In re L.S., M.S., D.E. and X.H.

IN THE COURT OF APPEALS OF IOWA

No. 17-1874
Filed January 24, 2018

IN THE INTEREST OF L.S., M.S., D.E., and X.H.,
Minor Children,

J.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Ida County, Mary L. Timko,

Associate Juvenile Judge.

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

AFFIRMED.

Peter A. Goldsmith of Boerner & Goldsmith Law Firm, P.C., Ida Grove, for

appellant mother.

Thomas J. Miller, Attorney General, and Ana Dixit, Assistant Attorney

General, for appellee State.

Lesley D. Rynell of Juvenile Law Center, Sioux City, guardian ad litem for

minor children.

Considered by Danilson, C.J., and Doyle and Mullins, JJ.
2

DOYLE, Judge.

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

She contends the State failed to prove the grounds for termination by clear and

convincing evidence and termination is not in the children’s best interests. She

requests additional time to prove the children can be returned to her care. We

review her claims de novo. See In re A.M., 843 N.W.2d 100, 110 (Iowa 2014).

The juvenile court terminated the mother’s parental rights to three of the

children under Iowa Code section 232.116(1)(h) and (l) (2017), and to one of the

children under (l). The court may terminate parental rights under section

232.116(1)(h) where clear and convincing evidence establishes the following:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of
assistance [(CINA)] 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.
(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.

Termination may occur under section 232.116(1)(l) where there is clear and

convincing evidence that:

(1) The child has been adjudicated [CINA] pursuant to section
232.96 and custody has been transferred from the child’s parents for
placement pursuant to section 232.102.
(2) The parent has a severe substance-related disorder and
presents a danger to self or others as evidenced by prior acts.
(3) There is clear and convincing evidence that the parent’s
prognosis indicates that the child will not be able to be returned to
the custody of the parent within a reasonable period of time
considering the child’s age and need for a permanent home.
3

The mother only disputes the sufficiency of the proof showing the last element of

each paragraph: that the children cannot be returned to her care. Therefore, we

need only examine whether clear and convincing evidence establishes this

element. See Aluminum Co. of Am. v. Musal, 622 N.W.2d 476, 479–80 (Iowa

2001) (“Issues not raised in the appellate briefs cannot be considered by the

reviewing court.”).

The showing regarding the time in which the child must be able to be

returned to the parent’s care differs between paragraphs (h) and (l); in paragraph

(h), there need only be proof the child cannot be returned to the parent’s care “at

the present time,” which our supreme court has interpreted to mean “at the time of

the termination hearing,” In re D.W., 791 N.W.2d 703, 707 (Iowa 2010), whereas

what constitutes a “reasonable period of time” under paragraph (l) will vary

depending on the facts of each case, see Iowa Code § 232.116(1)(l) (specifying

the child’s age and need for a permanent home as factors to consider in

determining what constitutes a reasonable period of time). We find the children

could not be returned to the mother under either time standard—either at the time

of the hearing or within a reasonable time thereafter.

The mother has a long history of methamphetamine abuse, and the Iowa

Department of Human Services (DHS) has been involved with the family since

2014. In spite of the services offered to the mother, concerns about her substance

abuse persist. In its termination order, the juvenile court states:

In reviewing the voluminous amount of information concerning
this case, the court is struck with the amount of patience provided to
[the mother] by her service providers. The court, itself, has engaged
in an exhaustive amount of patience for [the mother]. This patience
has not translated into something positive for her children but, in fact,
4

has affected them negatively. . . . Despite her history, [the mother]
was given the benefit of the doubt and a waiver of reasonable efforts
request was not made in the current case. . . . Unfortunately, [the
mother]’s survival skills of lying, manipulation, and drug usage
overshadowed the work of the [DHS]. . . .
....
[The mother’s] testimony in court can best be described as
programmed. She would deny every allegation and, if confronted
about her testimony not being supported in the least by
documentation and the testimony of service providers, she would just
shrug it off and say she was telling the truth. This is exactly what
[the mother] did in her first case when using and it is exactly what
she did in the beginning of this case when using.

The juvenile court’s order—which totals thirty-seven pages in length—

chronicles the mother’s substance-abuse history and her poor performance during

the CINA proceedings in great detail. We need not elaborate further on those

details here. Suffice it to say, clear and convincing evidence supports the juvenile

court’s findings as summarized above. Based on the mother’s history of substance

abuse and her inability to adequately address her substance abuse, the children

would have been at risk of harm if returned to the mother’s care at the time of the

termination hearing or shortly therafter. Clear and convincing evidence establishes

the grounds for termination under section 232.116(1)(h) and (l).

For the same reasons, termination is in the children’s best interests. In

making the best-interests determination, the primary considerations are “the

child[ren]’s safety,” “the best placement for furthering the long-term nurturing and

growth of the child[ren],” and “the physical, mental, and emotional condition and

needs of the child[ren].” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa

Code § 232.116(2)). The juvenile court found that

it is in the best interest of [the children] that the parental rights of their
mother to them be terminated. They have waited in the wings long
enough for her to establish permanency for them in their lives. At
5

this point, it could be a significant amount of time before [the mother]
will ever make choices that allow her to have an extended period of
sobriety, let alone engage in a life of recovery. These children have
waited long enough. They have been experimented with long
enough while [the mother] was less than forthright with the court and
her service providers to the detriment of their emotional well-being.
They are currently in homes that are more than willing to provide
some type of contact between them and their mother but also to be
able to establish safe and appropriate boundaries for them.

Ample record evidence supports the finding that termination is in the children’s

best interests.

The mother requests additional time to prove the children can be returned

to her care. Like the district court, we decline to delay the children’s permanency

any longer. The need for a permanent home is of primary importance when

considering the children’s best interests. See In re J.E., 723 N.W.2d 793, 802

(Iowa 2006) (Cady, J., concurring specially) (noting the “defining elements in a

child’s best interest” are the child’s safety and “need for a permanent home”).

Although the law requires a “full measure of patience with troubled parents who

attempt to remedy a lack of parenting skills,” this patience has been built into the

statutory scheme of chapter 232. In re C.B., 611 N.W.2d 489, 494 (Iowa 2000).

Once the grounds for termination exist, time is of the essence. See In re A.C., 415

N.W.2d 609, 614 (Iowa 1987). As the juvenile court noted,

[The mother] has already had ten months that she squandered,
except, perhaps, for the 30 days at Recovery by the Sea. She also
had all of the services that could be provided to her in her previous
four years of services when her children were adjudicated
CINA. . . . In the adjudication and emergency removal order entered
in this matter in February of 2017, the court outlined what [the
mother] needed to do to have the children returned to her care. In
addition, a very specific contract of expectations was drafted with [the
mother]’s input. The court found that [the mother] would need to
demonstrate a willingness to cooperate with a safety plan; a
willingness to cooperate with the [DHS]; a willingness to address her
6

ongoing, severe substance abuse diagnosis; a willingness to admit
her need for inpatient treatment and acknowledge her emotional
behavior as problematic; and a willingness to set up boundaries with
her associates, including, but not limited to, her family members
whom she had previously identified as unhealthy for her. The court
went on to state, “Without some legitimate and consistent
commitment and demonstration on [the mother]’s part that she wants
to return to a life of recovery, the children are not safe in her care . .
. .”
The record reveals that [the mother] has not demonstrated a
willingness to do any of those things. She did attend a short stay at
an inpatient substance abuse treatment program but then fell back
into her old behaviors. An additional six months would be a gift to
[the mother] and an abuse to her children. . . . The bond that was
created between the children and [the mother] has been broken.
These children have been removed from her care on more than one
occasion. When offered services that would allow her to be united
with her children, she chose not to participate in them. When she, in
conjunction with the [DHS], developed a contract of expectations,
she failed to follow through. . . . [The mother] wasted a great deal of
time in this case with her lying and manipulation—time that could
have been spent rebuilding the trust that she destroyed by using
again and denying the same for over five months only to be out of
their lives for four weeks while in treatment and then to come back
and use again.

Granting the mother additional time would be patently contrary to the best interests

of these children.

We affirm the termination of the mother’s parental rights to all four children.

AFFIRMED.