In the Interest of C.G. and S.H., Minor Children

• Court: Court of Appeals of Iowa
• Decided: January 12, 2022
• Docket: 21-1422
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 21-1422 Filed January 12, 2022

IN THE INTEREST OF C.G. and S.H., Minor Children,

A.L., Mother, Appellant,

T.H., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.

A mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Becky E. Wilson of Elwood, O’Donohoe, Braun, White, LLP, Charles City,

for appellant mother.

Mark A. Milder, Denver, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Cynthia Schuknecht of Noah, Smith, Schuknecht & Sloter, P.L.C., Charles

City, attorney and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and May, JJ. 2

MAY, Judge.

A mother and father separately appeal the termination of their respective

parental rights to their two children, C.G.1 and S.H. On appeal, both parents argue

the statutory grounds authorizing termination were not met because the State

failed to make reasonable efforts towards reunification and termination is not in the

children’s best interests due to their close bond with each parent. The mother also

requests additional time to work toward reunification. We affirm.

We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,

522 (Iowa 2020). “We will uphold an order terminating parental rights where there

is clear and convincing evidence of the statutory grounds for termination. Evidence

is clear and convincing when there is no serious or substantial doubt as to the

correctness of the conclusions of law drawn from the evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We consider:

(1) whether grounds for termination have been established, (2) whether

termination is in the children’s best interests, and (3) whether we should exercise

any of the permissive exceptions to termination. Id. at 472–73. Then we address

any additional claims raised by the parents. In re K.M., No. 19-1637, 2020 WL

110408, at *1 (Iowa Ct. App. Jan. 9, 2020).

Both parents challenge the statutory grounds authorizing termination of

their respective parental rights. Here, the juvenile court terminated the mother’s

1 When questioned by the juvenile court, C.G. introduced himself as C.H. 3

rights to the children under Iowa Code section 232.116(1)(f) and (l) (2021) and the

father’s rights to the children under section 232.116(1)(f). When the juvenile court

terminates under multiple statutory grounds, as occurred here with respect to the

mother, we may affirm on any ground satisfied. In re J.D., No. 21-0391, 2021 WL

3379037, at *1 (Iowa Ct. App. Aug. 4, 2021). With respect to the mother, we

choose to address paragraph (f), which also served as the statutory basis for

terminating the father’s parental rights. Paragraph (f) authorizes termination when:

(1) The child is four years of age or older. (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96. (3) The child has been removed from the physical custody of the child’s parents for at least twelve months of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days. (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child’s parents as provided in section 232.102.

Iowa Code § 232.116(1)(f). Both parents limit their challenges to the forth element,

whether the children could be returned to their respective homes. This element is

satisfied when the State establishes the children cannot be safely returned to the

parent at the time of the termination hearing. In re T.W., No. 20-0145, 2020 WL

1881115, at *2–3 (Iowa Ct. App. Apr. 15, 2020).

We agree with the juvenile court that the children could not be safely

returned to either parent. The mother has unresolved substance-abuse issues.

She has not consistently engaged in substance-abuse therapy. During the life of

this case, the mother has tested positive for methamphetamine and THC. And she

has also missed at least ten drug screens. We presume these missed tests would

have been positive for illegal substances. See In re R.A., No. 21-0746, 2021 WL 4

4891011, at *1 (Iowa Ct. App. Oct. 20, 2021) (collecting cases noting we presume

missed drug screens would have been positive). The mother has also failed to

consistently engage in mental-health treatment. And at times she appears

untethered to reality. For example, the mother reported to the Iowa Department of

Human Services (DHS) that the children’s placement made C.G. “eat his puke”

and S.H. “ate eleven pieces of pizza while at their visit,” insinuating placement

does not feed her adequately. The mother then said she was going to meet with

Governor Kim Reynolds about this case. When DHS investigated, the children

contradicted the mother’s claims. Taken together, the unresolved substance-

abuse issues and mental-health issues present ongoing barriers to reunification.

But the mother contends any barriers to reunification are due to DHS failing

to make reasonable efforts towards reunification. We consider any reasonable-

efforts challenge when determining whether the State established the statutory

grounds authorizing termination. We recognize “[t]he State must show reasonable

efforts as part of its ultimate proof the child[ren] cannot be safely returned to the

care of a parent.” In re C.B., 611 N.W.2d 489, 493 (Iowa 2000). We require

parents to alert the court of the alleged deficiencies prior to the termination hearing.

See In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017) (“[P]arents have a

responsibility to object when they claim the nature or extent of services is

inadequate.”); In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (“If, however, a parent

is not satisfied with DHS’[s] response to a request for other services, the parent

must come to the court and present this challenge.”); In re O.T., No. 18-0837, 2018

WL 3302167, at *2 (Iowa Ct. App. July 5, 2018) (“The failure to request different or

additional . . . services in the juvenile court precludes [the parent’s] challenge to 5

the services on appeal.”); In re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005)

(stating the parent has an obligation to demand other, different, or additional

services prior to the termination hearing or the issue is considered waived for

appeal).

This requirement allows the court to take corrective action early on so that the case does not languish on and permanency can be reached within a reasonable time for the children. Doing so obviates the need for additional time to address service deficiencies only identified at the termination hearing when a family is on the precipice of termination.

In re E.H., No. 21-0467, 2021 WL 2709486, at *2 (Iowa Ct. App. June 30, 2021).

Here, the mother filed a motion for reasonable efforts just four days before

the first day of the termination hearing. This late filing has the same practical

impact as when a parent waits until the termination hearing to raise a reasonable-

efforts challenge—by the time of the filing there was not enough time remaining to

address the alleged deficiencies. See id. We note the mother’s motion focused

on the amount of contact (or lack thereof) with the children due to the placement’s

distance from her home, COVID-19 restrictions, and the limited number of

visitation supervisors available. None of these purported issues were recent

developments that the mother could not have raised in a timely manner. Moreover,

we note the barriers to reunification that remained at the time of the termination

hearing had nothing to do with her level of contact with the children. Instead the

remaining barriers were of her own doing because she failed to meaningfully

address her mental-health and substance-abuse issues.

So with respect to the mother, we conclude the State established a ground

for termination. Likewise, we also conclude the children could not be safely 6

returned to the father’s care. When questioned at the termination hearing, C.G.

explained he did not like being around the father due to the father’s history of

abuse—both verbal and physical. C.G. explained that father would “hit [him] in the

head with, like stuff, he’s pushed [C.G.] over a couch and stuff like that.” When

faced with visits with reduced supervision, both children informed their therapist

during individual therapy that they were afraid to have unsupervised visitation with

their father due to his temper and past violence. Both children also expressed their

fears to a care provider and the social worker. C.G. asked for the visits to be

supervised and requested they have a safety plan as well. And the father has a

history of aggressive behavior when interacting with caseworkers. For example,

during an inspection of the father’s home, he followed the caseworkers around

saying “get it done girl.” He “obnoxiously clapped his hands” at the workers and

then started snapping his fingers at them. He then told a worker to “get the fuck—

get out of my room.” Given the father’s aggression towards the caseworkers as

they merely attempted to inspect the father’s home, as well as the children’s

genuine fears of violence based on past incidents, we conclude the children could

not be safely returned to the father’s home.

But, like the mother, the father contends barriers to reunification only remain

because DHS failed to make reasonable efforts toward reunification. He contends

that, after February 2021, DHS fell short in three respects by permitting the children

to choose not to attend visits, reducing his number of visits, and requiring the father

to supply a visitation supervisor if he wanted additional visits. But from our review

of the record available to us, we conclude the father never brought these concerns 7

before the juvenile court.2 A May permanency review order stated that family

therapy was requested as an additional service and the mother requested an

evaluation of the children. But it made no mention of the father requesting different

visitation services. And between February and the termination hearing, there were

no other hearings in which the father could have verbally challenged the services

provided. Nor did the father file a written motion for reasonable efforts. While the

father did file a motion to direct visitation, he filed it after the termination hearing.3

To the extent he intended that motion to serve as a motion for reasonable efforts,

it was too late. See A.A.G., 706 N.W.2d at 91 (requiring a parent to “demand other,

different, or additional services prior to a . . . termination hearing”). So the father’s

reasonable efforts challenge is not preserved for our review.

So with respect to the father, we conclude the State established a ground

for termination. Our first step is complete as to both parents.

Next, we address steps two and three in tandem. Step two centers on the

children’s best interests. See Iowa Code § 232.116(2). When making a best-

interest determination, we “give primary consideration to the child[ren]’s safety, to

the best placement for furthering the long-term nurturing and growth of the

child[ren], and to the physical, mental, and emotional condition and needs of the

child[ren].” In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (quoting Iowa Code

2 Our record includes the pleadings, orders, and admitted exhibits in the termination-of-parental-rights and child-in-need-of-assistance cases and the transcript of the termination hearing. The appellants did not provide this court with any other transcripts. So our understanding of what occurred at prior hearings is based on the juvenile court’s related orders. 3 The father filed the motion on September 15, and the termination hearing took

place over three days, August 12, 19, and 27. 8

§ 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. Step three permits the court to apply permissive

exceptions to forgo termination in certain circumstances. See Iowa Code

§ 232.116(3). However, the burden of establishing an exception rests with the

parent. See A.S., 906 N.W.2d at 476.

Here, both parents ask us to conclude termination is not in the children’s

best interests and apply an exception to termination due to their respective bonds

with the children. See Iowa Code § 232.116(3)(c). Because we think termination

of both parents’ rights is in the children’s best interests, we decline to apply a

permissive exception. See id. (permitting the court to forgo termination due to the

parent-child bond only when it is so strong that termination would be “detrimental

to the child”). The children are in desperate need of permanency. The children’s

therapist reported both children’s behavior has regressed as this case has

continued on. As the children’s therapist said, “Trauma can be reframed and

processed, but not while survival mode is still engaged.” Until these children reach

permanency, they will not be able to process the trauma inflicted on them by the

parents. They can best achieve permanency through termination. So we think

termination of both parents’ rights is in the children’s best interests.

Finally, we address the mother’s request for additional time to work toward

reunification. The juvenile court may defer termination for a period of six months

if it is able to “enumerate the specific factors, conditions, or expected behavioral

changes which comprise the basis for the determination that the need for removal 9

of the child[ren] from the child[ren]’s home will no longer exist at the end of the

additional six-month period.” Id. § 232.104(2)(b). The mother suggests additional

time may be needed to “ensure the children feel secure and are no longer hesitant

to be relocated,” but she does not identify how additional time would remedy her

own deficiencies. And the juvenile court already granted this family additional time

to work toward reunification back in December 2020; yet the mother failed to make

any meaningful progress since that time. We do not believe things would be any

different if we gave her yet another six months now. So we decline to grant the

mother additional time.

AFFIRMED ON BOTH APPEALS.