In re N.L.
| Decision Date | 17 November 2022 |
| Docket Number | 22-1166 |
| Parties | IN THE INTEREST OF N.L., Minor Children, B.L., Mother, Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, Susan Cox District Associate Judge.
A mother appeals the juvenile court's denial of her motion to continue and termination of her parental rights.
Teresa M. Pope of Branstad &Olson Law Office, Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.
ConGarry Williams, Des Moines, attorney and guardian ad litem for minor child.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
A mother, Brooke, appeals the termination of her parental rights to a two-year-old child. She challenges the statutory ground for termination, requests additional time, and argues termination Is not in the child's best interests. She also contends the juvenile court's denial of her motion to continue the termination hearing was an abuse of discretion. After our independent review of the record, we find the termination ground was supported, additional time was unwarranted, and termination Is in the child's best interests.[1] We also find no abuse of discretion in the court's denial of a continuance. So we affirm.
This family has been involved with the Iowa Department of Health and Human Services (DHHS) since before Na.L.'s birth in October 2019. Na.L.'s three older siblings were removed from Brooke's care in 2018.[2] A younger sibling, No.L., was born in June 2021. Because of Brooke's methamphetamine use, the juvenile court removed Na.L. from her custody and adjudicated him as a child in need of assistance (CINA) in October 2020. He was placed with a family friend, where he has remained since.
Brooke has a long history of substance-abuse and mental-health concerns. Her drug tests throughout this case have not demonstrated a trend toward sobriety. She refused or avoided testing several times. But in 2021, she entered residential substance-abuse treatment-with baby No.L. in her care. Then, in February 2022, the mother left the center without letting anyone know where she was taking No.L. They were eventually located at an apartment Brooke had rented. Brooke was visibly intoxicated. Also in the apartment were Jeffrey and another man whom Jeffrey admitted was the parents' drug dealer. Police removed No.L. from the parents' custody. The baby suffered injuries to his head and shoulder while in the care of his impaired mother, resulting in a founded child abuse assessment. Brooke later confessed that she had a relapse that day, using methamphetamine and marijuana.
The record also reflects Brooke's struggles with domestic violence and mental health. Shortly after the children were removed, an argument between Brooke and Jeffrey required a call to police. Brooke reported Jeffrey assaulted her. Both parents have repeatedly violated no-contact orders. They deny continuing their intimate relationship. Brooke was ordered to attend mental-health therapy but was discharged due to nonattendance. She has several diagnosed but untreated disorders. Her attendance and performance at visitations has been lackluster according to service providers. And she is unable to have visits at her apartment due to fire damage that is awaiting repair.
In mid-May 2022, shortly before the termination hearing, the DHHS worker transported the parents to their drug testing appointments, where two unusual events took place. First, the mother refused to provide a hair sample for a hair stat test, though she later agreed. Second, the father confessed to the DHHS worker that Brooke gave him a small bottle containing "clean" urine. The drug examiner tested the bottle and confirmed it contained no illegal substances. The mother's urine test was also negative for drugs. But the hair stat test came back positive for methamphetamine and amphetamine.
The mother did not appear at the termination hearing; the record does not include a reason for her absence. The court terminated her rights to Na.L. under Iowa Code section 232.116(1)(h) (2022). Brooke appeals.[3]
Brooke first argues the district court abused its discretion by denying her request to continue the termination hearing. She sought the continuance because several State's exhibits were filed three days before the hearing, despite an order that all exhibits be filed seven days in advance. We review a motion to continue for abuse of discretion. M.D., 921 N.W.2d at 232. An abuse occurs when the grounds for the denial are clearly untenable or unreasonable. In re A.M., 856 N.W.2d 365, 370 (Iowa 2014). We reverse only if injustice to the moving party will result. In re R.B., 832 N.W.2d 375, 378 (Iowa Ct. App. 2013).
When moving to continue, Brooke's counsel stated she had not had a chance to look at the late filings or contact her client. Despite being aware of the date, Brooke did not attend the hearing. The court denied the request, citing the statutory timeframes and focusing on the child's best interests and need for permanency. Still, upon objection, the court refused to admit several late reports. Three exhibits, though untimely, were admitted. Brooke argues the late filing of those exhibits justified a continuance. The first exhibit was a court-appointed-special-advocate report, to which she did not object. And the other two exhibits were hair-stat test results from mid-May, which were not available to DHHS until that day. The juvenile court found good cause to admit the results, which show Brooke tested positive for amphetamine and methamphetamine.[4] Brooke was aware of the outstanding test, and both parties received the results on the same day. The juvenile court acted reasonably by admitting test results that all the parties were waiting on. No injustice resulted from their admission. We find no abuse of discretion.
B. Statutory Ground for Termination
Brooke next contends the juvenile court erred in terminating her parental rights under Iowa Code section 232.116(1)(h). That ground requires proof that the child (1) is three years of age or younger, (2) has been adjudicated in need of assistance, (3) has been removed for a specified time, and (4) cannot be returned to parental custody "at the present time." Iowa Code § 232.116(1)(h). She challenges only the last element. Id. § 232.116(1)(h)(4). Brooke argues the State did not offer clear and convincing evidence that the child could not have been returned to her custody "at the time of the termination hearing or within a reasonable period of time." But the "within a reasonable period of time" language does not appear in the statutory grounds, and we interpret "at the present time" to mean at the time of the termination hearing. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010).
She points out that, although domestic violence was a concern at the start of the case, no evidence was presented that it remained a concern. And she brings up her efforts at substance-abuse treatment. The record shows she has been engaged in services for four years involving five children. Yet the substance-abuse concerns remain. She discharged early from treatment this February, left without telling anyone her whereabouts, and was intoxicated while caring for her infant which caused him injuries. She tried to tamper with drug tests by providing false urine samples. And she tested positive for illegal drugs about one week before the termination hearing. True, she has not suffered domestic violence recently, but she has not completed counseling to deal with her past exposure to abuse. And she appears to maintain a relationship with Jeffrey, who assaulted her. She also has not consistently engaged in mental-health services. Further, although not her fault, her home is not in a safe condition for children due to the recent fire damage. So she could not safely...
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