In the Interest of R.B., Minor Child

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0347 Filed June 19, 2019

IN THE INTEREST OF R.B., Minor Child,

L.R., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.

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

AFFIRMED.

Barbara E. Maness, Davenport, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Marsha J. Arnold, Davenport, attorney and guardian ad litem for minor child.

Considered by Potterfield, P.J., and Doyle and May, JJ. 2

MAY, Judge.

The juvenile court terminated the mother’s parental rights to her child, R.B.1

On appeal, the mother contends the juvenile court erred (1) in waiving the

reasonable-efforts requirement, (2) in concluding the child could not be returned

to her care in the near future, (3) in declining to provide the mother with an

additional six months to work toward reunification, and (4) in finding termination

was in R.B.’s best interest. We affirm the juvenile court.

I. Background Facts and Proceedings

R.B. was born in 2018. Prior to R.B.’s birth, her mother had five other

children. In November 2016, the mother came to the attention of the Iowa

Department of Human Services (DHS) because of her drug use and neglect of her

children. The juvenile court adjudicated each of the five as a child in need of

assistance. All five were removed from the mother’s care.2 The mother was jailed

for roughly one month for violating probation. Following her release, DHS

attempted to engage the mother in services. The mother’s response was poor:

she did not show up for all of her drug testing; she did not complete recommended

substance-abuse treatment; she did not attend parenting sessions; and she often

missed visits with the children.

In May 2017, the mother tested positive for methamphetamine, cocaine,

and THC. A new warrant was issued for her violation of probation requirements.

1 The parental rights of the unknown father were also terminated and are not subject to this appeal. 2 The oldest sibling was placed in a guardianship with a relative. The mother’s parental rights to the second oldest and youngest sibling were terminated, and the children were adopted by their foster-care placement. The remaining two children were placed in their biological father’s care. 3

The mother chose to remain out on warrant until she was finally arrested in March

2018. During that ten-month period, the mother did not contact DHS to check on

the welfare of her children.

In mid-March 2018, the mother was sentenced to prison. The mother gave

birth to R.B. a few weeks later. R.B. was removed from the mother’s custody at

the hospital just days after her birth. R.B. has not seen her mother since.

The juvenile court adjudicated R.B. as a child in need of assistance. DHS

placed R.B. in the same foster home as two of her siblings.

DHS made repeated efforts to facilitate visitation between R.B. and the

mother. Those efforts failed because the mother declined to return documentation

that would allow the care coordinator to bring R.B. to the prison.

In July 2018, the juvenile court entered a dispositional order waiving the

State’s requirement to provide reasonable efforts toward reunification. In

September 2018, the mother asked the court to reinstate the reasonable-efforts

requirement. The court did not grant her request. On September 24, 2018, the

court changed the permanency goal to termination of the mother’s rights.

In February 2019, the court held a hearing regarding the mother’s rights.

The court heard testimony from the care coordinator, the assigned social worker,

and the mother. The mother testified she had completed several classes aimed at

self-improvement. She testified that she anticipated being paroled in the near

future. She also testified that, upon release, she intended to enter a transitional

living program that would help her lead a sober lifestyle. She asked the juvenile

court to grant additional time for reunification. 4

On February 13, 2019, the juvenile court issued an order terminating the

mother’s rights pursuant to Iowa Code section 232.116(1)(d), (e), (g), and (h)

(2018). Among other things, the court cited the mother’s poor parenting history

with her five other children; her failure to show progress in past child-in-need-of-

assistance proceedings; her substantial criminal history; her severe, long-term

substance-abuse issues; and the lack of evidence “to establish the quality and

safety of her sober parenting.” The court found postponing termination would not

be in R.B.’s best interest.

The mother appealed. Our supreme court transferred the case to this court.

II. Standard of Review

We review termination proceedings de novo. In re P.L., 778 N.W.2d 33, 40

(Iowa 2010). “We examine both the facts and law, and we adjudicate anew those

issues properly preserved and presented.” In re C.S., No. 13-1796, 2014 WL

667883, at *1 (Iowa Ct. App. Feb. 19, 2014) (citing In re L.G., 532 N.W.2d 478,

480 (Iowa Ct. App. 1995)).

III. Analysis

We use a three-step analysis to review the termination of a parent’s rights.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). First, we must determine whether a

ground for termination under section 232.116(1) has been established. Id. at 472–

73. If a ground for termination has been established, we must then consider

“whether the best-interest framework as laid out in section 232.116(2) supports the

termination of parental rights.” Id. at 473. Finally, we must consider “whether any

exceptions in section 232.116(3) apply to preclude termination of parental rights.”

Id. (quoting In re M.W., 876 N.W.2d 212, 220 (Iowa 2016)). 5

A. Grounds for Termination

Our first step is to determine if a ground of termination under section

232.116(1) has been established. See id. at 472–73. “The State has the burden

of proving the grounds for termination by clear and convincing evidence.” In re

H.L.B.R., 567 N.W.2d 675, 677 (Iowa Ct. App. 1997).

Here, the mother does not directly challenge the juvenile court’s finding that

grounds for termination exist. Instead, she argues the court erred in waiving the

State’s reasonable-efforts requirement. While the reasonable-efforts mandate is

not “a strict substantive requirement of termination,” the scope of reasonable

efforts provided to a parent “impacts the burden of proving [the statutory] elements

of termination, which require reasonable efforts.” In re C.B., 611 N.W.2d 489, 493

(Iowa 2000) (“The State must show reasonable efforts as part of its ultimate proof

the child cannot be safely returned to the care of a parent.”).

Although the State usually must demonstrate it provided services that

constitute reasonable efforts toward reunification, the reasonable-efforts mandate

can be waived when the court finds that aggravating circumstances exist. See

Iowa Code § 232.102(14). Here, the juvenile court waived reasonable efforts

through its July 2018 dispositional order. The mother did not appeal from that

order. Cf. In re M.A.F., 679 N.W.2d 683, 684 (Iowa Ct. App. 2004) (“The

dispositional order was a final, appealable order.”). As a result, we will not consider

her current challenge to the waiver of reasonable efforts. See In re M.Y.R., No.

11-1139, 2011 WL 5389436, at *7 (Iowa Ct. App. Nov. 9, 2011) (refusing to

consider challenge to waiver of reasonable efforts when the dispositional order

waived reasonable efforts and no appeal was taken from the dispositional order). 6

Because the waiver of reasonable efforts is not properly before this court

and the mother does not otherwise challenge the statutory grounds supporting

termination, “[a]ny claim of error related to the statutory grounds has been waived.”

In re S.F., No. 15-0490, 2015 WL 3626439, at *1 (Iowa Ct. App. June 10, 2015).

We conclude the first step of our analysis is satisfied.

B. Best-Interest Framework

Our next step is to consider the best-interest framework set forth in section

232.116(2). A.S., 906 N.W.2d at 473. Section 232.116(2) provides in relevant

part:

In considering whether to terminate the rights of a parent under this section, the court shall give primary consideration to the child’s safety, to the best placement for furthering the long-term nurturing and growth of the child, and to the physical, mental, and emotional condition and needs of the child.

Iowa Code § 232.116(2); see also id. § 232.116(2)(a), (b), (c) (identifying factors

that may be relevant to the court’s best-interest analysis).

Here, the mother argues termination is not in R.B.’s best interest because

R.B. will not be “provided an opportunity to develop a bond with her biological

parent.” However, R.B. has no relationship with the mother. R.B. left her mother’s

care shortly after birth and has had no contact with her. Conversely, she is bonded

to her foster parents and fully integrated into their family. The foster parents have

expressed interest in adopting R.B. See id. § 232.116(2)(b). Their adoption of

R.B. would allow her to grow up with two of her half-siblings whom the foster

parents previously adopted. See In re A.M.S., 419 N.W.2d 723, 734 (Iowa 1988)

(noting siblings should be raised together when possible). We conclude the

second step of our analysis is satisfied. 7

C. Exceptions

Next, we consider section 232.116(3), which provides as follows:

The court need not terminate the relationship between the parent and child if the court finds any of the following: a. A relative has legal custody of the child. b. The child is over ten years of age and objects to the termination. c. There is clear and convincing evidence that the termination would be detrimental to the child at the time due to the closeness of the parent-child relationship. d. It is necessary to place the child in a hospital, facility, or institution for care and treatment and the continuation of the parent- child relationship is not preventing a permanent family placement for the child. e. The absence of a parent is due to the parent’s admission or commitment to any institution, hospital, or health facility or due to active service in the state or federal armed forces.

“[T]he parent resisting termination bears the burden to establish an

exception to termination” under section 232.116(3). A.S., 906 N.W.2d at 476.

Here, the mother does not assert any exception to termination applies, and we

identify none. We conclude this step is satisfied.

D. Additional Time

Finally, we consider the mother’s contention the juvenile court erred in

declining to provide an additional six months to work toward reunification. The

juvenile court may defer termination for a period of six months if it is able to

“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).

Here, the mother argues the need for removal will be obviated when she is

paroled and enters the transitional facility she contacted. While we do not question 8

the mother’s sincerity in her efforts to improve her life moving forward, we cannot

say her plan provided the juvenile court with specific factors it could rely on to grant

the additional six months. Although the mother claimed she would be paroled

soon, no firm parole date could be verified. Nor was it clear when she could

actually be placed at a transitional facility. Moreover, the mother’s “past

performance is indicative of the quality of care [s]he is capable of providing in the

future.” In re N.A.S., No. 13-0074, 2013 WL 988895, at *2 (Iowa Ct. App. Mar. 13,

2013); accord In re C.W., 554 N.W.2d 279, 283 (Iowa Ct. App. 1996). As already

explained at length, this mother’s history reveals severe and persistent parenting

deficiencies. The juvenile court reasonably concluded it could not rely on the

mother to turn over a new leaf within the next six months.

IV. Conclusion

For the reasons stated, we conclude the juvenile court properly terminated

the mother’s parental rights.