In the Interest of S.O., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 22-0210
Filed April 27, 2022

IN THE INTEREST OF S.O.,
Minor Child,

K.O., Mother,
Appellant,

J.H. Jr., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Worth County, Adam D. Sauer,

District Associate Judge.

A mother and father separately appeal the termination of their parental

rights to one child. AFFIRMED ON BOTH APPEALS.

Richard N. Tompkins, Jr. of Tompkins Law Office, Mason City, for appellant

mother.

Cameron M. Sprecher, Mason City, for appellant father.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Becky E. Wilson, Mason City, attorney and guardian ad litem for minor child.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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CHICCHELLY, Judge.

A mother and father separately appeal the termination of their parental

rights to one child, S.O. The mother K.O. argues there were not reasonable efforts

made at reunification. The father J.H. Jr. argues the required removal timeline

before termination was not satisfied, the child could have been returned to his

custody, and, in the alternative, there should have been a six-month extension.

Both argue termination was not in the child’s best interests and would be

detrimental to the child. Upon our de novo review, we affirm termination of each

parties’ parental rights.

I. Background Facts & Proceedings.

The child in question is less than four years old and was first removed from

her mother’s care in September 2018. At that time, the mother and her paramour

J.V. were arrested while S.O. was in the vehicle. The mother was arrested for

possession of paraphernalia and possession of methamphetamine, and she was

later charged with operating while intoxicated (OWI) in connection with the

incident. She admitted to smoking marijuana that day and using

methamphetamine a few days prior to the arrest. Pursuant to a safety plan, the

Department of Human Services (DHS) placed the child with her maternal

grandmother with the stipulation that she would not have unsupervised contact

with K.O. However, DHS removed S.O. less than one month later due to the child

not being made available to providers and being around known drug users,

including an unsupervised visit to Colorado with K.O. and J.V.

A petition for termination of parental rights was filed against K.O. in May

2019. The court dismissed the petition in July 2019 due to K.O. making positive
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steps toward reunification. DHS returned S.O. to her mother’s care in October

2019. After K.O. relapsed, S.O. was removed again in April 2020. DHS returned

S.O. to her mother’s care in August 2020. In November 2020, the mother self-

reported to DHS that she was feeling mentally unstable. Pursuant to a safety plan,

S.O. was placed in the care of her maternal grandfather, and K.O. was not to have

unsupervised contact with the child. After a few weeks, DHS learned that

unsupervised contact had occurred. As a result, S.O. was removed in December

2020. Since then, she has not returned to her mother’s care.

The mother has battled substance abuse for several years now.

Throughout the life of this case, she no-showed for drug testing on at least twenty-

one occasions. She provided six positive drug tests between September 2018 and

October 2021. She either refused or did not cooperate with a hair stat test on four

occasions from March 2019 to April 2020. She provided several drug tests that

returned as non-human urine. She lost a drug patch in May 2020 and removed

one in November 2020. She has provided nine negative samples during the

course of this case. The mother began outpatient substance-abuse treatment

services in the fall of 2018, but the provider discharged her in March 2019 due to

attendance policy violations. K.O. participated in treatment again around the time

of the first petition for the termination of parental rights in the summer of 2019.

However, she was discharged in July 2020 due to an outstanding bill—she needed

to set up a payment plan and pay $1 to continue treatment. After K.O. was arrested

for drug charges in April 2021, she began inpatient substance-abuse treatment for

the first time. The provider discharged her the following month for having a vape

in her purse following a visit by her paramour. She continued to participate in
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outpatient services until she started inpatient treatment again in November 2021.

After only a few days, the facility asked her to leave due to close contact with her

mother, who tested positive for COVID-19. K.O. returned to inpatient treatment

two days before the juvenile court’s hearing on this petition in December 2021.

DHS became aware that J.H. Jr. was a potential father in the summer of

2020 while he was in the Cerro Gordo County Jail. He had been living out of state

for the first couple of years of S.O.’s life after K.O. allegedly told him that he was

not the child’s father. Paternity testing confirmed he is S.O.’s biological father in

October 2020. After his release from jail in late 2020, J.H. Jr. progressed quickly

from supervised visits with S.O. to unsupervised overnight and multiple day visits.

He also participated in the SafeCare Curriculum and voluntarily signed up for

classes through community action. The DHS caseworker testified that J.H. Jr. took

criticism well and spent a lot of time on his own learning about how to care for a

young girl and manage behaviors and discipline. He and S.O. developed a bond,

and the caseworker testified, “Anywhere [the father] was at in the house, there

would be [S.O.] right next to him. Leaving was a struggle . . . because [S.O.] did

not want to go.”

DHS scheduled to place S.O. in her father’s care on June 16, 2021.

However, on June 14th, he was ordered to serve thirty days in jail and was made

aware of a warrant for his arrest on a new charge. Rather than turn himself in, J.H.

Jr. panicked—he took his cousin’s truck and crashed it. As a result, he was

charged with OWI and burglary, as well as violation of his parole. Since J.H. Jr.

was in jail, DHS placed S.O. in the home where her paternal grandfather, paternal

great-grandfather and her father’s paramour all resided on June 16th. When it
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became clear that S.O. was not going to be in the custody and care of her father

directly, DHS requested and was granted custody in August 2021.

J.H. Jr. entered into a plea agreement in August 2021 and was sentenced

to serve up to fifteen years in prison. He is serving time for two OWIs, possession

of marijuana, and third-degree burglary. J.H. Jr. completed an initial drug test with

DHS in March 2021 and a hair stat test in May 2021—both were negative. He was

also providing daily breath testing to his probation officer and had one positive

result in April 2021. While eligible for parole after eighteen to twenty-four months,

he does not have an expected release date. He has stayed in contact with S.O.

through video visits to the extent possible in prison. While DHS has custody, S.O.

remains in the home of her paternal grandfather, in whose care she has developed

a bond with her half-sibling and cousins.

The State petitioned for termination of both K.O. and J.H. Jr.’s parental

rights in September 2021. During the hearing in December, the child’s guardian

ad litem testified in support of terminating the mother’s parental rights but

recommended against terminating the father’s rights. She stated, “He shows every

sign of being able to be a successful parent.” The juvenile court granted the

petition as to both parents, and it now comes before us on appeal.

II. Review.

Our review of termination proceedings is de novo. See In re B.H.A., 938

N.W.2d 227, 232 (Iowa 2020). “We will uphold an order terminating parental rights

where there is clear and convincing evidence of the statutory grounds for

termination. Evidence is clear and convincing when there is no serious or

substantial doubt as to the correctness of the conclusions of law drawn from the
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evidence.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (citing In re D.W.,

791 N.W.2d 703, 706 (Iowa 2010)). We give weight to the juvenile court’s fact

findings, especially those about witness credibility, although they are not binding.

See Iowa R. App. P. 6.904(3)(g); In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App.

2010).

III. Discussion.

The principal concern in termination proceedings is the child’s best

interests. In re L.T., 924 N.W.2d 521, 526 (Iowa 2019). Here, the juvenile court

found the State proved by clear and convincing evidence that termination of both

the mother’s and father’s parental rights was appropriate under Iowa Code section

232.116(1)(h) (2021). The court may terminate under this paragraph if it finds:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a [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 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.

The fourth element is at issue for both parents: whether the child could be returned

to the parent’s care at the time of the termination hearing. See In re D.W., 791

N.W.2d at 707 (interpreting the term “at the present time” to mean “at the time of

the termination hearing”). With regard to the father, the third element regarding

the removal timeline is also in dispute.

Iowa courts use a three-step analysis to review the termination of parental

rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). Those steps include whether:
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(1) grounds for termination have been established, (2) termination is in the child’s

best interests, and (3) we should exercise any of the permissive exceptions to

termination. Id. at 472–73. We address each step in turn.

A. Grounds for Termination of Mother’s Rights.

The mother does not argue that S.O. could have actually been returned to

her care at the time of the termination hearing. Rather, this element is at issue to

the extent that she argues DHS did not make reasonable efforts at reunification.

See Iowa Code § 232.102(7) (requiring that DHS “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”). Under Iowa law, “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 shapes the State’s burden of proof, as it must

establish reasonable efforts were made in connection with proving the child cannot

safely be returned to the parents’ care. See id. Reasonable efforts may include,

but are not limited to, finalizing a permanency plan and offering family-centered

services. Iowa Code § 232.102(10)(a). In evaluating whether reasonable efforts

have been made, our courts consider “the type, duration, and intensity of services

or support offered or provided” and the “relative risk to the child of remaining in the

child’s home versus removal of the child.” Id. § 232.102(10)(a)(1), (2).

While DHS has offered a variety of services, the mother’s participation has

been inconsistent and unpromising. K.O. initially declined the opportunity to join

Family Treatment Court. After the court dismissed the first petition for the

termination of her parental rights, she did join but was discharged in June 2020 for

non-compliance. She has not attempted to rejoin Family Treatment Court. DHS
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referred her to the Parent Partner Program, but she was discharged for non-

participation. She did not complete the SafeCare Curriculum due to a relapse.

She participated in mental-health counseling, but she has cancelled or no-showed

for six appointments since she began trauma-based therapy in January 2021. She

was under court order to attend couples counseling with her paramour—they have

attended twice and no-showed on three occasions. She reported to DHS in

November 2021 that she was not participating in couples counseling. Altogether,

DHS has offered or provided Family Centered Services, Family Team Meetings, a

Parent Partner referral, child interactions, individual counseling, couples

counseling, substance-abuse treatment services, Family Treatment Court, relative

placement, and drug testing.

With regard to the relative risk of remaining in the home, the mother has

not demonstrated that she can offer a safe and stable home. Since the most recent

removal in December 2020, K.O. has not advanced beyond fully supervised

interactions. She is inconsistent with her visits, during which S.O. hits, kicks, and

spits at her mother. She has not maintained steady employment or housing. She

claimed to work for Burger King, but DHS called to confirm in November 2021 and

was told she had not worked there in six or seven months. Depending on the

status of their relationship, she may reside with her paramour or with parents or

friends. As detailed above, substance abuse has continued to plague her.

Given the risks presented by the mother’s lack of stable sobriety, housing,

and employment combined with DHS’s extensive array of services offered, we find

the agency has satisfied its obligation to make reasonable efforts toward

reunification. Accordingly, we will not disturb the juvenile court’s finding that S.O.
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could not be returned to her mother’s care at the time of the termination hearing

and a statutory ground for termination was established under Iowa Code section

232.116(1)(h).

B. Grounds for Termination of Father’s Rights.1

The father contends that the statutory removal window was not satisfied

prior to the State’s petition for the termination of his parental rights. See Iowa Code

§ 232.116(1)(h)(3) (requiring the child to have “been removed from the physical

custody of the child’s parents for at least six months of the last twelve months”).

The termination hearing was held on December 22, 2021—more than one year

after DHS last removed the child from her mother’s care on December 14, 2020.

J.H. Jr. was just beginning to participate in services with DHS in late 2020 and

unable to accept a primary caretaking role at that time.

However, this subparagraph does not afford a grace period to parents who

are absent from their children’s lives. See In re M.S., 889 N.W.2d 675, 686 (Iowa

Ct. App. 2016) (Danilson, C.J., concurring specially) (“Because the child had been

removed from the mother’s care for this period of time [and it is undisputed that the

child has never been in the custody of the father], the State need not prove the

child was removed from the father’s home [for purposes of establishing section

232.116(1)(h)(3)].”). There are safeguards in place should a parent’s absence

warrant an exception. See Iowa Code § 232.116(3)(e) (providing discretionary

exceptions to termination in the event of a parent’s absence for “admission or

1The father’s brief argues that grounds for termination were not proven under Iowa
Code section 232.116(1)(f). The juvenile court terminated his rights pursuant to
subsection (h), and the father’s arguments substantively align with this provision.
Therefore, we address only the relevant subsection.
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commission to any institution, hospital, or health facility or due to active service in

the state or federal armed forces”). S.O. was eventually placed with her father for

two months, albeit indirectly while he was incarcerated. Therefore, S.O. was

removed for approximately ten of the twelve months preceding the termination

hearing, which satisfies the statutory requirement.

The father also argues that the juvenile court should have found S.O. could

be returned to his care at the time of the termination hearing. However, J.H. Jr.

remains incarcerated with no definitive timeline for parole. Therefore, no

opportunity for immediate reunification exists. See In re S.J., 620 N.W.2d 522,

526 (Iowa Ct. App. 2000) (affirming termination of parental rights because child

could not be returned to the custody of his incarcerated father); In re A.C., No. 04–

0408, 2004 WL 1076077, at *2 (Iowa Ct. App. May 14, 2004) (noting that despite

father’s upcoming parole hearing, “[t]he children clearly could not be returned to

his custody and supervision at the time of the termination hearing or within the

reasonably foreseeable future”). Accordingly, we find there is clear and convincing

evidence that the child could not be returned to her father’s care at the time of the

termination hearing. We are unconvinced that a six-month extension would be

appropriate given the father’s term of incarceration. See In re A.A.G., 708 N.W.2d

85, 92 (Iowa Ct. App. 2005) (“In order to continue placement for six months, the

statute requires the court to make a determination the need for removal will no

longer exist at the end of the extension.”)

Because the requisite removal timeline and inability to be returned were

established, we conclude the State adequately established statutory grounds for
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termination of the father’s parental rights pursuant to Iowa Code section

232.116(1)(h).

C. Child’s Best Interests.

We next address whether termination of parental rights is in S.O.’s best

interests. In doing so, “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.” Iowa Code § 232.116(2). Here, the mother has had parental rights

terminated to two other children. Her inability to maintain sobriety, unstable

housing and employment, and continuation in a relationship leading to mental

instability and drug use all combine to support termination again. In fact, “[i]t is

well-settled law that we cannot deprive a child of permanency after the State has

proved a ground for termination under section 232.116(1) by hoping someday a

parent will learn to be a parent and be able to provide a stable home for the child.”

A.S., 906 N.W.2d at 474. The “legislature has established a limited time frame for

parents to demonstrate their ability to be parents.” Id. (citation omitted).

The mother’s visits with S.O. have been inconsistent, “chaotic”, and

demonstrated a weak bond between the child and her mother. In light of her track

record, we are unconvinced that K.O.’s parenting ability will improve in the

foreseeable future. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (“Insight for

the determination of the child’s long-range best interests can be gleaned from

evidence of the parent’s past performance for that performance may be indicative

of the quality of the future care that parent is capable of providing.”).
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Similarly, the father’s criminal history and consequent incarceration prevent

him from supporting S.O.’s physical, mental, and emotional condition. S.O. has

been involved with DHS for the majority of her life, and she deserves a stable,

permanent home. The father’s argument that he was making progress and could

potentially be a successful parent in the future does not negate the fact that he has

been largely absent from her life and will continue to be absent for a significant

period of time. “Parenting cannot be turned off and on like a spigot. It must be

constant, responsible, and reliable.” In re L.L., 459 N.W.2d 489, 495 (Iowa 1990).

Accordingly, we agree with the juvenile court that termination of both the mother’s

and father’s parental rights is in S.O.’s best interests.

D. Exceptions.

“Once we have established that the termination of parental rights is in the

child[’s] best interests, the last step of our analysis is to determine whether any

exceptions in section 232.116(3) apply to preclude the termination.” In re M.W.,

876 N.W.2d 212, 225 (Iowa 2016). The mother and father each argue that

paragraph (c) applies: “There is clear and convincing evidence that the termination

would be detrimental to the child at the time due to the closeness of the parent-

child relationship.” Iowa Code § 232.116(3)(c).

While K.O. testified regarding the close bond that she feels with her

daughter, the record evidence indicates that S.O. shares only a weak bond with

her mother. S.O.’s visits with her mother have been described in stark contrast to

those with her father. DHS reports that visits are chaotic and that S.O. hits, kicks,

and spits at her mother. She has screamed at her, “I hate you, I don’t love you,

you’re not my mom.” While S.O. has also said, “I love you” to her mother and cried
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when it was time to leave, her overall interactions do not demonstrate a strong

bond. S.O.’s time with her mother has been sporadic, as she has been moved at

least nine times in less than four years of life. Despite K.O.’s love for her child,

“our consideration must center on whether the child will be disadvantaged by

termination.” D.W., 791 N.W.2d at 709. We do not find that termination of her

mother’s parental rights would be detrimental to S.O. based on the parent-child

relationship.

As for her father, his arguments in support of this exception center around

his suitable housing with his father and successful efforts at sobriety, as well as

his bond with S.O. and participation in services. J.H. Jr. also points out that S.O.

was briefly placed with him. However, we note that S.O. was never actually placed

in his direct care due to his incarceration. Moreover, the parent bears the burden

to prove the applicability of an exception to termination. A.S., 906 N.W.2d at 476.

Here, we do not find the parent-child relationship is so strong that it outweighs the

need for termination. S.O. was moved around many times in her young life and

beginning to know her father, but we do not find that termination of his parental

rights would be detrimental based on their relationship. Accordingly, we find this

exception will not save the father’s parental rights.

IV. Disposition.

Having found the statutory grounds satisfied for each parent, the best

interests of the child considered, and a lack of applicable exceptions, we affirm

termination of the mother’s and father’s parental rights.

AFFIRMED ON BOTH APPEALS.