In the Interest of M.B. and S.B., Minor Children, A.B., Mother

• Court: Court of Appeals of Iowa
• Decided: May 20, 2015
• Docket: 15-0503
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0503 Filed May 20, 2015

IN THE INTEREST OF M.B. AND S.B., Minor Children,

A.B., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cherokee County, Mary L. Timko,

Associate Juvenile Judge.

The mother appeals the juvenile court’s termination of her parental rights

to her children, M.B. and S.B. AFFIRMED.

John M. Loughlin of Loughlin Law Firm, Cherokee, for appellant mother.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant

Attorney General, Ryan Kolpin, County Attorney, and Kristal Phillips, Assistant

County Attorney, for appellee State.

Lesley Rynell of State Public Defender, Sioux City, attorney and guardian

ad litem for minor children.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

VOGEL, P.J.

The mother appeals the juvenile court’s termination of her parental rights

to her young girls, M.B. and S.B. She asserts the court erred when finding the

Iowa Department of Human Services (DHS) made reasonable efforts to reunite

her with her children and in denying her request for a six-month extension. She

further argues grounds to terminate her parental rights under Iowa Code section

232.116(1)(d), (h), and (i) (2013) were not proved and termination was not in the

children’s best interests. We conclude the mother did not preserve error on her

claim reasonable efforts were not made. Additionally, given her lack of progress,

the juvenile court properly denied her request for a six-month extension. Due to

this lack of progress and demonstrated inability to safely care for the children, the

court also properly terminated her rights under paragraphs (h) and (i). Finally,

the children—particularly S.B.—do not share a bond with the mother, and

combined with the mother’s inability to adequately and safely care for the

children, it is in their best interests her rights be terminated. Consequently, we

affirm the order of the juvenile court.

I. Factual and Procedural Background

S.B., born September 2011, and M.B., born July 2013, first came to the

attention of the DHS on October 7, 2013. The mother was failing to care for S.B.,

leaving her in her room with a baby gate blocking the door, and only letting her

out for meals. The mother interacted very minimally with S.B. and only

occasionally changed her diaper. As a consequence, S.B.’s speech, physical, 3

and behavioral development was significantly delayed.1 The mother was

informed by the DHS worker she needed to provide better care for S.B., including

interacting with her and changing her diaper on a regular basis. The children

remained in the mother’s care.

The mother was receiving services from the Area Education Agency

(AEA), but cancelled them after the DHS worker left her apartment on October 7.

The DHS worker made three unannounced visits and one scheduled visit

between this time and November 2013. At each unannounced visit, the DHS

worker observed that S.B. was not being cared for, as she remained in the

bedroom behind the baby gate and had a full diaper.

On November 4, 2013, a CPS investigation was initiated due to DHS

receiving a report the mother had sent a picture of S.B. wearing only her

underwear to the man with whom she was currently having sexual relations. 2

The mother stated she knew this photograph would be used for this man’s sexual

gratification. She further informed DHS that they had met online in September

2013 and that he would come to her apartment, they would watch a movie, and

then engage in sexual intercourse. The girls were present in the home when this

occurred, though the mother stated they were in their bedrooms.

Due to the lack of care and the danger of sexual abuse, the children were

removed from the mother’s care on November 12. They were placed in foster

1 While in the care of the foster home, where she was receiving speech and other therapy, S.B. improved in both her health and cognitive abilities. The foster father also testified that when M.B. arrived in the home, though four months old, she was like a newborn with respect to her muscle development; however, with the foster family’s care, as of the termination hearing she was developmentally on track. 2 She informed DHS that someone online had told her this man was Cody Schmitt, a registered sex offender. 4

care.3 The mother was granted three supervised visits each week, which she

consistently attended. However, she would interact only minimally with S.B., and

it was clear to the DHS worker they did not share a bond. It was further noted

that the mother had no ability to give both children the attention and care they

needed. She also required prompting during visits to respond appropriately to

the children’s needs, though when questioned at the review and termination

hearings, the mother stated she believed she was able to parent both children

adequately. Visits with S.B. were temporarily halted in July 2014, according to

the recommendation of S.B.’s nurse practitioner who provided therapy to S.B., as

she wanted to explore whether S.B.’s behavioral and speech problems were due

to her contact with the mother. In November the mother and S.B. began

attending parent-child interaction therapy (PCIT) appointments together.

DHS workers were also concerned with the mother’s extremely

inappropriate use of social media to attract men who presented a danger to the

children, as two of the men expressed interest of a sexual nature in the girls.

The mother continued to use these sites despite being warned of the danger and

dysfunction she was creating. Among the exhibits entered into evidence were

photographs the mother sent to men of S.B. with only her diaper on, a print off

from an Instagram account showing the mother with a man—posted thirteen

weeks before the termination hearing—as well as an earlier text message

3 The children were in two foster homes before the third foster home took them in, which is where they remained at the time of the termination hearing. In its opinion, the court indicated the reason for the rapid change of foster homes was due to the difficulty in caring for the children’s special needs. 5

exchange where a man requested to have sex with M.B., who was three months

old at the time.

As of the date of the termination hearing, the mother was unemployed and

receiving disability. Her grandmother is her legal guardian and is responsible for

handling the mother’s money. The mother has stable housing and, at the time of

the termination hearing, was living in the same two-bedroom apartment in which

she was residing when the children were removed. Additionally, she is married,

but her husband is currently in prison due to a conviction for sexual abuse.

Though he is the children’s legal father, he is not their biological father.4

The mother received the following services throughout the pendency of

this proceeding: individual counseling; family safety, risk, and permanency

services; supervised visitation; PCIT services; AEA services; and psychological

testing.5 Due to the mother’s lower cognitive functioning, the services were

tailored to match her abilities.

Because of the mother’s lack of improvement with regard to her ability to

safely and adequately parent the children, the State filed a petition to terminate

her parental rights on July 23, 2014. Attached was an affidavit from the DHS

caseworker attesting to the difficulty the mother had in regard to interacting with

and caring for the children and her opinion that the children could not be returned

to the mother’s care. A contested termination hearing was held on December 15,

2014, and January 20, 2015, in which the mother personally appeared and

4 Though paternity testing had been conducted on several men, whom the mother believed could be the children’s father, the actual biological father of each child remains unknown. 5 These tests diagnosed the mother with mild mental retardation. 6

testified. Her therapist testified as well and stated the mother should be granted

an additional six months to work towards reunification. On March 12, 2015, the

juvenile court entered an order terminating the mother’s parental rights to both

children pursuant to Iowa Code section 232.116(1)(d), (h), and (i). The mother

appeals.

II. Standard of Review

We review termination proceedings de novo. In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). The grounds for termination must be proved by clear

and convincing evidence. Id. Our primary concern is the child’s best interest. Id.

When the juvenile court terminates parental rights on more than one statutory

ground, we only need find grounds to terminate under one of the sections cited

by the juvenile court to affirm. Id.

To terminate the mother’s parental rights pursuant to Iowa Code section

232.116(1)(h), the State must establish the children are three years old or

younger, have been adjudicated children in need of assistance, have been

removed from the home for six of the last twelve months, and the children cannot

be returned to the mother’s care. See Iowa Code § 232.116(1)(h)(1)–(4). Under

paragraph (i), the State must prove the children meet the definition of CINA due

to a finding of physical abuse or neglect because of the acts or omissions of the

mother, there is clear and convincing evidence the abuse or neglect posed a

significant risk to the children’s lives or constituted imminent danger, and the

offer or receipt of services would not correct the situation within a reasonable

period of time. See id. § 232.116(1)(i)(1)–(3). 7

III. Reasonable Efforts and Six-Month Extension

The mother first asserts reasonable efforts to reunite her with the children

were not made. Specifically, she cites the fact visits with S.B. were temporarily

discontinued from July to November 2014, and that resulted in a lack of a bond

with S.B. She further argues the juvenile court should have granted her a six-

month extension to work towards reunification, asserting she was making

progress with the case goals and was confident she could parent the children

within the next six months.

As an initial matter, although the mother did object to the suspended visits,

she did not otherwise preserve error on her reasonable-efforts claim.

Throughout this case, the mother indicated further services were not needed and

that she believed she was progressing well and could adequately care for the

children. This is contrary to her position at the termination hearing and on

appeal, in which she requested a “bonding assessment.” Moreover, the

testimony was clear that any lack of bond with S.B. long pre-dated the temporary

suspension of visits. Furthermore, we note it is the parent’s responsibility to

request additional services prior to the termination hearing. See In re H.L.B.R.,

567 N.W.2d 675, 679 (Iowa Ct. App. 1997). It is clear the mother did not do so;

rather, she failed to pursue additional services and only participated in services

when told to do so by DHS. Consequently, we conclude she did not preserve

error with regard to her reasonable-efforts claim. See In re A.A.G., 708 N.W.2d

85, 91 (Iowa Ct. App. 2005) (holding the parents did not preserve error on the

reasonable-efforts issue because they did not request additional services).

As to the request for a six-month extension, the juvenile court stated: 8

Upon examination of the record, past and present, the court cannot find that the need for removal would no longer exist after a six- month extension. [S.B. and M.B.] have already been out of the home for over twelve months at the time the termination of parental rights/permanency hearing was held . . . . [The mother’s] lack of insight into the reasons that led to the removal in the first place, her inability to follow some of the most basic tenets for safe parenting, her continued involvement with inappropriate males and her inability to set boundaries with them, as well as the substantial progress in physical, emotional and developmental areas of [S.B. and M.B.’s] life and the lack of a parent/child bond between [the mother] and the girls all mitigate against a finding that another six months would eliminate the need for the children’s removal. It would be cruel to return the children to an environment that has not changed and a mother who cannot consistently provide for the safety of her children despite the efforts provided by the Department of Human Services, efforts that have gone beyond reasonable, to address the myriad of issues present in this case from the beginning to now. Additionally, it would be cruel to make these children wait another six months just to see “if” [the mother] could somehow put herself in a position to have the children returned to her care.

The record supports this conclusion. The mother has had extensive

services from DHS and she has made little to no progress; instead of

internalizing the information she merely repeats back what she has been told.

Exhibits also demonstrated that, until shortly before the termination hearing, she

remained in contact with men who presented an imminent danger to the children

as sexual predators. Although her therapist was supportive of a six-month

extension, the therapist testified the mother had not revealed her associations

with inappropriate men or the contact they had had with the children. She further

testified she was only concerned with the best interests of the mother, not the

affected children. It is clear that, due to the mother’s lack of progress—despite

the receipt of many services from the time of removal until the termination

hearing—the mother would not be fit to care for her children in another six 9

months’ time. Moreover: “We have repeatedly followed the principle that the

statutory time line must be followed and children should not be forced to wait for

their parent to grow up.” In re N.F., 579 N.W.2d 338, 341 (Iowa Ct. App. 1998);

see also Iowa Code § 232.116(2). Consequently, the juvenile court properly

denied the mother’s request for a six-month extension. See Iowa Code

§ 232.104(2)(b).

IV. Termination and Best Interests

The mother also argues the State did not prove by clear and convincing

evidence her rights should be terminated, because she believes she can now

adequately parent the children. She relies on her testimony that she is no longer

dating men, has learned about boundaries, and has also been taught how to

properly care for the children. She further asserts termination is not in their best

interests.

We do not agree with the mother’s arguments, as the evidence

demonstrates the children would suffer from abuse or neglect and be in imminent

danger if returned to the mother’s care, within the meaning of Iowa Code section

232.116(1)(h) and (i). At the termination hearing, the DHS worker testified in the

following manner:

[The mother] has received an array of services to address the concerns that led to the department’s involvement, yet concerns still exist today. [The mother] is not honest and [was] secretive about her behaviors throughout this case, she’s had multiple male partners with extensive criminal histories, and I believe you know, she hasn’t exposed the children to these people over the last year due to having supervised visits, but I believe if the children were in [the mother’s] care, due to her actions and continued relationships, that the children would continue to be exposed to males who have extensive criminal histories and that they don’t know. 10

The record establishes that the DHS worker’s characterization of the

mother’s paramours as having “extensive criminal histories” is a charitable

description. Several of the men are sex offenders who have demonstrated their

willingness to re-victimize by requesting the mother send them the children’s

clothing, pictures where S.B. was only partially clothed, and requesting to have

sex with M.B. Nonetheless, the mother continues to associate with these men

and others who present a similar danger to the children. Her acquiescence in

their requests for pictures and clothing items underscores the mother’s total

incomprehension of the danger she poses to her children, that is, the imminent

danger of sexual abuse created by the mother’s continued association with her

choice of men. See Iowa Code § 232.116(1)(i)(2).

Nor does the mother have insight into how her actions and lack of care

affect the children. As the juvenile court noted:

It is not clear that [the mother] has real insight beyond parroting back what she has been told in therapy about “boundaries” and how to protect her children. [The mother] does not seem to grasp the reasons why her children were removed from her care despite the fact that she was told over and over. The most that [the mother] can state is that the children were removed because of all her relationships and the picture sending. She was able to state that the children were exposed to relationships that she did not know would end quickly. This is clearly one of the reasons that the children were removed and never returned; however, [the mother] does not seem to understand that her parenting skills were woefully lacking, which led to the significant delays in all areas of their development.

Among the supporting evidence for this statement was the fact the mother

could not care for both children at the same time and had difficulty parenting

them even when prompted by DHS workers during supervised visits. S.B.’s

significant delays both mentally and physically also demonstrate the mother’s 11

inability to care for one child, let alone two. It is further concerning the mother

was unable to respond to the State’s question as to why the men with whom she

associated would present a danger to the children, other than saying the men did

not respect her boundaries. In determining the future actions of the parent, her

past conduct is instructive. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). Given

these circumstances, combined with the mother’s lack of insight and progress, it

is clear the children cannot be returned to the mother’s care within the meaning

of paragraphs (h) and (i).

Furthermore, it is in the children’s best interests the mother’s rights be

terminated. There is no evidence of a bond between the mother and S.B.—S.B.

does not acknowledge the mother or appear to know her when they are in the

same room. Though the mother interacted more with M.B. during the visits, she

nonetheless was unable to recognize clues as to M.B.’s needs; additionally, she

has not had visitation—only PCIT appointments—with S.B. since July 2014 and

has not progressed beyond fully-supervised visits with M.B. The lack of a bond,

combined with the danger of neglect and potential sexual abuse by the men with

whom the mother continues to interact, indicates that it is in the children’s best

interests the mother’s rights be terminated. Particularly due to their young age,

they are also in need of permanency. See Iowa Code § 232.116(2).

Consequently, we affirm the order of the juvenile court terminating the mother’s

parental rights.

AFFIRMED.