In the Interest of J.K. and F.S., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 18-2111
Filed March 6, 2019

IN THE INTEREST OF J.K. and F.S.,
Minor Children,

J.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.

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

AFFIRMED.

Elizabeth A. Batey of Vickers Law Office, Greene, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Cynthia Schuknecht of Noah, Smith, Schuknecht & Sloter, P.L.C., Charles

City, guardian ad litem for minor children.

Considered by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.

A mother appeals the termination of her parental rights to her children: J.K.,

born in 2016, and F.S., born in 2018. She contends the State failed to prove the

grounds for termination by clear and convincing evidence. She also alleges that

the State failed to make reasonable efforts to return the children to her care and

that termination is contrary to the children’s best interests. She asks for an

additional six months to allow the children to be returned to her care. We review

her claims de novo. See In re A.S., 906 N.W.2d 467, 472 (Iowa 2018).

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

family after receiving concerns about the condition of the family’s home in February

2018. Although the child protective assessment found the allegations of denial of

critical care for failure to provide adequate shelter were not confirmed, it assessed

“a high risk level” for the family. Specifically, it noted that the mother had a history

of substance abuse and untreated mental illness and that “[e]very professional that

came into contact with the family had concerns about the parenting and general

care of the children.” The mother’s parental rights to her older children were

terminated in 2013.

The record documents a myriad of concerns about the children’s safety and

the mother’s ability to provide adequate care. F.S. had scabies and was not

gaining weight, although there was no medical reason for her failure to gain weight

aside from not being fed enough. The mother appeared to be experiencing post-

partum psychosis and needed prompting to provide care for F.S. J.K. had a

speech delay and developmental delays in all areas except gross motor skills.

Although J.K.’s teeth were rotten, the mother had never taken J.K. to the dentist.
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In general, the record shows the mother failed to recognize and provide for the

children’s needs.

The children were removed from the mother’s care in March 2018 and were

adjudicated to be in need of assistance the following month. Following placement

in foster care, J.K.’s speech improved significantly and F.S. began to gain weight.

In contrast, the mother remained unemployed and struggled to maintain housing.

The mother admitted to using both methamphetamine and heroin during the

pendency of the child-in-need-of-assistance proceedings.

The State filed a petition seeking to terminate the mother’s parental rights

to both children in August 2018, and a termination hearing was held in November

2018. Five days later, the juvenile court entered its order terminating the mother’s

parental rights pursuant to Iowa Code section 232.116(1)(g) and (h) (2018).

I. Grounds for Termination.

The mother contends the State failed to prove the grounds for termination

by clear and convincing evidence. Although the juvenile court terminated parental

rights on more than one ground, we need only find grounds to terminate under one

of the sections cited by the juvenile court to affirm. See In re S.R., 600 N.W.2d 63,

64 (Iowa Ct. App. 1999). In order to terminate under Iowa Code section

232.116(1)(h), the State must prove the following by clear and convincing

evidence:

(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.
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(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 mother does not challenge the sufficiency of the proof on the first three

elements of this section. She instead argues the State failed to prove the children

could not be returned to her care at the time of the termination hearing. See Iowa

Code § 232.116(1)(h)(4); In re D.W., 791 N.W.2d 703, 707 (Iowa 2010)

(interpreting the term “at the present time” to mean “at the time of the termination

hearing”). “[A] child cannot be returned to the custody of the child’s parent under

section 232.102 if by doing so the child would be exposed to any harm amounting

to a new child in need of assistance adjudication.” In re M.S., 889 N.W.2d 675,

680 (Iowa Ct. App. 2016) (alteration in original) (citation omitted).

Clear and convincing evidence shows that returning the children to the

mother’s care would expose them to adjudicatory harm. The mother claims there

is insufficient evidence that the children would suffer harmful effects as a result of

her failure to exercise a reasonable degree of care in supervising the children

because there is no evidence the children have been harmed during visits.

However, the mother’s visits with the children remained fully supervised at the time

of the termination hearing. The service provider who supervised visits reported

there had been no progress in the months leading up to the termination hearing,

the issues that led to the offer of services remained unresolved, and the mother

continued to need prompting to interact with the children. Because returning the

children to the mother’s care would expose the children to imminent likelihood of

harm, see Iowa Code § 232.2(6)(c), we may affirm the termination of the mother’s

parental rights pursuant to section 232.116(1)(h).
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II. Reasonable Efforts.

The mother contends the State failed to make reasonable efforts to reunify

her with the children. She notes that her psychological evaluation diagnosed her

with Borderline Personality Disorder and states that effective treatment “requires

finding a qualified therapist who can administer Dialectical Behavior Therapy

(DBT) or the Systematic Training for Emotional Predictability and Problem Solving

(STEPPS) that typically requires frequent and intensive treatment for a prolonged

period of time.” She complains that after the DHS received the results of the

evaluation, it failed to incorporate these recommendations into its

recommendations for permanency and instead recommended termination of her

parental rights.

Iowa law requires the DHS 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.” Id. § 232.102(9). The requirement “is not viewed as a strict

substantive requirement of termination. Instead, the scope of the efforts by the

DHS to reunify parent and child after removal 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).

Although the State has an obligation to make reasonable efforts toward

reunification of the family, “a parent has an equal obligation to demand other,

different, or additional services prior to a permanency or termination hearing.” In

re A.A.G., 708 N.W.2d 85, 91 (Iowa Ct. App. 2005).

In general, if a parent fails to request other services at the proper
time, the parent waives the issue and may not later challenge it at
the termination proceeding. If a parent has a complaint regarding
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services, the parent must make such challenge at the removal, when
the case permanency plan is entered, or at later review hearings.
Moreover, voicing complaints regarding the adequacy of services to
a social worker is not sufficient. A parent must inform the juvenile
court of such challenge.

In re C.H., 652 N.W.2d 144, 148 (Iowa 2002) (citations omitted). The mother

claims she preserved error by requesting six months of additional reunification

services and by timely filing a notice of appeal. However, filing notice of appeal is

insufficient to preserve error for our review. See Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present

Practice, 55 Drake L. Rev. 39, 48 (2006) (“While this is a common statement in

briefs, it is erroneous, for the notice of appeal has nothing to do with error

preservation.” (footnote omitted)).

Even assuming the mother preserved error, the record shows reasonable

efforts were made. The juvenile court found the DHS provided “FSRP services,

child abuse assessments, FAADS, HUD housing, mental health treatment,

substance abuse treatment, couples counseling, psychological evaluation,

parenting assessment, Family Team Meetings, AA/NA meetings, foster care

placement, Parent Partner, ISU nutrition referral, AEA services, medical

interventions, Public Health services, case management services and supervised

visitation.” On this basis, the court concluded the State thereby fulfilled the

reasonable-efforts requirement. We agree. The record shows the State offered

the mother services to remedy the need for the children’s removal, but the mother

failed to make the changes necessary to ensure the children’s safety.
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III. Best Interests.

The mother also contends termination is not in the children’s best interests.

See D.W., 791 N.W.2d at 706-07 (“If a ground for termination is established, the

court must, secondly, apply the best-interest framework set out in section

232.116(2) to decide if the grounds for termination should result in a termination of

parental rights.”). In making this determination, our primary considerations are “the

child’s safety,” “the best placement for furthering the long-term nurturing and

growth of the child,” and “the physical, mental, and emotional condition and needs

of the child.” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010) (quoting Iowa Code

§ 232.116(2)). The “defining elements in a child’s best interest” 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).

Clear and convincing evidence supports the finding that terminating the

mother’s parental rights is in the best interests of the children. The mother is

unable to provide adequate care to ensure the children’s safety, and the

circumstances that led to the children’s removal continued to exist at the time of

the termination hearing. The mother has demonstrated little motivation or interest

in making the changes necessary to provide the children with a safe and stable

home. The children are young, and the bond between the children and the mother

is weak. Because termination is in the children’s best interests, we affirm.

IV. Additional Time.

Finally, the mother asks for additional time to allow the return of the children

to her care. See Iowa Code § 232.104(2)(b) (allowing the court to continue

placement of the child for an additional six months if it is determined “that the need
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for removal of the child from the child’s home will no longer exist at the end of the

additional six-month period”). However, the record shows the need for removal

will continue to exist even if the mother is granted additional time. Furthermore,

as stated above, delaying the children’s permanency is contrary to their best

interests. See H.S., 805 N.W.2d at 748 (noting the need for a permanent home is

one of the chief considerations in determining a child’s best interests). Children

are not equipped with pause buttons. See In re A.M., 843 N.W.2d 100, 112 (Iowa

2014) (noting children must not be deprived permanency on the hope that

someday the parent will be able to provide a stable home); In re A.C., 415 N.W.2d

609, 614 (Iowa 1987). Although the law requires a “full measure of patience with

troubled parents who attempt to remedy a lack of parenting skills,” this patience

has been built into the statutory scheme of chapter 232. C.B., 611 N.W.2d at 494.

Once the grounds for termination have been proved, time is of the essence. See

A.C., 415 N.W.2d at 614 (“It is unnecessary to take from the children’s future any

more than is demanded by statute. Stated otherwise, plans which extend the

[statutory] period during which parents attempt to become adequate in parenting

skills should be viewed with a sense of urgency.”); see also In re R.J., 436 N.W.2d

630, 636 (Iowa 1989) (noting that once the time period for reunification set by the

legislature has expired, “patience on behalf of the parent can quickly translate into

intolerable hardship for the children”). Accordingly, we decline to grant the mother

additional time.

AFFIRMED.