In the Interest of M.W., J.W., and S.W., Minor Children

• Court: Court of Appeals of Iowa
• Decided: April 14, 2021
• Docket: 20-1736
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-1736 Filed April 14, 2021

IN THE INTEREST OF M.W., J.W., and S.W., Minor Children,

F.W., Mother, Appellant,

D.W., Father, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Osceola County, David C. Larson,

District Associate Judge.

Parents separately appeal the termination of their parental rights.

AFFIRMED ON BOTH APPEALS.

Kevin J. Huyser, Orange City, for appellant mother.

Tisha M. Halverson of Klay, Veldhuizen, Bindner, De Jong & Halverson,

P.L.C., Paullina, for appellant father.

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

Attorney General, for appellee State.

Shannon Sandy of Sandy Law Firm, P.C., Spirit Lake, attorney and

guardian ad litem for minor children.

Considered by Mullins, P.J., Greer, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

BLANE, Senior Judge.

Parents separately appeal the termination of their parental rights to three

children, a nine-year-old and twin seven-year olds. They argue: (1) the State failed

to prove the statutory ground for termination; (2) termination was not in the

children’s best interests; (3) the juvenile court should have applied a statutory

exception to forego termination; and (4) the father alone argues the DHS failed to

make reasonable efforts to reunite him with the children. We reject each of their

claims, except that we find the father did not preserve error on the final claim.

Therefore, we affirm termination of the parents’ rights to the three children.

I. FACTS AND PRIOR PROCEEDINGS

The family originally came to the attention of the Department of Human

Services (DHS) in August 2018 when emergency services responded to a fire at

their home. While the parents were asleep and intoxicated, one of the children,

unsupervised, had been playing with a lighter and started a fire in the basement.

Due to the extent of the fire damage, the family could no longer live in the home.

Responders also observed the home was extremely unsanitary, with clutter,

decaying food, and feces spread on walls. Concerns arose that the parents were

using drugs while supervising the children. This led to a founded child abuse

assessment for denial of critical care and failure to provide proper supervision.

Another founded report in October determined the parents were not providing

adequate supervision when someone saw one of the then-five-year-old twins

walking on the roof of their house unattended. Finally, in December 2018, the

children were removed from the home amid a third child abuse investigation and

founded child abuse report. According to the family safety plan, the father was not 3

supposed to be caring for the children unsupervised but he was reportedly doing

so.

The children were adjudicated in need of assistance and placed in foster

care. DHS began providing court-ordered services to the parents, including

visitation. The mother had trouble attending visitation consistently. The family

safety, risk, and permanency (FSRP) provider found it difficult to communicate with

her. The mother maintained an irregular work schedule and frequently was unable

to attend visits. Service providers attempted to schedule around her work or offer

transportation and Saturday visits. Sometimes the mother’s personal and social

events took precedence over interactions with her children, such as a class

reunion. At one point, the mother went six months without a visit with the children.

She never progressed beyond fully-supervised visits. She also moved out of state

to Minnesota for work and to be closer to her family despite being told it would

make it harder for the Iowa DHS to provide services. Since the mother does not

have a driver’s license and DHS could not transport the children across state lines,

no visits were held at her home in Minnesota.

The service providers also noted the mother’s poorly-developed parenting

skills. Despite taking some parenting classes and receiving regular prompts from

service providers, the mother was unable to absorb those lessons and

appropriately redirect or discipline the children. The service providers noted this

was especially true when the mother was interacting with all three children at once.

The FSRP worker felt the mother could not safely parent them together. She

never completed court-ordered mental-health services, but she was attending

medicine management appointments. 4

The FSRP worker reported the father was more hands-on and skilled in his

parenting during interactions with the children. He was able to “use humor to

motivate them” and was “better at redirecting and keeping order” among them.

The FSRP worker and the DHS social worker reported a demonstrable bond

between the father and the children since they seemed to enjoy their visits.

The FSRP worker explained, and as shown by extensive records, that the

three children all have special needs, qualify for behavioral health intervention

services, and have IEPs at school. They also each have significant trauma-related

mental-health diagnoses such as speech delays and post-traumatic stress

syndrome. In the FSRP worker’s opinion, the parents could not provide the level

of care they require. The mother could not identify the children’s medical or

developmental delays or mental-health diagnoses, therapists, doctors, or

teachers. The FSRP worker’s hints to the mother to connect with their therapists

and doctors were not taken. The FSRP worker opined “it is a 24/7 job to parent

these children” and get them to their respective appointments and meetings. Due

to the parents’ own mental-health and substance-abuse issues, she did not think

the parents could keep up with the children’s needs. Neither parent consistently

participated in their family therapy sessions either. In foster care, the children were

receiving appropriate treatment for their developmental issues and improving.

The FSRP worker testified she saw little evidence of a bond between the

mother and children. In contrast, she saw a bond with the father as the children

looked forward to their visits with him and enjoyed spending time with him.

Interactions went well enough that the DHS provided the father overnights and one

trial home placement with the oldest child. That ended because of reports that the 5

father had physically abused the small child of his paramour, with whom he was

living.1 The father was charged with felony child endangerment as a result of that

incident. The criminal complaint alleged he had assaulted the child on multiple

occasions leaving serious injuries, bruising, scarring, and potential loss of hearing.

Those charges were pending at the time of the termination hearing. Also after that

incident, the father was asked to submit to a drug test, which came back positive

for methamphetamine. A methamphetamine pipe was recovered from the home

as well. Despite multiple prior arrests for drug use, the father has not completed

substance-abuse treatment. He also denied having a methamphetamine problem.

The mother also denies he has used methamphetamine in the last ten years. She

believes the father is sober and can parent the children safely. She explains any

positive tests are the result of tampering by others.

The State petitioned to terminate, raising several grounds. The juvenile

court terminated the parents’ rights, pursuant to Iowa Code section 232.116(1)(f)

(2020). The parents appeal separately.

II. SCOPE AND STANDARD OF REVIEW

“We review child-welfare proceedings de novo.” In re A.H., 950 N.W.2d 27,

33 (Iowa Ct. App. 2020). “The juvenile court’s fact findings do not bind us, but we

give them weight, particularly with regard to credibility.” Id. Our primary concern

is the best interests of the child. Id.

1 While the cases were pending, the parents initially pursued marital counseling. This was unsuccessful, the parties separated but have not filed for dissolution of their marriage. Each has entered into new relationships. 6

III. ANALYSIS

A. Statutory Ground for Termination

The juvenile court found sufficient evidence to terminate both parents’ rights

pursuant to the statutory ground of Iowa Code section 232.116(1), paragraph (f).

Termination under paragraph (f) requires clear and convincing evidence:

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 parent for at least twelve of the last eighteen 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). In their petitions on appeal, the parents contend the

State failed to prove the children could not be returned at the present time to their

custody. See In re A.M., 843 N.W.2d 100, 111 (Iowa 2014) (defining “at the

present time” to mean at the time of the termination hearing).

The father points to his almost successful thirty-day home trial period, the

other children’s overnight visits, and the lack of concerns that the children were

suffering any harm. Of course, the trial period at home ended short of thirty days

because the father allegedly committed felony child endangerment against another

child in the home. The father points out his paramour’s older child was allowed to

return home. But we think the physical abuse of the other child and the father’s

subsequent positive drug test for methamphetamine show that he has not

reformed his prior conduct that led to his children being removed initially. The

father has not successfully completed substance-abuse treatment, continues to

deny his addiction, and has not consistently attended to his children’s mental and 7

physical well-being even if he is capable of attending to them during visitations.

Clear and convincing evidence shows the children would still be in danger of

adjudicatory harm if they were returned to his care.

The mother points out she had a successful home study by a Minnesota

authority that recommended visitations could take place at her home. She asserts

her new home no longer raised the cleanliness or sanitary concerns that were

present during the family’s initial contact with DHS. It is also true that the mother

maintains full-time employment and is in a healthier place than earlier in the case.

But we do not think she has made satisfactory improvement in significant areas.

She has not yet completed any substance-abuse or mental-health treatment. The

FSRP provider noted her parenting skills were inadequate to supervise the three

children at the same time and did not improve despite the provision of parenting

assistance and continual prompting by the FSRP provider. She continues to

exercise poor judgment in her belief that the father is not a methamphetamine user

and is safe to be around the children. The mother complains DHS did not

investigate allowing her parents to transport the children to her for visitation or

conduct a home study so the children could be placed with them. The DHS social

worker gave cogent reasons for not involving the maternal grandparents—that they

refused at times to cooperate with DHS and encouraged the mother not to

cooperate. Even if DHS had done as the mother suggests, her parents’

participation and assistance would not overcome her failure to complete the case

expectations of substance-abuse and mental-health treatment and therapy. Nor

would it overcome her inability to parent the children without becoming

overwhelmed by their needs, which the FSRP provider and DHS worker both 8

testified were significant and beyond the mother’s abilities to provide. The

evidence is clear and convincing that the children could not be returned to her care

at the present time.

B. Best Interests of the Children

Next, both parents argue it was not in the children’s best interests to

terminate their rights. In making the best-interests determination, we give primary

consideration to the child’s safety, the best placement for furthering their long-term

nurturing and growth, as well as their physical, mental, and emotional condition

and needs. Iowa Code § 232.116(2); see In re P.L., 778 N.W.2d 33, 37 (Iowa

2010). Safety and the need for a permanent home mark the “defining elements”

in a child’s best interests. In re J.E., 723 N.W.2d 793, 802 (Iowa 2006) (Cady, J.,

concurring specially).

Both parents argue that because the children are not currently in a pre-

adoptive placement, the increased uncertainty of termination is not in their long-

term best interests. It also is not clear that the children will remain together after

termination. See J.E., 723 N.W.2d at 800 (describing a judicial “preference to keep

siblings together” but demurring that “this preference is not absolute” and makes

way for the child’s best interests). But the children have already been out of the

parental home for two years. The parents have not progressed sufficiently in their

efforts to overcome their parenting deficiencies to resume care of the children. And

once statutory timelines have run, we must view the need for stability and

permanency with urgency. In re J.H., 952 N.W.2d 157, 173 (Iowa 2020).

Unfortunately, patience with the parent can work an “intolerable hardship” on the

children. In re R.J., 436 N.W.2d 630, 636 (Iowa 1989). And we agree with the 9

juvenile court that the parents have been given a full measure of patience. Even

if the children are not adopted by their current placements, their long-term best

interests lie in severing their legal relationship to the parents. The parents have

not demonstrated an ability to parent safely and with the children’s physical,

mental, and emotional needs at the forefront. It is possible the children will be

separated, with the older child being split away from the younger twins.2 In closing

arguments, the State represented that various adoptive homes, including relatives’

homes, were under consideration but required further investigation that was not

possible before the termination of parental rights hearing. We find the need for

termination compelling in this case, even if it results in the children being

separated. The children require permanency and stability that can only be afforded

to them through termination. We find termination was in their best interests.

C. Statutory Exception to Termination

Both parents asked the court to apply the statuary exception described

under Iowa Code section 232.116(3)(c) to forego termination. Under that section,

the court can withhold termination if it determines it “would be detrimental to the

child at the time due to the closeness of the parent-child relationship.” See Iowa

Code § 232.116(3)(c). Application of this factor is permissive, not mandatory. See

In re A.R., 932 N.W.2d 588, 591 (Iowa Ct. App. 2019). But the juvenile court found

no reason to apply it, and neither do we.

2Records indicate that when the older child was placed in the same foster home as the twins’ sibling difficulties arose. This lead to a recommendation that the older child be adopted separately but with potential visitation with the twins. 10

Nothing in the record suggests the children would be harmed by terminating

their mother’s parental rights. The FSRP and DHS workers identified only a slight

bond there, and the FSRP worker noted at one of the last visits, the children did

not even greet their mother. The mother also has not treated visitation with any

urgency, sometimes foregoing the chance to spend time with her children for

personal pursuits. She went as long as six months without an interaction with

them. We cannot say termination of her parental rights will be detrimental to them.

The father has a stronger argument—the FSRP and DHS workers noted a

discernable bond between him and the three children. He was able to interact with

them appropriately, and they enjoyed the visits. But given the danger posed by

the father’s ongoing substance-abuse problem and the fact his relapse into

methamphetamine use coincided with a violent attack against another child, we

cannot say severing that bond will impact the children enough to forego

termination.3

D. Reasonable Efforts

The father alone raises the claim that the DHS failed to make reasonable

efforts to reunite him with the children. The State responds that he did not preserve

error on the claim. Iowa Code section 232.102(7) requires the DHS to “make every

reasonable effort to return the child[ren] to the child[ren]’s home as quickly as

possible consistent with the best interests of the child[ren].” See In re C.B., 611

3 See In re J.S., 846 N.W.2d 36, 42 (Iowa 2014) (“[A] juvenile court could reasonably determine that a parent’s active addiction to methamphetamine is ‘imminently likely’ to result in harmful effects to the physical, mental, or social wellbeing of the children in the parent’s care.”). 11

N.W.2d 489, 493 (Iowa 2000). When relying on paragraph (f) as the ground for

termination, as it did here, the State must show the DHS made reasonable efforts

toward reunification as part of its ultimate burden of proof. See In re L.T., 924

N.W.2d 521, 527 (Iowa 2019).

On appeal, we address those issues that were both raised and decided by

the court below. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

Further, to preserve error on a reasonable-efforts claim, the parent must “demand

other, different or additional services prior to the termination hearing.” In re S.R.,

600 N.W.2d 63, 65 (Iowa Ct. App. 1999). The father claims he preserved error by

arguing the issue during the permanency review hearing. We do not have a

transcript of the permanency review hearing in our record on appeal. But the

juvenile court’s permanency review order, filed the same day as the termination

order, mentions only the mother’s motion for additional services and request for

reasonable efforts, which the court denied. In the prior permanency order, the

court determined reasonable efforts had been provided to the parents, with no

indication the father requested any “other, different or additional services.” Id.

Therefore, we agree with the State the father did not preserve this issue for our

review.