In the Interest of T.B. and K.B., Minor Children

IN THE COURT OF APPEALS OF IOWA
No. 20-0204
Filed August 19, 2020
IN THE INTEREST OF T.B. and K.B.,
Minor Children,
B.B., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monroe County, William Owens,
Associate Juvenile Judge.
A mother appeals the juvenile court order terminating her parental rights to
her children. AFFIRMED.
Jonathan Willier, Centerville, for appellant mother.
Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant
Attorney General, for appellee State.
Kevin Maughan of Maughan Law Office, Albia, attorney and guardian ad
litem for minor children.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
A mother appeals the juvenile court order terminating her parental rights to
her children. The mother does not challenge the statutory ground relied on by the
juvenile court, and, consequently, we affirm the statutory ground for termination.
We reject the mother’s argument concerning reasonable efforts and find that the
children’s best interests require termination of the mother’s parental rights.
Facts and Prior Proceedings
T.B., born in 2012, and K.B., born in 2014, were removed from parental
custody on November 1, 2018, after T.B. reported in late October that her father
had sexually abused her. At the time of the removal, the mother was reported to
be homeless. T.B. participated in a forensic interview and gave a detailed
statement of sexual abuse by her father with her mother’s knowledge. The father
acknowledged sexually abusing six-year-old T.B., attributing such to his
methamphetamine use; however, both he and the mother denied the mother’s
involvement. The father was criminally charged and remained in custody
throughout the life of the termination proceedings, awaiting trial on two counts of
sexual abuse in the second degree and one count of incest.1 The mother was not
criminally charged.
Both children were adjudicated to be children in need of assistance
pursuant to Iowa Code section 232.2(6)(c)(2) (2018) on January 7, 2019. A
dispositional order was also entered on January 7, 2019, with review hearings held
April 1, 2019, and July 8, 2019. A permanency hearing was held on October 7,
1 The father consented to termination of his parental rights. He does not appeal.
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2019, with a termination hearing and a permanency review hearing held on
January 6, 2020. The children have remained out of parental custody since the
initial removal. There was not a trial placement at home.
While the mother initially participated in services, her involvement quickly
waned. As part of the State’s efforts to reunify the children with the mother, the
mother was directed to complete a mental-health evaluation and a substance-
abuse evaluation, yet she failed to complete either. The mother also failed to
complete a psychological evaluation on two separate occasions, despite the offer
of transportation to the appointments. She refused to provide her address to the
family safety, risk, and permanency (FSRP) provider, stating only that she was
“staying with friends.” By the time of the termination hearing, the mother had not
participated in any visits with her children in over four months.
Standard of Review
We review termination-of-parental-rights proceedings 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.” Id. Our primary consideration is the best interests of the child. See
In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).
An order terminating parental rights will be upheld if there is clear and
convincing evidence of grounds for termination under Iowa Code section 232.116
(2019). Id. Evidence is “clear and convincing” when there are no serious or
substantial doubts as to the correctness of the conclusions of law drawn from the
evidence. Id.
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Statutory Ground for Termination
The juvenile court terminated the mother’s parental rights pursuant to Iowa
Code section 232.116(1)(f).2 The mother does not challenge the statutory ground
for termination on appeal; thus, we do not address section 232.116(1)(f) and affirm
this statutory ground for termination. See In re P.L., 778 N.W.2d 33, 40 (Iowa
2010) (stating that when a parent does not challenge the existence of statutory
grounds, we need not address the issue). Instead, the mother argues the State
failed to make reasonable efforts to return the children to the mother’s custody and
also contends termination is not in the children’s best interests. Intermingled in
her best interests argument, the mother asserts she should have been granted an
additional six months for reunification efforts. We address each argument in turn.
Reasonable Efforts
The mother contends termination should not have been ordered because
the Iowa Department of Human Services (DHS) failed to make reasonable efforts
toward reunification. “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.” In re
C.B., 611 N.W.2d 489, 493 (Iowa 2000)); see also Iowa Code § 232.102(7)
2 In order to terminate under Iowa Code section 232.116(1)(f), the court must find
that all of the following:
(1) The child is four years of age or older.
(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 twelve of the last eighteen months, or
for the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents
as provided in section 232.102.
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(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). After removal, the State must make reasonable efforts
to reunify the family as quickly as possible. Iowa Code § 232.102(7). 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.” Id.§ 232.102(10)(a)(1).
“[T]he reasonable efforts requirement is not viewed as a strict substantive
requirement of 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. The State must show it made reasonable efforts as part of its proof
the child cannot be safely returned to the parent’s care. Id.
Although DHS must make reasonable efforts in furtherance of reunification,
with some exceptions not applicable here, parents have a responsibility to object
when they claim the nature or extent of services is inadequate. See id. at 493–94.
A parent’s objection to the sufficiency of services should be made “early in the
process so appropriate changes can be made.” Id. “In general, if a parent fails to
request other services at the proper time, the parent waives the issue and may not
later challenge it at the termination proceeding.” In re C.H., 652 N.W.2d 144, 148
(Iowa 2002).
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The State argues the mother failed to preserve error on her reasonable-
efforts challenge because she failed to raise the issue of reasonable efforts prior
to the termination proceeding. The mother claims she preserved error by raising
the issue of reasonable efforts at the termination proceeding. After a careful review
of the record, we agree with the State that the mother did not raise the reasonable
efforts claim prior to the termination hearing. The mother did not challenge any of
the reasonable-efforts findings made by the court following the hearings held in
this matter and failed to request additional services. Moreover, even if the mother
had preserved this issue, the record is replete with instances where DHS offered
the mother services that she failed to utilize.
Additionally, on appeal, the mother fails to specify what additional services
she believes were necessary to return the children to her custody, stating only that
the State’s efforts to maintain contact with the mother and provide her with services
and visits were not sufficient. As highlighted by the district court, the mother did
not participate in a mental-health evaluation, substance-abuse evaluation, court-
ordered psychological evaluations, regularly participate in FSRP services, and had
not seen the children in over four months at the time of the termination hearing.
Consequently, even if the issue was preserved, we find the State made reasonable
efforts to return the children to the custody of their mother, despite the mother’s
lack of participation in the same.
Best Interests of T.B. and K.B.
Once a statutory ground for termination exists, the court may terminate
parental rights. P.L., 778 N.W.2d at 37. In considering whether to terminate, the
court must then apply the best-interests framework established in section
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232.116(2). Id. This section highlights as primary considerations: “the child’s
safety”; “the best placement for furthering the long-term nurturing and growth of
the child”; and “the physical, mental, and emotional condition and needs of the
child.” Iowa Code § 232.116(2). “A child’s safety and the need for a permanent
home are now the primary concerns when determining a child’s best interests.” In
re J.E., 723 N.W.2d 793, 801 (Iowa 2006) (Cady, J., concurring specially). We
determine those best interests by looking at both “the child’s long-range and
immediate interests.” In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). We consider
“what the future likely holds for the child[ren]” if returned to a parent. In re J.K.,
495 N.W.2d 108, 110 (Iowa 1993). We gain insight into that determination from
evidence of the parent’s past performance, for that performance can indicate the
quality of future care the parent is capable of providing. In re L.L., 459 N.W.2d
489, 493–94 (Iowa 1990).
The mother challenges the district court’s best-interests finding based on
the bond between herself and the children. On our independent review of the
record, we, like the juvenile court, find that termination is in the best interests of
these two young children. The children are integrated into their current
placement’s home. The current placement is willing to provide a permanent home
for both children. At the time of the termination hearing, the mother’s visitation with
the children was nonexistent. We agree with the juvenile court’s conclusion that
T.B.’s and K.B.’s best interests require termination of their mother’s parental rights.
Iowa Code § 232.104(2)(b)
Intertwined with the mother’s best-interests argument, the mother asserts,
“There is no reason to believe that allowing her up to another six months will harm
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the children.” From this statement, we infer the mother contends the juvenile court
erred in failing to grant her another six months’ time for reunification efforts
pursuant to Iowa Code section 232.104(2)(b). This statutory provision allows the
juvenile court to “[e]nter an order pursuant to section 232.102 to continue
placement of the child for an additional six months at which time the court shall
hold a hearing to consider modification of its permanency order.” Iowa Code
§ 232.104(2)(b). “An order entered under this paragraph shall 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.” Id.; see
also In re H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa Ct. App. July 16, 2014).
Like the juvenile court, we find that the mother was not any closer to having
the children returned to her custody at the time of the termination hearing than
when they were removed on November 1, 2018. The record is void of evidence
that additional time or additional services could comprise the basis for the
determination that the need for removal of the children from the children’s home
would no longer exist at the end of the additional six-month period. While the
mother testified at the termination hearing that she had been working for two weeks
and was now living in an apartment in Burlington, she acknowledged that such
home was not yet appropriate for the children.
With respect to the request for additional time, the history of this case is
telling. At the time of the termination hearing, the mother had yet to complete a
mental-health evaluation, substance-abuse evaluation, or psychological
evaluation. Given her lack of participation in services, lack of contact with her
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children, and the length of time the children have been out of parental custody, we
agree with the juvenile court’s declination of an additional six months’ time.
Conclusion
We affirm the juvenile court’s order terminating the mother’s parental rights
under section 232.116(1)(f). The State made reasonable efforts to reunify the
children with their mother, an additional six months will not resolve the need for
removal from parental care, and termination is in the best interest of T.B. and K.B.
AFFIRMED.