In the Interest of S.P. and T.P., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 22-0723
Filed September 21, 2022

IN THE INTEREST OF S.P. and T.P.,
Minor Children,

M.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, Shawna L.

Ditsworth, District Associate Judge.

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

AFFIRMED.

Elizabeth K. Elsten, Spirit Lake, attorney for appellant mother.

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

General, for appellee State.

Pamela Wingert, Spirit Lake, attorney and guardian ad litem for minor

children.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
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CHICCHELLY, Judge.

M.K. appeals the termination of her parental rights to two children, S.P. and

T.P. She argues the Iowa Department of Human Services (DHS) did not fulfill its

reasonable-efforts obligation, the statutory ground for termination is not satisfied,

a six-month extension should be granted, and termination is not in the children’s

best interests. Upon our de novo review, we affirm termination of her parental

rights to these children.

I. Background Facts and Proceedings.

S.P. first came to the attention of the DHS when his mother and father

resided together in 2019. During that time, the DHS conducted two investigations

resulting in unfounded allegations of child abuse. The mother contends domestic

violence plagued her relationship with the children’s father, which caused her to

leave while pregnant with T.P.1 After T.P. was born, the mother began an online

relationship with a man from North Dakota. This man moved in with the mother

and her two children in August 2020. He has a history of abusing alcohol and was

arrested for public intoxication in October.

On November 17, 2020, the DHS received a report of potential child abuse

involving S.P. Upon investigation, the mother’s paramour admitted to injuring S.P.,

who was then twenty months old, the night prior. During the hour or so he was left

alone with the children, the paramour hit S.P. in the head with a door and struck

him with the back of his hand, leaving dark bruises around his left ear and left side

of his face and a smaller bruise on the back of his right ear. The paramour was

1The parental rights of S.P. and T.P.’s father were also terminated, and he does
not appeal.
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intoxicated at the time of the incident. He acknowledged the children were fussing

and he was unable to calm them down. A police officer arrested the paramour for

child endangerment, possession of a controlled substance (marijuana), and

assault causing bodily injury. He later served thirty days in jail and agreed to a

criminal no-contact order with S.P. for five years. After the DHS visit, the mother

took S.P. to the emergency room and confirmed he did not have any broken bones.

She claims she did not notice the extent of his injuries until she picked him up from

daycare, shortly before the DHS arrived at her home.

On December 11, the mother bailed her paramour out of jail. On December

21, a safety plan was created where the children would reside with their maternal

great-grandparents. They were adjudicated children in need of assistance (CINA)

in early March 2021. The court directed the mother to complete a mental-health

evaluation and participate in Family Centered Services. It also ordered S.P. and

T.P. to have no contact with the mother’s paramour. The mother obtained a

mental-health evaluation in April, but she was unsuccessfully discharged from

therapy due to no call/no shows.

On April 5, the mother was arrested for domestic abuse against her

paramour. He was also arrested for public intoxication and possession of drug

paraphernalia. After a dispositional hearing that month, the court ordered the

mother’s paramour to complete mental-health and substance-abuse evaluations

and submit to random drug testing. On April 14, law enforcement observed the

couple travelling at a high rate of speed with a broken taillight and attempted to

conduct a traffic stop. The mother was in the driver’s seat when they ultimately

pulled over, but she alleged her paramour, who did not have a valid license, was
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driving and switched places with her. Her paramour became aggressive and was

charged with interference with official acts and public intoxication, while the mother

was charged with speeding and failure to have insurance.

On June 6, bystanders called law enforcement to a public beach after

seeing the mother’s paramour with a gun. Officers determined it was a BB gun

and arrested the paramour for public intoxication. According to a DHS report, the

mother stated that the arrest “was for nothing and that everything was set up by

her mom’s friends.” Later in June, the mother married her paramour, although

reports indicate she denied getting married when asked by her family and the DHS.

The mother’s family has not been supportive of her romantic relationship.

In September, the mother gave birth to a daughter. A petition for termination

of the mother’s parental rights to S.P. and T.P. was filed in October. Since the

termination filing, the mother has been successful in attending mental-health

therapy. Her husband has not participated consistently in either mental-health

therapy or substance-abuse services. In October, his drug test returned positive

for alcohol, THC, noroxycodone, ethyl glucuronide, ethyl sulfate, oxycodone, and

oxymorphone. In addition to arrests for public intoxication, he was arrested a third

time for operating while intoxicated in February 2022.

At the time of the termination hearing in March, the mother was pregnant

again and living in a one-bedroom apartment with her husband, daughter, and a

dog. She maintains employment as a daycare provider at a licensed daycare

facility. During her testimony, the mother claimed her grandmother slapped one

of the children in her presence about two weeks before the hearing. She testified

that she did not speak out initially out of fear her family would withhold visitation.
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In April, the court issued an order terminating the mother’s parental rights. She

filed a timely 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

evidence.” In re T.S., 868 N.W.2d 425, 431 (Iowa Ct. App. 2015) (internal citation

omitted). Though not binding, we give weight to the juvenile court’s fact findings.

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 children’s best

interests. In re L.T., 924 N.W.2d 521, 529 (Iowa 2019). 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 are whether: (1) grounds for termination have

been established, (2) termination is in the children’s best interests, and (3) we

should exercise any of the permissive exceptions to preclude termination. Id. at

472–73.

M.K. contends her sons’ continued removal is attributable to the DHS’s

insufficient efforts and they could have been returned to her at the time of the

termination hearing. She further argues that even if they could not be returned at

the time of the hearing, a six-month extension would provide sufficient time to
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reunify. Finally, M.K. argues termination is not in their best interests. We address

each argument in turn.

A. Reasonable Efforts.

The mother argues the DHS did not make reasonable efforts at

reunification. See Iowa Code § 232.102(7) (2022) (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”). However, the mother does not

point to any portion of the record where she identified a deficiency in agency

services or requested any additional services prior to the filing of the petition for

termination. In fact, she filed the motion for services requesting additional visitation

and less supervision in late January 2022, after the termination hearing had been

continued. Therefore, the mother’s motion was untimely. See In re C.H., 652

N.W.2d 144, 148 (Iowa 2002) (“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.”); T.S., 868 N.W.at 425 (“While the State has an

obligation to provide reasonable services to preserve the family unit, it is the

parent’s responsibility ‘to demand other, different, or additional services prior to the

termination hearing.’” (citation omitted)).

Nevertheless, the district court opted to consider the mother’s motion for

services during the termination hearing. We agree with its finding that the DHS

made reasonable efforts towards the permanency goal of reunification. 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
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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).

Here, the mother does not object to the array of services provided by the

DHS. Rather, she contends the DHS should have decreased supervision and

increased her visitation. See In re L.M., 904 N.W.2d 835, 839 (Iowa 2017) (“The

reasonable efforts concept would broadly include a visitation arrangement

designed to facilitate reunification while protecting the child from the harm

responsible for the removal.” (citation omitted)). The mother was allowed two,

fully-supervised, two-hour visits outside of her home each week. We find this

allocation was reasonable under the circumstances. See Iowa Code

§ 232.102(10)(a) (“A child’s health and safety shall be the paramount concern in

making reasonable efforts.”). The mother has not demonstrated an improvement

in her protective capacities, particularly given the progression of her relationship

with her now-husband while he continues to abuse alcohol and other substances.

Given the risks presented by his presence in the mother’s home and the extensive

array of services offered by the DHS, we find the agency satisfied its obligation to

make reasonable efforts toward reunification.
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B. Statutory Ground for Termination.

The mother contends the statutory ground for termination was not satisfied.

The juvenile court found the State proved by clear and convincing evidence that

termination of the mother’s parental rights was appropriate under paragraph (h) of

Iowa Code section 232.116(1). 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: whether the children could be returned to the

parent’s care at the time of the termination hearing. See 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”).

We agree with the juvenile court that the children could not be returned to

their mother’s care at the time of the termination hearing. Throughout this case,

the mother has chosen her romantic partner over her children. She was not

forthcoming about their continuing relationship and subsequent marriage. She

attempts to minimize his actions despite ongoing concerns with his substance

abuse. No attempt has been made to amend the five-year no-contact order

between S.P. and his abuser. Due to her husband’s lack of progress and their

ongoing relationship, the mother failed to progress beyond supervised visits with
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S.P. and T.P. “Without this necessary progression [from supervised to

unsupervised visits], we cannot say the children could have returned to the

[parent’s] care.” In re C.N., No. 19-1961, 2020 WL 567283, at *1 (Iowa Ct. App.

Feb. 5, 2020).

The mother points to the lack of removal of her daughter as evidence that

S.P. and T.P. can be returned to her care. However, the presence of another child

in the mother’s home, who is also under supervision of the DHS, does not compel

a finding that her other children can be safely returned. See In re T.M., No. 21-

0833, 2021 WL 3661421 (Iowa Ct. App. Aug. 18, 2021) (affirming termination on

ground that children cannot be returned to the mother’s custody despite the fact

that the mother had a younger sibling still in her care). Moreover, we find the

following analysis particularly relevant:

Reunification is a goal, not a mandate. The permanency goal in this
case was to reunify [the child] with Mom—a goal that could have
been accomplished without forcing [the child] to live with her
[abuser]. If Mom refuses to keep [the child] safe by forcing [the child]
to live in the same home as [the child’s] abuser, then Mom—not the
system—has drawn a harsh line in the sand that precludes
reunification. It is incumbent upon the juvenile court to determine an
alternative course of action to keep [the child] safe instead of simply
crossing its fingers and hoping [the child’s abuser] will not reoffend.

In re D.D., 955 N.W.2d 186, 196–97 (Iowa 2021) (Christensen, J., concurring). We

conclude there is clear and convincing evidence that S.P. and T.P. could not be

returned to their mother’s care at the time of the termination hearing. See In re

B.F.-C., No. 21-1914, 2022 WL 1100302, at *2 (Iowa Ct. App. Apr. 13, 2022)

(finding two children could not be returned to their mother’s care because she

“continued a relationship with a man who abused her children—in direct violation

of a court order”).
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C. Six-Month Extension.

The mother contends that even if her sons could not be returned at the time

of the termination hearing, a six-month extension would provide her sufficient time

to achieve reunification. Iowa Code section 232.104(2)(b) authorizes extending a

child’s placement for an additional six months if the court identifies “specific factors,

conditions, or expected behavioral changes” that provide a basis for determining

“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.” Here, the mother’s history simply does

not support giving her more time to address her lack of boundaries with her now-

husband. He has failed to engage consistently in services but has consistently run

into trouble with the law. Put simply, the mother has failed to place the needs of

her children above her romantic relationship. “While we recognize the law requires

a ‘full measure of patience with troubled parents who attempt to remedy a lack of

parenting skills,’” this patience is built into the six-month statutory scheme set forth

in Iowa Code section 232.116(1)(h). C.B., 611 N.W.2d at 494 (citation omitted).

Therefore, we affirm the juvenile court’s decision to deny an extension.

D. Best Interests of the Children.

To evaluate the children’s best interests, “the court shall 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[ren].” Iowa Code § 232.116(2). Here,

the mother has demonstrated a lack of appreciation for the risk of harm posed to

the children by residing with her now-husband while he continues to exercise poor

decision-making. See In re A.G., No. 18-1161, 2018 WL 6131920, at *3 (Iowa Ct.
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App. Nov. 21, 2018) (finding termination is in the best interest of a child when the

parent has “refused to acknowledge or address the concerns giving rise to

removal”).

Furthermore, the children are in a stable placement with their great-

grandparents, and their grandparents have expressed a desire to adopt them if

termination proceeds. See Iowa Code § 232.116(2)(b); In re M.W., 876 N.W.2d

212, 225 (Iowa 2016) (noting a child’s favorable integration into a foster placement

supports finding termination is in the child’s best interests). The children deserve

the permanency and security offered by these extended family members. See

A.S., 906 N.W.2d at 474 (“[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.” (citation omitted)). Accordingly, we

conclude termination of their mother’s parental rights is in the children’s best

interests.

IV. Disposition.

In sum, we find reasonable effort services were provided, the statutory

ground is satisfied, an extension is not warranted, and termination is in the

children’s best interests. Therefore, we affirm termination of the mother’s parental

rights to S.P. and T.P.

AFFIRMED.