In the Interest of E.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 19-1446
Filed November 6, 2019

IN THE INTEREST OF E.S.,
Minor Child,

M.S., Father,
Appellant,

N.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas,

District Associate Judge.

A mother and a father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Kevin J. Huyser, Orange City, for appellant father.

Timothy J. Kramer of Kramer Law, P.C., Sioux Center, for appellant mother.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until withdrawal)

and Mary A. Triick, Assistant Attorneys General, for appellee State.

Jenny L. Winterfeld of Winterfeld Law, P.L.C., Sioux Center, attorney and

guardian ad litem for minor child.

Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.*

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

A mother and father separately appeal from the termination of their parental

rights in their child, E.J.S. On appeal, both parents challenge the statutory grounds

authorizing termination, whether termination is in the child’s best interests, and the

juvenile court’s refusal to grant additional time to work toward reunification. The

father also challenges the juvenile court’s refusal to apply permissive factors to

preclude termination. We affirm.

I. Facts and Prior Proceedings

This is the second termination appeal involving this family before this court

in less than two years. We previously affirmed the termination of both parents’

parental rights to another child, E.S. See In re E.S., No. 18-1114, 2018 WL

4923174, at *1 (Iowa Ct. App. Oct. 10, 2018). Both the present and prior action

stem from the physical abuse of the mother’s two oldest children, P. and B.1 We

recounted the following relevant facts and events in our previous opinion:

On September 7, 2016, child protective services received
allegations of physical abuse of P., then ten years old, who had a
black right eye, a scratch from his left eye to his nose, bruising by
both ears, a swollen jaw, circular bruises on his arms, and bruises
on his thigh and chest. P.’s explanation for the injuries was
inconsistent with the nature of his injuries. A medical expert who
reviewed photographs taken of the child determined the injuries were
inflicted.
Family Safety, Risk, and Permanency (FSRP) services were
implemented with the family in September 2016—when the
investigation began. The unsanitary condition of the home when the
children were still living with the parents was a concern to service
providers.
On December 9, 2016, E.S., P., and B. were [each]
adjudicated [as a child in need of assistance] [(]CINA[)]. The
underlying reasons included nine child-abuse assessments

1
The appellant father in this action is not the father to either of the mother’s two oldest
children. The mother voluntarily terminated her parental rights to P. and B.
 3

completed concerning these children spanning eight years, including
a founded child-abuse report where P. was the victim of physical
abuse with the perpetrator unidentified at the time. At the CINA
adjudicatory hearing, both parents asserted P.’s injuries were self-
inflicted. The mother wanted the department of human services
(DHS) involved to try to determine why the child was acting out. B.
also told authorities that P.’s injuries were self-inflicted.
P. and B. later reported the father physically abused both of
them. On February 3, 2017, all three children were removed from
the custody of the mother and father.
On February 17, 2017, criminal charges were filed against the
mother and the father. Combined, they were charged with twenty-
two counts of felony neglect of a dependent person and felony child
endangerment causing bodily injury. . . .

Id. at *1–2.

E.J.S. was born in November 2017 and was immediately removed from his

parents. He was briefly placed in foster care with his siblings but was placed with

his paternal aunt a few weeks later.2

In April 2018, both parents pleaded guilty to four counts of child

endangerment. Id. at *2. “The mother received a four-year suspended prison

sentence.” Id. “The father received a four-year prison sentence . . . .” Id.

However, he successfully appealed his sentence3 and was resentenced, again

receiving a four-year prison sentence. He is again appealing his sentence in the

criminal proceeding.

In June, the juvenile court terminated the parents’ rights to E.S. Both

appealed. In our opinion affirming termination of their parental rights, we noted

neither parent had meaningfully addressed their part in the abuse of P. and B. Id.

2
Due to supervision concerns at the aunt’s home, E.J.S. was returned to the foster home
with his siblings in June 2019.
3
We omit the citation to the father’s criminal appeal in an effort to preserve the child at
issue’s anonymity.
 4

at *3. We also expressed concern the family home continued to present ongoing

safety risks and a smell of dog urine and feces in the home. Id. Accordingly, we

concluded E.S. could not “be returned to the care of the parents safely because

they have not engaged in any meaningful services addressing the risks of physical

abuse in the home.” Id. at *4.

Since then, the father has continued with consistent therapy, but he will not

specifically discuss his abuse of P. and B. The mother’s participation has been

less regimented; she attended two appointments in July 2019 but had received no

therapy since March.

Both regularly attended visitations with E.J.S. on Sundays when the father

was home from his job as an over-the-road trucker. During the week, the mother

exercised visitation, and the father would be present via video call.

Sometimes visitation occurred in their home. Although the parents moved

into a new residence, various case workers expressed concerns regarding the

cleanliness of the home and noted a distinct animal odor as they had with the prior

residence. Workers also expressed concern regarding safety hazards in the

home, such as exposed stairs and accessible vaping supplies, but when brought

to the mother’s attention she became defensive and resistant to suggestions.

Workers became aware unknown people were staying in the family home.

Because the parents failed to progress, the State filed a petition to terminate

both parents’ parental rights. Following a two-day hearing, the juvenile court

terminated the their parental rights, pursuant to Iowa Code section 232.116(1)(d),

(e), (h), and (i) (2019).

Both parents appealed.
 5

II. Scope and Standard of Review

We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We give weight to the factual determinations of the juvenile court

but we are not bound by them. Grounds for termination must be proven by clear

and convincing evidence. Our primary concern is the best interests of the child.”

In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) (citations omitted).

We use a three-step process to review the termination of a parent’s rights.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we determine whether a

ground for termination under section 232.116(1) has been established. See id. at

472–73. If a ground for termination has been established, then we consider

“whether the best-interest framework as laid out in section 232.116(2) supports the

termination of parental rights.” Id. at 473 (citation omitted). Finally, we consider

“whether any exceptions in section 232.116(3) apply to preclude termination of

parental rights.” Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa 2016)).

III. Analysis

A. Statutory Grounds

We first address the parents’ challenge to the statutory grounds authorizing

termination. When, as here, the juvenile court terminates on multiple statutory

grounds, we may affirm on any ground. See In re A.B., 815 N.W.2d 764, 774 (Iowa

2012). We choose to address grounds for termination under section 232.116(1)(h)

with respect to both parents. Iowa Code section 232.116(1)(h) authorizes

termination of a parent’s parental rights when:

(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.
 6

(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.

Both parents only challenge the fourth element, arguing E.J.S. could be returned

to their care.

With respect to the father, we conclude E.J.S. cannot be returned to his

care. The father contends because he continued with his therapy he meaningfully

engaged in treatment, alleviating the risk of harm to E.J.S.4 We cannot agree. The

father continues to refuse to address his past physical abuse of P. and B. At the

termination hearing, he cited his sentencing appeal in the criminal case as

justification for refusing to specifically address the abuse. But because he

continues to refuse to meaningfully address his physical abuse of children, his

progress in this case is stagnant. He has not made any meaningful improvement

since we decided E.S. Also, as in E.S., the condition of the home remains

concerning. The home continues to smell of urine and feces, and workers recently

noted an uptick in urine stains during a recent visit. Accordingly, we find no reason

to part from our reasoning in E.S. and conclude E.J.S. cannot be safely returned

to the father. See 2018 WL 4923174, at *2–4.

With respect to the mother, we also conclude E.J.S. cannot be returned to

her care. Like the father, the mother refuses to address the physical abuse of her

4
To the extent the father argues he cannot be compelled to admit to abusing P. and B. in
these proceedings under the Fifth Amendment, we previously addressed this argument in
E.S., 2018 WL 4923174, at *3–4.
 7

two oldest children. Her participation in therapy has been inconsistent. More

troubling, at the termination hearing, the mother testified she believes her oldest

children were never abused by the father. Without this acknowledgment, she

cannot progress. Like with the father, we find the mother has made no meaningful

progress since we decided E.S.

We also have additional concerns regarding her protective capacity. She is

unable to spot and remediate safety hazards in the home. The home continues to

carry an odor of animal excrement. She permits people to come and go from the

home. At the hearing, she requested E.J.S. be placed with the paternal

grandparents in the event he could not be placed with her. She made this request

knowing about concerns of sexual abuse in that home. Accordingly, we conclude

E.J.S. cannot be safely returned to the mother.

B. Best Interests

Next, we consider the child’s best interests. Both parents argue termination

is not in E.J.S.’s best interests. In considering 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.” P.L., 778 N.W.2d at 40 (quoting Iowa

Code § 232.116(2)). “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.” Id. at 41.
 8

With respect to both parents, we find termination serves E.J.S.’s best

interests. In doing so, we reject the parents’ hollow arguments.5 E.J.S. deserves

to live in a home where he will be free from abuse. The parents cannot provide

that. Cf. J.E., 723 N.W.2d at 798 (“When making this decision, we look to the

parents’ past performance because it may indicate the quality of care the parent is

capable of providing in the future.” (quoting In re C.K., 558 N.W.2d 170, 172 (Iowa

1997))). Moreover, we note his current foster home has expressed a willingness

to adopt him. See Iowa Code § 232.116(2)(b) (noting the juvenile court may

consider a foster family’s willingness to permanently integrate the children into the

family). This would permit E.J.S. to grow up with his biological siblings also placed

in the foster home. See J.E., 723 N.W.2d at 800 (noting preference to keep

siblings together). Because termination would free E.J.S. for adoption with his

siblings and protect him from future harm, we conclude termination with respect to

both parents is in E.J.S’s best interests.

C. Exceptions to Termination

Next, we address the father’s claim his bond with E.J.S. should preclude

termination. The court may forgo termination when “[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). “[T]he

parent resisting termination bears the burden to establish an exception to

termination” under section 232.116(3). A.S., 906 N.W.2d at 476. However, even

5
The father contends he took responsibility for his past abuse by pleading guilty in the
criminal case, and in the same breath he argues he cannot be forced to admit to abuse
as a step toward reunification. The mother notes E.J.S. was never the target of the past
abuse. Both parents note E.J.S.’s bond with his extended family.
 9

if an exception to termination is established, we exercise our discretion, “based on

the unique circumstances of each case and the best interests of the child,” to

determine whether the parent-child relationship should be saved. Id. (citation

omitted).

We find the father overstates his bond with E.J.S. See In re D.W., 791

N.W.2d 703, 709 (Iowa 2010) (“[O]ur consideration must center on whether the

child will be disadvantaged by termination, and whether the disadvantage

overcomes [the parent]’s inability to provide for [the child]’s developing needs.”).

E.J.S. was removed from the family at birth and has never been in the father’s

care. The father was largely absent from visitations. While he did participate in

visitations while out of town for work via video calls, E.J.S. was too young to

meaningfully interact with him through this medium. In short, any existing bond is

not so great as to overcome the father’s significant shortcomings.

D. Additional Time

Finally, we address both parents’ argument they deserve additional time to

work toward reunification. Iowa Code sections 232.104(2)(b) and 232.117(5)

permit a court to defer permanency for six months so long as the need for removal

would no longer exist at the end of the six-month period. However, to grant an

extension of time, the juvenile court must be able to “enumerate the specific

factors, conditions, or expected behavioral changes which comprise the basis for

the determination that the need for removal . . . will no longer exist at the end of

the additional six-month period.” Iowa Code § 232.104(2)(b).

Neither parent provided any specific reason for the juvenile court to believe

the need for removal would be eliminated in six months. Rather, these parents
 10

have had ample time to address and correct their parenting deficiencies, yet they

have failed to do so. DHS entered their lives before E.J.S. was even born. When

reflecting on their cycle of denial and lack of meaningful therapeutic engagement,

we see no end in sight. E.J.S. has never had a permanent home in his life, we will

not defer that any longer in the hope these parents will become adequate in the

future. See D.W., 791 N.W. at 707 (“We do not ‘gamble with the child[]’s future’ by

asking them to continuously wait for a stable biological parent, particularly at such

tender ages.” (citation omitted)).

IV. Conclusion

We affirm the termination of the mother and the father’s parental rights to

E.J.S.

AFFIRMED ON BOTH APPEALS.