In the Interest of J.W., K.W., and G.J., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 19-0372
Filed May 1, 2019

IN THE INTEREST OF J.W., K.W., and G.J.,
Minor Children,

K.W., Mother,
Appellant,

G.J., Father of G.J.,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Jason A. Burns,

District Associate Judge.

Parents separately appeal the termination of their parental rights to their

child, and the mother additionally appeals the termination of her parental rights to

two of her other children. AFFIRMED ON BOTH APPEALS.

Sara Strain Linder of Bray & Klockau, P.L.C., Iowa City, for appellant

mother.

Ellen R. Ramsey-Kacena, Cedar Rapids, for appellant father of G.J.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler, Assistant

Attorney General, for appellee State.

Anthony Haughton of Linn County Advocate, Inc., Cedar Rapids, guardian

ad litem for minor children.

Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.

Parents separately appeal the termination of their parental rights to their

child, G.J., born in 2015, and the mother additionally appeals the termination of

her parental rights to two of her other children, J.W. and K.W., born in 2009 and

2011.1 The father argues the Iowa Department of Human Services (DHS) failed

to make reasonable efforts to facilitate reunification and termination is not in G.J.’s

best interests because a guardianship could have been established in the paternal

grandmother. The mother challenges the sufficiency of the evidence underlying

the grounds for termination cited by the juvenile court, argues termination is not in

the children’s best interests due to the parent-child bond, and maintains she should

have been granted additional time to work toward reunification.

I. Background Facts and Proceedings

The parents lived in Illinois when the youngest child was born in 2015. A

few months later, the mother and children moved to Iowa. The father stayed in

Illinois, living with his mother; he has never lived on his own and has always relied

on his mother for stable housing. Thereafter, contact between the father and G.J.

was infrequent. The mother has a history of involvement with child-welfare

services in Illinois and suffers from depression. Both parents have histories of

criminal activity.

The children came to the attention of DHS in August 2017 upon information

that the mother left the youngest child without proper supervision for at least ninety

minutes. A subsequent child-abuse assessment was founded for denial of critical

1
The parental rights of the latter two children’s respective fathers were also terminated.
They do not appeal.
 3

care. The next day, DHS learned the mother intended to turn herself in on criminal

charges and leave the children with their maternal grandmother. DHS advised the

maternal grandmother was an inappropriate caregiver and the children should not

be left with her. The mother agreed she would not leave the children with the

maternal grandmother. Three days later, however, DHS learned the mother left

the children with the maternal grandmother. The children were removed from the

mother’s care and placed in DHS custody on August 28. The mother left the

children with the maternal grandmother or allowed them to be around her on a

number of occasions throughout the life of the case despite being told the maternal

grandmother was an inappropriate person to be around the children.

Both parents appeared at the September 1 removal hearing, during which

all parties stipulated to continued removal.2 The court’s removal order noted the

“father supports a return of the children to their mother if possible; but if that is not

possible, he requests the children be placed with him [and] specifically requests

an expedited” home study pursuant to the Interstate Compact on the Placement of

Children (ICPC). The court authorized DHS to conduct an ICPC study as to the

father’s home but did not expressly order that one be conducted. The DHS worker

testified that the mother was doing well in progressing with case-plan goals at this

time. Ultimately, a trial home placement of the children with the mother

commenced on September 7.

2
The only transcript contained in the record on appeal is for the termination hearing. We
are required to discern the details of the remaining hearings from the juvenile court orders
following those hearings.
 4

An uncontested adjudication hearing was held on September 27. The order

of adjudication mandated that “upon request of [the father], . . . [DHS] establish a

visit plan between [the father] and his child. The [DHS] is given discretion to

determine the frequency, duration, and level of supervision as deemed

appropriate.” The court also ordered that a social-history report be completed.

Both parents were provided social-history questionnaires, but only the mother

completed and returned it to DHS. The social-history report ultimately concluded

placement with the mother was the best current alternative, while placement with

any of the children’s respective father’s was not an option because none of them

have had any involvement in the children’s lives. A family team meeting was held

the day after the adjudication hearing. A case plan subsequently filed by DHS

noted the father was called several times to be invited to the meeting but he did

not respond. The plan also noted a visit was set up for the father at his request,

but he did not show up for it.

During the trial home placement, there were continuing concerns regarding

the children’s attendance at school. There were also ongoing concerns for the

mother’s mental health and who she was allowing to supervise the children. DHS

requested the mother to undergo a mental-health evaluation early on in the case,

but the mother did not do so until shortly before the termination hearing. Substance

abuse also became a concern. Specifically, in December 2017, the mother was

kicked out of her shelter for testing positive for marijuana. Thereafter, DHS

requested the mother to submit to drug testing. The mother declined to do so until

August 2018, at which time she tested positive for marijuana. Thereafter, DHS
 5

requested the mother to submit to random drug testing, but the mother did not

report to any of the random tests.

At the dispositional hearing in December 2017, the State and DHS

requested that the trial home placement with the mother end and the children be

placed in family foster care. The court declined to terminate the trial home

placement but provided DHS could terminate the placement upon violations of the

safety or permanency plans or for the children’s safety. The court noted in its order

that “reasonable efforts were made” and “[t]here are no requests for additional

services.” On January 5, 2018, DHS ended the trial home placement and placed

the children in foster care after learning the mother did not follow through on

facilitating the youngest child’s attendance at protective daycare and the mother

and children became homeless.

A permanency-review hearing was held in February, which neither parent

attended. The court continued the permanency goal as reunification with the

mother and granted an additional six months to work toward reunification as to the

youngest child. Counsel for the mother did not request any additional services,

but the father’s counsel requested that DHS “follow up on the ICPC home study

regarding his home.” The court ordered DHS to, within ten days, “follow up on

ICPC home study request by . . . father to ascertain that Iowa has done its part

and to expedite the home study progress.” In May, DHS filed an updated case

plan in which it noted the father had not engaged in services and stated:

This worker has been trying to obtain an ICPC home study of his
home in Chicago, IL however, this has been unsuccessful. This
worker no longer has a valid phone number for [the father] and the
address he supplied to this worker when the case began mail is being
 6

returned to this worker—return to sender, attempted—not known—
unable to forward.

At the termination hearing, the DHS worker testified she has only had limited

contact with the father, which occurred early on in the case. She testified she sent

the father letters at his Illinois home every month in an attempt to communicate

with him and get him involved in the case. However, in July, DHS learned from

G.J.’s paternal grandmother the father was in prison in Kentucky “and is not going

to be getting out anytime soon.” The father testified at the termination hearing he

was imprisoned on charges of fraudulent use of a credit card and tampering with

evidence but he would be paroled in July 2019. The paternal grandmother asked

if she could be considered a placement option for G.J. DHS initiated an ICPC

home study request to Illinois as to the grandmother. The only service the father

requested after the commencement of his incarceration was to have an ICPC

home study conducted as to the paternal grandmother’s home. He did not contact

DHS to request visitation by any medium at his place of incarceration, nor did he

alert the juvenile court of any concern regarding visitation.

By August 2018, DHS recommended that the permanency goal be modified

to termination of parental rights. At the subsequent permanency-review hearing,

the court ordered that the ICPC home study as to the paternal grandmother be

completed as quickly as possible and authorized visitation between G.J. and the

grandmother through electronic means. However, the court also directed the State

to initiate termination proceedings. Thereafter, DHS began facilitating electronic

communication between the paternal grandmother and G.J. and also initiated the

ICPC process, which was eventually approved.
 7

The mother was generally consistent in attending visitation with the children

throughout most of the case, with some exceptions. Although the mother

progressed from fully-supervised to semi-supervised visitation, her attendance at

visitations sharply declined in the months leading up to the termination hearing.

The mother had inconsistent housing and employment during and before the life

of the case. The mother’s dishonesty with service providers has been a major

issue throughout the case. The mother made no attempt to address her

substance-abuse or mental-health issues until shortly before the termination

hearing. The mother did not follow through with treatment recommended as a

result of her substance-abuse evaluation, nor did she meaningfully participate in

mental-health treatment.

The State filed its termination petitions in September. At the termination

hearing in December, the father requested termination be averted and a

guardianship of G.J. be established in the paternal grandmother. The two older

children have stated concern for the youngest child being placed with the

grandmother in Illinois. Given the young age at which G.J. moved from Illinois with

his mother, he has a limited relationship with the father and paternal grandmother.

All three children are currently residing in the same foster home and have a strong

bond with one another; the establishment of a guardianship in and placement with

the paternal grandmother would require that the children be separated. All the

children have adjusted to their foster home and are thriving in that placement. The

foster parents stated their willingness to provide a “forever home” for all three

children.
 8

The juvenile court ultimately terminated the mother’s parental rights to J.W.

and K.W. under Iowa Code section 232.116(1)(e) (2018) and terminated both

parents’ parental rights to G.J. under section 232.116(1)(e) and (h). As noted, both

parents appeal.

II. Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). “We are not bound by the juvenile

court’s findings of fact, but we do give them weight, especially in assessing the

credibility of witnesses.” In re A.S., 906 N.W.2d 467, 472 (Iowa 2018) (quoting In

re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). Our primary consideration is the best

interests of the children, In re J.E., 723 N.W.2d 793, 798 (Iowa 2006), the defining

elements of which are the children’s safety and need for a permanent home. In re

H.S., 805 N.W.2d 737, 748 (Iowa 2011).

III. Analysis

A. Father’s Appeal

On appeal, the father argues DHS failed to make reasonable efforts to

facilitate reunification3 and termination is not in G.J.’s best interests because a

guardianship could have been established in the paternal grandmother.

3
In his petition on appeal, the father also includes an argument concerning the sufficiency
of the evidence underlying the statutory grounds for termination cited by the juvenile court.
The father does not challenge the State’s establishment of the statutory elements of either
ground. Instead, he only challenges the sufficiency of the evidence concerning
reasonable efforts. As such, we consider the sufficiency-of-the-evidence argument
together with the reasonable-efforts argument.
 9

1. Reasonable efforts

The father argues DHS did not make reasonable efforts to facilitate

reunification because no visitation plan was established and the ICPC home study

was not completed at the outset of the case. “DHS is to provide ‘every reasonable

effort to return the child the child’s home as quickly as possible consistent with the

best interests of the child.’” L.T., 924 N.W.2d at 528 (quoting Iowa Code

§ 232.102(7)).

The juvenile court’s September 27, 2017 order of adjudication noted the

father’s request “that [DHS] establish a visit plan between [the father] and his

child.” The court ordered, “The [DHS] is given discretion to determine the

frequency, duration, and level of supervision as deemed appropriate.” A family

team meeting was held the day after the adjudication hearing, and the record

shows DHS called the father several times to attend but he did not respond. The

record also shows DHS set up a visitation for the father at his request shortly after

the adjudication hearing, but he did not show up for it. After the adjudication

hearing, the father was largely uninvolved in the proceedings. DHS continued its

efforts to contact the father using the information he provided, but it was unable to

get in touch with him. Neither DHS nor the juvenile court were alerted to any

complaint by the father regarding the adequacy of visitation services after he

requested a visitation plan at the beginning of the proceedings; the complaint was

not raised until the termination hearing.

“While the State has the obligation to provide reasonable reunification

services,” a parent carries “the obligation to demand other, different or additional

services prior to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.
 10

App. 1999). After the father requested a visitation plan, the juvenile court put

visitation between the father and G.J. within DHS discretion, and the father made

no objections to the court concerning the inadequacy of visitation he was provided;

he has consequently waived the opportunity to challenge the adequacy of visitation

services on appeal. See In re L.M., 904 N.W.2d 835, 840 (Iowa 2017) (concluding,

where visitation was placed within discretion of DHS and the guardian ad litem,

failure to voice objections at subsequent hearings concerning the adequacy of

visitation waives the issue); see also In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)

(noting complaints must be voiced to the juvenile court).

We turn to the ICPC study. In its early September 2017 removal order, the

court noted, “[F]ather supports a return of the children to their mother if possible;

but if that is not possible, he requests the children be placed with him [and]

specifically requests an expedited” ICPC study. The court authorized DHS to

conduct an ICPC study as to the father but did not expressly order that one be

conducted. At the February 2018 permanency-review hearing, the father’s counsel

requested that DHS “follow up on the ICPC home study regarding his home.” The

court ordered DHS to, within ten days, “follow up on ICPC home study request by

. . . father to ascertain that Iowa has done its part and to expedite the home study

progress.”

The father complains that the ICPC home study was not completed

pursuant to these requests. Although we share the juvenile court’s frustration with

the failure to complete the study in a timely manner, we agree with the juvenile

court that the study was not a reasonable effort required of DHS at the times they

were requested. Specifically, the permanency goal at both points was reunification
 11

with the mother, which the father stipulated to, and his initial request was for the

completion of a home study in the event reunification with the mother became

unattainable. As soon as the permanency goal began to veer toward termination

of the mother’s parental rights, the maternal grandmother was identified as a

potential relative placement while the father was incarcerated, and an ICPC home

study as to her home was pursued and completed by DHS. Chapter 232 provides:

“[R]easonable efforts” means the efforts made to . . . eliminate the
need for removal of the child or make it possible for the child to safely
return to the family’s home. Reasonable efforts shall include but are
not limited to giving consideration, if appropriate, to interstate
placement of a child in the permanency planning decisions involving
the child and giving consideration to in-state and out-of-state
placement options at a permanency hearing and when using
concurrent planning. If returning the child to the family’s home is not
appropriate or not possible, reasonable efforts shall include the
efforts made in a timely manner to finalize a permanency plan for the
child. A child’s health and safety shall be the paramount concern in
making reasonable efforts.

Iowa Code § 232.102(12)(a). An ICPC study was not a reasonable effort

necessary to return G.J. to the home with the mother, a goal the father agreed was

appropriate. When the viability of that goal began to wane, DHS pursued the

father’s home as a potential placement. Upon our de novo review of the record,

we conclude DHS met its reasonable-efforts mandate.

2. Guardianship

Next, the father argues termination is not in the child’s best interests

because a guardianship could have been established in the paternal grandmother.

The father cites In re B.T., 894 N.W.2d 29 (Iowa Ct. App. 2017), in support of his

argument. Upon our de novo review of the record, we disagree with the father.

First, simply stated, “a guardianship is not a legally preferable alternative to
 12

termination.” A.S., 906 N.W.2d at 477 (quoting B.T., 894 N.W.2d at 32). Next,

although section 232.104(2)(d) allows for the establishment of a guardianship as

a permanency option, section 232.104(3) requires “a judicial determination that

[such a] planned permanent living arrangement is the best permanency plan for

the child.” See B.T., 894 N.W.2d at 32–33. Determining the best permanency

plan for a child is a best-interests assessment. In determining what is in the best

interests of a child, 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.” Iowa Code

§ 232.116(2).

G.J.’s relationship with the father and paternal grandmother is limited at best

given the fact that he has had very limited contact with them for most of his life.

Establishing a guardianship in the paternal grandmother and placing the child in

her care would separate G.J. from his two older siblings, who he shares strong

bonds with. Siblings should be kept together whenever possible. In re T.J.O., 527

N.W.2d 417, 420 (Iowa Ct. App. 1994). Further, the child has been in the same

foster placement for most of these proceedings. The child is integrated into this

home, he is thriving, and the foster parents are willing to provide a “forever home”

for the child and provide continued stability and permanency. Continued stability

and permanency in this home are in this child’s best interests. See Iowa Code

§ 232.116(2)(b); cf. In re M.W., 876 N.W.2d 212, 224–25 (2016) (concluding

termination was in best interests of children where children were well-adjusted to

home with their foster parents, the foster parents were “able to provide for their
 13

physical, emotional, and financial needs,” and the foster parents were prepared to

adopt the children).

Upon our de novo review of the record, we find establishment of a

guardianship over G.J. in the paternal grandmother is not in the child’s best

interests. We affirm the termination of the father’s parental rights.

B. Mother’s Appeal

The mother challenges the sufficiency of the evidence underlying the

grounds for termination cited by the juvenile court, argues termination is not in the

children’s best interests due to the parent-child bond, and maintains she should

have been granted additional time to work toward reunification.

1. Sufficiency of the evidence

The juvenile court terminated the mother’s parental rights to all three

children under Iowa Code section 232.116(1)(e) and additionally to G.J. under

section 232.116(1)(h). “On appeal, we may affirm the juvenile court’s termination

order on any ground that we find supported by clear and convincing evidence.” In

re D.W., 791 N.W.2d 703, 707 (Iowa 2010).

As to termination under paragraph (e), the mother only challenges the

State’s establishment of the final element of that provision, that she has “not

maintained significant and meaningful contact with the child[ren] during the

previous six consecutive months and ha[s] made no reasonable efforts to resume

care of the child[ren] despite being given the opportunity to do so.” Iowa Code

§ 232.116(1)(e)(3).

“[S]ignificant and meaningful contact” includes but is not limited to
the affirmative assumption by the parents of the duties encompassed
by the role of being a parent. This affirmative duty, in addition to
 14

financial obligations, requires continued interest in the child[ren], a
genuine effort to complete the responsibilities prescribed in the case
permanency plan, a genuine effort to maintain communication with
the child[ren], and requires that the parents establish and maintain a
place of importance in the child[ren]’s li[ves].

Id. While we acknowledge the mother has had contact with the children during the

previous six consecutive months, such contact can hardly be described as

significant and meaningful. The mother has refused to assume the duties

associated with the role of being a parent. She has been given the opportunity to

resume care for the children, but she has made no reasonable effort to do so.

Although the mother made some progress early on, she regressed shortly

thereafter, resulting in the end of the trial home placement, and there has been no

progress since; matters have only gotten worse.

Upon our de novo review, we conclude the State met its burden for

termination under Iowa Code section 232.116(1)(e).

2. Best interests and statutory exception

The mother argues termination is not in the children’s best interests, see id.

§ 232.116(2), because termination would be detrimental to the children due to the

closeness of the parental-child relationship. See id. § 232.116(3)(c). We choose

to separately address the often-conflated best-interests and statutory-exception

arguments.

As noted, in determining what is in the best interests of a child, 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.” Id. § 232.116(2). The mother’s

progress in demonstrating her ability to be a responsible parent for these children
 15

has been stagnant for some time. Before DHS intervention, she had a lengthy

history with child-welfare services in Illinois based on the same concerns. “We

hold no crystal ball, and to some extent, the [best-interests] determination must be

made upon past conduct.” In re M.M., No. 16-1685, 2016 WL 7395788, at *4 (Iowa

Ct. App. Dec. 21, 2016). While we hope the mother is able to prevail in her battles

with depression, other mental-health issues, and substance abuse, “we cannot

deprive a child of permanency after the State has proved a ground for termination”

upon such sentiments. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012). The

mother has had ample time to get her affairs in order and learn to be a responsible

parent. She has been unable to do so. These children need permanency and

stability now. See id. at 778 (“It is simply not in the best interests of children to

continue to keep them in temporary foster homes while the natural parents get

their lives together.” (quoting In re C.K., 558 N.W.2d 170, 175 (Iowa 1997))).

Finally, as noted above, the children are thriving in their current foster placement,

and the foster parents are willing to provide continued stability and permanency,

which is in these children’s best interests. We agree with the juvenile court that

termination of the mother’s parental rights is in the children’s best interests.

As to the statutory exception to termination cited by the mother, “The court

need not terminate the relationship between the parent and child 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 relationship.” Iowa Code

§ 232.116(3)(c). The application of the statutory exceptions to termination is

“permissive not mandatory.” M.W. 876 N.W.2d at 225. “[T]he parent resisting

termination bears the burden to establish an exception to termination.” A.S., 906
 16

N.W.2d at 476. We acknowledge the clear bond between mother and children and

that the disconnect between the mother and children has caused the children

trauma in the past. That being said, the record shows the children have grown

accustomed to and expect the mother’s inability to be a responsible parent and

such conditioning has resulted in the children being less affected by the disconnect

from their mother. We disagree with the mother that termination would be

detrimental to the children due to the closeness of the parent-child relationship.

Alternatively, we conclude the application of the permissive exception would be

contrary to the children’s best interests.

3. Extension

Finally, the mother argues she should have been granted additional time to

work toward reunification. If, following a termination hearing, the court does not

terminate parental rights but finds there is clear and convincing evidence that the

child is a child in need of assistance, the court may enter an order in accordance

with section 232.104(2)(b). Iowa Code § 232.117(5). Section 232.104(2)(b)

affords the juvenile court the option to continue placement of a child for an

additional six months if the court finds “the need for removal . . . will no longer exist

at the end of the additional six-month period.”

The mother was already granted an extension as to G.J., and she

squandered that additional time.

There are a number of stern realities faced by a juvenile judge
in any case of this kind. Among the most important is the relentless
passage of precious time. The crucial days of childhood cannot be
suspended while parents experiment with ways to face up to their
own problems. Neither will childhood await the wanderings of judicial
process. The child will continue to grow, either in bad or unsettled
 17

conditions or in the improved and permanent shelter which ideally,
at least, follows the conclusion of a juvenile proceeding.
The law nevertheless demands a full measure of patience
with troubled parents who attempt to remedy a lack of parenting
skills. In view of this required patience, certain steps are prescribed
when termination of the parent-child relationship is undertaken under
Iowa Code chapter 232. But, beyond the parameters of chapter 232,
patience with parents can soon translate into intolerable hardship for
their children.

In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). The same reasoning controls the

mother’s request for an extension. Upon our de novo review of the record, we are

unable to affirmatively conclude a need for removal would no longer exist after a

six-month extension.

IV. Conclusion

We affirm the termination of both parents’ parental rights.

AFFIRMED ON BOTH APPEALS.