment, and decree from the juvenile court is internally inconsistent regarding the grounds relied on in terminating the parental rights to M.W. and Z.W. After an exhaustive review of the facts, the juvenile court notes that under Iowa law, the court may order termination of parental rights if there is clear and convincing evidence to support any of the grounds for termination as set forth in Iowa Code section 232.116. We agree and affirm the court of аppeals in this regard. We also affirm the court of appeals on R.W.’s other numerous contentions of claimed error by the juvenile court.
However, the court of appeals declined to consider the termination of parental rights to Z.W. under Iowa Code section 232.116(1)(■). Procedurally, the State did not file an Iowa Rule of Civil Procedure 1.904(2)6 motion to modify the termination order, nor did it file a cross-appeal seeking appellate review of the termination order with regard to the distinction between M.W. and Z.W. under section 232.116(1)(■). The court of appeals cited a previous case, In re A.R., wherein the court of appeals held that it would not terminate parental rights on а ground not relied upon by the juvenile court when the State did not file either a rule 1.904(2) motion or a cross-appeal.865 N.W.2d 619, 629-30, 633 (Iowa Ct.App.2015). However, because our holding in this case is contrary to the court of appeals’ conclusion, we overrule In re A.R. to the extent it held a rule 1.904(2) motion or cross-appeal was required for it to consider alternate grounds for affirmance that were raised before the juvenile court.
6Under our general rules of appellate review, “[w]e are obliged to affirm an appeal where any proper basis appears for a trial court’s ruling, even though it is not upon which the court based its holding.” State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008) (quoting Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 332 (Iowa 1980)). Although this court has not yet had the opportunity to apply this general rule of appellate review to termination-of-parental-rights cases, the court of appeals has done so. See, e.g., In re T.N.M., 542 N.W.2d 574, 575 (Iowa Ct.App.1995). Nevertheless, “[o]ur cases are legion which hold that a trial court may be affirmed on grounds upon which it does not rely.” Johnston Equip. Corp. of Iowa v. Indus. Indem., 489 N.W.2d 13, 17 (Iowa 1992). It is when a party does not present an issue to the district court that we decline to decide the issue. See City of Postville v. Upper Explorerland Reg’l Planning Comm’n, 834 N.W.2d 1, 8 (Iowa 2013).
B. Whether Termination is Appropriate. The juvenile court concluded that there was clear and convincing evidence to support the termination of parental rights under three provisions of Iowa Code section 232.116. We have already addressed the inapplicability of two of these code provisions— 232.116(l)(d) and (i)—earlier in this opinion. However, we still need to determine whether there is clear and convincing evidence to support the remaining ground for termination of the parental rights of R.W. to both M.W. and Z.W. under section 232.116(1)(■). See In re A.B., 815 N.W.2d 764, 774 (Iowa 2012) (“When the juvenile court terminates parental rights on more than one statutory ground, we may affirm the juvenile court’s order on any ground we find supported by the record.”).
Section 232.2(6)(c)(2). Section 232.2(6)(n) requires the juvenile court to adjudicate a child .as a CINA if their “parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse results in the child not receiving adequate care.” Id. § 232.2(6)(n). Pursuant to the Iowa Rules of Appellate Procedure, a notice of appeal from an order adjudicating a child CINA must be filed within fifteen days of the filing of the order or judgment. Iowa R.App. P. 6.101(l)(a). The order adjudicating M.W. and Z.W. as CINA was filed on June 2. R.W. did not timely appeal the order adjudicating the children as CINA, and thus the juvenile court’s adjudication order is conclusive. See A.M., 843 N.W.2d at 111 (treating the second element as established after the child in question had been adjudicated CINA).
- The child is three years of age or younger.
- The child has been adjudicated a child in need of assistance pursuant to section 232.96.
- 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.
- 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.
There is clear and convincing evidence in the record that each of the four requirements of Iowa Code section 232.116(1)(■) have been met for both M.W. and Z.W., and the grounds for termination were proven. At the time of the termination hearing, M.W. was two years old, born on April 13, 2013. Z.W. was three years old, born on March 28, 2012. Both children were adjudicated CINA in June 2014. No timely apрeal was filed from the CINA adjudication, which establishes element two. See A.M., 843 N.W.2d at 111 (treating the second element as established after the child in question had been adjudicated CINA). The children were removed from the physical custody of R.W. in April 2014. At the time of the termination hearing, the children had been out of the physical custody of R.W. for twelve consecutive months. The children have had no trial period at home with R.W. The record reflects that R.W. was unable to adequately supervise all three children together during visitations and that M.W. and Z.W. exhibited destructive and worrisome behavior following visits. After supervised visitations, the children would bang their heads, scream, kick, have night terrors, bite, and sleepwalk. Further, although R.W. has requested increased visitation with her children, visits have never been able to progress to either semi-supervised or unsupervised due to the destructive behavior the children exhibited after their visits with R.W. The juvenile court’s conclusion that there was “no evidence to suggest that [R.W.] would do any better at parenting three small children at [the time of the termination order], or at any time in the foreseeable future, on her own” is supported by the record.
Finally, there is clear and convincing evidence in the record that at the time of the termination hearing, the children could not be safely returned to the custody of R.W. In reaching this conclusion, we note that R.W. has never accepted resрonsibility for her actions in the death of L.W. or assumed any responsibility for the removal of M.W. and Z.W. from her home. Rather, she chooses to place the responsibility and blame on M.D.W. Although R.W. has undergone substance abuse treatment and mental health evaluations, she continues to exhibit the same co-dependent behavior that led to her negative relationship with M.D.W. Immediately after leaving the abusive relationship with M.D.W., R.W. began a relationship with T.W., who has a history of child abuse and who threatened R.W. for attempting to set boundaries. This behavior demonstrates that R.W. continues to make decisions without thinking of the impact on her children.
Although R.W. has presented a clean apartment for her scheduled CPS visits, she has refused entry to the apartment for unscheduled visits, raising concerns about the normal cleanliness level of her home. Additionally, R.W. began working in April 2015. Although she did obtain employment, concerns remain about her ability to support herself and her children. Her employment began only one month before the termination hearing. More significantly, throughout the proceedings involving her children, R.W. provided little to no financial assistance for M.W., Z.W., or D.W. This delay in finding regular employment reflects her prior pattern of irresponsibility and lack of planning when it comes to her children.
The record reflects that R.W. was unable to adequately supervise all three children together during visitations and that M.W. аnd Z.W. exhibited destructive and worrisome behavior following visits. After supervised visitations, the children would bang their heads, scream, kick, have night terrors, bite, and sleepwalk. Further, although R.W. has requested increased visitation with her children, visits have never been able to progress to either semi-supervised or unsupervised due to the destructive behavior the children exhibited after their visits with R.W. The children are adoptable, and their maternal aunt and her spouse have expressed the desire to adopt both M.W. and Z.W. if parental rights are terminated. Upon our de novo review, we conclude that the considerations in section 232.116(2) support the termination of parental rights of R.W. to both M.W. and Z.W.
C. Best-Interest Analysis. Oncе we have established that at least one ground for termination under section 232.116(1) exists, the next step of our analysis is to evaluate whether the termination of parental rights would be in the best interest of the child under section 232.116(2). D.W., 791 N.W.2d at 706-07. When we consider whether parental rights should be terminated, we “shall 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); see also D.W., 791 N.W.2d at 708. In making this determination, we may consider a number of factors. D.W., 791 N.W.2d at 708. We may consider “[w]hether the parent’s ability to provide [for] the needs of the child is affected by the parеnt’s mental capacity or mental condition or the parent’s imprisonment for a felony.” Iowa Code § 232.116(2)(a). If the children have been placed in foster care, we consider the extent to which they have become integrated into that family. Id. § 232.116(2)(6). For integration, we look at how long the children have been living with the foster family, how continuity would affect the children, and the preference of the children if they are capable of expressing a preference. Id. § 232.116(2)(b)(1)-(2). Last, we may also consider statements of foster parents or relatives with whom the children have been placed. Id. § 232.116(2)(e).
Both M.W. and Z.W. have continued to reside with their maternal aunt and her spouse since Februаry 2015. Both children have continued to meet proper developmental milestones. The juvenile court found that their aunt and her spouse are able to provide for their physical, emotional, and financial needs. The aunt and her spouse also currently have physical custody of their younger half-sibling, D.W. The children have adjusted well to the home. The juvenile court found that the children were well integrated into the home.
- A relative has legal custody of the child.
- The child is over ten years of age and objects to the termination.
- There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship.
- It is necessary to place the child in a hospital, facility, or institution for care and treatment and the continuation of the parent-child relationship is not preventing a permanent family placement for the child.
- The absence of a parent is due to the parent’s admission or commitment to any institution, hospital, or health facility or due to active service in the state or federal armed forcеs.
While a finding of any of these factors allows us to choose not to terminate parental rights, “[t]he factors weighing against termination in section 232.116(3) are permissive, not mandatory.” A.M., 843 N.W.2d at 113 (quoting In re D.S., 806 N.W.2d 458, 474-75 (Iowa Ct.App.2011)). We may use our discretion, “based on the unique circumstances of each case and the best interests of the child, whether to apply the factors in this section to save the parent-child relationship.” Id. (quoting D.S., 806 N.W.2d at 475).
We first note that while there is certainly some bond between R.W. and her children, the two children have remained outside of her care since their original removal almost two years ago. The children are young—ages two and three. The children act out negatively follоwing their visitation with R.W. For more than one year, R.W. has not progressed beyond more than limited, supervised visits with the children. Even some of these supervised visitations become overwhelming to R.W. The children are adoptable, and their maternal aunt and her spouse have expressed the desire to adopt both M.W. and Z.W. The children have achieved stability in their aunt’s home and continue to meet developmental milestones. On our de novo review, we conclude that the considerations in section 232.116(2) support the termination of parental rights of R.W. to both M.W. and Z.W.
We decline to find an exception under section 232.116(3) that would render termination improper.
V. Conclusion.
We conclude that there is clear and convincing evidence to support the termination of parental rights under Iowa Code section 232.116(1)(■) as to both M.W. and Z.W. Additionally, termination of the parental rights of R.W. is in the best interest of the children. Finally, we decline to apply any of the exceptions precluding termination.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND REVERSED IN PART; JUVENILE COURT JUDGMENT AFFIRMED.
ZAGER, J.
SUPREME COURT OF IOWA