In the Interest of C.D., K.S., and C.P., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-0044
Filed April 18, 2018

IN THE INTEREST OF C.D., K.S., and C.P.,
Minor Children,

T.S., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,

District Associate Judge.

A mother appeals the termination of her parental relationship with three

children. AFFIRMED.

Lisa M. Noble of Lisa Noble Law Office Inc., Des Moines, for appellant

mother.

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

General, for appellee State.

Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for

minor children.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2

TABOR, Judge.

A mother, Tina, contests the juvenile court order terminating her parental

relationship with three children: K.S. born in 2010, C.D. born in 2012, and C.P.

born in 2015.1 Her petition on appeal first alleges the State did not offer clear and

convincing evidence to meet the statutory grounds for termination. But Tina

concentrates on her desire for an additional six months to reunify with her children.

She also argues termination is not in the children’s best interests. Finally, Tina

contends the Iowa Department of Human Services (DHS) did not make reasonable

efforts to return the children to her care.

After a close examination of the record, our conclusion mirrors that of the

juvenile court.2 Despite making some progress in managing her mental health,

Tina’s parenting abilities are still not strong enough to ensure a safe return home

for the three children. At the time of the termination hearing, the children had been

out of the home for more than fourteen months with no move toward unsupervised

visitation. And Tina had been receiving services through the DHS for at least

seventeen months. We decline to further postpone permanency for the three

children under these circumstances.

1
The juvenile court also terminated the parental rights of the three fathers. They are not
parties to this appeal.
2
We review termination-of-parental-rights proceedings de novo, which means examining
both the facts and law and adjudicating anew those issues properly preserved and
presented. See In re L.G., 532 N.W.2d 478, 480 (Iowa Ct. App. 1995). Although we are
not bound by the juvenile court’s factual findings, we give them weight, especially when
witness credibility is key to the outcome. See In re M.W., 876 N.W.2d 212, 219 (Iowa
2016). The State must offer clear and convincing proof, which means we see no “serious
or substantial doubts as to the correctness [of] conclusions of law drawn from the
evidence.” In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (quoting In re C.B., 611 N.W.2d
489, 492 (Iowa 2000)).
3

I. Facts and Prior Proceedings

A medical condition suffered by Tina’s middle child, C.D., prompted the

DHS to intervene with this family. Doctors diagnosed C.D. with bilateral club foot,

a birth abnormality where the infant’s foot is twisted out of position. In October

2015, C.D. travelled to University Hospitals and Clinics in Iowa City for corrective

surgery known as tibialis anterior tendon transfer. After wearing a cast for six

weeks, C.D. required physical therapy to teach him to walk again because his foot

was in a new position. Tina did not comply with the follow-up physical therapy—

missing four scheduled appointments and imperiling the success of the surgery

and the child’s ability to walk normally. Child Protective Services received reports

three-year-old C.D. regressed to crawling rather than walking during this time. In

April 2016, a child-abuse assessment found a denial of critical care; although Tina

blamed the lack of follow-up on travel challenges, the DHS asserted transportation

assistance was offered but declined by the parents. The State filed a petition

asking that C.D. be adjudicated as a child in need of assistance (CINA). After the

DHS intervened, C.D. received the physical therapy he needed.

In May 2016, the State filed petitions asking the court to likewise adjudicate

K.S. and C.P. as CINA. The petitions alleged Tina was doing “a poor job of

supervising” the children and the children were physically aggressive toward each

other. In August 2016 C.P.’s father, Nathan, assaulted Tina, which contributed to

a breakdown in her mental health requiring hospitalization.3 The children were

3
The district court issued a criminal no-contact order, and Nathan later pleaded guilty to
domestic abuse assault.
4

removed from Tina’s custody, and each placed in a different home. The juvenile

court adjudicated the children as CINA in September 2016.

Despite the no-contact order, the record shows Tina maintained a

relationship with Nathan until February 2017. And even after Tina severed ties

with Nathan, she failed to achieve enough independence to reassure the DHS

workers. According to the DHS caseworker’s testimony, Tina did not establish a

home of her own, but instead she moved into the house of acquaintances and

developed an “unhealthy” level of “codependency” with her new male roommate.

The DHS disapproved of the roommate attending visitations because he would

“interject” for Tina and “he would tell her what she should and shouldn’t do with

regards to what the Department was requesting from her.”

The caseworker also had continuing concerns about Tina’s mental health.

Tina received disability benefits based on her diagnoses of depression, anxiety,

Tourette syndrome, attention deficit/hyperactivity disorder, and post-traumatic

stress disorder. Yet during the pendency of the CINA case, Tina was sporadic in

her participation in therapy sessions and was inconsistent with medication

management. Tina did make some strides late in the game, as an October 2017

therapy progress report indicated, Tina was becoming “more transparent about her

past domestic violence history and is currently processing how this has affected

herself and her children.” The therapist recommended continued ongoing therapy

and medication management.

At the time of the termination hearing, Tina had two ninety-minute

interactions with the children each week. The family safety, risk, and permanency

(FSRP) worker described Tina as caring and positive during the visits. But the
5

FSRP worker also reported Tina had difficulty handling the needs of all three

children at once; Tina continued to need “redirection” from the worker to engage

in safe and appropriate discipline with the children during the supervised

visitations. When the FSRP worker tried to offer a third visit per week, the children

started acting out—crying, pulling one another’s hair, and throwing things. The

DHS caseworker was not confident Tina, on her own, could protect her children

from physical harms, expressing her professional opinion: “[i]f Tina didn’t have

professionals around and if she was taking the children out in public” she “couldn’t

make sure one doesn’t run in front of a car.”

In November 2017, the juvenile court held a hearing on the State’s petition

to terminate parental rights. Tina testified she was benefitting from therapy

addressing domestic-violence and codependency issues, but “[t]he healing

process is going to take a very, very long time.” Tina told the court: “I know I’m

capable of raising my kids.” But she candidly added: “I know I’m not capable right

now at this second, but six months from now, you know, I’m trying to get on FUP

[Family Unification Program Section 8 public housing].” After the trial, Tina’s

counsel submitted a “closing argument in support of granting a six month extension

for reunification.” In December 2017, the juvenile court issued an order terminating

Tina’s relationship with the children, citing Iowa Code section 232.116(1)(f), (h),

and (k) (2017). Tina challenges that order on appeal.

II. Analysis of Tina’s Claims

A. Statutory Grounds

When the juvenile court terminates parental rights on more than one

statutory basis, we may affirm the order on any ground supported by clear and
6

convincing evidence. D.W., 791 N.W .2d at 707. In this case, we find clear and

convincing evidence to support termination under section 232.116(1)(f)4 for C.D.

and K.S., the two older children, and section 232.116(1)(h)5 for C.P., the youngest

child. The age parameters, CINA adjudication,6 and removal timelines are met for

both provisions. The only debatable point is whether the State offered clear and

convincing evidence the children could not be returned to Tina’s care at the present

time. See D.W., 791 N.W.2d at 707 (interpreting “present time” to mean the date

of the termination hearing).

At the termination hearing, Tina conceded she needed more time to develop

the capacity to raise her children; she was on a waiting list for subsidized housing

and just starting to grapple with the trauma of surviving domestic violence.

4
The State must prove these four elements:
(1) The child is four years of age or older.
(2) The child has been adjudicated [CINA under] 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.
Iowa Code § 232.116(1)(f).
5
The State must prove these four elements:
(1) The child is three years of age or younger.
(2) The child has been adjudicated [CINA under] 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).
6
To the extent Tina’s first issue challenges the sufficiency of the evidence for the CINA
adjudication, that issue is now moot. See In re Y.G., No. 16-1075, 2016 WL 5408002, at
*1 n.2 (Iowa Ct. App. Sept. 28, 2016) (noting no appeal was filed in the underlying CINA
case).
7

Termination was proper under paragraphs (f) and (h). See In re J.E., 723 N.W.2d

793, 799 (Iowa 2006) (finding child could not be safely returned home because

mother had not sufficiency benefited from services).

B. Additional Time

At the termination hearing, Tina more realistically pinned her hopes on the

juvenile court granting her an additional six months to prepare for the children’s

return. A placement extension requires a court to determine there will no longer

be a reason for removal in six months. See Iowa Code § 232.104(2)(b). Like the

juvenile court, we doubt if another six months of services would enable Tina to

overcome the mental-health instability and codependency that has undermined

her ability to be a suitable parent. She had been receiving services since April

2016 and still had not been able to pull together the parenting skills necessary to

protect the children from harm. Tina’s housing remained unstable, and her therapy

progress notes indicated she has just begun to appreciate the damaging trauma

that domestic violence had caused her and her children. While Tina may be on

the right road, the remaining journey appears too long to justify keeping the

children in a state of flux. See In re A.M., 843 N.W.2d 100, 113 (Iowa 2014) (noting

termination should not be delayed in the hopes that a parent may someday

become a suitable caregiver).

C. Best Interests

Tina next contends termination was not in the children’s best interests under

section 232.116(2). That provision focuses on the children’s safety, as well as the

best placement for furthering their long-term nurturing and growth, and their

physical, mental, and emotional condition and needs. See In re P.L., 778 N.W.2d
8

33, 40 (Iowa 2010). In applying the statutory best-interests standard we cannot

rule in a way that would deprive children of permanency by hoping someday their

parent will be able to offer proper care and a stable home. Id. at 41. Tina deserves

credit for important changes she has started to embrace to improve her mental

health and address the impact of domestic violence on her children. But we must

envision the children’s long-range best interests based on a parent’s track record.

See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012). Tina’s past performance does

not instill confidence. As the juvenile court concluded, Tina has not prioritized the

needs of her children. The children’s best interests are served by ensuring they

have caregivers who can keep them safe and nurture their growth and

development into the future. Unfortunately, Tina has not proven to be such a

caregiver. Her best-interests argument is not persuasive.

D. Reasonable Efforts

Tina accuses the DHS of shirking its responsibility to make reasonable

efforts to reunify her with the children. When considering the reunification efforts

advanced by the DHS, she identifies five deficiencies: (1) “subjecting” the children

to visitation with Nathan, who committed domestic violence against their mother;

(2) no visitation among the siblings who were placed in three different homes;

(3) denials of increased visitation for Tina; (4) failure to connect her with a “parent

partner” to provide support and guidance during the CINA case; and (5) failure to

offer transportation assistance.

The DHS is required to exert every reasonable effort to return children to

their home—consistent with their best interests. Iowa Code § 232.102(6)(b).

“Reasonable efforts” include services offered to eliminate the need for removal or
9

to make it possible for the children to safely return to the family home. Id. The

duty to make reasonable efforts is not “a strict substantive requirement of

termination,” but the extent of the measures taken by the DHS “impacts the burden

of proving those elements of termination which require reunification efforts.” In re

C.B., 611 N.W.2d 489, 493 (Iowa 2000). While the reasonable-efforts burden rests

with DHS, parents also shoulder a responsibility to object if they believe the nature

or extent of services is inadequate. In re L.M., 904 N.W.2d 835, 839-40 (Iowa

2017) (emphasizing a parent’s objection should be made as early as possible in

the process so the juvenile court can order appropriate changes).

We start with Tina’s claim that the DHS should not have arranged for her to

share visitation time her abuser. At the termination hearing, the mother’s attorney

cross-examined the DHS case worker concerning the joint visitation.

Q. In your training on domestic violence, do you believe that it’s
appropriate to have a victim of abuse in the same room at the same
time with the perpetrator? A. Through our training, the Safe and
Together model[7] focuses on keeping the people together. So while
we focus on Tina and helping her become a protective parent and
increasing her protective capacities, we also work with Nathan on
addressing his domestic violence tendencies through separate
services while keeping the family together.

The county attorney objected to this line of questioning because no

reasonable-efforts argument had been raised until the termination hearing. The

juvenile court allowed the examination but cautioned, “I will take into consideration

7
In 2016, through DHS funding, Iowa State University partnered with David Mandel and
Associations, a child-welfare consulting group, to introduce the “Safe and Together”
program to Iowa social workers. According to ISU, “the model contains three principles:
keeping the child safe and together with the non-offending parent, partnering with the non-
offending parent, and intervening with the perpetrator to reduce risk and harm to the child.”
News Release, Iowa State University, Iowa State University shifts focus to children in
domestic violence cases (July 25, 2016) www.hs.iastate.edu/news/2016/07/25/child-
welfare/.
10

this is not the time to raise reasonable efforts for something that occurred prior to

any order since then.” The caseworker testified unless a safety issue existed, the

DHS did not “typically force parents” to hold visits separately, and Tina and Nathan

requested their visits be together. In a written “closing argument” filed post-trial,

the mother’s attorney vigorously argued the DHS “failed to keep [Tina] safe” by

“subjecting” her to “co-parenting” with Nathan who threatened and attacked her.

The juvenile court did not expressly address the joint-visitation issue but ruled the

DHS “did make reasonable efforts” to reunify Tina with her children.

On appeal, Tina’s counsel does not fully form an argument as to why the

joint visits impeded reasonable efforts. Nor does counsel contend Tina objected

to the joint visitations when they were occurring. We do see some irony in the

DHS’s criticism of Tina for requesting the children be placed with Nathan when she

was hospitalized after the domestic-abuse assault, while defending its own

decision to sponsor joint visitation between the victim and the batterer. Yet given

the scanty record and undeveloped argument on this issue, we cannot conclude

the joint visitations detracted from the DHS’s reasonable efforts at reunification.

We next turn to the issue of sibling separation and visitation. Our courts

have recognized a preference for keeping brothers and sisters together whenever

possible. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App. 1994). The legislature

also has directed the DHS to make reasonable efforts to keep siblings together in

the same placement, and if that is not possible, “to provide for frequent visitation

and ongoing interaction” between siblings who are not in the same placement.

Iowa Code § 232.108(2).
11

Since removal, the DHS has maintained K.S., C.D., and C.P. in separate

homes. The DHS placed K.S. with her maternal step-grandfather, C.P. with his

paternal step-grandmother and then in a pre-adoptive foster home, and C.D. with

a different foster family. C.D. continued to have medical and physical-therapy

needs that required special training and a substantial time commitment by his

foster parents. On appeal, Tina lodges a terse objection that DHS “did not provide

for visitation between siblings.” Her claim is not entirely accurate. The record

shows the children did interact with each other when attending visitations with their

mother. But the record does not reflect whether the children’s caregivers arranged

for separate visits among the siblings or planned to do so after the termination of

parental rights.8

On appeal, the mother has not explained how sibling visitation would have

helped eliminate the need for removal of the children or made it possible for the

children to safely return home. See id. § 232.102(6)(b). Furthermore, it does not

appear Tina raised her concern about sibling visitation in the juvenile court.

Accordingly, we consider it waived. See In re I.M., No. 13-0821, 2014 WL

4225169, at *2 (Iowa Ct. App. Aug. 27, 2014) (citing Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.”)).

8
Although the juvenile court appointed the same guardian ad litem (GAL) to represent all
three children, our record contains no reports filed by the GAL to help us understand the
impact of separation on the three siblings. The juvenile court stated in its order that the
GAL favored termination, but the GAL did not make a statement to that effect at the trial.
12

Tina also claims the DHS fell short of reasonable efforts by denying her

expanded visitation with the three children. In considering the reasonableness of

the nature and extent of visitation offered by the DHS, the best interests of the

children are controlling. See In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).

Tina had two supervised visitations per week with the three children starting in the

fall of 2016. In July 2017, she filed a motion asking for increased visitation as a

reasonable effort to facilitate reunification. In August 2017, the juvenile court filed

a permanency order—concluding Tina needed help with transportation and

directing the State to file a termination petition.

On appeal, Tina contends the DHS did not provide transportation for visits

as ordered by the juvenile court. This claim is not supported by the record. The

workers described their efforts to transport all three children for visits. And

although the permanency order did not address visitation, the DHS added a third

visit per week in the fall of 2017. The change did not go well. The caseworker

explained: “Because they were taking approximately an hour to transport one way

for all three children, the children would scream and cry, hit each other, pull each

other’s hair.” The DHS returned to twice-per-week visits but increased the time

Tina could spend with the children during those two sessions. The children’s

behavior improved according to the caseworker. Because the extent of visitation

with Tina matched the best interests of the children, we find the DHS satisfied its

reasonable-efforts requirement on this front. See id. (concluding visitation

arrangement did not cause the DHS “to fall short of its obligation to provide

reasonable efforts to reunite parent and child”).
13

Finally, we tackle Tina’s complaint that she did not have the benefit of a

“parent partner” to help shepherd her though the child-welfare process.9

Parent partners “have experienced the system and reunified with their children”

before they are recruited to guide and support other parents involved in

the child welfare system. Diane Boyd Rauber, From the Courthouse to the

Statehouse: Parents As Partners in Child Welfare, 28 Child L. Prac. 145, 149

(2009). “When a well-trained parent partner is involved, the respondent parent can

complete the case plan requirements more quickly and the parent’s attorney can

argue for reunification more effectively.” Id.

Tina raised this issue in the juvenile court. She testified she asked for a

parent partner and was told she first needed to “work on [her] mental health needs.”

Tina continued: “Since I didn't start working on my mental health needs until I was

capable, until I was out of denial and able to work on it, that’s why I didn’t ask for

a parent partner up until about seven months ago.” When she renewed her request

for a parent partner, she asserts “nobody got back with [her] on that.” In her written

closing arguments, Tina’s attorney asked:

Is it likely that a parent partner would have made it possible for
Mother to reunify with her children and have them placed in her care
prior to the TPR Petition? That question cannot be answered by
anyone, as DHS failed to offer a parent partner, and did not
acknowledge their lack of reasonable efforts to the Court.

The juvenile court addressed this issue in its termination ruling:

9
The Iowa DHS started its Parent Partners program in 2007 in four pilot sites and by 2015
had implemented the service in all 99 counties. According to the DHS website, “Parent
Partners meet with social workers, counselors, attorneys, and others regularly to assess
progress, and are able to help professionals empathetically and productively interpret the
patterns, behaviors, and needs of families.” Parent Partners, Iowa Department of Human
Services, www.dhs.iowa.gov/parent-partners (last visited April 4, 2018).
14

Tina argues that she did not have a parent partner as she requested
and that she could have been successful if only she had a parent
partner (see filed closing argument). While it is true that she
requested a parent partner, one is not always available and one was
not provided for her. It is not likely that such would have caused a
different result than that which is present today since Tina, even in
her written argument, concedes by stating the question [whether a
parent partner would have made it possible for her to reunify with the
children] cannot be answered by anyone.

On appeal, Tina asserts parent partners are “crucial” to a family’s success

“as they provide support, clarification, and guidance to a parent involved in a CINA

matter.” We agree parent partners can be a great resource in juvenile court. But

“what constitutes reasonable services varies based upon the requirements of each

individual case.” In re C.H., 652 N.W.2d 144, 147 (Iowa 2002). “Generally, in

making reasonable efforts to provide services, the State’s focus is on services to

improve parenting.” Id. And as other jurisdictions have concluded, the reasonable-

efforts requirement doesn’t mean the DHS must marshal every imaginable

resource. See In re R.P., ___ N.E.3d ___, ___, 2018 WL 798409, at *11 (Ohio Ct.

App. 2018) (“Otherwise, there would always be an argument that one more

additional service, no matter how remote, may have made reunification possible.”);

see also In re Savannah Y., 158 A.3d 864, 872 (Conn. App. Ct. 2017)

(“[R]easonable efforts means doing everything reasonable, not everything

possible.” (alteration in original)).

Our court did determine the refusal to provide an American Sign Language

interpreter for a deaf mother amounted to a violation of the reasonable-efforts

requirement when the mother’s advocate testified the communication assistance

would have “made a significant difference in her ability to make progress.” In re

J.L., 868 N.W.2d 462, 467 (Iowa Ct. App. 2015) (outlining the DHS
15

nondiscrimination policy). But the instant facts do not present the same

deprivation. When we look at the totality of services offered Tina by the DHS over

the seventeen months of the CINA case, we cannot find the absence of a parent

partner to be a violation of the reasonable-efforts requirement.

AFFIRMED.