In the Interest of R.K. and F.K., Minor Children

• Court: Court of Appeals of Iowa
• Decided: June 15, 2022
• Docket: 22-0547
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0547 Filed June 15, 2022

IN THE INTEREST OF R.K. and F.K., Minor Children,

A.K., Mother, Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights to her two children.

AFFIRMED.

Joseph G. Martin, Cedar Falls, for appellant mother.

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

General, for appellee State.

Tammy L. Banning of the Office of State Public Defender, Waterloo,

attorney and guardian ad litem for minor children.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ. 2

AHLERS, Judge.

This family came to the attention of the Iowa Department of Human Services

(DHS) because of reports that the older of the two children—who was four years

old at that time—frequently left the home without the parents’ knowledge or

supervision. The investigation that followed revealed a home that was unsafe and

uninhabitable for the children. The safety concerns included animal and human

feces on the floors; prescription medications accessible to the children; and rotting

food and trash in the home resulting in the presence of maggots and flies. It was

also discovered that the mother was allowing a registered sex offender to live in

the home. The children were removed and placed with a foster family. Each child

was adjudicated to be a child in need of assistance (CINA).

Throughout DHS involvement, the mother was offered extensive services

to address her mental-health and parenting needs. Despite those services,

significant concerns remained regarding the mother’s ability to maintain a safe

home for the children and to properly parent. The mother physically abused the

older child during one of her visits, even though the visit was semi-supervised.

Although the children’s behavior and development improved dramatically after

being placed in foster care, they suffered significant behavioral regressions

following visits with the mother.

With little progress being made toward safe and effective parenting, the

State filed petitions seeking to terminate the mother’s parental rights. Following a

hearing, the juvenile court terminated the mother’s rights to the older child under

Iowa Code section 232.116(1)(f) (2021) and to the younger child under

section 232.116(1)(h). The father of the older child consented to the termination 3

of his rights. The rights of all putative fathers of the younger child were terminated.

Only the mother appeals.

We review termination proceedings de novo.1 “We give weight to the factual

findings but are not bound by them. The paramount concern in a termination

proceeding is the child[ren]’s best interests.”2

As noted, the juvenile court terminated the mother’s parental rights to the

older child under section 232.116(1)(f)—requiring proof that the child is four years

of age or older, was previously adjudicated CINA, has been removed from the

custody of the parent for at least twelve of the last eighteen months, and cannot

be returned safely to the parent at the present time. The mother’s rights to the

younger child were terminated under section 232.116(1)(h)—requiring proof that

the child is three years of age or younger, was previously adjudicated CINA, has

been removed from the custody of the parent for at least six of the last twelve

months, and cannot be returned safely to the parent at the present time. On

appeal, the mother seems to challenge only the fourth element of each statutory

provision—that the children could not be returned to her care at the time of the

termination hearing.3 The State, however, contests error preservation on this

point. On our review of the record, we agree with the State that error has not been

preserved on this issue. While the mother contested termination, she did so by

requesting an additional six months to allow for reunification. She did not contend

that the State failed to meet the statutory requirements for termination. “It is a

1 In re L.B., 970 N.W.2d 311, 313 (Iowa 2022). 2 In re L.B., 970 N.W.2d at 313 (internal citation omitted). 3 See Iowa Code § 232.116(1)(f)(4), (h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa

2010) (stating “at the present time” means at the time of the termination hearing). 4

fundamental doctrine of appellate review that issues must ordinarily be both raised

and decided by the district court before we will decide them on appeal.”4 Because

the mother did not make arguments to the juvenile court that the State failed to

meet its burden in proving the statutory grounds for termination, we find the issue

is not preserved for our review. Although not preserved for our review, we have

conducted a de novo review of the record nevertheless, and we find clear and

convincing evidence that the children could not be returned to the mother’s custody

at the time of the termination hearing. The statutory grounds for termination have

been met.

The remaining issue is the mother’s claim that she should have been

granted an additional six months to work toward reunification. If the juvenile court

decides not to terminate parental rights, it can choose any of the permanency

options set forth in Iowa Code section 232.104.5 One of those options is to give

the parent an additional six months to work toward reunification.6 In order to select

this option, however, the court must “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.”7 With the request for additional time, not

only must the mother show that the conditions will no longer exist after an

4 Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). 5 Iowa Code § 232.117(5). 6 Iowa Code § 232.104(2)(b). 7 Iowa Code § 232.104(2)(b). 5

additional six months, but we must also consider whether an additional delay is in

the children’s best interests.8

We agree with the juvenile court that there are no articulable facts that point

to the children being able to be returned to the mother’s custody after an additional

six months. The children were removed from the mother’s custody for nearly

seventeen months at the time of the termination hearing (from September 2020 to

February 2022) with no trial periods at home. At the time of termination, the mother

was only exercising fully supervised visitation. Despite the services offered, the

mother was unable to consistently maintain a sufficiently safe home for the children

or to adequately supervise them. The mother, though engaging in the required

services, did not make significant progress in the areas of concern such that we

can say the concerns would no longer be present after an additional six months.

Further, it is clear that additional delay is not in the children’s best interests. The

children have thrived in their foster home and are strongly bonded to the foster

family. In looking to the children’s “long-term nurturing and growth . . . and to [their]

physical, mental, and emotional condition and needs,” denial of additional delay is

in the children’s best interests.9 We cannot delay permanency for a child in the

hope that someday a parent will be able to provide a safe and stable home.10

Accordingly, the mother’s request for an additional six months to work toward

reunification was properly denied.

8 In re W.T., 967 N.W.2d 315, 323 (Iowa 2021). 9 See In re J.H., 952 N.W.2d 157, 171 (Iowa 2020) (quoting Iowa Code § 232.116(2)). 10 In re A.S., 906 N.W.2d 467, 474 (Iowa 2018).