In re Interest of W.M.

• Decision Date: 02 April 2021
• Docket Number: No. 20-1319,20-1319
• Citation: 957 N.W.2d 305
• Parties: In the INTEREST OF W.M. and W.D., Minor Children, S.C., Mother, State of Iowa, and W.B., Father, Appellants.
• Court: Iowa Supreme Court

957 N.W.2d 305

In the INTEREST OF W.M. and W.D., Minor Children, S.C., Mother, State of Iowa, and W.B., Father, Appellants.

No. 20-1319

Supreme Court of Iowa.

Submitted January 20, 2021

Filed April 2, 2021

Stuart G. Hoover of Alliance Law Firm, PC, Dubuque, for appellant mother.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney General, and Sara Davenport, County Attorney, for appellant State.

Joshua J. Reicks of Schoenthaler, Bartelt, Kahler & Reicks, Maquoketa, for appellant father.

Oxley, J., delivered the opinion of the court, in which Christensen, C.J., and Appel, Waterman, and Mansfield, JJ., joined. McDermott, J., filed an opinion concurring in part and dissenting in part in which McDonald, J., joined.

OXLEY, Justice.

In this case, the juvenile court terminated the parental rights of both of the fathers of two children but denied the State's petition to terminate the mother's parental rights. Instead, the court entered a permanency order appointing the paternal grandmother of one of the boys as the guardian for both. Mom appeals the permanency order, asking us to reverse the appointment of the grandmother as guardian and directing the State to continue reunification efforts. The State also appeals the termination order, arguing Mom's parental rights should have been terminated. Thus, neither the State nor Mom supports the juvenile court's resolution of the case with respect to Mom.

One father has also appealed termination of his rights, but his notice of appeal was untimely filed. We therefore must first determine whether he is entitled to a delayed appeal before addressing the merits of the father's termination.

I. Factual Background and Proceedings.

Mom has struggled with addiction to methamphetamine. She has sought treatment, but she has relapsed many times over. The two children involved in this case are W.M. and W.D., who have different fathers. At the start of this case, W.M. was seven and W.D. was three. W.M. was involved in a prior child-in-need-of-assistance (CINA) proceeding where he was removed from Mom's care but ultimately returned to her custody. W.M.’s father has not appealed the termination of his parental rights. W.D.’s father appealed, but the notice of appeal was filed two days late. We will refer to W.D.’s father as "Dad."

This case was brought to the department of human service (DHS)’s attention in August 2018 when Mom's paramour (neither of the children's fathers) abused Mom in front of her sons. There were also concerns about Mom's use of illegal substances, particularly methamphetamine. Mom was living with her paramour and the children in Maquoketa, and, following the assault and DHS intervention, she became homeless. She stayed with family and friends during this time period. She found housing at the Theresa House in Dubuque, but she was asked to leave the shelter house due to concerns about substance abuse.

DHS placed the children in the custody of their respective paternal grandparents, and Mom moved from town to town. After her mother helped her get a hotel room, Mom left behind drug paraphernalia in the room. A caseworker found shelter housing for Mom, and Mom entered a residential substance abuse treatment program at High Tower on September 21, 2018.

Once in inpatient treatment, Mom did well. She worked toward sobriety, and it appeared she was dedicated to remaining clean. She had visitations with the children where workers helped her learn parenting skills, particularly follow-through on discipline. W.M. exhibited many behavioral problems throughout the visits, and his paternal grandmother reported his behavioral problems increased directly in correlation to visits with Mom. Notably, W.M. has lived with his paternal grandparents on and off since he was three years old, long before DHS became involved in this proceeding. He had issues with bedwetting that his grandparents attributed to his past living situation. The bedwetting improved when W.M. was living with his grandparents, but it increased or resumed when W.M. saw or spoke to Mom. W.D. exhibited some behavioral problems, primarily centered on hyperactivity and not listening. However, he did not exhibit the same concerns directly tied to seeing Mom as W.M.

DHS returned W.D. to Mom's care at High Tower after W.D. tested positive for methamphetamine while in his paternal grandparents’ care. Mom had a negative hair test for substances in the same time period. W.M. continued to have visits with Mom but often acted out throughout those visits.

While Mom stayed in the highly-structured High Tower setting, she continued to do well in her personal life and with respect to the children, although there was concern that she contacted the abusive ex-paramour despite a no-contact order. DHS worked with her and emphasized the importance of respecting the no-contact order. W.M. was placed back in her care on January 24, 2019, while Mom continued to participate in inpatient care.

Around February 12, Mom used marijuana outside the presence of the children. She reported this to her caseworker promptly and looked into modifying her medications, which she believed were not working. Mom found a job, but her hours interfered with seeing the children, so she quit.

Mom successfully completed the substance abuse programing at High Tower in April. Unfortunately, shortly thereafter, she relapsed and the children were again removed from her care. W.M. returned to the care of his paternal grandparents, and W.D. was placed in foster care.

Throughout the summer of 2019, Mom had visitation with the children at the maternal grandmother's house, where Mom was living. Mom provided a negative sweat patch for several illegal substances in August, and she reengaged with services and again worked toward bettering herself and getting her children back. In September, Mom was permitted overnight visits with W.D. and extended visits with W.M.

However, in October, Mom started avoiding her caseworkers. On October 10, the worker met with Mom, and she admitted to yet another relapse with methamphetamine and marijuana. The worker asked Mom to undergo drug testing throughout October, November, and December, which she repeatedly failed to do. When Mom finally provided a sample on December 23, she tested positive for amphetamines, methamphetamine, and THC. The caseworkers urged Mom to return to inpatient treatment; the maternal grandmother gave Mom an ultimatum to either seek treatment or move out. In response, Mom requested visits no longer take place at her mother's house. Mom continued to have semisupervised visits overseen by her mother on weekends.

In January 2020, W.M.’s paternal grandmother reported that W.M.’s therapist had recommended he stop seeing Mom. W.M. increasingly began refusing to go to visits, sometimes agreeing to go after being convinced by caseworkers but other times stating he was only going to see his brother.

Mom struggled with disciplining the children. During one visit, W.M. acted out by throwing snow at Mom and W.D. Mom resorted to yelling and swearing at W.M. and then threatened to call the police if W.M. did not listen. The children reported Mom sometimes slept during interactions. W.M. also started wetting his pants surrounding his visits with Mom. W.M.’s paternal grandparents pushed for termination of Mom's parental rights so they could adopt him.

Shortly thereafter, Mom checked herself into inpatient treatment at Prairie Ridge. Following her time in Prairie Ridge, Mom returned to High Tower on February 24. Once again, Mom began engaging in treatment and working toward sobriety. However, her caseworker expressed concerns, noting Mom had been in treatment many times before and admitted she only went to Prairie Ridge to avoid going to prison. Mom also had a new paramour at this time who had a history of substance abuse.

Nonetheless, Mom excelled at High Tower, and her counselor reported that it seemed she was more committed to remaining clean this time. Due to the difficulties of administering services while complying with the social and physical distancing requirements caused by the COVID-19 pandemic, W.D. was placed back with Mom at High Tower, while W.M. remained with his paternal grandparents. Visits with W.M. were conducted by videoconference, which he struggled with. W.M.’s paternal grandmother reported that he wanted to remain permanently with his grandparents, not return to Mom's care. His paternal grandmother reported that during a recent trip to Maquoketa, where W.M. had previously lived with Mom when she was using drugs, W.M. told his grandparents about times when he had to sleep in the alleys of Maquoketa. She believed he had been traumatized and still struggled to speak about it.

Mom completed treatment at High Tower again and moved into her own apartment in July. After she moved into her apartment, she stopped attending drug counseling. Additionally, Mom began associating with people who had criminal and substance abuse histories and allowed them to be around W.D. Mom admitted she stopped taking her medications and stopped attending therapy. Rather than use the approved daycare arranged by DHS, Mom allowed an unapproved male friend with a history of domestic violence to babysit W.D. when she was at work. Mom tested positive for methamphetamines and THC in early August. W.D. was once again removed from her care and was placed with W.M. at W.M.’s paternal grandparents’ home. The grandparents expressed an intention to adopt both boys if Mom's parental rights were terminated.

At this time, the caseworker noted Mom did not understand why W.D. had to be removed from her care. The worker observed that Mom did "not appear to see how her actions have affected [W.D.] and his safety. She [did] not appear to have the capability of making long term safe choices."

Dad spent most of this case incarcerated or in halfway houses. Despite expressing an interest in participating in the case in September 2018, Dad did not follow through. Case...