IN THE COURT OF APPEALS OF IOWA
No. 19-1958
Filed March 4, 2020
IN THE INTEREST OF R.H.,
Minor Child,
L.N., Mother,
Appellant,
J.H., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Deborah L. Johnson of Deborah L. Johnson Law Office, P.C., Altoona, for
appellant mother.
T.J. Hier of Hier Law Office, P.C. (until withdrawal), Baxter, and Larry
Pettigrew, Ankeny, for appellant father.
Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
Attorney General, for appellee State.
Dusty Clements of Clements Law & Mediation, Newton, attorney and
guardian ad litem for minor child.
Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.
A mother and father separately appeal the juvenile court decision
terminating their parental rights to their child. Each contends the State failed to
prove the grounds for termination by clear and convincing evidence. The father
contends termination of his parental rights is not in the best interests of the child.
Both parents ask for an additional six months to achieve reunification. We affirm
on both appeals.
I. Background Facts & Proceedings
L.N., mother, and J.H., father, are the parents of R.H., born in January 2019.
At the time of birth, the mother tested positive for methamphetamine,
amphetamines, and ecstasy. The father was incarcerated on a drug offense.
The child was removed from the mother’s care the day after birth. The child
exhibited signs of withdrawal in the days following birth. Upon discharge from the
hospital ten days later, the child was placed in foster care.
On March 5, the child was adjudicated a child in need of assistance (CINA).
The court ordered the mother and father to submit to drug screens and participate
in substance-abuse and mental-health evaluations and recommended treatment.
The mother has three older children who reside with the maternal
grandparents. Her rights to the two oldest children were terminated in 2008 and
2011, and she voluntarily placed her third child with her parents. R.H. has visits at
the maternal grandparents with the mother’s other three children once a month.
The mother often participates in the monthly visit. The paternal grandparents and
aunt visit the child at the foster family’s home.
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The mother did not cooperate with services throughout the case. She rarely
responded to phone calls, text messages, or emails from the department of human
services (DHS) or service workers to discuss the child, drug tests, or services. The
mother did not obtain a mental-health evaluation or treatment. She obtained a
substance-abuse evaluation on October 9 but had not followed through with
treatment at the time of the termination hearing three weeks later. She did not
have housing or employment throughout the case. She visited with the child during
sibling visitation at her mother’s home, but, though offered, did not pursue any
additional individual visits with the child.
The father began visitation with the child once a week in April and expected
to move to a work-release facility or his mother’s house in May or June. In May,
J.H. was arrested for an offense committed while working in the community on
work release, which extended his incarceration. His visitation was suspended
following the new offense. In August, the father’s visits resumed. In late August,
he was transferred to a different correctional facility and did not inform DHS. His
visitation was suspended again and had not resumed by the time of the termination
hearing. The father participated in a parenting class through the department of
corrections, and the department determined he did not need a substance-abuse
evaluation or treatment.
On October 31, the court held a permanency and termination hearing. The
mother did not attend the hearing. The court heard testimony from the social
worker and the father. Each parent requested an additional six months to achieve
reunification. On November 8, the court terminated the mother’s rights under Iowa
Code section 232.116(1) (2019) paragraphs “b” (abandonment), “d” (child or
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sibling adjudicated CINA after abuse or neglect), “e” (failure to maintain significant
and meaningful contact), “g” (parental rights terminated as to another child from
the same family), “h” (child is unable to return to the parent at present time), and
“i” (abuse or neglect posing significant risk or imminent danger to child). The
father’s rights were terminated under paragraphs “e” and “h.”
Each parent separately appeals.
II. Standard of Review
We review termination-of-parental-rights cases de novo. In re M.D., 921
N.W.2d 229, 232 (Iowa 2018). “There must be clear and convincing evidence of
the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219
(Iowa 2016). The paramount concern in termination proceedings is the best
interests of the child. M.D., 921 N.W.2d at 232.
III. Analysis
A. Grounds for termination. Each parent contends the State has not
proved the grounds for termination by clear and convincing evidence. “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 already noted, the mother’s rights were terminated under Iowa Code
section 232.116(1)(b), (d), (e), (g), (h), and (i). The mother claims on each ground
“the State has not met its burden on each and every element.” We need only
discuss paragraph “e.” To terminate under this paragraph, the court must find:
(1) The child has been adjudicated a child in need of
assistance pursuant to section 232.96.
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(2) The child has been removed from the physical custody of
the child’s parents for a period of at least six consecutive months.
(3) There is clear and convincing evidence that the parents
have not maintained significant and meaningful contact with the child
during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given
the opportunity to do so. For the purposes of this subparagraph,
“significant 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
financial obligations, requires continued interest in the child, a
genuine effort to complete the responsibilities prescribed in the case
permanency plan, a genuine effort to maintain communication with
the child, and requires that the parents establish and maintain a
place of importance in the child’s life.
Iowa Code § 232.116(1)(e).
The child was adjudicated CINA on March 5 and had been removed from
January through the termination hearing in October, a period of more than nine
months. Thus, the first two elements were met. See id. § 232.116(1)(e)(1)–(2).
We also find the third element has been shown by clear and convincing
evidence. The mother only saw the child once a month when the child was on a
sibling visit at the maternal grandmother’s home and made no effort to participate
in additional visitation offered by DHS or the foster family. She provided no
financial assistance, did not contact DHS or the foster family for updates on the
child, and has not shown a genuine effort to meet her responsibilities in the case
permanency plan. She has not established a home, obtained employment, or
begun substance-abuse treatment. The mother has not maintained significant and
meaningful contact and has made no reasonable efforts to resume care of the
child. See id. § 232.116(1)(e)(3). Therefore, we affirm termination of the mother’s
rights under section 232.116(1)(e).
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The court terminated the father’s rights under Iowa Code section
232.116(1)(e) and (h). The father does not directly contest that the elements of
paragraph “h” have been met.1 Instead, he argues he was precluded from
participating in many services due to his incarceration and points out he
participated in the programming available to him through the department of
corrections.
The father’s incarceration at the time of the termination hearing was due to
his own actions. He had been having weekly visits with the child and was on the
verge of being granted parole and the opportunity to participate in services that
might lead to reunification with his child when he committed a new offense. The
offense delayed his release by months, resulted in a facility transfer, and
interrupted his visitation schedule. At the time of the termination hearing, the father
had an uncertain release date and no established home for the child. We conclude
the juvenile court properly terminated the father’s parental rights under section
232.116(1)(h).
B. Six-month extension. At the permanency and termination hearing,
each parent requested an additional six months to work toward reunification. For
the court to continue placement of the child for an additional six months, the court
must enter an order enumerating “specific factors, conditions, or expected
behavioral changes which comprise the basis for the determination that the need
1 Paragraph “h” allows termination of parental rights when a child three years of
age or younger has been adjudicated CINA and has been removed from the
parents’ physical custody for at least six months. Iowa Code § 232.116(1)(h)(1)–
(3). The final element is established if there is “clear and convincing evidence that
the child cannot be returned to the custody of the child’s parents . . . at the present
time.” Id. § 232.116(1)(h)(4).
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for removal of the child from the child’s home will no longer exist at the end of the
additional six-month period.” Id. § 232.104(2)(b). The juvenile court did not find
any reasonable factors or conditions that would allow it to determine the need for
removal would not exist in six months—nor do we.
The court noted the mother was not any closer to being self-sufficient and
able to parent the child than she had been in January. Specific problems included
her lack of mental-health and substance-abuse treatment, lack of housing and
reliable transportation, and continued use of illegal drugs.
The court also found it unlikely the father would be able to be reunited with
the child within six months. The father faced an uncertain release date, which
could be weeks or even months after the hearing. Upon release, the father testified
it would take close to six months for him to obtain his own home and steady
employment.
“The future can be gleaned from evidence of the parents’ past performance
and motivations.” In re T.B., 604 N.W.2d 660, 662 (Iowa 2000). Neither parent’s
behavior over the ten months of the case provides us a basis on which to state
with confidence the reasons for removal will no longer exist in six months. We
affirm the juvenile court’s denial of a six-month extension.
C. Best interests of the child. The father contends termination of his
rights is not in the best interests of the child. In determining whether termination
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); In re A.M., 843 N.W.2d 100, 112 (Iowa 2014).
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Here, the child is very young and has never been in the care of either parent. The
father had just begun visiting with the child and was close to parole when he chose
to commit another offense, extending his incarceration several months and
interfering with his developing relationship with the child. The date of his release
is uncertain and establishing a job and home is expected to take additional months.
Once the State has proved a ground of termination, “we cannot deprive a
child of permanency . . . by hoping someday a parent will learn to be a parent and
be able to provide a stable home for the child.” In re P.L., 778 N.W.2d 33, 41 (Iowa
2010). The child has never been in the father’s care and has had only sporadic
visitation with him. We find termination is in the child’s best interests.
We affirm on both appeals.
AFFIRMED ON BOTH APPEALS.