In the Interest of R.W. and R.N., Minor Children, R.N., Father, S.W., Mother

IN THE COURT OF APPEALS OF IOWA

No. 15-2024
Filed March 9, 2016

IN THE INTEREST OF R.W. and R.N.,
Minor Children,

R.N., Father,
Appellant,

S.W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.

W. Eric Nelson of the State Public Defender’s Office, Cedar Rapids, for

appellant father.

Robert W. Davison, Cedar Rapids, for appellant mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Robin L. O’Brien Licht, Cedar Rapids, for minor children.

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

A mother and father separately appeal the termination of their parental

rights to two children, R.W. and R.N. The mother claims the court erred in

terminating her parental rights pursuant to Iowa Code section 232.116(1)(h)

(2015) and termination was not in the children’s best interests. The father claims

the State did not provide reasonable efforts to facilitate reunification with the

children. We affirm the juvenile court’s order.

We review de novo proceedings terminating parental rights. See In re

A.M., 843 N.W.2d 100, 110 (Iowa 2014). The three-step statutory framework

governing the termination of parental rights is well established and need not be

repeated herein. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). The juvenile

court issued a thorough and well-reasoned order terminating the mother's and

father’s parental rights; we adopt the findings of fact and conclusions of law as

our own.

A. Grounds for Termination

The juvenile court terminated the mother’s and father’s parental rights

pursuant to Iowa Code section 232.116(1)(h). Termination is appropriate under

section 232.116(1)(h) where the State proves 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 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 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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Only the mother challenges the termination pursuant to 232.116(1)(h),

claiming R.W. was not three years of age or younger at the time the termination

order was entered (element 1), and clear and convincing evidence does not

support the termination (element 4). Concerning the mother’s first claim, we

measure the child’s age at the time of the termination hearing, not at the time the

termination order was entered. See In re N.N., 692 N.W.2d 51, 53 (Iowa Ct. App.

2004) (finding Iowa Code section 232.116(1)(h) applies to children who are less

than three years of age at the time of the termination hearing). The termination

hearing occurred on September 17, 2015. R.W. attained the age of four after

conclusion of the termination hearing. Therefore section (h) applies to R.W.

Concerning the mother’s second issue, the juvenile court found clear and

convincing evidence supported the termination, reasoning:

The parents have struggled throughout this case to make
appropriate lifestyle changes and minimize the risk to their children.
[R.W.] was removed from parental care from February 13, 2013, to
November 13, 2014. Despite a lengthy trial home placement,
which began on June 9, 2014, [the mother] was unable to handle
both children and they were removed on November 26, 2014, at
her request. There have been no trial home placements since and
visitation between both parents and the children has been fully
supervised. [The mother] has continued to have mental health
concerns. She has demonstrated poor insight and judgment into
how her mental health issues affect her ability to care for her
children. [The parents] have a domestically violent relationship.
Despite a no contact order, they continue to have ongoing contact.
[The mother] seems to think that because [the father] is the
children’s father, that she has some obligation to make sure that he
sees them, even when that is not in their best interests. [The
mother] continues to be overwhelmed with her parenting. She
continues to drive without a driver’s license and has been arrested
several times for this issue. If [the children] returned to parental
care today, or anytime in the near future, they would continue to
meet grounds for adjudication. Neither parent has demonstrated
they are able to safely, effectively and consistently meet their
needs, much less the needs of their children.
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We agree with the juvenile court and affirm the termination of the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(h).

B. Best Interests

The mother also claims the termination of her parental rights is not in the

best interests of the children and the closeness of the parent-child bond makes

termination improper. See Iowa Code § 232.116(2), (3). In determining the best

interests of the child, we give primary consideration to “the child[ren’]s safety, to

the best placement for furthering the long-term nurturing and growth of the

child[ren], and to the physical, mental, and emotional conditions and needs of the

child[ren].” See Iowa Code § 232.116(2); P.L., 778 N.W.2d at 37. On these

issues, the juvenile court reasoned:

The Court must make a determination as to what the future
will most likely hold for the children if they are returned to the care
of a parent. “The best evidence for this determination is the
parents’ past performance, because that performance may indicate
the quality of future care ‘they are’ capable of giving.” In re J.K.,
495 N.W.2d 108, 110 (Iowa 1993), In re N.M., 483 N.W.2d 812, 814
(Iowa 1992). Visitation has been unable to progress based on the
concerns that led to the filing of these cases: noncompliance with
case permanency plan expectations, violence, mental health issues
and general lack of stability. [The mother] has not been able to
handle the children and her mental health. . . . [R.W.] is four years
old. She was three at the time of trial. [R.N.] is seventeen months.
Neither child can self-protect.
The court finds that it is in the children’s best interest to
terminate parent-child relationship. In making this determination
the court has given consideration to the children’s safety, to the
best placement for furthering the long-term nurturing and growth of
the children, and to the physical, mental, and emotional condition
and needs of the children.
. . . . The children are not strongly bonded to either parent.
They are able to bond with their caregivers. [R.N] is so young he
will transition easily into a forever home. For these reasons the
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court finds there are no exceptions that allow the court not to
terminate.

We agree with the juvenile court, the mother did not have a strong bond

such that termination should be denied.

C. Reasonable Efforts

The father claims the State failed to make reasonable efforts to facilitate

reunification by disallowing adequate visitation with the children. Iowa Code

section 232.102(5)(b) requires the State to make reasonable efforts to preserve

the family before removing the child from the home. 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).

The reasonable efforts requirement is not viewed as a strict substantive

requirement of termination. In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).

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 parents’ care.

Id. While the State has an obligation to make reasonable efforts, it is the parents’

responsibility to demand services if they are not offered. In re H.L.B.R., 567

N.W.2d 675, 679 (Iowa Ct. App. 1997). A parent’s challenge to the sufficiency of

the services offered should be made at the time the services are offered. In re

C.D., 508 N.W.2d 97, 101 (Iowa Ct. App. 1993).
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Concerning the visitation offered by the State, the court noted:

[The father] has fully supervised visits due to his lack of progress
on case plan goals. He declined to see his children from November
2013 to July 2015 when the termination was filed. Nor did he
maintain contact with the Department despite multiple attempts to
engage him in services. [The father] has visits once a week for one
hour at the Juvenile Justice Center due to concerns that people
may want to kill him, his being in possession of guns and for the
protection of the provider. As a condition of resuming visits, [the
father] had to meet with the provider three times to demonstrate his
commitment. At visits, he lets the children run. [R.W.] will not listen
to him. He is unable to redirect her. [R.W.]’s therapist
recommends that the contact be ended.

The father did not engage with services until after he was served with the

termination petition. The father attended six visitations prior to the termination

hearing and did not request additional visitations until approximately one month

prior to the termination hearing. Given the father’s demonstrated lack of

initiative, and the visitation provided by the State, we find the State made

reasonable efforts in providing visitation to the father.

We affirm the juvenile court’s termination of the mother’s and the father’s

parental rights.

AFFIRMED ON BOTH APPEALS.