In the Interest of M.B. and E.T., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 21-0333
Filed July 21, 2021

IN THE INTEREST OF M.B. and E.T.,
Minor Children,

J.B., Father,
Appellant,

K.T., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Webster County, Joseph L. Tofilon,

District Associate Judge.

A mother and father separately appeal the termination of their respective

parental rights. AFFIRMED ON BOTH APPEALS.

Brandon J. Dodgen of Conrad & Lemmenes, Humboldt, for appellant father.

Alesha M. Sigmeth Roberts of Sigmeth Roberts Law, PLC, Clarion, for

appellant mother.

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

General, for appellee State.

Sarah Livingston, Fort Dodge, attorney and guardian ad litem for minor

children.

Considered by Doyle, P.J., and Mullins and May, JJ.
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MAY, Judge.

A mother and father separately appeal the termination of their respective

parental rights to their children, M.B. and E.T. They challenge (1) the statutory

grounds supporting termination, (2) whether termination is in the children’s best

interests, and (3) the juvenile court’s refusal to grant them additional time to work

toward reunification. We affirm as to both parents.

We review termination proceedings de novo. In re Z.P., 948 N.W.2d 518,

522 (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 evidence.” In re T.S., 868

N.W.2d 425, 431 (Iowa Ct. App. 2015) (citation omitted).

We generally use a three-step analysis to review the termination of a

parent’s rights. In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). We consider:

(1) whether grounds for termination have been established, (2) whether

termination is in the children’s best interests, and (3) whether we should exercise

any of the permissive exceptions to termination. Id. at 472–73. “However, if a

parent does not challenge a step in our analysis, we need not address it.” In re

J.P., No. 19-1633, 2020 WL 110425, at *1 (Iowa Ct. App. Jan. 9, 2020). Then we

address any additional claims raised by the parents. In re K.M., No. 19-1637, 2020

WL 110408, at *1 (Iowa Ct. App. Jan. 9, 2020).

Both parents challenge the statutory grounds authorizing termination. With

respect to E.T., the juvenile court found a ground for termination under Iowa Code

section 232.116(1)(f) (2020). Paragraph (f) authorizes termination when:
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(1) The child is four years of age or older.
(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 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.

With respect to M.B., the juvenile court found a ground authorizing termination

under section 232.116(1)(h). It authorizes the termination of parental rights when:

(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.

The fourth element of 232.116(1)(f) is the same as the fourth element of

section 232.116(1)(h). The parents limit their challenges to this fourth element,

whether E.T. and M.B. could be returned to their home. The fourth element is

satisfied when the State establishes a child cannot be safely returned to the parent

at the time of the termination hearing. In re T.W., No. 20-0145, 2020 WL 1881115,

at *2–3 (Iowa Ct. App. Apr. 15, 2020).

Our de novo review of the record makes clear the children cannot be safely

returned to either parent.1 Both parents have significant and unresolved mental-

1 Both parents argue there is no evidence of an ongoing risk of harm to the children
based on the parents’ persistent marijuana use. But even without consideration of
their drug use, there is overwhelming evidence of an ongoing risk of harm to the
children as discussed in this opinion.
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health issues, which impede their ability to adequately parent. See In re H.L., No.

18-1975, 2019 WL 478903, at *1 (Iowa Ct. App. Feb. 6, 2019). With respect to the

mother, she testified that she has been diagnosed with depression, bipolar

disorder, borderline personality disorder, dissociative disorder, PTSD, OCD, ODD,

and ADHD. She has made threats of suicide multiple times and has asked law

enforcement to kill her multiple times. In fact, in September 2020, the mother

attempted to hang herself by wrapping a phone cord around her neck while in the

county jail after being arrested for public intoxication. Her behavior is erratic: she

threated to kill the social worker involved in this case; she texted the social worker

“do ur fucking job Rachel fuck ur cunt ass supervisor”; she jumped out of two

different caseworkers’ moving cars when she did not like the conversation; and

she cut herself and wrote a goodbye letter to her children. As recently as February

2021, police were called to the family home to check on the mother. She

repeatedly told officers, “I just want to die.” She described herself as “a very

mentally ill person” and “not mentally stable for jail” and stated she “ended up killing

[her]self” the last time she was in jail. Then she threw the family cat down a

staircase. And when she testified on the third day of the termination hearing, her

testimony was disjointed, rambling, erratic, and often unresponsive to the

questions asked.2

The father faces similar problems. He testified he has been diagnosed with

bipolar II disorder, generalized anxiety disorder, and manic depression. He has

2The termination hearing took place over three days: January 6, 2021; February
3; and March 2.
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also made suicidal statements. He has difficultly controlling his emotions, which

sometimes manifests in harmful conduct.

The children are also endangered by the parents’ relationship, which has

been plagued by domestic violence. Indeed, this case began back in 2017 when

the parents got into an argument in the car, the mother drove at speeds in excess

of 100 miles per hour, and got into an accident—all while E.T. was in the car. The

mother hits the father, throws things at him, and yells at him. She strangled the

father with a phone cord. And she dumped the father’s medication in the toilet

when they got into an argument. During one dispute, the father threw the family

cat, breaking the cat’s leg. Another time, the father got upset with the mother and

punched a wall, hurting his hand. And both parents reported each other for

perpetrating domestic violence during the last one-month reporting period prior to

the termination proceedings. Yet the parents do not appear to appreciate the

damage children suffer when they are exposed to domestic violence. Cf. T.S., 868

N.W.2d at 435; In re L.C.-M., No. 20-1661, 2021 WL 140072, at *2 (Iowa Ct. App.

Apr. 14, 2021); In re B.S., No. 20-1463, 2021 WL 609093, at *1 (Iowa Ct. App.

Feb. 17, 2021).

Moreover, the parents’ lives are generally too unstable to safely care for the

children. Cf. H.L., 2019 WL 478903, at *1 (collecting cases where a parent’s lack

of employment and stable housing weighed in favor of termination). They are

currently unemployed and only briefly had jobs. For a time, the father lived with

his brother, but the mother was not allowed to live with them. So the mother lived

in a storage garage. While the father lived with his brother, the two used

methamphetamine together because “it was kind of a bonding thing between”
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them. Eventually, the parents moved back in together. But they are not current

on their rent, and their landlord has started the eviction process. The only reason

that process has stalled is the temporary moratorium on evictions issued in

response to the COVID-19 pandemic. So we cannot consider their current housing

to be stable.

In light of these facts, we conclude the juvenile court correctly determined

the children could not be safely returned to the parents.

We move on to the second step in our analysis, which requires us to

determine whether termination is in the children’s best interests. We “give primary

consideration to the child[ren]’s safety, to the best placement for furthering the

long-term nurturing and growth of the child[ren], and to the physical, mental, and

emotional condition and needs of the child.” In re P.L., 778 N.W.2d 33, 40 (Iowa

2010) (quoting Iowa Code § 232.116(2)). “It 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.” Id. at 41.

When determining whether termination is in the children’s best interests, we

look to the parents’ past performance as an indicator of the care they are likely to

provide in the future. See In re C.K., 558 N.W.2d 170, 172 (Iowa 1997). And here

the parents’ past performance raises substantial concerns about the future.

Although this case has been open for more than three years, the parents have

made little to no progress. When looking toward the future, we anticipate the

parents will continue to struggle with their mental health, housing, domestic
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violence, and substance abuse. We do not envision an environment compatible

with fostering the children to maturity.

Plus, these children are in desperate need of permanency. As the social

worker put it, “the kids are struggling.” E.T. has behavior issues stemming from

his lack of permanency, and M.B. is beginning to display similar behaviors. But

there is hope. The children are bonded to their foster parents in a pre-adoptive

home. See Iowa Code § 232.116(2)(b). And termination would free them to reach

true permanency through adoption. So we conclude termination is in the children’s

best interests.

Neither parents asks us to apply a permissive exception in section

232.116(3) to preclude termination. So we do not consider these exceptions.

Finally, we address the parents’ request for additional time to work toward

reunification. The court may defer termination for a period of six months if it is able

to “enumerate the specific factors, conditions, or expected behavioral changes

which comprise the basis for the determination that the need for removal of the

child from the child's home will no longer exist at the end of the additional six month

period.” Id. § 232.104(2)(b).

The parents suggest they are on an upward trajectory and should be given

the time to prove themselves. But they have already been given ample time. And

still they do not seem to be making meaningful progress. For example, in between

the second and third days of the termination hearing, the mother asked police to

kill her, she flushed the father’s medication down the toilet, the father failed to

attend his mental-health appointments and failed to take his medication. These

are signs of decline or, at best, stagnation. They are not signs of improvement.
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Moreover, the parents identify no concrete changes we could reasonably

anticipate coming to fruition within six months. So we will not force the children to

wait in limbo any longer. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010) (“We

do not ‘gamble with the children’s future’ by asking them to continuously wait for a

stable biological parent, particularly at such tender ages.” (citation omitted)). We

decline to grant additional time to either parent.

AFFIRMED ON BOTH APPEALS.