IN THE COURT OF APPEALS OF IOWA
No. 17-0603
Filed June 21, 2017
IN THE INTEREST OF J.J.,
Minor Child,
C.J., Mother,
Appellant,
B.J., Father,
Appellant.
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Appeal from the Iowa District Court for Wapello County, William S. Owens,
Associate Juvenile Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Mary Baird Krafka of Krafka Law Office, Ottumwa, for appellant mother.
Bret R. Larson of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa,
for appellant father.
Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer, Special
Assistant Attorney General, for appellee State.
Sarah L. Wenke of Wenke Law Office, Ottumwa, guardian ad litem for
minor child.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.
A mother and a father separately appeal the termination of their parental
rights to their child. They argue they were denied procedural due process and
challenge the State’s proof of the requirements for termination. Because the
parents were afforded due process and the State proved each of the
prerequisites for termination, we affirm.
I. Background Facts and Proceedings.
The family came to the attention of the Iowa Department of Human
Services (DHS) in December 2015 due to concerns that the mother and the
father were using methamphetamine in the home while caring for the child. Both
the mother and the father have a long history of methamphetamine use and
tested positive for amphetamine and methamphetamine during the child
protective assessment. The child was placed in the home of a maternal family
member and the parents agreed to participate in substance-abuse treatment.
Although the mother and the father were initially allowed to remain in the home
with the child, the DHS asked them to leave the home in January 2016 due to
concerns about their continued methamphetamine use. The parents never
resumed care of the child.
In February 2016, the juvenile court adjudicated the child to be a child in
need of assistance (CINA). The DHS provided the mother and the father
services to address their substance abuse, but neither completed the
recommended treatment. The mother and the father also failed to obtain mental-
health treatment, employment, or stable housing during the CINA proceedings,
and in January 2017, they were living with a registered sex offender.
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In February 2017, the State filed a petition to terminate the mother’s and
the father’s parental rights. At the termination hearing the following month, the
father admitted, “There’s no excuse whatsoever why we’re not being parents that
we’re supposed to be being at our age, at all.” Although he had recently
obtained a substance-abuse evaluation and claimed he was prepared to follow
through with treatment, he had only just begun the process. The father asked
the court to continue termination for six more months so he could undergo
shoulder surgery and get a job, but he also testified that “the shoulder surgery is
going to knock me out of work for like six months straight” and that six months
was “the bare minimum” of time he would need for recovery, which he claimed
was typically a year.
The mother testified at the termination hearing that she had never
successfully completed a substance-abuse-treatment program. She left a
residential treatment program after one night because of anxiety and quit
outpatient treatment after approximately two weeks because she was not
comfortable talking in front of people. Tellingly, the mother testified she does not
think she needs substance-abuse treatment. Although she has a number of
mental-health diagnoses that are treated with prescription medication, she
testified that she stopped taking her medication when she was sixteen because
she did not think it was helpful, and she was not taking any medication at the
time of the termination hearing. When asked about her employment plans, the
mother testified she planned to “[s]tart finding a job,” admitting that she had not
yet obtained one because she had “not doing everything that . . . [she] could to
find one.” For instance, the mother had an interest in working at Goodwill but
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never applied. She, too, asked the court to extend the time for permanency to
allow her to prove she could obtain stable housing, employment, and mental-
health and substance-abuse treatment.
The juvenile court entered an order terminating both the mother’s and the
father’s parental rights to the child pursuant to Iowa Code section 232.116(1)(h)
(2017). The court noted that the parents “clearly adore” the child but
have done virtually nothing over the last thirteen months to put
themselves in a position to have [the child] returned to them. They
have not completed substance-abuse treatment ([the mother]
needs to update her evaluation before she can even begin
treatment), neither is engaging in recommended mental-health
treatment, neither has stable housing, nor are they employed.
The court further found “there is simply no evidence presented to show
terminating parents’ parental rights would be detrimental to the child” and “no
indication that additional time, more services, or any different services would
provide a different result either now, or in the foreseeable future.”
Both parents appeal.
II. Scope and Standard of Review.
We review orders terminating parental rights de novo. See In re A.B., 815
N.W.2d 764, 773 (Iowa 2012). Although we give weight to the juvenile court’s
fact findings, we are not bound by them. See id. We will uphold termination if
clear and convincing evidence supports the grounds for termination under
section 232.116. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Clear and
convincing evidence exists if there are no “serious or substantial doubts as to the
correctness or conclusions of law drawn from the evidence.” See id. (citation
omitted).
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III. Procedural Due Process Challenge.
The mother and the father both claim they were denied procedural due
process because the State failed to properly serve notice of the termination
petition. See In re K.M., 653 N.W.2d 602, 607 (Iowa 2002) (stating parties to
termination proceedings are entitled to notice and a meaningful opportunity to be
heard). Specifically, they argue the initial proofs of service show service by the
assistant county attorney in violation of Iowa Rule of Civil Procedure 1.302(4),
which provides that original notices may be served “by any person who is neither
a party nor the attorney for a party to the action.”
The record made at the termination hearing shows the service provider
served the parents with notice of the petition and the assistant county attorney
only signed the proofs of service. The assistant county attorney later filed
amended proofs to correct this error. Because the record shows the parents
received adequate notice of the termination proceeding, we decline to further
address their arguments on the matter.
IV. Termination of Parental Rights.
Both parents challenge the sufficiency of the State’s proof of the various
prerequisites for terminating their parental rights. In determining whether to
terminate parental rights, the court follows the following three-step analysis:
First, the court must determine if a ground for termination under
section 232.116(1) has been established. If a ground for
termination is established, the court must, secondly, apply the best-
interest framework set out in section 232.116(2) to decide if the
grounds for termination should result in a termination of parental
rights. Third, if the statutory best-interest framework supports
termination of parental rights, the court must consider if any
statutory exceptions set out in section 232.116(3) should serve to
preclude termination of parental rights.
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D.W., 791 N.W.2d at 706-07 (internal citations omitted).
A. Grounds for termination.
In order to terminate parental rights under section 232.116(1)(h), the State
must prove the following:
(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of
the child’s parents for at least six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
There is no dispute the first three elements have been proved.
The father argues the juvenile court erred in terminating his parental rights
because he has cooperated with court-ordered services. However, the State is
not required to show a parent is uncooperative to establish the grounds for
termination under section 232.116(1)(h). The only ground for debate is on the
fourth element of section 232.116(1)(h): whether the child could be returned to
the father’s custody at the time of the termination hearing. See D.W., 791
N.W.2d at 707 (stating the showing the children cannot be returned to the parent
“at the present time” means “at the time of the termination hearing”).
Under the facts before us, the father was unable to resume care of the
child safely at the time of the termination hearing. The father failed to complete
the recommended substance-abuse treatment, which prevented him from
addressing his mental health. He remained unemployed and without safe and
stable housing.
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The father requests that he be granted an additional six months to prove
himself, claiming the barriers that prevented him from completing substance-
abuse treatment—such as an active arrest warrant and his incarceration—were
“largely resolved” by the time of the termination hearing. 1 We note that time “is a
critical element” in termination proceedings, and after the statutory time period for
termination has passed, termination is viewed with a sense of urgency. In re
C.B., 611 N.W.2d 489, 495 (Iowa 2000). Children are not equipped with pause
buttons. See In re T.J.O., 527 N.W.2d 417, 422 (Iowa Ct. App. 1994) (“Children
simply cannot wait for responsible parenting. Parenting cannot be turned off and
on like a spigot. It must be constant, responsible, and reliable.”); In re D.A., 506
N.W.2d 478, 479 (Iowa Ct. App. 1993) (“The crucial days of childhood cannot be
suspended while parents experiment with ways to face up to their own
problems.”). Before the court can grant a parent additional time, there must be an
assurance that the need for removal will no longer exist at the end of that time
period. See Iowa Code § 232.104(2)(b). Considering the father’s lack of
progress during the year-long CINA proceedings and his late commitment to
resuming parenting duties, we are unconvinced that this would be the case here.
See C.B., 611 N.W.2d at 495 (“Insight for the determination of the child’s long-
range best interests can be gleaned from ‘evidence of the parent’s past
performance for that performance may be indicative of the quality of the future
care that parent is capable of providing.’” (citation omitted)); see also In re A.M.,
843 N.W.2d 100, 112 (Iowa 2014) (noting children must not be deprived
1
These impediments are of the father’s own making and show the circumstances that
led to the CINA adjudication continued to exist at the time of the termination hearing.
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permanency on the hope that someday the parent will be able to provide a stable
home). The father also remains in a relationship with the mother, a substance
abuser who also has failed to obtain treatment. On this record, his prognosis for
lasting sobriety is poor.
The father also claims the DHS failed to provide reasonable efforts to
prevent termination, as required by Iowa Code section 232.102(7) (requiring the
DHS to “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”).2 See C.B.,
611 N.W.2d at 493. The reasonable-efforts requirement is not a strict
substantive requirement for termination. See id. Instead, the services provided
by the DHS to reunify parent and child after removal impact the State’s burden of
proving it would be unsafe to return the child to the parent’s care. See id. For
the reasons stated, the State has proved the father cannot parent the child
safely.
B. Best interests.
Having found the State proved the grounds for termination under section
232.116(1)(h), we must then consider whether termination is in the child’s best
interests. Both parents contest the State’s proof on this issue.
In determining the child’s best interests, we give primary consideration to
the child’s safety, to the best placement to further the child’s long-term nurturing
2
It is the parent’s obligation to demand different or additional services the parent may
require prior to the termination hearing. See In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.
App. 1999). No such requests were made here. If a parent does not request additional
services at the appropriate time, the argument that the DHS did not make reasonable
efforts is waived and cannot be challenged in the termination proceeding. See In re
C.H., 652 N.W.2d 144, 148 (Iowa 2002).
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and growth, and to the child’s physical, mental, and emotional conditions and
needs. See A.M., 843 N.W.2d at 112. The “defining elements in a child’s best
interest” are the child’s safety and “need for a permanent home.” In re J.E., 723
N.W.2d 793, 802 (Iowa 2006) (Cady, J., concurring specially). Although
preservation of the parent-child bond may suit the parents’ best interests, it would
not be of benefit to the child. The parents have been unable to provide the child
with a safe and stable home. Although the DHS offered them services to reunite
them with the child, they each failed to step up and assume their parental duties
for more than a year. Meanwhile, a relative has provided the child with the
permanency, safety, and stability the parents have not. This relative wishes to
adopt the child, providing the child with an ongoing safe and stable home. The
permanency this affords is greater than the loss suffered by terminating the
parent-child bond. See In re R.L., 541 N.W.2d 900, 904 (Iowa Ct. App. 1995)
(“[T]ermination of parental rights is preferable to long-term foster care.”); see also
In re R.J., 436 N.W.2d 630, 636 (Iowa 1989) (noting that once the time period for
reunification set by the legislature has expired, “patience on behalf of the parent
can quickly translate into intolerable hardship for the children”).
C. Statutory exceptions.
Finally, the parents seek to avoid termination under one of the exceptions
provided in section 232.116(3) based on the child’s placement with a relative and
given their bond with the child. See Iowa Code § 232.116(3)(a), (c). The factors
weighing against termination in section 232.116(3) are permissive, not
mandatory. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa Ct. App. 1997),
overruled on other grounds by In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). “The
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court has discretion, based on the unique circumstances of each case and the
best interests of the child, whether to apply the factors in this section to save the
parent-child relationship.” In re D.S., 806 N.W.2d 458, 475 (Iowa Ct. App. 2011).
As stated above, the child’s best interests require terminating the parents’
rights, and we decline to invoke section 232.116(3) to avoid termination. And, for
the same reasons, we agree with the juvenile court that placing the child in a
guardianship pursuant to section 232.104(2)(d)(1) would not be appropriate.
Accordingly, we affirm.
AFFIRMED ON BOTH APPEALS.