IN THE COURT OF APPEALS OF IOWA
No. 14-0884 Filed September 17, 2014
IN THE INTEREST OF M.H., Minor Child,
D.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her son. AFFIRMED.
Crystal L. Ely of Young Law Office, Mason City, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Andrew Olson,
Assistant County Attorney, for appellee State.
David Grooters, Mason City, attorney and guardian ad litem for minor
child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her son. We affirm.
I. Factual and Procedural Background
The Iowa Department of Human Services (DHS) first began work with the
mother and her son in 2009. At that time, the mother’s paramour provided most
of the child’s care. Since then, the mother has left that relationship and has been
in and out of relationships with other men. Every time she took on a new
paramour, she told the child the paramour was his father, creating confusion and
frustration in the child.1
In 2012, DHS opened another case because of the child’s exposure to
domestic violence. The DHS supervisor at that time realized there had not been
positive progress since 2009. The child appeared to provide most of his own
care. The mother made little effort to oversee the child, the home was unkempt
and emitted a persistent odor, and both the mother and child lacked common
hygienic care. The child exhibited serious misbehaviors and needed constant
attention. He acted out to receive that attention from the mother, but the mother
often did not engage with the child. The mother appeared to resist making
changes to improve her parenting abilities.
The mother decided to allow her newest paramour to live with her and the
child. The man was on probation for sexual offenses against a minor. She
resisted DHS’s direction that she not allow the man to have access to the child.
1 Between late 2012 and the juvenile court’s order in May 2014, the mother had introduced the child to five new “fathers.” 3
After the paramour moved in with the mother and child, the State removed the
child from the mother’s custody.
DHS attempted to work with the mother to improve her parenting skills
throughout the next year. During that year, the mother’s visits with the child were
not productive. She fell asleep during visitations, ignored the child to play with
her phone, and generally did not engage with the child. When the child acted
out, the mother would become overwhelmed and angry and leave the room.
The mother was largely uncooperative and aggressive with DHS, leaving
“erratic and angry messages, yelling at providers, yelling at [DHS] workers,
swearing at workers, [and] making threats about what she will do when she sees
them.” The mother has multiple medications to manage her anger and mental
well-being, but she adheres to the medication regimen irregularly and at her
whim.
The DHS worker found the mother was unable to internalize or effectuate
any of the parenting skills she had been taught. According to a psychological
evaluation report, the mother’s intellectual abilities on most metrics indicated mild
mental retardation and a second grade reading level. The mother was formally
diagnosed with a Learning Disorder NOS, Borderline Intellectual Functioning,
and Borderline Personality Traits. The psychologist wrote in that report, “At
present, [the mother] does not appear to have the requisite abilities to adequately
manage her son’s difficulties, nor did she appear as motivated to make any
substantial changes.” 4
The State petitioned to terminate the mother’s parental rights. The
juvenile court terminated in its May 13, 2014 order pursuant to Iowa Code section
232.116(1)(f) (2013).2 The mother appeals.
II. Standard of Review
“We review proceedings to terminate parental rights de novo.” In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011).
III. Discussion
The mother raises three issues on appeal.
A. Lack of Clear and Convincing Evidence. First, the mother asserts there
is not clear and convincing evidence to satisfy the requirements of Iowa Code
section 232.116(1)(f). She concedes the first three of the four requirements are
met, but she argues the fourth—“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”—is not satisfied.
A child cannot be returned to the custody of his parents under section
232.102 when doing so would expose the child to “some harm which would
2 The court may order the termination of parental rights when: f. The court finds that all of the following have occurred: (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 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) (2013). 5
justify the adjudication of the child as a child in need of assistance.” Iowa Code
§ 232.102(5)(a)(2); see In re A.M.S., 419 N.W.2d 723, 724–25 (Iowa 1988). Two
such harms are: “harmful effects as a result of . . . the failure of the child’s parent
. . . to exercise a reasonable degree of care in supervising the child,” Iowa Code
section 232.2(6)(c)(2); and when a “parent’s . . . mental capacity or condition
. . . results in the child not receiving adequate care,” Iowa Code section
232.2(6)(n). “The threat of probable harm will justify termination.” In re M.M.,
483 N.W. 812, 814 (Iowa 1992).
The juvenile court found the child could not be returned to the mother’s
custody because doing so could subject the child to both of the aforementioned
forms of adjudicatory harm. The mother claims there is not clear and convincing
evidence of imminent likelihood of harm resulting from a failure of reasonable
care. We find, however, there is clear and convincing evidence of a threat of
probable harm. The mother’s obstinacy in refusing to utilize the parenting
concepts she has been taught, her failure to adhere to her medication regimen,
and her tendency to associate with others who present a danger to the child are
likely to lead to further situations like those that qualified the child as a child in
need of assistance in the first place.
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IN THE COURT OF APPEALS OF IOWA
No. 14-0884 Filed September 17, 2014
IN THE INTEREST OF M.H., Minor Child,
D.B., Mother, Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her son. AFFIRMED.
Crystal L. Ely of Young Law Office, Mason City, for appellant mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Andrew Olson,
Assistant County Attorney, for appellee State.
David Grooters, Mason City, attorney and guardian ad litem for minor
child.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
A mother appeals the juvenile court’s termination of her parental rights
with respect to her son. We affirm.
I. Factual and Procedural Background
The Iowa Department of Human Services (DHS) first began work with the
mother and her son in 2009. At that time, the mother’s paramour provided most
of the child’s care. Since then, the mother has left that relationship and has been
in and out of relationships with other men. Every time she took on a new
paramour, she told the child the paramour was his father, creating confusion and
frustration in the child.1
In 2012, DHS opened another case because of the child’s exposure to
domestic violence. The DHS supervisor at that time realized there had not been
positive progress since 2009. The child appeared to provide most of his own
care. The mother made little effort to oversee the child, the home was unkempt
and emitted a persistent odor, and both the mother and child lacked common
hygienic care. The child exhibited serious misbehaviors and needed constant
attention. He acted out to receive that attention from the mother, but the mother
often did not engage with the child. The mother appeared to resist making
changes to improve her parenting abilities.
The mother decided to allow her newest paramour to live with her and the
child. The man was on probation for sexual offenses against a minor. She
resisted DHS’s direction that she not allow the man to have access to the child.
1 Between late 2012 and the juvenile court’s order in May 2014, the mother had introduced the child to five new “fathers.” 3
After the paramour moved in with the mother and child, the State removed the
child from the mother’s custody.
DHS attempted to work with the mother to improve her parenting skills
throughout the next year. During that year, the mother’s visits with the child were
not productive. She fell asleep during visitations, ignored the child to play with
her phone, and generally did not engage with the child. When the child acted
out, the mother would become overwhelmed and angry and leave the room.
The mother was largely uncooperative and aggressive with DHS, leaving
“erratic and angry messages, yelling at providers, yelling at [DHS] workers,
swearing at workers, [and] making threats about what she will do when she sees
them.” The mother has multiple medications to manage her anger and mental
well-being, but she adheres to the medication regimen irregularly and at her
whim.
The DHS worker found the mother was unable to internalize or effectuate
any of the parenting skills she had been taught. According to a psychological
evaluation report, the mother’s intellectual abilities on most metrics indicated mild
mental retardation and a second grade reading level. The mother was formally
diagnosed with a Learning Disorder NOS, Borderline Intellectual Functioning,
and Borderline Personality Traits. The psychologist wrote in that report, “At
present, [the mother] does not appear to have the requisite abilities to adequately
manage her son’s difficulties, nor did she appear as motivated to make any
substantial changes.” 4
The State petitioned to terminate the mother’s parental rights. The
juvenile court terminated in its May 13, 2014 order pursuant to Iowa Code section
232.116(1)(f) (2013).2 The mother appeals.
II. Standard of Review
“We review proceedings to terminate parental rights de novo.” In re H.S.,
805 N.W.2d 737, 745 (Iowa 2011).
III. Discussion
The mother raises three issues on appeal.
A. Lack of Clear and Convincing Evidence. First, the mother asserts there
is not clear and convincing evidence to satisfy the requirements of Iowa Code
section 232.116(1)(f). She concedes the first three of the four requirements are
met, but she argues the fourth—“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”—is not satisfied.
A child cannot be returned to the custody of his parents under section
232.102 when doing so would expose the child to “some harm which would
2 The court may order the termination of parental rights when: f. The court finds that all of the following have occurred: (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 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) (2013). 5
justify the adjudication of the child as a child in need of assistance.” Iowa Code
§ 232.102(5)(a)(2); see In re A.M.S., 419 N.W.2d 723, 724–25 (Iowa 1988). Two
such harms are: “harmful effects as a result of . . . the failure of the child’s parent
. . . to exercise a reasonable degree of care in supervising the child,” Iowa Code
section 232.2(6)(c)(2); and when a “parent’s . . . mental capacity or condition
. . . results in the child not receiving adequate care,” Iowa Code section
232.2(6)(n). “The threat of probable harm will justify termination.” In re M.M.,
483 N.W. 812, 814 (Iowa 1992).
The juvenile court found the child could not be returned to the mother’s
custody because doing so could subject the child to both of the aforementioned
forms of adjudicatory harm. The mother claims there is not clear and convincing
evidence of imminent likelihood of harm resulting from a failure of reasonable
care. We find, however, there is clear and convincing evidence of a threat of
probable harm. The mother’s obstinacy in refusing to utilize the parenting
concepts she has been taught, her failure to adhere to her medication regimen,
and her tendency to associate with others who present a danger to the child are
likely to lead to further situations like those that qualified the child as a child in
need of assistance in the first place.
The mother also claims DHS failed to follow the recommendations of the
psychological exam results, but fails to assert the significance of such failures
relative to the issue of clear and convincing evidence. We affirm there is clear
and convincing evidence that the child cannot be returned to the mother’s
custody under the threat of probable adjudicatory harm. 6
B. Best Interests of the Child. “The paramount concern in termination
proceedings is the best interests of the child.” In re D.S., 806 N.W.2d 458, 465
(Iowa Ct. App. 2011) (citing In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). The
mother claims the juvenile court’s order is not demonstrably in the best interests
of the child. She asserts that because DHS did not use reasonable efforts to
reunify the mother and child, she was unable to demonstrate that termination
was not in the child’s best interests. We agree with the juvenile court—DHS
exerted significant effort to help the mother improve her parenting and allow her
to demonstrate that retention of custody was in the child’s best interest. She
failed to do so, and we therefore affirm on this issue.
C. Factors Weighing against Termination. The mother claims there is
clear and convincing evidence the factors found in Iowa Code section
232.116(3)(d)—the necessity of placing the child “in an institution for care and
treatment” and that “the continuation of the parent-child relationship is not
preventing a permanent family placement for the child”—apply, rendering
termination improper.3 We note (and the mother concedes) the statutory
exceptions are permissive, not mandatory. D.S., 806 N.W.2d at 474–75.
The child has been moved to a psychiatric medical institution for children
because of the failure of his foster care placement. It is true the mother’s
relationship with him does not directly interfere with the placement process.
3 The State asserts the mother did not make this claim below or move to enlarge or amend the termination order for clarification or reconsideration of these factors. It alleges no error has been preserved for our review regarding this issue. See In re A.B., 815 N.W.2d 764, 773 (Iowa 2012). The record shows the mother objected to termination as a permanency goal before the juvenile court, but the court failed to describe or rule upon the precise grounds upon which she objected. We cannot say with certainty that the mother did not raise this issue below, and we reach the merits of the claim. 7
However, these facts do not outweigh the fact that the mother’s inconsistent
exercise of her visitation rights has demonstrably disappointed and frustrated the
child. Even though the mother’s relationship with the child will not prevent the
child’s future residential placement, termination remains in the child’s best
interest. We agree with the juvenile court that application of the statutory factors
does not warrant the denial of the State’s termination petition.
IV. Conclusion
The juvenile court relied on clear and convincing evidence to find
termination proper under Iowa Code section 232.116(1)(f). The evidence
demonstrates that the best interests of the child will be served by terminating the
mother’s parental rights for his future placement in a positive familial setting. The
mother’s claim that statutory factors weigh against termination does not
overcome our finding that termination is in the best interests of the child.
AFFIRMED.