IN THE COURT OF APPEALS OF IOWA
No. 16-2001
Filed March 22, 2017
IN THE INTEREST OF K.B. and K.B.,
Minor Children,
T.B., Father,
Appellant,
B.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor,
Associate Juvenile Judge.
A father and mother separately appeal from the order terminating their
parental rights. AFFIRMED ON BOTH APPEALS.
Charles F. Elles, Bettendorf, for appellant father.
Matthew A. Quinn of the Law Office of Matthew Quinn, Bettendorf, for
appellant mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd (until
withdrawal) and Kristi Ann Traynor, Assistant Attorneys General, for appellee
State.
Taryn Rena Purcell of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,
Dubuque, for minor children.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. Tabor,
J., takes no part.
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BOWER, Judge.
A mother and father separately appeal the juvenile court decision
terminating their parental rights. They claim (1) the evidence was insufficient to
support termination; (2) the children had not been removed from the parents for
six months; and (3) termination is not in the children’s best interest. We find the
evidence is sufficient to terminate, the juvenile court properly determined the
children had been removed for six months, and termination is in the children’s
best interest. Accordingly, we affirm.
I. Background Facts and Proceedings
The children, K.B. (born in 2013) and K.B. (born in 2014), came to the
attention of the Iowa Department of Human Services (DHS) after it was alleged
the mother was under the influence of controlled substances, the children lacked
adequate supervision, both parents failed to obtain recommended medical
treatment, the older child had a large unexplained burn which neither parent
knew the cause of, the children were not being properly bathed, and marijuana
was being used in the home while the children were present. Both parents
tested positive for marijuana, though they denied using it in the presence of the
children. The mother has been diagnosed with a mild intellectual disability and
generalized anxiety disorder. The father was also diagnosed with a generalized
anxiety disorder and bipolar II disorder.
The parents agreed to a voluntary relative placement with a maternal aunt
of the children on April 15, 2016. Approximately a month later, the maternal aunt
asked for the children to be removed as she was experiencing difficulty with her
pregnancy. The parents then agreed to a voluntary foster care placement on
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May 27, and the juvenile court placed the children in the custody of DHS on
May 31.
The parents were offered visitation but neither parent attended even half
of the allotted times. Both parents gave a variety of excuses, including work, lack
of transportation, and illness. However, the provider testified a “good portion” of
the visits were missed because of the parents’ failure to confirm them.
Further, although substance abuse was a concern for both parents,
neither attended substance-abuse treatment nor underwent a substance abuse
evaluation. Both parents were, at best, sporadic in their compliance with mental
health recommendations. The mother’s medical benefits lapsed several times
during the pendency of the case and she was unable to find coverage for
services required under the parenting plan. The father’s medical benefits also
lapsed during the pendency of the trial, for which he had not reapplied. The
parents had also not complied with the parenting sessions. The parenting
sessions were scheduled to be held during visits, but because so many were
missed, few parenting sessions were completed.
The termination hearing was held on November 8, 2016, and an order
terminating parental rights was entered the same day. The mother and father
now appeal.
II. Standard of Review
The scope of review is de novo in termination cases. In re D.W., 791
N.W.2d 703, 706 (Iowa 2010). Clear and convincing evidence is needed to
establish the grounds for termination. In re J.E., 723 N.W.2d 793, 798 (Iowa
2006). Where there is clear and convincing evidence, there is no serious or
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substantial doubt about the correctness of the conclusion drawn from the
evidence. In re D.D., 653 N.W.2d 359, 361 (Iowa 2002). We give weight to the
juvenile court’s findings of fact but are not bound by them. In re C.B., 611
N.W.2d 489, 492 (Iowa 2000). The highest concern in termination proceedings is
the best interests of the children. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
Both parents’ rights were terminated pursuant to Iowa Code section
232.116(1)(d), (e), and (h) (2016). “On appeal, we may affirm the juvenile court’s
termination order on any ground that we find supported by clear and convincing
evidence.” D.W., 791 N.W.2d at 707. Both parents claim there was insufficient
evidence to terminate their parental rights. In order to terminate parental rights
under section 232.116(1)(h), (1) the child must be three years old or younger, (2)
the child must have been adjudicated in need of assistance, (3) the child must
have been removed from the home for at least six of the last twelve months, or
for the last six consecutive months with any period at home being less than thirty
days, and (4) the child cannot be returned to the home as provided in section
232.102.
III. Sufficiency of the Evidence
Both parents claim the children could have been returned to them at the
time of the termination hearing. However, at the time of the termination hearing
neither parent had addressed their substance abuse issues, had reliably
participated in mental health treatment, nor effectively participated in parenting
classes. While they provide excuses for their failures, it is clear the children
cannot be returned to parents still struggling with substance abuse, mental-health
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issues, and a lack of parenting skills. We find there is sufficient evidence to
terminate under section 232.116(1)(h).
IV. Date of Removal
Both the mother and father claim the children were not removed from their
physical custody for the last six consecutive months as required by Iowa Code
section 232.116(1)(h)(3). The children were voluntarily placed with a relative
April 15 and were voluntarily placed in foster care May 27. On May 31, the
juvenile court entered an order placing temporary custody of the children with
DHS.
The parents claim the children were not removed from their physical
custody until the juvenile court order on May 31. Our supreme court has recently
addressed the issue of removal and held the purpose of removal is to ensure
“that before termination occurs under these subsections, a parent has had a
chance at physical custody in the past that has been unsuccessful.” In re C.F.-
H., 889 N.W.2d 201, 207 (Iowa 2016), reh'g denied (Feb. 10, 2017). Terminating
parental rights when a parent has never had the opportunity to demonstrate their
fitness as a parent should be avoided. Id. Our supreme court also examined the
legislative history of the removal statutes and found the purpose of the
amendment “was merely to speed up the time frame for calculation . . . . No
other substantive change is mentioned.” Id at 208. The legislative history noted
“[t]he 6 month time period would start from the time the child is removed from the
physical custody of the parents, not when legal custody is transferred.” H.F.
2452, 74th G.A., 2d Sess. fiscal note (Iowa 1992). The focus of the statute is on
the transfer of physical custody, and that focus is to ensure parents are given a
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chance to show their fitness as parents. Id. Finally, our supreme court
expressed concern that a loose interpretation of the term removal could result in
unjust termination of parental rights of those parents who had never had physical
care of the child. See id.
The framework established by C.F.-H. suggests a careful examination of
the opportunity afforded parents to demonstrate their fitness to parent before
termination. The removal of the children should serve as the focal point of the
examination. The mother and father in this case had the opportunity to
demonstrate their fitness as parents. They failed, and the children were
adjudicated in need of assistance. After the children were determined to be in
need of assistance a safety plan was established. The parents again failed to
show they were fit, and the children were removed from their physical care and
placed with the maternal aunt. Physical custody was transferred to the aunt April
15. Under the Iowa Code, as evaluated by our supreme court, the six month
period of removal began when the children were physically removed from their
parents.
V. Best Interests
The parents both claim termination is not in the best interests of the
children. After finding a ground for termination exists, we are to “consider the
factors under section 232.116(2). Section 232.116(2) requires us to ‘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.’” In re P.L., 778 N.W.2d 33, 40 (Iowa
2010) (citations omitted).
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The parents have consistently demonstrated an inability and unwillingness
to properly parent these children. Neither parent has exerted significant effort to
address the underlying causes of the termination. The parents failed to
consistently visit the children, engage with the resources and programs offered
by DHS, or even accept responsibility. While these parents may have enough
interest in their children to appeal the termination, they have not had enough
interest in the children to address their substance abuse issues, mental health
issues, or lack of parenting skills. Returning the children to their parents would
make them unsafe and hinder their long-term physical, mental, and emotional
growth and stability. Termination is clearly in the best interests of the children.
Therefore, we find the juvenile court properly terminated the mother and father’s
parental rights.
AFFIRMED ON BOTH APPEALS.