In the Interest of C.W., Minor Child ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1496
Filed January 12, 2022
IN THE INTEREST OF C.W.,
Minor Child,
D.W., Father,
Appellant,
L.W., Mother,
Appellant.
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Appeal from the Iowa District Court for Linn County, Cynthia S. Finley,
District Associate Judge.
A mother and father separately appeal the termination of their parental
rights. AFFIRMED ON BOTH APPEALS.
Robin L. Himes, Cedar Rapids, for appellant father.
Kylie Liu of the Office of the State Public Defender, Cedar Rapids, for
appellant mother.
Thomas J. Miller, Attorney General, and Diane Murphy Smith, Assistant
Attorney General, for appellee State.
Julie Gunderson Trachta of Linn County Advocate, Inc., Cedar Rapids,
attorney and guardian ad litem for minor child.
Considered by Ahlers, P.J., Badding, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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VOGEL, Senior Judge.
A mother and father separately appeal the juvenile court order terminating
their parental rights. The mother was provided with reasonable efforts for
reunification, there is clear and convincing evidence in the record to support
termination of the father’s parental rights, and termination is in the best interests
of the child. We affirm on both appeals.
C.W. came to the attention of the Iowa Department of Human Services
(DHS) in January 2021 after testing positive for methamphetamine and
amphetamine at birth. The child was removed from the parents’ custody, placed
in family foster care, and adjudicated a child in need of assistance (CINA). In June,
the State petitioned for termination of both parents’ rights. The matter came on for
hearing on September 27. The mother appeared and testified. The father was
incarcerated at the time of the hearing and participated via telephone.
The court entered its termination order on October 1, terminating the
mother’s rights under Iowa Code section 232.116(1)(g) and (h) (2021), and the
father’s rights under Iowa Code section 232.116(1)(h). Each parent appeals.
We review termination-of-parental-rights proceedings de novo. In re M.D.,
921 N.W.2d 229, 232 (Iowa 2018). While we give weight to the juvenile court’s
factual findings, we are not bound by them. Id. Our primary concern is the best
interests of the child. In re J.S., 846 N.W.2d 36, 40 (Iowa 2014).
The mother does not contest the grounds for termination or argue
termination is not in the child’s best interests. See In re P.L., 778 N.W.2d 33, 40–
41 (Iowa 2010) (describing the three-step framework to review termination of
parental rights, and stating we need not address any step not raised on appeal).
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The mother does claim DHS did not make reasonable efforts towards reunification,
stating they only offered the same services that have not worked for her in prior
CINA and termination cases. The mother made little effort to participate in the
substance-abuse and mental-health services offered to her, and her only request
during the underlying proceedings regarding services or reasonable efforts was to
request additional visitation.1 Under these circumstances, DHS made reasonable
efforts to reunify the mother and child, and error was not preserved as to any
additional services. See In re L.M., 904 N.W.2d 835, 839–40 (Iowa 2017)
(“Although DHS must make reasonable efforts in furtherance of reunification, . . .
parents have a responsibility to object when they claim the nature or extent of
services is inadequate.”).
The father contests the grounds for termination, seeks an additional six
months before termination, and asserts termination is not in the child’s best
interests. Under section 232.116(1)(h), the juvenile court may terminate parental
rights if the State proves all of the following:
(1) The child is three years of age or younger.
(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 six months of the last twelve months,
or for the last six consecutive months and any trial period at home
has been less than thirty days.
1 During the CINA proceeding, the juvenile court denied the mother’s request for
additional visitation “due to lack of compliance with supervision expectations.”
While the mother does not specifically raise visitation in her petition to us, we
consider visitation as part of the offered services for reunification. See In re C.B.,
611 N.W.2d 489, 494 (Iowa 2000) (“[O]ur focus is on the services provided by the
state and the response by [the parent], not on services [the parent] now claims the
DHS failed to provide.”).
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(4) There is clear and convincing evidence that the child
cannot be returned to the custody of the child’s parents as provided
in section 232.102 at the present time.
The father does not challenge the first three elements. For the final element, the
father was incarcerated at the time of the hearing and could not take custody of
the child. We agree the State proved the elements of section 232.116(1)(h) by
clear and convincing evidence.
Next, the father argues he has been unable to fully participate in services
due to his incarceration and asks for additional time to reunify with the child. The
father did not comply with court-ordered drug testing, substance-abuse treatment,
mental-health treatment, or domestic-abuse programming when in the community.
He was in and out of jail throughout the proceedings due to allegations he
committed domestic abuse against the mother, a contempt of court finding, and
his use and packaging of drugs. The father plans to continue living with the mother
after his release from jail. We find no basis for a six-month extension. See Iowa
Code § 232.104(2)(b) (authorizing a six-month extension of time if the need for
removal will no longer exist at the end of the additional period); In re J.E., 723
N.W.2d 793, 798 (Iowa 2006) (stating a parent’s past conduct is instructive in
determining future actions).
Finally, the father asserts termination of his parental rights is not in the
child’s best interests. 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). The father has had minimal contact with the child and has
shown no ability to provide a safe and stable environment for the child. The
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juvenile court found termination of the father’s parental rights was in the child’s
best interests, and we agree.
We affirm the termination of the mother’s and the father’s parental rights.
AFFIRMED ON BOTH APPEALS.