IN THE COURT OF APPEALS OF IOWA
No. 17-0205
Filed April 19, 2017
IN THE INTEREST OF J.H.,
Minor Child,
K.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for O’Brien County, David C. Larson,
District Associate Judge.
An incarcerated mother appeals the termination of her parental rights to
her seven-year-old daughter. AFFIRMED.
Katie F. Morgan of Klay, Veldhuizen, Bindner, De Jong & Halverson,
P.L.C., Paullina, for appellant mother.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Shannon L. Sandy of Sandy Law Firm, P.C., Spirit Lake, guardian ad litem
for minor child.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.
A mother, K.S., who was incarcerated at the time of the termination-of-
parental-rights hearing, appeals the juvenile court’s order severing her legal
relationship with her daughter, J.H.1 K.S. raises two issues on appeal: (1) the
Iowa Department of Human Services (DHS) did not provide reasonable efforts to
reunify their family under Iowa Code section 232.102(7) (2016) and (2) the
juvenile court should have declined to terminate under section 232.116(3)(c)
based on the strong mother-child bond. On the first issue, we find the DHS
made an adequate record showing its reasonable efforts to facilitate visitation
while K.S. was serving time at the Iowa Correctional Institution for Women in
Mitchellville. On the second issue, the evidence was not clear and convincing
that termination would be detrimental to J.H. because of the closeness of her
relationship with K.S. Accordingly, we affirm the juvenile court’s order.2
I. Facts and Prior Proceedings
This appeal involves the future of now seven-year-old J.H. Her mother,
K.S., has a history of criminal offenses and drug-related problems. For instance,
K.S. spent time in jail for illegal possession of prescription drugs in April and May
2013. In November 2013, her probation was revoked and she was incarcerated
1
The order also terminated the parental rights of J.H.’s father, who does not appeal.
2
We review child-welfare appeals de novo, which means we examine both the facts and
law and adjudicate anew those issues properly preserved and presented. See In re
L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). The State bears the burden to prove
the allegations in its petition by clear and convincing evidence. See Iowa Code
§ 232.96(2). The clear-and-convincing standard requires more than a preponderance of
evidence but less than proof beyond a reasonable doubt. See L.G., 532 N.W.2d at 481.
“It means . . . there must be no serious or substantial doubt about the correctness of a
particular conclusion drawn from the evidence.” Id.
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for six months, until May 2014. K.S. also spent ten days in jail in June 2014.
When K.S. was incarcerated, she relied on friends and family to care for J.H.3
During the summer of 2014, the DHS investigated a claim of child abuse
against K.S. involving her supervision of J.H., then four years old, while the
mother was abusing prescription pain killers or other illegal drugs. The juvenile
court adjudicated J.H. as a child in need of assistance (CINA) in September 2014
but left the child in her mother’s care after K.S. completed a substance-abuse
evaluation and agreed to treatment and random drug testing. K.S. gave birth to a
third child in February 2015.4
J.H. was removed from her mother’s care in June 2015 when K.S. began
serving an indeterminate ten-year prison sentence for obtaining prescription
drugs by deceit. J.H. was initially placed with her father, but he was unable to
provide her with consistent care. J.H. has been living with the same foster family
since February 2016. Her guardian ad litem (GAL) reported J.H.’s verbal skills
and school performance have significantly improved during that time. In the
GAL’s view, J.H.—who has been diagnosed with Attention Deficit Hyperactivity
Disorder (ADHD)—has benefited from the calm and structured environment she
has experienced in her foster home in Sheldon.
But the distance between the foster home in Sheldon and the prison in
Mitchellville (more than 400 miles roundtrip) has made arranging visitation
difficult. J.H. had only three visits with her mother in prison—once in January
2016 when a family friend transported her, and twice in the summer of 2016
3
K.S. also had custody of her younger daughter, M.W., who had a different father than
J.H. M.W. is now living with her father and is not a subject of this termination case.
4
That child, B.S., is living with his father and is not a subject of this termination case.
4
when a caseworker made the trip. In May 2016, the juvenile court continued
permanency for six months based on the mother’s report that she would likely be
paroled in November 2016. At the time of those visits in June and July, K.S. was
residing in a halfway program outside the prison walls. But in August, K.S. was
returned to the main prison facility after being accused of forging a time sheet,
and in October 2016, her request for parole was denied. She was not due for
another parole review until March 2017.
The State filed a petition to terminate parental rights on November 3,
2016, and the juvenile court heard testimony on November 29. In an order
issued on January 24, 2017, the court terminated K.S.’s parental rights based on
Iowa Code section 232.116(1)(f). In K.S.’s petition appealing that order, she
does not challenge the statutory ground. In the absence of a challenge, the
ground for termination remains undisturbed. See In re P.L., 778 N.W.2d 33, 40
(Iowa 2010).
II. Analysis
A. Reasonable Efforts
In her petition on appeal, K.S. focuses on reasonable efforts. This
concept is key to reuniting families in the child-welfare system. The DHS must
make “every reasonable effort to return the child to the child’s home as quickly as
possible consistent with the best interests of the child.” See Iowa Code
§ 232.102(7). The reasonable-efforts requirement “is not viewed as a strict
substantive requirement of termination. Instead, the scope of the efforts by the
DHS to reunify parent and child after removal impacts the burden of proving
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those elements of termination which require reunification efforts.” In re C.B., 611
N.W.2d 489, 493 (Iowa 2000).
K.S. bemoans the fact she has had so few visits with J.H. while serving
her prison sentence in Mitchellville. K.S. cites In re S.J., 620 N.W.2d 522, 525
(Iowa Ct. App. 2000), for the proposition that a parent’s incarceration does not
absolve the DHS of its duty to provide reunification services, including visitation if
reasonable. Specifically, she criticizes the DHS for failing to make “a complete
record at the termination hearing” as to the considerations listed in S.J., 620
N.W.2d at 525 (opining DHS “may wish to consider some or all of the following
factors, among others, if applicable: the age of the children, the bonding the
children have or do not have with their parent, including any existing clinical or
other recommendations concerning visitation, the nature of parenting
deficiencies, the physical location of the child and the parent, the limitations of
the place of confinement, the services available in the prison setting, the nature
of the offense, and the length of the parent’s sentence”).
K.S. raises an important issue. A parent’s ability to regain custody often
hinges on the frequency and quality of visitation while the child is placed outside
the home. When a parent is incarcerated, the DHS cannot just write off the
possibility of visitation without proper investigation and inquiries. See, e.g., In re
R.C., No. 16-1131, 2016 WL 4803919, at *4–5 (Iowa Ct. App. Sept. 14, 2016); In
re K.M., No. 16-0795, 2016 WL 4379375, at *5 (Iowa Ct. App. Aug. 17, 2016); In
re K.L.P., No. 15-1371, 2015 WL 6507840, at *4–5 (Iowa Ct. App. Oct. 28, 2015).
Too often, parents wait until the eleventh hour to demand reasonable
efforts. No such delay happened here. K.S. pushed early for the DHS to make
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reasonable efforts to facilitate visits with her children at the prison. At a CINA
review hearing in April 2016, the juvenile court encouraged the DHS to continue
to provide the maximum visitation possible. In response to a motion filed by
K.S.’s counsel, the juvenile court issued an order in June 2016, citing S.J., 620
N.W.2d at 525, and directing the DHS to “provide transportation for [J.H.] to visit
her mother in prison to the extent transportation services are available” and to
“provide gas money to defray the cost of transportation provided by other DHS-
approved individuals to the extent such funds are available.” But the juvenile
court also noted this was not a situation where the DHS “has placed a child in a
distant foster home, but rather, it is a case where the child’s mother is
incarcerated in a distant facility.”
K.S. contends the DHS failure to “take more action” after the court’s June
2016 order was a denial of reasonable efforts. On this record, we cannot agree.
The DHS case manager testified to the agency’s endeavors to coordinate visits
for K.S. with her three children who lived in three different homes in northwest
Iowa. The caseworker made the eight-hour round trip once in June and once in
July. The DHS scheduled another trip for August, but it “ended up not being a
visitation date” for the prison, and the prison officials “wouldn’t make special
arrangements” for the DHS. The DHS also had trouble getting a family safety,
risk, and permanency worker cleared to enter the prison. After brainstorming on
how to facilitate more visits, the DHS approved several different friends and
relatives of K.S. to transport J.H. to Mitchellville, but only one family friend had
been able to make the trip. M.W.’s father was approved to take both girls to visit,
but one time he took only M.W. and another time DHS paid for his gas, but he
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ended up not going. The DHS caseworker told the court: “We really have
exhausted our efforts” at facilitating visits. The DHS also allowed K.S. to have
ongoing telephone and electronic communication with J.H.
While the sparsity of in-person visits between J.H. and K.S. was not ideal,
we cannot find it was unreasonable under the circumstances. The geography in
this case was daunting. While K.S. did not choose to be incarcerated in
Mitchellville, the location of the only women’s prison in Iowa, she did commit the
crimes that led to her prison term. The question is whether the DHS attempts to
arrange visitation were reasonable under the circumstances. S.J., 620 N.W.2d at
525 (observing father’s imprisonment at “a distant facility” rendered “any
provision of reunification services infeasible”). Here, the DHS did not deny
visitation at the Mitchellville prison. The agency was responsive to the juvenile
court’s June 2016 order and workers made several day-long treks across the
state with K.S.’s young children. The DHS also was open to approving safe
individuals to transport J.H. to see her mother. The problem was those
individuals could not or did not commit to bringing J.H. to the prison on a regular
basis. We cannot conclude the DHS violated its statutory mandate to provide
reasonable efforts.
B. Closeness of the Relationship
K.S. next alleges the juvenile court should not have terminated her
parental rights because she and J.H. had a close relationship. Section
232.116(3)(c) allows the juvenile court to refrain from terminating parental rights
if “[t]here 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
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relationship.” This factor is permissive, not mandatory. See In re M.W., 876
N.W.2d 212, 225 (Iowa 2016).
We have no cause to doubt the strong affection K.S. expresses toward
J.H. But the record does not support a finding that cleaving J.H. from her mother
would be harmful to the child. According to the GAL, J.H.’s ADHD and anxiety
have dissipated since she left the chaos and crisis in K.S.’s household for the
relative calm and stability in her foster-care placement. The record shows the
child’s familial identity now lies with her foster family, to the point that she has
asked to take their last name. See Iowa Code § 232.116(2)(b). Accordingly, we
affirm the termination order.
AFFIRMED.