In the Interest of N.J., N.T., and N.T., Minor Children

• Court: Court of Appeals of Iowa
• Decided: July 13, 2023
• Docket: 23-0096
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0096 Filed July 13, 2023

IN THE INTEREST OF N.J., N.T., and N.T., Minor Children,

N.J., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Brent Pattison, District

Associate Judge.

A mother appeals the termination of her parental rights. AFFIRMED.

Christine Branstad of Branstad & Olson Law Office, Des Moines, for

appellant mother.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee State.

Jean M. Baker of Jean M. Baker Law Office, West Des Moines, attorney

and guardian ad litem for minor children.

Considered by Ahlers, P.J., Badding, J., and Vogel, S.J.*

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

(2023). 2

VOGEL, Senior Judge.

A mother appeals the termination of her parental rights to three of her

children. She argues the State failed to prove the statutory grounds for

termination, her bond with the children should preclude termination, the juvenile

court should have granted a six-month extension before termination, the State did

not provide reasonable efforts toward reunification, and termination violates

constitutional guarantees of due process. We affirm termination.

I. Background Facts and Proceedings

The mother has seven minor children born between 2008 and 2016; from

oldest to youngest, those children are Nov., Nev., Noa., Nol., Naz., Ney., and Nas.

Prior to removal here, the children were in the father’s physical care with visitation

to the mother after she stipulated to this arrangement in December 2017. At issue

in this appeal are the three youngest children—Naz., born in 2014; Ney., born in

2015; and Nas., born in 2016.

The Iowa Department of Health and Human Services (HHS) previously

completed multiple child abuse assessments—all not confirmed—regarding this

family. HHS involvement for this proceeding began in August 2020 after the father

was arrested for violating a no-contact order protecting the mother. Based on

HHS’s concern about the mother’s ability to safely care for the children and the

mother’s stated fear of the father if the children were in her care, the mother soon

consented to removal of the children from her custody. In October, the children

were adjudicated as being in need of assistance.

The children have had multiple placements throughout this proceeding.

Noa. was returned to the mother’s custody in December 2020, and Nov. was 3

returned to her custody in February 2021; these two children remained in her

custody for the rest of this proceeding. At the time of termination, Nev. was in HHS

custody at a residential program, Nol. was in a guardianship with fictive kin, Naz.

and Nas. were with one foster family, and Ney. was with a second foster family.

In September 2022, the State filed the petition to terminate the mother’s

parental rights only as to Naz., Ney., and Nas. The matter proceeded to a hearing

across three days in October and November. The juvenile court then terminated

the mother’s rights to the three children.1 She appeals.2

II. Standard of Review

“We review termination of parental rights de novo.” In re A.B., 957 N.W.2d

280, 293 (Iowa 2021). “We are not bound by the factual findings of the juvenile

court, though we give them respectful consideration, particularly regarding

credibility determinations.” Id.

III. Analysis

A. Statutory ground

The mother begins by arguing the State failed to prove the statutory grounds

for termination. The juvenile court terminated the mother’s rights under Iowa Code

section 232.116(1)(e) and (f) (2022). “When the juvenile court terminates parental

rights on more than one statutory ground, we may affirm the juvenile court's order

on any ground we find supported by the record.” In re A.B., 815 N.W.2d 764, 774

(Iowa 2012).

1 As of termination here, the mother retained her rights as to Nov., Nev., Noa., and Nol. 2 The juvenile court terminated the father’s parental rights to all seven children on

February 8, 2022. He is not part of this appeal. 4

We address Iowa Code section 232.116(1)(f), which allows the juvenile

court to terminate parental rights if it finds the State proved all of the following:

(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.

The mother only challenges the fourth element, that the children could not be

returned to her custody at the time of the termination hearing. See In re D.W., 791

N.W.2d 703, 707 (Iowa 2010) (interpreting the statutory language “at the present

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

Soon after removal, HHS identified the mother’s mental health and

substance abuse as concerns. While she completed evaluations for both, she has

been inconsistent in treatment. Regarding her mental health, her first therapist

discharged her for missing too many appointments, and her current therapist

recently warned her that she was again in danger of being discharged for missed

appointments. Regarding substance abuse, the mother has never successfully

completed treatment, and she is not currently engaged in treatment. She tested

positive for marijuana multiple times during this proceeding, she regularly failed to

providing a testing sample on the date HHS requested, and she failed to respond

to HHS’s request for testing shortly before the termination hearing.

The mother’s failure to address her own issues raises serious doubts about

her ability to address the needs of Naz., Ney., and Nas. All three children report 5

experiencing considerable trauma in their short lives. They have attended therapy

once every week or two since shortly after removal, and they have made significant

progress in that time. Their therapist provided a letter emphasizing the three

children need consistency and structure. Both their therapist and the HHS worker

testified they did not believe the mother would meet the children’s needs if they

were returned to her custody. Additionally, the mother has been inconsistent

visiting these children, and she has made little effort to contact these children

outside of visitation.

Furthermore, the mother’s parenting of Nov. and Noa. indicates she is not

up to the challenge of parenting Naz., Ney., and Nas. as well. A social worker

described the mother’s parenting of Nov. and Noa. as “minimally adequate” since

they were placed in her custody in December 2020 and February 2021. Nov. and

Noa. have both shown major behavioral issues; while the mother argues she

should not be held “responsible for behavior for which she was not present,” she

has been unable or unwilling to take steps to address their behaviors. She has

repeatedly failed to schedule various appointments for Nov. and Noa. She has not

sent their medication to school, and Nov. and Noa. are frequently absent from

school.

Considering the mother’s failure to address her own issues, the special

needs of the three children at issue, and the mother’s struggles to parent the two

children already in her custody, we agree the State proved Naz., Ney., and Nas.

cannot be safely returned to the mother’s custody. Therefore, the State proved

termination is appropriate under Iowa Code section 232.116(1)(f). 6

B. Parent-child relationship

The mother’s petition briefly raises a permissive exception, arguing

termination would be detrimental to children due to the parent-child relationship.

See Iowa Code § 232.116(3)(c). We bypass concerns about waiver and address

the merits of her argument. As explained above, the State showed serious

concerns about the mother’s ability to provide for the needs of Naz., Ney., and

Nas. if they were returned to her custody. The children’s therapist also testified

Ney. is farthest along in therapy and has repeatedly said she is ready to be

adopted. While the mother showed she has a relationship with these children, she

failed to prove this relationship is so strong it overcomes the concerns with her

parenting and should preclude termination.

C. Additional time for reunification

The mother argues she should receive additional time for reunification. The

juvenile court may grant up to an additional six months for reunification if it can

“enumerate the specific factors, conditions, or expected behavioral changes which

comprise the basis for the determination that the need for removal of the child from

the child’s home will no longer exist at the end of the additional six-month period.”

Iowa Code § 232.104(2)(b); see also In re W.T., 967 N.W.2d 315, 323 (Iowa 2021)

(“Not only must [the parent] show the impediments to placing [the child] with [them]

will not exist in six months, we must also consider whether the further delay is in

[the child’s] best interests.”).

The children were removed from the mother’s custody in August 2020, more

than two years before the termination hearing. At the August 9, 2021 permanency

hearing, the mother demonstrated to the court, “by the slimmest of margins,” that 7

with an additional six months she may be able to have all the children in her care.

More than one year later, the mother was still unable to do so. Moreover, these

children have been out of the mother’s physical care—except for visitations—since

at least December 2017 when she stipulated to placing physical care with the

father. While the mother has made some progress, again, the children still cannot

be safely returned to her custody. “Children simply cannot wait for responsible

parenting.” In re L.L., 459 N.W.2d 489, 495 (Iowa 1990). Considering the already

lengthy removal and the mother’s continuing issues, additional time for

reunification is not appropriate.

D. Reasonable efforts

The mother argues HHS failed to provide reasonable efforts toward

reunification. “The State must show reasonable efforts as a 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). The parent must “object to services early in

the process so appropriate changes can be made.” Id. at 493–94.

On appeal, the mother argues HHS was deficient in facilitating her visitation,

sibling visitation, and out-of-state relative placement. In an August 2022

permanency order—one month before the filing of the termination petition—the

juvenile court addressed the mother’s arguments and found HHS provided

reasonable efforts:

Creative efforts were made to help [the mother] better understand [Naz., Ney., and Nas.] and manage them—including one-on-one visitation with coaching . . . . And a bevy of services and supports have been put in place. It is true that an [interstate] home study has not been completed [for relative placement]—but Iowa cannot control how fast other states complete their reviews. Extensive visitation opportunities have been offered to [the mother] (formally and 8

informally), and she has not taken full advantage of them. The Court agrees that [HHS] has sometimes fallen short on its obligations with regard to sibling visitation in this case, but finds that has not impacted [the mother’s] ability to reunify with the children.

On our de novo review, we agree with the juvenile court that HHS provided

reasonable services for reunification. In light of these services, we repeat our

conclusion that the State proved the children cannot be safely returned to the

mother.

E. Due process

The mother argues termination violates her rights to procedural and

substantive due process. “The protections provided people under the

constitutional guarantee of due process are fundamental to society. These

protections include procedural safeguards for people who face state action that

threatens a protected liberty or property interest.” See In re M.D., 921 N.W.2d 229,

232–33 (Iowa 2018).

The mother’s due process arguments essentially repeat her earlier

arguments that the State did not follow the Iowa Code before terminating her

parental rights. As explained above, the State proved a statutory ground for

termination, and HHS provided reasonable efforts toward reunification before

termination. We find no violation of the mother’s due process rights. To the extent

the mother raises the due process rights of the children and the relatives who

sought to care for the children, she has no standing to make those arguments.

See In re K.R., 737 N.W.2d 321, 323 (Iowa Ct. App. 2007) (“[The father] did not

have standing to assert that argument on [the mother’s] behalf in an effort to

ultimately gain a benefit for himself, that is, the reversal of the termination of his 9

parental rights.”). Finally, we find no due process violation in terminating her rights

to only three of her seven children—even considering Nov. and Noa. remain in her

custody—based on the unique needs and circumstances of each child.

IV. Conclusion

The State proved a statutory ground for termination, the parent-child bond

does not preclude termination, providing the mother with additional time for

reunification was not appropriate, HHS provided reasonable efforts toward

reunification, and termination does not violate the mother’s due process rights.

AFFIRMED.