In the Interest of M.W., Minor Child

• Court: Court of Appeals of Iowa
• Decided: February 22, 2023
• Docket: 22-1924
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1924 Filed February 22, 2023

IN THE INTEREST OF M.W., Minor Child,

K.W., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County,

Stephanie Forker Perry, District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

Elizabeth K. Elsten of Johnson Law Firm, PC, Spirit Lake, for appellant

mother.

Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Michelle M. Hynes of the Juvenile Law Center, Sioux City, attorney for minor

child.

Molly Vakulskas Joly of Vakulskas Law Firm, P.C., Sioux City, guardian ad

litem for minor child.

Considered by Bower, C.J., and Badding and Buller, JJ. 2

BADDING, Judge.

A mother who continues to battle addiction appeals the termination of her

parental rights to her child—born in 2021—under Iowa Code

section 232.116(1)(h), (i), and (l) (2022).1 The mother challenges the sufficiency

of evidence relating to the first step in the three-step termination framework, argues

that reasonable efforts toward reunification were not made, and suggests she

should have been given more time to work toward reunification. We review each

of her claims de novo. See In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022).

Beginning with the statutory grounds for termination in section 232.116(1),

we may affirm termination “on any ground we find supported by clear and

convincing evidence.” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Turning our

focus to section 232.116(1)(h), the mother only challenges the final element—that

the child could not be returned to her custody at the time of the termination hearing.

See Iowa Code § 232.116(1)(h)(4) (requiring clear and convincing evidence “that

the child cannot be returned to the custody of the child’s parents . . . at the present

time”); D.W., 791 N.W.2d at 707 (interpreting the statutory language “at the present

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

A de novo review of the record shows the mother has a long history of

substance abuse, criminal behavior, and involvement with the Iowa Department of

Health and Human Services. The child at issue tested positive for

methamphetamine and THC upon her birth in June 2021.2 The mother admitted

1 The father’s rights were also terminated. He did not appeal. 2 The department was already involved with the family during the pregnancy due to reports that the mother was using methamphetamine and marijuana while caring for her three older children. Those children are not at issue in this appeal. 3

to using both substances during the pregnancy, although she said that she stopped

using methamphetamine a few months before the child was born. Concerns also

arose about domestic violence in the home, the mother’s mental health, and her

abuse of prescription drugs.

Fast-forward to the permanency hearing in September 2022. By then, the

mother was homeless, unemployed, and without her own means of transportation.

Her visits remained fully supervised. And she was pregnant again. Since the case

started, the mother refused or failed to appear for drug testing on several

occasions. Of the tests that were administered, they were riddled with positive

results for THC and methamphetamine. The mother underwent multiple

substance-abuse and mental-health evaluations, all of which recommended

treatment. She entered inpatient substance-abuse treatment three times but left

each time against medical advice. Her participation in outpatient substance-abuse

treatment was never consistent. She never meaningfully participated in mental-

health treatment either.

The mother agreed in her testimony at the permanency hearing that she

was still struggling with her addiction and mental health. She entered inpatient

treatment for a fourth time just days before the hearing, though she admitted to

using drugs daily before her admission. While she believed this time in treatment

would be “different,” she was wrong. By the time of the termination hearing in

October, the mother had again left treatment, her whereabouts were unknown, and

she did not appear for the hearing. In addition, the department caseworker had

received a report from the family-centered-services provider that the mother

showed up for a recent visit exhibiting signs of active drug use. With all this in 4

mind, we agree with the juvenile court that the child could not be returned to the

mother’s care at the time of the termination hearing, and termination was therefore

proper under section 232.116(1)(h).

For her reasonable-efforts challenge, the mother submits “she was

wrongfully deprived of visitation services,” highlighting “frequently changed visits”

and “time limits on visits themselves.” We agree with the State that the mother

failed to preserve this challenge because she did not raise it with the juvenile court,

even during her belated complaints about the department’s efforts in her testimony

at the permanency hearing. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002)

(noting complaints must be voiced to the court); In re A.A.G., 708 N.W.2d 85, 91

(Iowa Ct. App. 2005) (stating the parent’s obligation to request specific services

must precede the permanency hearing to preserve error for appellate review). In

any event, we conclude the department’s efforts were “reasonable under the

circumstances,” see In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000), given

the services provided and the mother’s response to them. See In re C.B., 611

N.W.2d 489, 494 (Iowa 2000).

Turning finally to the mother’s request for additional time to work toward

reunification, a six-month extension is appropriate only if the parent can establish

that “the need for removal . . . will no longer exist at the end of the additional six-

month period.” Iowa Code § 232.104(2)(b); accord In re W.T., 967

N.W.2d 315, 323 (Iowa 2021). Here, the mother appears to claim the extension

should have been granted at the permanency hearing. But the court’s permanency

order was not a final appealable order on the issue, and its provisions have now

been “subsumed in the termination proceeding.” In re T.H., No. 20-0267, 2020 5

WL 4201816, at *4 (Iowa Ct. App. July 22, 2020) (citation omitted). To the extent

the mother argues an extension should have been granted at the termination

hearing, she has not enumerated what factors, conditions, or expected behavioral

changes will alleviate the need for removal at the end of an extension. See Iowa

Code § 232.104(2)(b). On this record, we cannot do so either and therefore

conclude an extension of time is not warranted.

All told, we affirm the termination of the mother’s parental rights.