In the Interest of S.L. and K.C., Minor Children

• Court: Court of Appeals of Iowa
• Decided: August 15, 2018
• Docket: 18-0727
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0727 Filed August 15, 2018

IN THE INTEREST OF S.L. and K.C., Minor Children,

B.C., Mother, Appellant,

K.L., Father, Appellant.

Appeal from the Iowa District Court for Pottawattamie County, Gary K.

Anderson, District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

Scott D. Strait, Council Bluffs, for appellant mother.

Amy E. Garreans of Garreans Law, LLC, Council Bluffs, for appellant father.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Roberta J. Megel of State Public Defender Office, Council Bluffs, guardian

ad litem for minor children.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2

MULLINS, Judge.

A mother and father separately appeal the termination of their parental

rights. Both parents appeal the termination of their parental rights to S.L., born in

2017. The mother additionally appeals the termination of her parental rights to

another of her children, K.C., born in 2016.1 Both parents contend: (1) the State

failed to prove the statutory grounds for termination by clear and convincing

evidence, (2) termination is not in the best interests of the children, and (3) the

State failed to make reasonable efforts to facilitate reunification. Our review is de

novo. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

As to the statutory grounds for termination, the juvenile court terminated

both parents’ parental rights under Iowa Code section 232.116(1)(e), (h), and (l)

(2018). “On appeal, we may affirm the juvenile court’s termination order on any

ground that we find supported by clear and convincing evidence.” In re D.W., 791

N.W.2d 703, 707 (Iowa 2010). As to termination under paragraph (h), both parents

appear to only challenge the State’s establishment of the final element of that

provision, that the children could not be returned to their care “at the present time.”

Iowa Code § 232.116(1)(h)(4). However, each parent’s argument is limited to the

assertion that their respective children could be returned to their care within a

“reasonable period of time” after the termination hearing. Neither parent argues

the State failed to prove by clear and convincing evidence that the children could

not be returned to their care at the time of the termination hearing, which is the

relevant point in time under paragraph (h). See id.; D.W., 791 N.W.2d at 707

1 The parental rights of K.C.’s father were also terminated. He does not appeal. 3

(interpreting the statutory language “at the present time” to mean “at the time of

the termination hearing”). In their arguments at the termination hearing, both

parents took the position that the children could be returned to their care at some

point in the future and therefore requested additional time to work toward

reunification; each parent effectually conceded the children could not be returned

to their care at the time of the termination hearing. The record provides clear and

convincing evidence in support of this concession and the juvenile court’s ultimate

conclusion that the children could not be returned to the parents’ care at the time

of the termination hearing. The parents have a long history of using illegal drugs,

including methamphetamine, and continue to test positive for using. They have

failed to complete any treatment program. At the time of the termination hearing

they were living in a camper on a relative’s property in Nebraska. We conclude

the State met its burden to establish the grounds for termination under section

232.116(1)(h) by clear and convincing evidence.

As to the best interests of the children, the parents argue they are bonded

with their respective children and severing the parent-child bonds would be

detrimental to both children and therefore not in their best interests. In determining

whether termination is in the best interests of a child, we “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). Upon our de novo

review of the record, we find these children’s best interests are served by

termination of these parents’ parental rights. To the extent the parents argue the

statutory exception to termination contained in Iowa Code section 232.116(3)(c) 4

should be applied to preclude termination, we note it was the parents’ burden to

establish an exception to termination under section 232.116(3). See A.S., 906

N.W.2d at 476. The record does indicate there is a bond between the parents and

children, but that bond can only be described as limited at best. Generally lacking

in the record is clear and convincing evidence that, at the time of the termination

hearing, “termination would be detrimental to the child[ren] . . . due to the closeness

of the parent-child relationship.” Iowa Code § 232.116(3)(c). We conclude the

parents failed to meet their burdens to establish the statutory exception to

termination. See A.S., 906 N.W.2d at 476.

The State contests error preservation on the parents’ reasonable-efforts

arguments, noting neither parent raised the issue of reasonable efforts prior to the

termination hearing. Both parents argue on appeal that they preserved error by

raising the issue of reasonable efforts at the close of the State’s evidence at the

termination hearing. We agree with the State that error was not preserved and do

not consider the issue of reasonable efforts. See, e.g., In re C.H., 652 N.W.2d

144, 148 (Iowa 2002) (“[I]f a parent fails to request other services at the proper

time, the parent waives the [reasonable-efforts] issue and may not later challenge

it at the termination proceeding.”); In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App.

1999) (finding the issue of reasonable efforts was not preserved when a parent did

not demand, prior to the termination hearing, services other than those provided);

In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994) (“[P]arents have a

responsibility to demand services prior to the termination hearing.”).

We affirm the juvenile court order terminating both parents’ parental rights

to the children in interest. 5

AFFIRMED ON BOTH APPEALS.