IN THE COURT OF APPEALS OF IOWA
No. 22-1970
Filed March 29, 2023
IN THE INTEREST OF L.K.,
Minor Child,
K.D., Mother,
Appellant,
T.K., Father,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Kimberly Ayotte,
District Associate Judge.
The mother and father appeal from an order terminating their parental
rights. AFFIRMED ON BOTH APPEALS.
Audra F. Saunders of Anderson & Taylor, PLLC, Des Moines, for appellant
mother.
Austin Jungblut of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messamer, L.L.P., Des Moines, for appellant father.
Brenna Bird, Attorney General, and Dion D. Trowers, Assistant Attorney
General, for appellee State.
Erin Elizabeth Romar, Des Moines, attorney and guardian ad litem for minor
child.
Considered by Bower, C.J., and Badding and Buller, JJ.
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BULLER, Judge.
The mother and father separately appeal termination of their parental rights.
The father only raises a challenge to the statutory basis for termination, while the
mother makes several claims. Because these parents cannot provide a safe and
stable home, even after years of services, we affirm.
I. Background Facts and Proceedings
The child at issue was born in early 2020 to these never-married parents.
The child was significantly premature and required an extended stay in the
neonatal intensive care unit. When the child was ready for discharge from the
hospital, she required specific equipment to monitor her medical status. The family
came to the attention of the Iowa Department of Health and Human Services
(HHS) shortly after birth,1 when hospital staff raised concerns the parents were
unable or unwilling to meet the child’s special medical needs. Specific concerns
were raised about the parents not charting feedings, not properly diapering the
child, and not using a pulse oxygen monitor (which was medically required).
Subsequent home visits revealed the environment posed a risk to the child’s health
because of pests (including cockroaches), pets (as many as seven cats, three
dogs, and a bunny), cleanliness (bugs and mold in the child’s sippy cups, feces on
the floor), poor child-proofing (unsecured prescription medications and cleaning
1 The mother’s history with HHS included termination of her rights to another child,
who was removed in 2013 because the mother “lacked the necessary parenting
skills to care for [the] child.” The mother admitted, under questioning by the State
in this proceeding, that many of the same problems that prompted the first
termination persisted.
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chemicals), and hoarding issues. The juvenile court also found that the “parents
were dishonest with [HHS]” during the investigation and assessments.
In the summer of 2020, the child was adjudicated as a child in need of
assistance (CINA) and temporarily removed from the home. Additional services
were provided to the parents, with the aim that they learn how to meet the child’s
basic and medical needs. The child was returned to the parents’ care in October
2020.
Despite ongoing services, the child’s daycare providers reported that the
child arrived at daycare in soiled clothing, hungry, and with some combination of
formula, possible feces, and mucus on her face. Conditions in the home would
sometimes improve temporarily only for the same or new concerns about safety
and cleanliness to re-emerge.
HHS evaluators determined that the father could not provide adequate
supervision of the child and required his contact with the child be supervised by
another adult. At the time, the father admitted he could not provide adequate care
on his own. He reported he suffered head injuries as a child and had significant
memory problems. Testing confirmed that the father had “significant problems with
attention, concentration, memory, and attention to detail.” The testing also
“indicated that [the father] might fail[] to recognize emergent needs, misread
behavioral cues, and have difficulty in mastering parenting demands as [the child’s]
problems became more complex.” The bottom line was that, while the father
“clearly loved” the child, he could not parent the child on his own. In addition to
these deficits, the father has trouble with depression, for which he has sought
treatment inconsistently. Based on this constellation of concerns, an assessment
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provided to HHS determined that the father posed a “high risk” to the child if he
were to parent independently.
The mother has serious health problems of her own, including chronic
kidney disease that requires dialysis. She recently had issues managing her
health, including a lack of dialysis compliance, which led to her not being placed
on the transplant list for a new kidney. She has trouble with some daily activities
of living, such as getting up stairs. The mother is also diagnosed with major
depressive disorder, generalized anxiety disorder, and borderline personality
disorder. She takes medication and attends therapy.
In July 2021, the child was removed from the home a second time and
placed with HHS and eventually foster care. A few months later, the family moved
into a new residence, only for the same concerns about garbage and cleanliness,
an excessive number of pets (more than six), and pests (again cockroaches) to
emerge. The family eventually stopped paying rent and moved out of the home,
leaving behind unpaid bills and the house “in [a] serious state of neglect and filth.”
Review hearings continued to confirm the ongoing CINA concern, and a
termination trial was held in October 2022.
The child has not been returned to the parents’ care since the second
removal, and the parents have not progressed beyond supervised visits. Both
parents admitted at trial to missing several visits in the months leading up to the
proceeding. Despite more than two years of services, both parents still required
prompts from providers during visits to do basic parenting—“to stay awake, to
supervise [the child], to appropriately care for [the child], and to keep the home
clean.”
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As recently as the weeks before the termination trial, the mother and father
were temporarily homeless, unable to pay for the hotel where they had been
staying (with two other family members) for the preceding month. In between the
stay at the hotel and moving into an apartment, they lived in a vehicle for “a couple
nights.” Before that, they were kicked out of church-sponsored housing for not
paying rent or other debts with the church. (In the years before the termination
trial, the church had been helping the family with loans, diapers and other supplies,
and transportation.)
The HHS staffer who worked with the family throughout the life of the case
opined that both parents often shifted the blame for issues of safety and
cleanliness to other family members and failed to take responsibility for their living
conditions. In the staffer’s words, “this family lacks insight” into why they are
struggling, and instead “spend[s] a lot of time defending and denying the issues
instead of resolving them.” She testified that, based on her lengthy history with the
family, there was little to no chance of improvement in another six months, and
things may even go downhill because of the family’s ongoing issues with housing.
She also opined that another six-month delay would harm the child.
The child is placed with a loving family—a local pastor and his wife—where
she is thriving.
Following contested trial, the State, HHS, the guardian ad litem, and the
court appointed special advocate all recommended termination of both parents’
rights. The juvenile court followed the recommendations and terminated the rights
of both parents. The mother and father each appeal.
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II. Standard of Review
“We review termination proceedings de novo.” In re C.B., 611 N.W.2d 489,
492 (Iowa 2000). “The primary interest in termination proceedings is the best
interests of the child.” Id.
III. Discussion
Both parents appeal but raise different issues. The father only challenges
the statutory elements for termination. The mother makes several challenges,
contesting whether termination is in the best interests of the child, whether a
statutory exception precluded termination, and whether the State provided
reasonable efforts toward reunification. On our de novo review, we reject these
arguments and affirm.
A. Statutory Elements2
The father’s challenge on appeal is confined to the fourth and final element
of Iowa Code section 232.116(1)(h) (2022), which requires the State to prove by
clear and convincing evidence “that the child cannot be returned to the custody of
the child’s parents” at the time of termination. See In re A.M., 843 N.W.2d 100,
111 (Iowa 2014) (noting the relevant timeframe under the statute is the time of
trial). The gist of the father’s argument is that he made strides immediately
preceding trial toward a better living environment for the child, and he believes the
mother’s family was to blame for the “cluttering, trash, and hoarding in the prior
home,” not him. We reject these claims and affirm.
2 The father challenges the grounds for termination, but the mother does not.
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While the father made some positive efforts on the eve of termination, this
does not materially undercut the overwhelming evidence in the rest of the case file
that convinces us the child could not be returned to the father’s care. This family’s
financial and housing instability, problems with cleanliness, and carelessness
regarding child safety are longstanding problems that cannot be cured with a last-
minute move to a new apartment. And even setting aside the environmental
concerns, we are persuaded by the assessment provided to HHS establishing the
father was a “high risk” to the child if permitted to independently parent her. In
short, the father’s memory issues have rendered him unable to independently care
for the child without endangering her. Even with supervision, the father has been
unable to fully care for the child; without it, there is a real danger the child will be
injured or killed through neglect. “[A] parent’s lower mental functioning alone is not
sufficient grounds for termination. But where it affects the child’s well-being, it can
be a relevant consideration.” Id. (internal citation and quotation marks omitted).
We find the father’s mental functioning is such that he cannot independently care
for the child, the child could not be returned to his custody, and we therefore affirm.
B. Best Interests of the Child
“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 764, 777 (Iowa 2012) (citation omitted); see
also Iowa Code § 232.116(2) (requiring the juvenile court to “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
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condition and needs of the child”). Yet this is almost precisely what the mother
argues in her petition on appeal—that despite all of the well-developed record
evidence supporting termination, she will be able to provide a safe home in the
future. As our precedent dictates, we give weight to the case history and many
reports documenting this family’s struggles. See In re S.N., 500 N.W.2d 32, 34
(Iowa 1993). The mother could not provide a safe or stable environment for the
child on any consistent basis over the life of the case, and this child need not wait
until her “natural parents get their lives together.” A.B., 815 N.W.2d at 778 (quoting
In re C.K., 558 N.W.2d 170, 175 (Iowa 1997)). Termination is in the child’s best
interests.
C. Additional Time3
The mother also argues the juvenile court should have granted her extra
time to work toward reunification. See Iowa Code § 232.104(2)(b) (allowing the
juvenile court to grant an additional six months for reunification, provided the court
“enumerate the specific factors, conditions, or expected behavioral changes which
comprise the basis for the determination that the need for removal of the child from
the child’s home will no longer exist at the end of the additional six-month period”).
It would be hard to improve on the juvenile court’s analysis of this request:
The parents have requested a six-month extension. This case has
been open since April 2020. The concerns that existed at the outset
of this case remain the same today. Permanency was entered on
May 23, 2022. Five months have passed. In that time, family
interactions have not improved. The family failed to maintain
appropriate housing and became homeless. [The mother] and [the
father] have just moved into a new apartment. Their [extended]
family continues to stay with them. They have not been able to set
3In the mother’s petition on appeal, this issue is intermingled with the best-interests
analysis. We address her argument separately.
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appropriate boundaries. They have not demonstrated sufficient
progress in parenting. Their ability to maintain their housing remains
unknown. Based on the progress over the life of this case, the court
cannot find that a six-month extension is either likely to result in
reunification or in [the child’s] best interest.
We agree with these findings and adopt them fully. The parents made little or no
progress during the life of this case or the related CINA proceedings, and there is
no reason to think another six months would have made a difference.
D. Permissive Bond Exception
The mother next argues that her bond with the child should preclude
termination. See Iowa Code § 232.116(3)(c). The mother bore the burden to prove
this permissive exception by clear and convincing evidence. In re A.S., 906
N.W.2d 467, 476 (Iowa 2018). The juvenile court rejected this argument, and so
do we.
We do not doubt the mother loves her child. But a parent’s love is not
enough to prevent termination, nor is the mere existence of a bond. See In re A.B.,
956 N.W.2d 162, 169–70 (Iowa 2021); In re D.W., 791 N.W.2d 703, 709 (Iowa
2010). The record evidence suggests the child is bonded as or more strongly with
the foster placement than with the mother, and the foster placement is safe, stable,
and caring. In contrast, the instability and lack of insight that has plagued the
mother from the prior termination through the present appears to be persistent and
grounded in chronic deficits. The mother did not carry her burden to invoke the
bond exception to preclude termination.
E. Reasonable Efforts
Last, the mother argues she was not provided reasonable efforts toward
reunification. During the CINA proceeding, the mother filed an application for
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reasonable efforts, requesting HHS provide three visits every week. The juvenile
court denied her application, finding HHS offered at least that many visits and the
mother was late to or entirely missed at least some of these visits. The mother’s
petition on appeal largely alleges the same deficiencies in visitation.
We are hard-pressed to find any lack of reasonable efforts when the mother
herself admitted to missing multiple visits, and failing to confirm others, as recently
as the months just before termination. This alone defeats the mother’s challenge.
See In re C.P., No. 18-1536, 2018 WL 6131242, at *3 (Iowa Ct. App. Nov. 21,
2018) (collecting cases for the proposition that “failure to use the services provided
defeats [a parent’s] reasonable-efforts claim”).
Assuming we need to conduct any further analysis, the juvenile court here
correctly identified that the family had been provided significant services: “prior
CINA services; child protective assessment services; kinship placement; foster
care; individual therapy; Family Centered Services; Solution Focused Meetings;
psychological evaluations; staffings; family therapy; family interactions; Solution
Based Casework; in-home nursing services; Gold Circle services; referrals for SSI;
parenting assessments; financial assistance; paternity testing; and SafeCare.”
The services offered meet or exceed what would be reasonable under the
circumstances of this case. See In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App.
2000). And the visitation offered was reasonable considering the comprehensive
services supporting reunification. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct.
App. 1996) (“Visitation . . . cannot be considered in a vacuum. It is only one
element in what is often a comprehensive, interdependent approach to
reunification. If services directed at removing the risk or danger responsible for a
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limited visitation scheme have failed its objective, increased visitation would most
likely not be in the child’s best interests.”). We affirm the juvenile court’s denial of
the mother’s reasonable-efforts challenge.
IV. Conclusion
Having rejected the father’s challenge to the statutory grounds for
termination and the mother’s various challenges to other aspects of the
proceedings, we affirm termination of both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.