In re Interest of A.H.
|22 July 2020
|950 N.W.2d 27
|In the INTEREST OF A.H., E.S., D.A., B.A., and M.A., Minor Children, A.A., Father of D.A., B.A., and M.A., Appellant, H.A., Mother of A.H., E.S., B.A., and M.A., Appellant.
|Iowa Court of Appeals
Philip Leo Garland, Garner, for appellant father.
Theodore J. Hovda, Garner, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State.
Jane M. Wright, Forest City, attorney and guardian ad litem for minor children.
Considered by Vaitheswaran, P.J., Greer, J., and Blane, S.J.*
There are five children in the sibling group in this appeal.1 H.A. (mother) and A.A. (father) together are the parents of B.A. and M.A. H.A. is also the mother of A.H. and E.S.2 And A.A. is also the father of D.A.3 After two child-in-need-of-assistance (CINA) proceedings spanning six years, the juvenile court terminated the parents’ rights, pursuant to Iowa Code section 232.116(1)(f) and (l ) (2020), for all five children. The parents appeal separately.
The Iowa Department of Human Services (DHS) originally became involved with this family in 2014, when it removed the children from the parents’ home due to the parents’ substance abuse, relationship and mental-health issues, and the unsafe condition of their house. That case was resolved and closed in 2016.
Then, in December 2018, police executed a search warrant on the family home and discovered methamphetamine and marijuana. They also found the house in an unsanitary condition again. DHS initiated a second round of CINA cases. The children were found to be in need of assistance in January 2019. Although the children were not immediately removed, issues soon arose—DHS found out the parents were frequently leaving the children with relatives for extended periods of time, and the children were missing too many days of school. The juvenile court ordered the parents to begin substance-abuse and mental-health services, but they made little progress toward the case goals during this time.
Then, in February 2019, the court removed the children for the final time when the parents left them with relatives and disappeared for a week. In DHS custody, the children moved between three different relative and foster home placements. In spring 2019, three of the children were placed with one set of foster parents; the two other children were placed with a different foster family. The children remained in those placements through the rest of the CINA and termination-of-parental-rights (TPR) proceedings.
In the year following the children's removal, the parents made little progress in the case goals, continuing long-standing problems with substance abuse, housing instability, and unemployment.
As a starting point, the parents have never completed substance-abuse treatment; they have each participated in multiple evaluations but have not followed through with treatment recommendations. The father had evaluations in February and June 2019 and again in January 2020. After the June evaluation, he started treatment services but was discharged within thirty days for nonattendance. He tested positive for methamphetamine in February 2020, after the State filed TPR petitions.
Similarly, the mother discharged unsuccessfully from two different treatment programs due to nonattendance. She took twenty drug tests over the year of the CINA case—half were positive for illegal substances. Most recently, she tested positive for methamphetamine in January and February 2020. At the termination hearing, the mother testified that she had been sober since December 2019. When confronted with the results of the February test, she stated, "I never got those results," and "I have not used, I have not been around anybody that's using, and so I don't have an explanation."
Notably, the parents began addressing their substance-abuse issues with more urgency at the beginning of 2020, when they both began participating in treatment services with the same counselor. But they attended group sessions only sporadically. At the termination hearing, they complained they were unable to follow through with treatment because their counselor went on medical leave and because of closures caused by the novel coronavirus or COVID-19 pandemic response.
But the juvenile court did not accept their explanation; it reasoned they could have identified another counselor at the same facility and services were being provided in other ways during the COVID-19 pandemic, which the parents chose not to pursue. The mother did testify she was able to have a telephone therapy session with a different counselor on the day before the termination hearing.
Inadequate housing has also been a significant factor in the family's life. When the children were removed in February 2019, the family home was in a state of extreme disrepair. The house had no utilities and was running on only well water and a generator. The parents stayed in that home until February 2020, when they moved into a house vacated by the mother's parents. The grandparents moved into a new house but continued paying rent for the parents to stay in their vacated house. The grandparents also paid all utilities on the house because the mother and father are unable to get utilities in their own name due to past unpaid bills. The parents are supposed to pay rent and utilities to the grandparents but have not yet done so. In a verbal confrontation shortly before the termination hearing, the grandparents suggested they were considering evicting the father because he was not working to contribute to the household or paying rent.
The family's housing instability is also connected to the parents’ unemployment. Throughout most of the CINA case, they were unemployed. The father testified to working off and on, but he was fired from his job in early 2019 and relatedly charged with third-degree theft. Shortly before the termination hearing, both parents got new jobs—the mother began working at a fast food restaurant. The father testified he began a construction job. But at the time of the termination hearing, both workplaces had suspended operations due to the COVID-19 pandemic. It was unclear when their employment would resume.
The mother testified the rent and utilities on their home are $800 each month and, when working, she is paid between $800 and $1000 per month. It is unclear how much the father is paid. It is also unclear how the parents will stretch their limited resources to cover rent, utilities, and all other expenses to care for five children without continued financial support from the grandparents.
The court held the hearing on the termination of parental rights on April 3. Previously, it ordered that hearing be conducted entirely by telephone, pursuant to supervisory orders from the supreme court on the provision of court services during the COVID-19 pandemic. The parents moved to continue until all parties and counsel could be personally present for a hearing. The court denied the motion. Following a fully telephonic hearing, the court terminated the parents’ rights, pursuant to Iowa Code section 232.116(1), paragraphs (f)4 and (l ).5
The court cited the parents’ ongoing substance-abuse issues—as demonstrated by recent drug tests positive for methamphetamine—as well as their employment and housing instability. The parents appeal separately.
We review child-welfare proceedings de novo. In re M.W. , 876 N.W.2d 212, 219 (Iowa 2016). The juvenile court's fact findings do not bind us, but we give them weight, particularly with regard to credibility. Id. Our primary concern is the best interests of the children. In re L.T. , 924 N.W.2d 521, 529 (Iowa 2019).
Review of the parents’ constitutional claim is also de novo. In re C.M. , 652 N.W.2d 204, 209 (Iowa 2002). And we review the juvenile court's denial of a motion to continue for an abuse of discretion. In re M.D. , 921 N.W.2d 229, 232 (Iowa 2018). "A court abuses its discretion when ‘the decision is grounded on reasons that are clearly untenable or unreasonable,’ such as ‘when it is based on an erroneous application of the law.’ " Id. (quoting In re A.M. , 856 N.W.2d 365, 370 (Iowa 2014) ).
Neither parent challenges the statutory grounds for termination of their rights. Instead, they jointly raise the following issues: first, they contend termination of their parental rights was not in the children's best interests; and second, they contend the juvenile court erred in denying their joint motion to continue because the resulting termination hearing via teleconferencing violated their due process rights. The mother separately contends termination is detrimental to the children due to her close parent-child relationship. We start with the constitutional claim.
The parents challenge the termination hearing on due process grounds. Due process protections "include procedural safeguards for people who face state action that threatens a protected liberty or property interest." Id. "Once the law finds a protected interest to exist, the question turns to what process or procedure the law must provide the person." Id. The questions here are whether the telephonic hearing satisfied the parents’ due process rights under these circumstances and whether the district court abused its discretion in denying the parents’ motion to continue.
The State filed a petition for termination of parental rights on January 30, 2020. The juvenile court originally set the hearing for February 21. Shortly beforehand, the State moved to continue because it had not been able to serve A.H. and E.S.’s father. The State applied to give notice by publication. The court granted the continuance and publication request, resetting the termination hearing for March 6. On March 6, the court continued the hearing again because it determined the time initially allotted for the hearing was...
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