In the Interest of A.C., G.W., and E.G., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-2152
Filed February 20, 2019

IN THE INTEREST OF A.C., G.W., and E.G.,
Minor Children,

L.W.-M., Mother,
Appellant,

G.C., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jefferson County, William Owens,

Associate Juvenile Judge.

A mother and father appeal the termination of their parental rights.

AFFIRMED.

Mary Baird Krafka of Krafka Law Office, Ottumwa, for appellant mother.

Shawn C. McCullough of Powell & McCullough, PLC, Coralville, for

appellant father.

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

Attorney General, for appellee State.

Katie E.M. Lujan of Lloyd, McConnell, Davis & Lujan, L.L.P., Washington,

guardian ad litem for minor children.

Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.

A mother and father separately appeal a juvenile court order terminating

their parental rights to their children A.C., G.W., and E.C. The mother claims the

court abused its discretion by denying the mother’s motion to continue the

termination hearing and her motion to suspend the proceedings. The mother and

father both claim the juvenile court should have granted them an additional six

months to work toward reunification and termination is not in the children’s best

interests. We find the court did not abuse its discretion, a six-month extension is

not warranted, and termination is in the children’s best interests.

I. Background Facts & Proceedings

G.C. and L.W. are the parents to three children: A.C., born in 2013; G.W.,

born in 2015, and E.C., born in 2016. E.C. also has a legal father, D.M.1

The family initially came to the attention of the Iowa Department of Human

Services (DHS) in July 2017, following a report they allowed a registered sex

offender to have unsupervised contact with the children. An investigation revealed

the report was no longer a concern, but the DHS worker discovered the home’s

condition was not safe for the children. The home did not have running water or

working plumbing, the kitchen sink was full of old and moldy food, a large pile of

garbage was on the kitchen floor, and feces were ground into the floors and

carpets. Containers of chemicals and sharp tools were found mixed in with the

children’s toys on the front porch of the home. The children were permitted to stay

in the home conditioned on the parents completing a list of repairs to make the

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D.M.’s rights were terminated pursuant to Iowa Code section 232.116(1)(b) (2018). He
does not appeal.
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home safe. The DHS worker also became concerned the parents were using

illegal drugs, and the parents admitted to marijuana use but denied using while

caring for the children. Neither parent participated in drug testing.

In September, DHS received a report the mother had been arrested for theft

and possession of methamphetamine and the father was using

methamphetamine. DHS discovered the father and the children had moved in with

the father’s mother. On September 28, the children were removed from the

parents’ care and placed with their paternal grandmother.

On December 6, the court adjudicated all three children in need of

assistance (CINA) pursuant to Iowa Code section 232.2(6)(c)(2) (2017). DHS also

discovered pending domestic-abuse charges against the mother, and the mother

confirmed domestic violence between the parents while claiming the children had

not witnessed any altercations. The parents were evicted from their home in

December. On December 19, the children were moved to the home of a maternal

aunt due to concerns over the grandmother’s ability to care for the children.

Following a January 2018 dispositional hearing, the children were placed in

three separate homes: A.C. with the grandmother, E.C. with the aunt, and G.W.

with a third relative. E.C. was moved back to the grandmother’s home with A.C.

in April. The children remained in the two placements at the time of the termination

hearing.

The parents were each arrested multiple times throughout the CINA

proceedings and had a variety of criminal charges in multiple counties. In late

January, the father overdosed and was in a coma for several days. Neither parent

had stable housing or employment. The father has not consistently exhibited
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positive parenting behaviors during visitations, and the mother needed redirection

to pay attention to the children instead of her phone. The mother threatened to

self-terminate more than once following the removal, and the father made an

attempt to self-terminate a week before the termination hearing. The father

threatened the family services worker multiple times.

On November 20, the mother requested a continuance of the termination

hearing until January so she could be personally present instead of appearing by

telephone from jail. The court denied the motion. On November 28, the court held

a termination hearing. The mother attended the entire hearing via telephone. The

social worker, family services worker, and the mother each testified. The father

chose to not testify. The mother renewed her motion to continue the matter, and

prior to her testimony requested the hearing be suspended until her release so she

could testify in person; the court denied both motions. The mother testified she

had been sober for the sixty-nine days of her incarceration. On December 4, the

court terminated both parents’ rights to G.W. and E.C. pursuant to Iowa Code

232.116(1)(f) (2018), and to A.C. pursuant to section 232.116(1)(h). Both parents

appeal.

II. Standard of Review

We review termination-of-parental-rights cases de novo. In re A.B., 815

N.W.2d 764, 773 (Iowa 2012). “There must be clear and convincing evidence of

the grounds for termination of parental rights.” In re M.W., 876 N.W.2d 212, 219

(Iowa 2016). Where there is clear and convincing evidence, there is “no serious

or substantial doubts as to the correctness or conclusions of law drawn from the

evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (citation omitted). The
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paramount concern in termination proceedings is the best interest of the child. In

re J.E., 723 N.W.2d 793, 798 (Iowa 2006). “We give weight to the juvenile court’s

factual findings, especially when considering the credibility of witnesses, but we

are not bound by them.” In re H.S., 805 N.W.2d 737, 745 (Iowa 2011).

III. Analysis

Neither parent contests the grounds for termination under section

232.116(1)(f) and (h). The children’s ages, CINA adjudications, and period of

removal have clearly been met. The mother was in jail at the time of the hearing

and the children could not be returned to her care. The father had not participated

in recommended treatment and exhibited threatening behavior toward service

providers and the children could not be returned to his care. The State proved by

clear and convincing evidence the children could not be returned to either parent

at the time of the hearing.

The mother claims the court abused its discretion in denying her requests

to continue the termination hearing or suspend the proceedings and the mother’s

testimony until after December 17 following the mother’s sentencing hearing.

“Denial of a motion to continue must be unreasonable under the circumstances

before we will reverse.” In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996).

The court may only grant a motion to continue for good cause. Iowa Ct. R. 8.5.

“[T]he delay associated with a continuance of a hearing until the physical

appearance of an incarcerated parent can be achieved could very well be contrary

to the best interests of children and our nation’s policy.” In re M.D., 921 N.W.2d

229, 234 (Iowa 2018).
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While a parent has a right to participate in the entire termination hearing via

telephone from the prison, due process does not require physical presence at the

hearing. See id. at 234–35. Here, the mother participated in the entire hearing via

telephone and was represented by counsel at the hearing. The mother requested

the court continue permanency for the children based on the hope—not a

guarantee—she would be given a suspended sentence on pending charges. It is

not clear from the record that even had the continuance or suspension been

granted the mother would be able to appear in person, as her ability to appear

depended on the sentencing court’s decision. The continuance would only have

benefited the mother, not the children. See In re T.D.H., 344 N.W.2d 268, 271

(Iowa Ct. App. 1983). We conclude the juvenile court did not abuse its discretion

in denying the mother’s motion to continue.

Both parents requested a six-month extension to work toward reunification.

In order to grant a six-month extension, the court must be able to “enumerate the

specific factors, conditions, or expected behavioral changes” providing a basis to

determine the children will be able to return the parent at the end of the additional

six months. Iowa Code § 232.104(2)(b). After the statutory limitation period has

lapsed, termination proceedings take on a sense of urgency. In re C.B., 611

N.W.2d 489, 495 (Iowa 2000). “Children simply cannot wait for responsible

parenting. . . . [Parenting] must be constant, responsible, and reliable.” In re L.L.,

459 N.W.2d 489, 495 (Iowa 1990). We look at parents’ past performance for

indications of the quality of care the parent is capable of providing in the future.”

J.E., 723 N.W.2d at 798 (citation omitted).
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The juvenile court found neither parent had made substantial progress

toward remedying the problems giving rise to the removal, including failure to

attend substance-abuse and mental-health treatment, to justify granting additional

time under Iowa Code section 232.104. Over the fifteen months of offered services

both parents were in and out of jail, accrued multiple new charges, and did not

demonstrate an ability to be sober in the community. Although the mother has

finally made progress toward sobriety, her sober period corresponded with her time

in jail with full supervision. The father presented a hypothetical treatment option

that would allow him to have one or more children live with him during treatment,

but presented no evidence he had any intention of entering the program. Neither

parent has participated in recommended treatment or participated in regular visits

with the children. We do not find a basis to determine the children could return to

either parent at the end of six months to justify an extension.

Finally, both parents claim termination of their rights is not in the best

interests of the children. “In considering whether to terminate, ‘the court shall 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.’” In re P.L., 778 N.W.2d 33, 39 (Iowa

2010) (quoting Iowa Code § 232.116(2)). The court also considers the bond

between the parent and child. See Iowa Code § 232.116(3)(c). We will not deprive

the children of permanency based on the hope someday the parents will learn to

parent and provide a stable home for the children. In re A.M., 843 N.W.2d 100,

112 (Iowa 2014). Neither parent has a safe, stable home, and they have not

demonstrated the ability to provide the permanency the children need. “It is simply
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not in the best interests of the children to keep them in temporary foster homes

while the natural parents get their lives together.” A.B., 815 N.W.2d at 778 (citation

omitted). We agree with the juvenile court’s finding “termination and adoption are

the only permanency options available . . . that will provide the children with the

sort of permanent, safe and nurturing home they need.” We find termination is in

the children’s best interests.

AFFIRMED.