In the Interest of E.C.-K., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 24-0534
Filed June 5, 2024

IN THE INTEREST OF E.C.-K.,
Minor Child,

B.C., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jefferson County, Patrick McAvan,

Judge.

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

AFFIRMED.

Patricia J. Lipski, Washington, for appellant mother.

Brenna Bird, Attorney General, and Mackenzie Moran, Assistant Attorney

General, for appellee State.

Katie E. M. Lujan of Washington Law Office, LLP, Washington, attorney and

guardian ad litem for minor child.

Considered by Badding, P.J., and Chicchelly and Buller, JJ.
2

CHICCHELLY, Judge.

A mother appeals the termination of her parental rights to her child, E.C.-K.,

born in March 2023.1 She challenges the State’s reasonable efforts, statutory

grounds for termination, and determination that termination is in the child’s best

interests. She also argues that a six-month extension should have been granted.

Upon our review, we affirm termination of the mother’s parental rights to E.C.-K.

I. Background Facts and Proceedings.

The Iowa Department of Health and Human Services (HHS) became

involved with E.C.-K. at birth when his umbilical cord tested positive for

methamphetamine. Both the mother and father denied drug use, although the

mother later testified her sobriety date is June 17, 2023, or three months after

E.C.-K.’s birth. The juvenile court removed E.C.-K. from the parents’ custody at

twelve days old and placed him with a foster family, citing both the substance-use

allegations and the parents’ prior termination proceedings as grounds for removal.2

He was adjudicated a child in need of assistance in May 2023.

After E.C.-K. was removed, HHS tried to contact the mother to arrange

services, and the mother “presented odd behaviors and was issuing threats to

HHS.” Because of her previous interactions with the juvenile court system, the

mother claimed “[HHS] and the county attorney simply have a vendetta against

1 The father’s parental rights were also terminated to E.C.-K. at the same time.

Since he does not appeal, we do not consider him in our analysis.
2 The father’s parental rights to a child shared with the mother and the mother’s

parental rights to two other children were terminated in November 2022. Because
the mother’s rights to E.C.-K. were terminated under Iowa Code
section 232.116(1)(g) (2023), which requires a prior termination “to another child
who is a member of the same family,” the court took judicial notice of these
proceedings.
3

her, and wish to take her child away from her” and “that [the county attorney]

decided to destroy her entire life.” Throughout their interactions with the mother,

service providers described her engaging in “defiant angry outburst[s]” and

becoming “aggressive and combative” when they would give her direction. The

HHS provider and the mother further disagreed about a key issue, which started

several conflicts: E.C.-K.’s name. The provider used E.C.-K.’s legal name, which

he “recognizes [as] his own name, and associates . . . with himself.” But the

mother preferred to use another name for him and wanted to legally change it.

When the HHS provider used his legal name around her, the mother “yelled, ‘his

fucking name is not fucking [E.C.-K.]’” and “stormed out.”

Throughout the life of the case, the mother has not had stable housing; she

was either homeless or in residential treatment, jail, or a halfway house. Days after

E.C.-K.’s removal from her custody, the mother admitted herself into Hope House

for inpatient substance-use treatment. She was unsuccessfully discharged on

May 22 after violating multiple facility rules. This included disciplining another

resident’s child and leaving E.C.-K. alone and unsupervised at the facility to spend

time with the father. Hope House staff also expressed concern to HHS about the

mother’s parenting ability after she ignored directions to bathe and dress E.C.-K.

appropriately. The residential “staff found [E.C.-K.] freezing, in only a thin onesie,

his feet and lips were blue.” On another occasion, staff found E.C.-K. “alone,

screaming, in his stroller, there inside the facility, with [the mother], nowhere to be

found.” She was asked to leave.

While she was in treatment, the mother was evicted from her apartment.

After she was asked to leave Hope House, she slept in a tent at a local
4

campground with the father. The department had several concerns about the

parents’ living conditions while at the campground. Their campsite was not a

suitable place for E.C.-K because there was trash all over the ground, the mother’s

dog had no food or water accessible, and the dog was often “tied outside in the

heat.” But within one month of being unsuccessfully discharged from Hope House

and moving to the campground, the mother returned to Jefferson County Jail. The

rest of the case, she spent moving back and forth between jail and the halfway

house.

When the father ended their relationship and returned to live with his wife,

the mother became obsessive. HHS received complaints that the mother was

“stalking” and harassing the father and his wife. At one point, the mother refused

to leave his property and the father called the police to remove her. He threatened

to pursue a no-contact order if she persisted. When her HHS provider tried to visit

with the mother about E.C.-K., the mother was more interested in hearing about

the father than about her own progress or how E.C.-K. was doing. The mother told

the HHS provider “that if [the father] will not come home to her . . . , then she will

no longer allow [him] any contact with [E.C.-K.]” and argued that reasonable efforts

were not being made “to reunify me and [the father].” The provider attempted to

redirect the conversation and clarify the purpose of “reasonable efforts,” but she

gave up because the mother “appeared to be under the influence of a mind altering

substance.” During another visit, the HHS provider attempted to explain to the

mother how her “toxic relationship” with the father had impacted her ability to care

for E.C.-K. But the mother was not interested, stating that “she and [the father]

can have new children, however, there is only one [Father].”
5

In October 2023, the State petitioned for termination of parental rights.

Soon after, the mother’s probation was revoked. After violating “8 of the 20 facility

rules and regulations, including stealing from her co-residentials, being in

possession of contraband,” socializing while pretending to be at work, and failing

to maintain employment, the mother was removed from the halfway house. She

returned to Jefferson County Jail. While in jail, the mother did not address her

substance-use and mental-health concerns. Though she participated in both a

substance-use evaluation and a psychological assessment, she did not follow

through with the recommendations. She was recommended outpatient treatment

for substance use and “intensive,” “long-term treatment in a group home facility

with other women” for mental health. But she “refus[ed] substance abuse

treatment services while incarcerated” and “stopped participating in mental health

services after she was asked to leave Hope House” back in May 2023.

From the start, the mother was at odds with the department, and this

continued to escalate. By the time she returned to jail, the mother fully declined

contacts with HHS providers, blocking their phone numbers and asking jail staff to

remove them from the list of approved visitors. HHS created a standing weekly

appointment at 9:00 a.m. to meet with the mother in jail, but she “refused to get out

of bed,” stating, “mornings are not good times to talk to me Im not awake enough

for it.” But despite rejecting most services, the mother did accept visits with E.C.-K.

The HHS provider testified that at these visits, E.C.-K. didn’t “really recognize his

mother” and that “[t]here is no bond there.” Because of jail policies, the mother

was allowed one thirty-minute visit per week, during which the mother and E.C.-K.

were separated by glass.
6

On January 31, 2024, the mother returned to the halfway house. The

mother’s visits were increased to two hours per week, and they were held in

person. But on February 6, the day before the termination hearing, the mother’s

probation officer alleged she violated probation for “sexual misconduct” occurring

at the facility. The probation officer testified that the mother “could be facing prison”

or “contempt or return to the [halfway house].”

The mother also testified at the termination hearing that she had been sober

for “over seven months” but still had not completed substance-use treatment. She

also re-engaged with mental-health services by setting up counseling and

medication management appointments. And she acknowledged her lack of

housing and employment, but noted those were both areas she was working on.

Instead of termination, the mother requested more time to work toward

reunification.

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

rights to E.C-K. Only the mother appeals, asking us to reverse the termination and

grant her additional time.

II. Review.

Our review of termination-of-parental-rights proceedings is de novo. In re

C.B., 611 N.W.2d 489, 492 (Iowa 2000). While not binding, we give weight to the

juvenile court’s fact findings, especially those regarding witness credibility. Id.

III. Discussion.

Iowa courts use a three-step analysis to review terminations, in which we

consider whether (1) the statutory grounds for termination have been satisfied,

(2) termination is in the child’s best interests, and (3) we should exercise a
7

permissive exception to decline termination. In re A.S., 906 N.W.2d 467, 472–73

(Iowa 2018). While we address each argument in turn, the child’s best interests

are our primary concern. In re J.H., 952 N.W.2d 157, 166 (Iowa 2020).

A. Reasonable Efforts.

The mother first argues that HHS did not make reasonable efforts at

reunification, see Iowa Code § 232.102(6) (requiring the department to “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”), and argues that HHS should have

offered “make-up” visits for the time she was incarcerated. But the mother fails to

cite where in the record she requested such “make-up” visits and her

recommendation of an appropriate solution. See In re C.H., 652 N.W.2d 144, 148

(Iowa 2002) (requiring a parent to challenge reasonable efforts “at the proper time”

or risk “waiv[ing] the issue”); In re T.S., 868 N.W.2d 425, 442 (Iowa Ct. App. 2015)

(“While the State has an obligation to provide reasonable services to preserve the

family unit, it is the parent’s responsibility ‘to demand other, different, or additional

services prior to the termination hearing.’” (citation omitted)). We therefore find the

mother’s argument waived. See C.H., 652 N.W.2d at 148. Further, HHS is not

required to “make up” visits that were missed as a result of the mother’s own

actions. See In re A.W., No. 18-0466, 2018 WL 2722789, at *3 n.6 (Iowa Ct. App.

June 6, 2018) (finding a parent “cannot complain about the unavailability of

services when his own criminal conduct” resulted in the consequences).

B. Statutory Grounds for Termination.

The mother next contends that the statutory grounds for termination have

not been met. The juvenile court terminated the mother’s rights under
8

section 232.116(1)(g) and (h). “When the juvenile court terminates parental rights

on more than one statutory ground, we may affirm the juvenile court’s order on any

ground we find supported by the record.” In re A.B., 815 N.W.2d 764, 774

(Iowa 2012). We therefore confine our analysis to section 232.116(1)(h).

The court may terminate parental rights under section 232.116(1)(h) if it

finds all of 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 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.

Iowa Code § 232.116(1)(h). The mother purports to challenge the fourth element:

whether the child could be returned to the parent’s care at the time of termination.

See Iowa Code § 232.116(1)(h)(4); A.S., 906 N.W.2d at 473 (interpreting “at the

present time” to mean the time of the termination hearing). But she simultaneously

acknowledges “that the child could not returned to her custody that day.”

Accordingly, we find that the statutory grounds for termination have been conceded

and are therefore satisfied.

C. Best Interests Consideration.

The mother next contends that termination is not in E.C.-K.’s best interests

because her incarceration is the primary barrier to reunification. In determining

best interests, we “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
9

physical, mental, and emotional condition and needs of the child.” Iowa Code

§ 232.116(2). The “defining elements” of the best-interests analysis are the child’s

safety and “need for a permanent home.” In re H.S., 805 N.W.2d 737, 748

(Iowa 2011) (citation omitted).

We agree with the juvenile court’s finding that termination is in the best

interests of E.C.-K. The mother has consistently failed to address the concerns

that sparked the department’s involvement. See In re A.G., No. 18-1161,

2018 WL 6131920, at *3 (Iowa Ct. App. Nov. 21, 2018) (“It is not in the best interest

of the child to return to a parent who refuses to address [HHS’s] primary concerns.”

(cleaned up)). While she testified she has been sober for seven months, her

progress is recent. She has never completed substance-use treatment nor proven

that she can maintain sobriety outside of an institutionalized setting. As to her

mental health, the mother waited until the last minute to begin scheduling

appointments. See C.B., 611 N.W.2d at 495 (“Time is a critical element. A parent

cannot wait until the eve of termination . . . to begin to express an interest in

parenting.”). In the past, the mother’s priorities were not E.C.-K.’s well-being, but

rather in rekindling her relationship with the father and blaming the department for

her failures. This resulted in either noncompliance with or outright rejection of

services.

While we acknowledge the mother’s difficulties in developing a bond with

E.C.-K. during jail visits, we do not “protect[] an incarcerated parent’s rights at the

expense of a child’s best interest.” In re B.H.A., 938 N.W.2d 227, 233 (Iowa 2020).

The mother “cannot use [her] incarceration as a justification for [her] lack of a

relationship with the child,” especially “when the incarceration results from a
10

lifestyle that is chosen in preference to, and at the expense of, a relationship with

a child.” Id. at 234 (citation omitted). At the termination hearing, the mother

conceded that her incarceration resulted from her own actions. She violated her

probation several times, refused to follow facility rules and regulations, and was

dishonest with the department about her conduct. Further, her most recent

probation violation likely has imminent consequences that will impact her ability to

resume care of the child.

But in his mother’s absence, E.C.-K. developed a bond with his foster

family, with whom he has resided since his removal from parental custody. See In

re M.W., 876 N.W.2d 212, 225 (Iowa 2016) (finding the child’s integration into the

foster placement supports termination). “His foster parents adore him and have

provided him with excellent care since his placement in that home” and have

expressed a desire to adopt him. E.C.-K. “lights up” around his foster parents, who

he refers to as “Momma” and “Mom.” After a year of instability, we find that E.C.-K.

deserves to achieve permanency and therefore affirm the juvenile court’s finding

that termination is in his best interests.

D. Extension of Time.

Finally, the mother asks for a six-month extension, which she claims would

provide sufficient time for her to resume custody. See Iowa Code § 232.104(2)(b)

(permitting the juvenile court to grant additional time to work toward reunification if

“the need for removal . . . will no longer exist at the end of the additional six-month

period”). But based on the mother’s previous lack of progress, we are not

convinced that another six months would result in a different outcome. See

C.B., 611 N.W.2d at 495 (finding “past performance” is reflective “of the quality of
11

the future care that parent is capable of providing” (citation omitted)). E.C.-K. was

removed from parental custody just twelve days after his birth and he has waited

nearly his entire life to achieve permanency. We cannot delay that permanency

with the hope that the mother will begin to change. See In re

A.M., 843 N.W.2d 100, 112 (Iowa 2014) (“It is well-settled law that we cannot

deprive a child of permanency . . . by hoping someday a parent will learn to be a

parent and be able to provide a stable home for the child.” (citation omitted)). This

is especially true given the mother’s rejection of and overall lack of interest in

engaging with HHS services. We therefore find an additional six months would not

reunify the mother and E.C.-K. but only deprive him of permanency longer.

IV. Disposition.

Because we find the statutory grounds are satisfied, termination is in the

best interests of the child, and additional time is not warranted, we affirm

termination of the mother’s parental rights.

AFFIRMED.