In the Interest of K.E., Minor Child, C.E., Father, R.E., Mother

IN THE COURT OF APPEALS OF IOWA

No. 17-1289
Filed November 8, 2017

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

C.E., Father,
Appellant,

R.E., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Jennifer S.

Bailey, District Associate Judge.

A mother and father appeal separately the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Shane M. Wiley of Hirsch, Adams, Putnam, Cahill & Wiley, P.L.C., West

Burlington, for appellant father.

Heidi D. Van Winkle of Van Winkle Law Office, Burlington, for appellant

mother.

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

General, for appellee.

Joshua P. Schier of Cray Law Firm, P.C., Burlington, guardian ad litem for

minor child.

Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, Judge.

The mother and father appeal separately the termination of their parental

rights to their child, K.E., born in September 2015. Both parents’ rights were

terminated pursuant to Iowa Code section 232.116(1)(h) (2017). Both parents

argue there is not clear and convincing evidence to support the statutory grounds

for termination and termination is not in K.E.’s best interests.

I. Background Facts and Proceedings.

The Iowa Department of Human Services (DHS) became involved with the

family shortly after the child’s birth due to concerns the parents were unable to

care for him. The mother had suffered a head injury at age three and continues

to have issues with her short-term memory as a result. The father suffers from a

seizure disorder and also has issues with memory.

The family received daily safety services for four weeks in October 2015,

with providers coming into the family home each day for hands-on interactions.

Even after several repetitions, service providers reported to DHS the parents

were still unable to correctly prepare bottles for K.E. and they were not feeding

him the appropriate amounts. The providers also had concerns the parents were

unable to read K.E.’s cues in regards to eating, sleeping, and needing his diaper

changed. There were medical concerns about K.E. losing, rather weight.

In late October, DHS became aware of a video posted to the father’s

social media account. According to a report from DHS,1 the video showed the

father lifting K.E. by his legs and the father using his hands to aggressively shake

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DHS informed the court of the video and its content in an affidavit. It is unclear if the
court ever reviewed the video, and we do not have a copy of the video in our record.
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K.E.’s chest and rotate K.E.’s arms and legs. DHS filed for the immediate

removal of K.E. from his parents’ care, and the court granted the request. K.E.

was placed in the care of a foster family.

Following K.E.’s removal, the parents were responsive to the idea of

participating in more services, with the father admitting he has an anger issue

and both parents agreeing they would benefit from classes on parenting skills.

Upon the court’s order, the parents each completed mental-health

evaluations. Testing indicated both parents were in need of intensive training on

parenting skills. The mother’s results showed she had a cognitive level of a third

to fifth grader and a number of severe impairments. The father exhibited

difficulty with memory, judgment, and reasoning, and he was determined to have

“significant impairment in mental status.” Based on the results of the evaluations

and the parents’ own reports, providers continued to use repetitive, hands-on

training with the parents. Several of the providers focused on helping the parents

understand K.E.’s nutritional needs and the idea of feeding him on a schedule.

In April 2016, the social worker advised the court she believed the parents

should be given an additional six months before the court moved to permanency,

so they could have more time to develop their parenting skills. The court ordered

a six-month extension for the permanency hearing; K.E. remained in the care of

a foster family.

In September, visits were changed to semi-supervised. The parents and

foster parents exchanged a book back and forth that indicated the child’s

schedule for eating and napping. The goal was for the child to keep the same

schedule at both locations. While at the foster parents’ home, K.E. would awake
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at approximately 8:00 a.m. and eat cereal with six ounces of milk in a sippy cup.

K.E. would be given a fruit and a six-ounce bottle at 11:00 a.m. and a six-ounce

bottle at 2:00 p.m. His evening schedule included a vegetable and six ounces of

milk for dinner, around 5:00 p.m., and then an eight-ounce bottle before bed at

9:00 p.m. When K.E. was in his parents’ care for semi-supervised visits, it was

noted he was receiving only six to nine ounces of food or milk for a day. When

asked, the parents stated K.E. was not hungry. Providers attempted to go over

an appropriate feeding schedule with the parents a number of times, but the

parents were still unable to report how much K.E. should be eating or when. The

parents also self-reported struggles with retaining the information.

Due to concerns the parents could not meet K.E.’s nutritional needs when

the child was left with the parents for a number of hours, visits returned to being

fully supervised after a few weeks. They remained fully supervised, with the

parents receiving a myriad of services, until the time of the termination hearing, in

July 2017.

At the hearing, all parties recognized the amount of effort the parents had

put toward learning new skills so K.E. could be returned to their care.

Additionally, everyone recognized how much each parent loves K.E. However,

due to ongoing concerns K.E. would be in danger of neglect and harmful effects

as a result of the parents’ failure to exercise a reasonable degree of care in

supervising the child, the court terminated both parents’ rights pursuant to Iowa

Code section 232.116(1)(h).

The mother and father appeal separately.
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II. Standard of Review.

We review termination-of-parental-rights proceedings de novo. In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010). “Grounds for termination must be proven by

clear and convincing evidence” and “[o]ur primary concern is the best interests of

the child.” In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).

III. Discussion.

A. Statutory Grounds.

Both parents contest only the fourth element of section 232.116(1)(h)—the

juvenile court’s determination K.E. could not be returned home at the time of the

termination hearing without being at risk of further adjudicatory harm. The

parents were able to learn many of the necessary skills to care for K.E. as an

infant, but, using the past as an indicator for future performance, there is clear

and convincing evidence they will not be able to anticipate his changing needs as

he grows. See In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). Both parents

testified they had resources in the community and family members they could go

to with questions, but the record suggests being told the information once is not

sufficient for the parents to learn it and adapt their behavior accordingly. It took

the parents a number of weeks, if not months, of hands-on instruction to learn the

proper ratio of formula to water for a bottle. Additionally, DHS and the foster

family used a food diary sent back and forth between the parents and foster

parents so K.E. could be fed on the same schedule at both homes; the parents

were unable to recognize the pattern of the schedule and feed K.E. accordingly,

and he was being returned to the foster parents hungry. Lack of understanding

regarding K.E.’s nutritional needs was an issue at the time of semi-supervised
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visits in September 2016 and remained an issue at the time of the termination

hearing in July 2017. When asked what type of schedule they would adopt if

K.E. was returned to their care, the mother testified she would feed K.E.—who

was two years old—cereal or oatmeal for breakfast, then she would “feed him

lunch, maybe something light, that way he’s not too full by dinnertime,” and

“something easy” for dinner at “6:30, 7:00.”

Additionally, with both parents’ struggles with memory issues—especially

short-term memory issues—there are concerns they would be unable to

appropriately administer medication, either by missing doses or overmedicating.

The mother’s testimony about losing the inhaler she was prescribed and having

missed her prescribed doses for a week supports this concern. While the

parents’ attorneys implied that K.E. will be able to verbalize his needs and “help”

his parents remember things like feedings and medicine as he gets older, we

cannot put the onus for appropriate caregiving on the small child.

We agree with the juvenile court that K.E. could not be safely returned to

the parents’ care at the time of the termination hearing.

B. Best Interests.

Both parents also contend termination of their parental rights is not in

K.E.’s best interests.

At the time of the termination hearing, K.E. was almost two years old and

had been outside of the home since before he was two months old. He had

recently begun calling his foster parents, who stated they wished to be

considered as a pre-adoptive home, “mom” and “dad.” K.E. still exhibited some

excitement when he had visits with his parents, but there is nothing in the record
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that suggests that bond was so close that termination would be detrimental to

K.E. See Iowa Code § 232.116(3)(c). It is undisputed the parents love K.E., but

as the juvenile court noted, K.E. “would be at risk of injury or death if left alone in

their care, despite their unwavering love and their best efforts.” Giving “primary

consideration to the child’s safety”; “to the best placement for furthering the long-

term nurturing and growth”; and “to the physical, mental, and emotional needs” of

K.E., termination of the parents’ parental rights is in his best interests. See Iowa

Code § 232.116(2).

AFFIRMED ON BOTH APPEALS.