In the Interest of K.C., Minor Child , 919 N.W.2d 638 ( 2018 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 18-0380
    Filed May 16, 2018
    IN THE INTEREST OF K.C.,
    Minor Child,
    E.C., Mother,
    Appellant.
    Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
    District Associate Judge.
    A mother appeals the juvenile court’s termination of her parental rights.
    AFFIRMED.
    Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant
    mother.
    Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant
    Attorney General, for appellee State.
    ConGarry D. Williams of Juvenile Public Defender Office, Des Moines,
    guardian ad litem for minor child.
    Considered by Danilson, C.J., and Mullins and McDonald, JJ.
    2
    MULLINS, Judge.
    A mother appeals a juvenile court order terminating her parental rights to
    her minor child, K.C. She contends the State failed to prove the statutory grounds
    for termination by clear and convincing evidence and to make reasonable efforts
    to reunify her with her child. She also claims the court erred in failing to apply a
    statutory exception to termination. She further claims counsel was ineffective for
    failing to raise the lack-of-reasonable-efforts claim prior to or during the termination
    hearing.
    I.      Background Facts and Proceedings
    K.C. was born in December 2016 and came to the attention of the Iowa
    Department of Human Services (DHS) three weeks later upon allegations the
    mother was denying K.C. critical care. The mother failed to take the child to a
    routine weight-check appointment after discharge from the hospital. Three weeks
    after K.C.’s birth, the mother took the child to the doctor for stomach-related issues.
    During this appointment, the mother admitted to feeding K.C. adult lactate milk and
    prune juice.   The mother was resistant to the doctor’s advice that feeding a
    newborn inappropriate substances was dangerous. The mother also denied the
    offer of visiting nursing services due to her house being “too messy.” It was also
    noted by medical staff that, despite the outside temperature of fourteen degrees
    Fahrenheit, K.C. was only dressed in a onesie with no other layers and with only
    a thin blanket over the car seat. The mother also admitted during the appointment
    that she felt she was not able to take care of the child while working and she
    reported she was waiting for a bus ticket to send the child to her brother in Kansas
    City.
    3
    DHS commenced its investigation of the allegations of denial of critical care
    (failure to provide adequate shelter and failure to provide proper supervision) after
    receiving a report on January 5, 2017. On January 6, a DHS worker went to the
    mother’s identified address. During this encounter the worker noted the mother
    was holding the child in an unsafe manner. Though she initially acknowledged her
    identity, after the DHS worker explained his/her concerns and asked for
    identification to ensure he/she was speaking with K.C.’s mother, the mother closed
    the door and refused to open it.
    DHS contacted the Des Moines Police Department to assist, as the child’s
    safety had not yet been verified. Due to the medical concerns of the child and the
    mother’s refusal to engage in the assessment process, an emergency removal
    order was granted and police obtained entry into the house. During the ensuing
    interview, the mother made statements about being poisoned in jail and claimed
    “they” were after her, “they” wanted to take her child away from her, and “they”
    pointed an AK-47 at her while she was in Kansas City.
    DHS reported the child was not clean, had a strong body odor, and had
    severe cradle cap. K.C. slept in the same bed with her mother, which was soiled
    and had no bedding. In the mother’s home, DHS observed that the floor was
    littered with trash and debris; the furnace had no cover; spoiled food and trash
    were located on the table, floor, and in the sink; there were bugs in the air; ceiling
    tiles, which could contain asbestos, were exposed; and there were gaping holes in
    the floorboards.   The mother lived with K.C.’s maternal grandmother, whose
    parental rights to K.C.’s mother were terminated when she was a child and who
    4
    had medical and mental-health issues of her own. K.C. was reportedly left in her
    grandmother’s care on occasion.
    K.C. was subsequently removed from her mother’s care and placed into
    foster care. During further investigation, the mother made additional statements
    that she was poisoned while in jail and that this was likely the reason for K.C.’s
    stomach issues. She also refused assistance for shelter referrals. On February 3,
    DHS completed its investigation and determined both allegations of denial of
    critical care were founded. The child-abuse-assessment report noted concerns
    about the mother’s mental health, including her display of signs of paranoia and
    possible hallucinations.
    On February 17, K.C. was adjudicated to be a child in need of assistance
    (CINA) and remained in the custody of DHS for foster-care placement. On April
    21, the court adopted a case permanency plan which provided for a primary
    permanency goal of reunification. The permanency plan called for the mother to
    address her mental-health issues, complete a psychiatric evaluation, continue in
    individual therapy, engage in parenting sessions, follow recommendations of
    medical providers, and obtain safe and appropriate housing.
    The mother completed a psychiatric evaluation on April 20 and attended a
    follow-up appointment in July; however, after her diagnosis of unspecified
    psychosis and a recommendation for medication, she refused the medication and
    failed to return for follow-up care. Also in July, the mother went to the emergency
    room with a complaint of shortness of breath; before treatment could be completed,
    the mother removed her own IV and left. The mother reported to DHS that she
    5
    believed the emergency room staff was attempting to give her sodium chloride to
    stop her heart.
    On August 5, the mother was arrested for disorderly conduct after she was
    found unclothed from the waist down threatening to kill people with a rock. The
    police report indicates the mother refused to drop the rock despite commands from
    police and ultimately the police had to physically remove the rock from her
    possession. She was arrested and released the same day.
    The mother gave birth to another child in December 2017 while at a gas
    station. She admitted receiving no prenatal care for this child and when she went
    into labor, instead of going to the hospital, she attempted to drive to Kansas to
    prevent the child from being born in Iowa. During her hospital stay following the
    delivery, she was admitted to the psychiatric unit on a psychiatric hold due to her
    paranoid ideations, as well as psychotic and delusional behavior.            She was
    diagnosed as a paranoid schizophrenic and was discharged in January 2018 after
    stabilizing on medication. The mother’s other child was removed from her care.
    The mother had supervised visits after K.C.’s removal and, for several
    months, the mother was regularly attending those visits. Her visits became less
    consistent over the summer of 2017; DHS reported this was a result of the mother’s
    mental health deteriorating. The mother moved to Kansas City, Kansas in the fall
    of 2017 and has had little contact with K.C. since she moved. On November 14,
    the State filed its petition to terminate the parental rights of both K.C.’s mother and
    6
    alleged father.1   The State alleged the mother’s parental rights should be
    terminated pursuant to Iowa Code section 232.116(1)(h), (i), and (k) (2017).
    During the termination hearing, the State presented testimony from the
    mother and a DHS social worker. The mother testified she does not believe she
    has any mental-health diagnosis or issues and does not believe she would benefit
    from taking medication.     The social worker testified to the mother’s mental
    deterioration in the summer of 2017, which resulted in her missing visits, and noted
    the mother’s statements about changing her phone number because she believed
    she was being tracked through her cell phone.      The social worker also testified
    she believed the mother would not consistently take her prescribed medication and
    K.C.’s safety would be at issue if she were returned to her mother. The guardian
    ad litem did not offer evidence or testimony at the hearing but recommended
    termination based on the mother’s mental-health struggles and opined termination
    would be in K.C.’s best interests.
    Following the hearing, the court terminated the mother’s parental rights
    under Iowa Code section 232.116(1)(h). As noted, the mother appeals.2
    II.    Standard of Review
    Our review of termination-of-parental-rights proceedings is de novo. In re
    M.W., 
    876 N.W.2d 212
    , 219 (Iowa 2016). “We are not bound by the juvenile court’s
    findings of fact, but we do give them weight, especially in assessing the credibility
    of witnesses.” In re A.S., 
    906 N.W.2d 467
    , 472 (Iowa 2018) (quoting In re A.M.,
    1
    The mother named an individual as K.C.’s putative father but was unable to give any
    other information. He has not been located, nor has paternity been established.
    2
    The court terminated the putative father’s parental rights under Iowa Code section
    232.116(1)(b). He does not appeal.
    7
    
    843 N.W.2d 100
    , 110 (Iowa 2014)). We will uphold an order terminating parental
    rights if there is clear and convincing evidence supporting the grounds for
    termination under Iowa Code section 232.116(1). In re D.W., 
    791 N.W.2d 703
    ,
    706 (Iowa 2010). Evidence is “clear and convincing” when there are no “serious
    or substantial doubts as to the correctness [of] conclusions of law drawn from the
    evidence.” 
    Id. Our principle
    consideration in termination proceedings is the child’s
    best interests—safety; long-term nurturing; and physical, mental, and emotional
    conditions and needs. Iowa Code § 232.116(2); In re J.E., 
    723 N.W.2d 793
    , 798
    (Iowa 2006).
    III.   Analysis
    Termination of parental rights under chapter 232 follows a three-step
    analysis. 
    D.W., 791 N.W.2d at 706
    . First, the court must determine if a ground for
    termination under section 232.116(1) has been established. 
    Id. If a
    ground for
    termination is established, the court must then apply the best-interests framework
    set out in section 232.116(2) to decide if the grounds for termination should result
    in termination of parental rights. 
    Id. at 706–07.
    Third, if the statutory best-interests
    framework supports termination of parental rights, the court must consider if any
    of the statutory exceptions set out in section 232.116(3) should serve to preclude
    termination of parental rights. 
    Id. at 707.
    A.      Statutory Grounds for Termination and Best Interests
    The court terminated the mother’s parental rights pursuant to Iowa Code
    section 232.116(1)(h). Section 232.116(1)(h) authorizes termination when (1) the
    child is three years of age or younger, (2) the child has been adjudicated a CINA,
    (3) the child has been removed from the physical care of the child’s parents for at
    8
    least six of the last twelve months, or for the last six consecutive months and any
    trial period at home has been less than thirty days, and (4) there is clear and
    convincing evidence that the child cannot be returned to the parent’s custody at
    the time of the termination hearing. See 
    A.M., 843 N.W.2d at 111
    (indicating the
    statutory language “at the present time” refers to the time of the termination
    hearing).
    Elements one through three are not contested. The mother contests the
    State’s establishment of element four.       She contends that at the time of the
    termination hearing, she was living in a safe home in Kansas City with family
    friends in which she reportedly has a room set up for K.C. She argues DHS has
    not visited this home and is therefore not in a position to make an assessment
    about the safety of this home. She also argues that with the support of the family
    friends, her mental-illness symptoms could be addressed. The district court found
    the mother “refuses to address, let alone resolve, the obvious and serious mental
    health concerns raised at the time of the child’s removal one year ago.”
    The mother contends that with the support of her friends, she could address
    any mental-illness symptoms. However, her testimony at the termination hearing
    indicated otherwise. The mother testified she was not receiving any care for her
    mental illness at the time of the hearing and admitted she does not believe she
    has any metal-health issues. Her petition on appeal includes an admission that
    she is not taking recommended medication and has not returned for recommended
    follow-up as she does not believe she has a mental illness. The mother was only
    recently released from a stay in the psychiatric hospital unit where she was
    9
    medicinally stabilized. The mother’s petition also admits she has made several
    statements that appear to present as paranoia.
    Given that the mother’s mental-health issues were the reason for K.C.’s
    removal from her care and that the mother continues to deny the existence of
    mental-health issues coupled with her unwillingness to address them, we find clear
    and convincing evidence that K.C. could not be returned to her mother’s care at
    the time of the termination hearing and therefor conclude the State met its burden
    for termination under section 232.116(1)(h).
    Next, section 232.116(2) requires us to “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). “Insight for the determination of the child’s
    long-range best interests can be gleaned from ‘evidence of the parent’s past
    performance for that performance may be indicative of the quality of the future care
    that parent is capable of providing.’” In re C.B., 
    611 N.W.2d 489
    , 495 (Iowa 2000)
    (quoting In re Dameron, 
    306 N.W.2d 743
    , 745 (Iowa 1981)).
    “It is well-settled law that we cannot deprive a child of permanency after the
    State has proved a ground for termination under section 232.116(1) by hoping
    someday a parent will learn to be a parent and be able to provide a stable home
    for the child.” In re A.B., 
    815 N.W.2d 764
    , 777 (Iowa 2012) (quoting In re P.L., 
    778 N.W.2d 33
    , 41 (Iowa 2010)). “[A]t some point, the rights and needs of the children
    rise above the rights and needs of the parent.” In re C.S., 
    776 N.W.2d 297
    , 300
    (Iowa Ct. App. 2009). If the child has been placed in foster care, we consider the
    extent to which the child has become integrated into that family. Iowa Code
    10
    § 232.116(2)(b). For integration, we look at how long the child has been living with
    the foster family and consider the desirability of continuity for the child.     
    Id. § 232.116(2)(b)(1).
    The mother’s serious mental-health issues brought K.C. to the attention of
    DHS and the court, but she continues to deny the existence of those issues. She
    has two founded child-abuse reports based on her denial of critical care to K.C.
    The mother is not currently able to provide a safe, supportive, and structured home
    and is not in a position to be able to do so in the foreseeable future. We must
    consider each child’s needs with a sense of urgency. See 
    C.B., 611 N.W.2d at 495
    .
    Additionally, the child has not lived with her mother since she was three
    weeks old. There is nothing in the record which indicates the lack of contact has
    had any detrimental effect on K.C. DHS reports that K.C. has bonded with her
    foster parents who are attentive to her needs and who are willing and able to adopt
    K.C. Upon our de novo review, we agree with the court’s determination that
    termination is in the best interests of K.C., as returning her to her mother would
    subject her to instability and uncertainty given her mother’s refusal to address her
    mental-health issues.
    B.     Statutory Exceptions to Termination
    The mother claims termination of her parental rights would be detrimental
    to K.C. because of the bond between the mother and child, contending that during
    her supervised visitation, K.C. demonstrated a bond with her and was excited to
    see her. She also contends the bond of the extended family would be severed as
    a result of termination.
    11
    “The court need not terminate the relationship between the parent and child
    if . . . the termination would be detrimental to the child at the time due to the
    closeness of the parent-child relationship.” Iowa Code § 232.116(3)(c). The
    application of the statutory exceptions to termination is “permissive not
    mandatory.” 
    M.W., 876 N.W.2d at 225
    . “We may use our discretion, ‘based on
    the unique circumstances of each case and the best interests of the child, whether
    to apply the factors in this section to save the parent-child relationship.’” 
    Id. (quoting In
    re D.S., 
    806 N.W.2d 458
    , 475 (Iowa Ct. App. 2011)).
    K.C. was removed from her mother’s care at the age of three weeks and
    has not been returned to her care. The mother moved to Kansas City at some
    point in the fall of 2017 and has had little contact with the child since that time. She
    has little insight into K.C.’s present condition, health, or needs. The loss of the
    relationship of extended family members is not a factor to consider under section
    232.116(3).
    K.C. has bonded with her foster parents who seek to adopt her, and there
    is nothing in the record which indicates that lack of contact with her mother has
    had any effect on K.C. The closeness of the parent-child relationship in this case
    does not preclude termination. Upon our de novo review, we affirm the court’s
    decision not to apply any of the statutory exceptions to termination.
    C.     Reasonable Efforts and Extension
    The mother’s final argument is that the State failed to make reasonable
    efforts to reunify her with K.C. because the reasonable effort of granting her
    additional time to have K.C. returned to her care was denied. Additionally, she
    contends DHS has not reviewed her home in Kansas City for suitability nor has
    12
    action been initiated to work with officials in Kansas. Since reasonable efforts and
    an extension of time are separate matters to analyze, we will address each in turn.
    The State contends the mother failed to preserve error on the issue of
    reasonable efforts because she failed to raise the issue prior to or at the
    termination hearing.    Anticipating this argument, the mother claims that she
    received ineffective assistance of counsel for failing to timely raise the issue. See,
    e.g., In re A.R.S., 
    480 N.W.2d 888
    , 891 (Iowa 1992). To establish an ineffective-
    assistance-of-counsel claim in a termination-of-parental-rights case, a parent must
    show deficiency in counsel’s performance and actual prejudice. See In re D.W.,
    
    385 N.W.2d 570
    , 580 (Iowa 1986).
    “The State must show reasonable efforts as a part of its ultimate proof the
    child cannot be safely returned to the care of a parent.” 
    C.B., 611 N.W.2d at 493
    ;
    accord Iowa Code § 232.102(7) (providing that if custody is transferred to DHS, it
    “shall make every reasonable effort to return the child to the child’s home as quickly
    as possible consistent with the best interests of the child”). “The reasonable efforts
    concept would broadly include a visitation arrangement designed to facilitate
    reunification while protecting the child from the harm responsible for the removal.”
    In re M.B., 
    553 N.W.2d 343
    , 345 (Iowa Ct. App. 1996). The reasonable-efforts
    requirement is not, however, viewed as a strict substantive requirement at
    termination. 
    C.B., 611 N.W.2d at 493
    . Instead, it impacts the State’s burden of
    proving those elements of termination that require reasonable efforts. 
    Id. In determining
    whether reasonable efforts have been made, the court considers “[t]he
    type, duration, and intensity of services or support offered or provided to the child
    and the child’s family.” Iowa Code § 232.102(12)(a)(1). “[T]he nature and extent
    13
    of visitation is always controlled by the best interests of the child.” 
    M.B., 553 N.W.2d at 345
    .
    The mother contends DHS failed to review the home she lives in Kansas
    City and no action was taken to work with officials in Kansas to review the home
    for suitability. She claims counsel was ineffective for failing to request this action
    under the Interstate Compact for the Placement of Children (ICPC), either before
    or during the termination hearing. We note that appellate counsel is the same
    counsel who represented the mother at the termination hearing, but not at prior
    dispositional hearings.
    Upon our de novo review, we agree with the district court that reasonable
    efforts towards reunification have been made in this case. The DHS social worker
    testified to the supervised visitation that was provided to the mother, referrals to
    mental-health professionals, along with bus passes and gift cards. The worker
    also testified the mother was fairly consistent with attending the visits until the
    previous summer when her mental health deteriorated. This led to the mother
    missing visits. The mother subsequently chose to move to Kansas City and since
    has had little contact with K.C.
    The court terminated the mother’s rights under Iowa Code section
    232.116(1)(h). The mother has not proved that she would have prevailed in
    countering the evidence in support of termination under paragraph (h). Even if her
    attorney had requested action under ICPC, action was initiated, and officials in
    Kansas had reviewed her current housing for suitability, the issue of her mental
    health and her unwillingness to address those issues remain. K.C. could not be
    returned to her mother’s custody at the time of the termination hearing nor in the
    14
    foreseeable future because the mother remains in denial about her mental-health
    issues. Accordingly, we find the mother failed to show she was actually prejudiced
    by trial counsel’s alleged failure, and her claim of ineffective assistance of counsel
    fails.
    The mother also claims she should have been granted additional time to
    have her child returned to her care. She contends she should be granted an
    additional six months to work toward reunification as it would provide her the
    opportunity to welcome and settle K.C. into the lives of the mother’s extended
    family in Kansas City and allow the mother time to find the best balance of
    psychiatric medications to treat her mental-health disorders.
    If, following a termination hearing, the court does not terminate parental
    rights but finds there is clear and convincing evidence that the child is a CINA, the
    court may enter an order in accordance with section 232.104(2)(b). Iowa Code
    § 232.117(5).     Section 232.104(2)(b) affords the juvenile court the option to
    continue placement of a child for an additional six months if the court finds “the
    need for removal . . . will no longer exist at the end of the additional six-month
    period.” The court here found that “[t]o think that lasting change will be established
    by [the mother] in any reasonable length of time is not realistic.”
    The mother has mental-illness issues that she, thus far, refuses to admit
    she has and has taken little to no action to address. Her mental health is the
    underlying problem, which adversely affects her ability to effectively parent and
    was the impetus for K.C.’s removal from her care. Despite her contention that
    additional time would give her the opportunity to find the best balance of
    medications to properly treat her issues, her testimony at the termination hearing
    15
    indicates she is still in denial about her mental-health issues.    The mother has
    also recently given birth to another child who was removed from her care shortly
    after birth due to the mother’s mental-health issues.
    The mother was placed on a psychiatric hold due to her paranoid ideations,
    as well as psychotic and delusional behavior.         Despite her stabilization and
    release, she testified during the termination hearing that she was not taking any
    medication for her issues. She has provided no evidence that she is taking steps
    to address her mental-health issues before or since her release from the hospital.
    See 
    M.W., 876 N.W.2d at 224
    ; see also 
    A.B., 815 N.W.2d at 778
    (noting a parent’s
    past conduct is instructive in determining the parent’s future behavior); 
    C.B., 611 N.W.2d at 495
    (noting parents cannot wait until the eve of termination to begin to
    take interest in their children because “[t]ime is the critical element” in parenting
    situations); In re C.K., 
    558 N.W.2d 170
    , 172 (Iowa 1997) (stating that when
    considering what the future holds if a child is returned to the parent, we must look
    to the parent’s past behavior because it may be indicative of the quality of care the
    parent is capable of providing in the future).
    K.C. requires stability and permanency and it would not be in her best
    interests to delay termination. Therefore we affirm the juvenile court’s denial of the
    requested six-month extension.
    IV.    Conclusion
    We conclude there is clear and convincing evidence to support the
    termination of the mother’s parental rights under Iowa Code section 232.116(1)(h),
    termination is in K.C.’s best interests, application of a statutory exception to
    termination is unwarranted, and an extension of time is unwarranted and contrary
    16
    to the child’s best interests. We reject the mother’s claims regarding reasonable
    efforts and ineffective assistance of counsel. Therefore, we affirm the termination
    of the mother’s parental rights.
    AFFIRMED.