IN THE COURT OF APPEALS OF IOWA
No. 17-1184
Filed September 27, 2017
IN THE INTEREST OF M.C.,
Minor Child,
K.S., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.
Schroeder, Judge.
The mother appeals from an order terminating her parental rights pursuant
to Iowa Code chapter 232 (2017). AFFIRMED.
Jane M. Wright, Forest City, for appellant mother.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Crystal L. Ely of North Iowa Youth Law Center, Mason City, guardian ad
litem for minor child.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.
The juvenile court terminated Kelly’s parental rights in her child, M.C.,
pursuant to Iowa Code section 232.116(1)(e) and (h) (2017). On appeal, Kelly
argues: (1) there was not clear and convincing evidence to terminate her rights
pursuant to section 232.116(1)(e); (2) the Iowa Department of Human Services
(IDHS) failed to make reasonable efforts towards reunification; (3) the juvenile
court should have granted a six-month extension of time to work toward
reunification; (4) termination of Kelly’s parental rights was not in the best interest
of M.C.; and (5) the juvenile court should have preserved the parent-child
relationship pursuant to section 232.116(3).
I.
We review de novo proceedings terminating parental rights. See In re
A.M., 843 N.W.2d 100, 110 (Iowa 2014). The legal framework for termination
appeals is well established and need not be repeated in full herein. See id.; In re
M.W., 876 N.W.2d 212, 219–20 (Iowa 2016) (stating review is de novo and
setting forth the applicable “three-step inquiry”).
A.
Kelly first challenges the sufficiency of the evidence supporting termination
of her parental rights pursuant to Iowa Code section 232.116(1)(e). But she does
not challenge the sufficiency of the evidence authorizing termination of her
parental rights pursuant to section 232.116(1)(h). “When the juvenile court
terminates parental rights on more than one statutory ground, we may affirm the
juvenile court’s order on any ground we find supported by the record.” In re A.B.,
815 N.W.2d 764, 774 (Iowa 2012).
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We conclude there is clear and convincing evidence supporting the
termination of Kelly’s rights pursuant to section 232.116(1)(h). As relevant here,
the State must prove the child cannot be returned to the custody of the child’s
parent at the time of the termination. See Iowa Code 232.116(1)(h)(4). To make
this determination, we ask if the child would remain a child in need of assistance
or would be exposed to harm amounting to a new child-in-need-of-assistance
adjudication. See id.; In re M.M., 483 N.W.2d 812, 814 (Iowa 1992). “We have
interpreted this to require clear and convincing evidence the children would be
exposed to an appreciable risk of adjudicatory harm if returned to the parent’s
custody at the time of the termination hearing.” In re E.H., No. 17-0615, 2017
WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).
IDHS has been involved with this family for some period of time with little
success in resolving the issues giving rise to State intervention. Kelly is the
biological mother of A.C. and M.C. A.C. was removed from Kelly’s care in
October 2015, shortly after A.C. tested positive for controlled substances. M.C.
was born in July 2016. Like A.C., M.C. tested positive for controlled substances.
M.C. was removed from Kelly’s care two days after birth and placed in the same
foster home as A.C. and has resided there since birth. Despite the receipt of
numerous services, Kelly failed to show the ability to provide care for her
children, and her rights in A.C. were terminated in September 2016. This court
affirmed the termination of parental rights. See In re A.C., No. 16-1636, 2017 WL
512732, at *1 (Iowa Ct. App. Feb. 8, 2017).
As in many child-welfare cases, the primary obstacle to reunification is the
use and abuse of controlled substances. Kelly has an extensive history of
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involvement with controlled substances. In August 2016, the Northern Iowa drug
task force found eight bags of methamphetamine, eight bags of marijuana, and
drug paraphernalia in the home Kelly shared with M.C.’s father, Seth. She
pleaded guilty to two counts of possession of methamphetamine and marijuana
in January 2017 and was sentenced to one year of probation. Both of her
children tested positive for controlled substances at birth. She has been
unsuccessfully discharged from several substance-abuse treatment programs
over the life of this case. She most recently left inpatient treatment, against the
recommendation of her substance-abuse counselor in May 2017. She tested
positive for methamphetamine and marijuana in April and May 2017, shortly prior
to the termination hearing. While Kelly did complete a short inpatient program
immediately prior to the termination hearing in this case, she has not
demonstrated an ability to maintain sobriety outside of custodial setting for any
meaningful period of time. Kelly’s substance abuse supports the termination of
her parental rights. See, e.g., In re A.B., 815 N.W.2d at 776 (noting drug
addiction can render a parent unable to care for children); In re R.P., No. 16-
1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug. 31, 2016) (affirming
termination of parental rights of parent with history of drug abuse); In re H.L., No.
14-0708, 2014 WL 3513262, at *4 (Iowa Ct. App. July 16, 2014) (affirming
termination of parental rights when parent had history of substance abuse).
Kelly also admittedly cannot provide for the basic needs of the child. She
lacks employment and financial security. She lacks safe and appropriate
housing which has been a significant detriment in her reunification efforts. After
Seth was incarcerated, Kelly began living at the home of her friend. Kelly’s friend
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was a known drug user who had rights in her child terminated in 2016. In late
May 2017, Kelly moved from this home into the home of Seth’s uncle. But Kelly
still spends most of her time at her friend’s home. This also places M.C. at risk of
appreciable harm if returned to Kelly’s care. See In re M.W., 876 N.W.2d at 223
(inappropriate housing and inconsistent employment “reflect[] [a mother’s] prior
pattern of irresponsibility and lack of planning when it comes to her children”); In
re R.C., No. 03-1134, 2003 WL 22092677, at *2 (Iowa Ct. App. Sept. 10, 2003)
(finding among other factors, a father’s “history of unstable housing and
employment” provided “evidence beyond a reasonable doubt” that the child could
not be placed in his care).
Little has changed since the prior appeal in which we affirmed the
termination of Kelly’s parental rights in A.C. There is clear and convincing
evidence supporting the statutory ground authorizing the termination of Kelly’s
parental rights.
B.
Kelly contends the State failed to make reasonable efforts towards
reunification. As part of its ultimate proof, the State must establish it made
reasonable efforts to return the child to the care of the parent to proceed with
termination. See Iowa Code § 232.102(9). This requires IDHS 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.” Id. Reasonable efforts “facilitate
reunification while protecting the child from the harm responsible for the
removal.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996). “[W]hat
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constitutes reasonable services varies based upon the requirements of each
individual case.” In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
Kelly has not preserved her challenge to the efforts made in this case. On
appeal, Kelly has not identified any specific service that should have been
offered to facilitate reunification. Nor has she identified any particular deficiency
in the services offered. In the juvenile court, Kelly did not request additional
services. Nor did she identify any particular deficiency in the services offered.
“We have repeatedly emphasized the importance for a parent to object to
services early in the process so appropriate changes can be made.” In re C.B.,
611 N.W.2d 489, 493–94 (Iowa 2000). “If . . . a parent is not satisfied with
[I]DHS’ response to a request for other services, the parent must come to the
court and present this challenge.” In re C.H., 652 N.W.2d at 147; see In re S.R.,
600 N.W.2d 63, 65 (Iowa Ct. App. 1999) (concluding it is a parent’s responsibility
to demand other, different, or additional services in order to preserve error); see
also Iowa Code § 232.99(3). The failure to request different or better services in
the juvenile court proceeding waives any challenge to the department’s efforts on
appeal.
Independently, even if the issue were presented for appellate review, we
conclude the department made reasonable efforts to facilitate reunification. Kelly
was offered therapy referrals; mental-health evaluations; substance-abuse
evaluations; visitation; family safety, risk, and permanency services; drug testing;
family team meetings; housing assistance; a parent partner; transportation
assistance; family-preservation court; and employment assistance. This is not a
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case where the department failed to make reasonable efforts; this is a case
where the mother failed to avail herself of the services offered.
C.
Kelly argues in light of her recent treatment progress, she is entitled to six
more months to reunify with M.C. pursuant to Iowa Code section 232.104(2)(b).
Pursuant to section 232.104(2)(b), the juvenile court may enter an order
deferring permanency upon a finding the need for the child’s removal will no
longer exist at the end of the additional six-month period. Iowa Code
§ 232.104(2)(b). The court must “enumerate the specific factors, conditions, or
expected behavioral changes which comprise the basis for the determination”
the need for removal will no longer exist at the end the extension. Id. In
determining whether to grant six additional months, “[t]he court may look at a
parent’s past performance.” In re T.D.H., 344 N.W.2d 268, 269 (Iowa Ct. App.
1983). In considering whether deferral is proper, “[t]he judge considering [an
extension] should . . . constantly bear in mind that, if the plan fails, all extended
time must be subtracted from an already shortened life for the child[] in a better
home.” In re A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005).
There is no basis in this record to conclude removal would no longer be
necessary at the end of the six-month period. Kelly has a long history of
methamphetamine and marijuana use. She has completed treatment and
relapsed before, including during termination proceedings for her older child.
See In re A.C., 2017 WL 512732, at *1. Her past behavior gives little reason for
optimism. See In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998) (stating “we
must consider the treatment history of the parent to gauge the likelihood the
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parent will be in a position to parent the child in the foreseeable future”); T.D.H.,
344 N.W.2d at 269. Kelly’s last-minute improvements are simply not enough to
demonstrate a reasonable likelihood of sustained success. See In re D.R., No.
15-1968, 2016 WL 1129385, at *4 (Iowa Ct. App. Mar. 23, 2016) (affirming
termination where “mother’s late progress in the case did not begin until after the
State filed its petition seeking termination of parental rights”); In re A.D., No. 15-
1508, 2016 WL 902953, at *2 (Iowa Ct. App. Mar. 9, 2016) (“Iowa courts look
skeptically at ‘last-minute’ attempts to address longstanding issues, finding them
inadequate to preclude termination of parental rights.”).
D.
Kelly argues termination of her parental rights was not in the best interest
of M.C. She notes she has been an appropriate caregiver during supervised
visitation and claims “[t]here was no evidence presented by the State that M.C.
has become integrated into the foster family to the extent that the child’s familial
identify is with the foster family.” “When considering a child’s best interests, we
‘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 M.T., No. 14-
2133, 2015 WL 1055518, at *2 (Iowa Ct. App. Mar. 11, 2015) (quoting Iowa Code
§ 232.116(2)).
When we consider what placement facilitates the healthy development of
the child, we have little trouble concluding termination of Kelly’s rights is in the
best interest of the child. As noted above, Kelly exposed the child and the child’s
older sibling to controlled substances. She has long struggled with addiction and
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has not demonstrated any capacity to maintain sobriety outside a custodial
setting. Kelly’s substance abuse, among other things, has prevented her from
maintaining employment and being able to meet the child’s most basic needs for
food, clothing, and shelter. “It is well-settled law that we cannot deprive a child of
permanency after the State has proved a ground for termination under section
232.116(1) by hoping someday a parent will learn to be a parent and be able to
provide a stable home for the child.” In re A.B., 815 N.W.2d at 777; In re P.L.,
778 N.W.2d 33, 41 (Iowa 2010). We find this argument without merit.
E.
Kelly argues the statutory exceptions set forth in Iowa Code section
232.116(3) make termination improper in this case. Specifically, she claims
“there is clear and convincing evidence that the termination would be detrimental
to the child . . . due to the closeness of the parent-child relationship” pursuant to
section 232.116(3)(c). “The factors weighing against termination in section
232.116(3) are permissive, not mandatory.” In re D.S., 806 N.W.2d 458, 474–75
(Iowa Ct. App. 2011). The appropriate inquiry is whether the harms associated
with termination outweigh the benefits to the child. See In re C.L., No. 14-1973,
2015 WL 408392, at *3 (Iowa Ct. App. Jan. 28, 2015).
M.C. is a young child who has been out of Kelly’s care since birth. Kelly
has exercised regular visitation with the child over the life of this case. The
evidence showed Kelly was appropriate during the visitations. However, Kelly
never progressed past supervised visitation. In addition, Kelly’s caseworker
testified she has no more than a “caregiver” relationship with M.C. She does not
have a strong bond with this child, and the child does not have a strong bond
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with Kelly. M.C. looks to the foster parents for comfort and security. We decline
to exercise this permissive consideration to preserve the parent-child
relationship.
II.
For the foregoing reasons, we affirm the termination of Kelly’s parental
rights in M.C.
AFFIRMED.