In the Interest of K.M. and C.M., Minor Children, C.M., Father, S.M., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-0498
Filed June 25, 2014

IN THE INTEREST OF K.M. and C.M.,
Minor Children,

C.M., Father,
Appellant,

S.M., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Mark F. Schlenker,

District Associate Judge.

A mother and father appeal the termination of their parental rights to their

two children. AFFIRMED ON BOTH APPEALS.

Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellant-father.

Nancy L. Pietz of Pietz Law Office, Des Moines, for appellant-mother.

Thomas J. Miller, Attorney General, Janet L. Hoffman, Assistant Attorney

General, John Criswell, County Attorney, and Tracie Sehnert, Assistant County

Attorney, for appellee.

M. Kathryn Miller of the Juvenile Public Defender, Des Moines, attorney

and guardian ad litem for minor children.

Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.

A mother and father1 appeal the termination of their parental rights to their

children. They both contend the court erred in concluding the department of

human services (DHS) made reasonable efforts to reunify the family. They both

contend they should have been granted an additional six months to work toward

reunification and the termination was not in the best interests of the children.

They challenge the evidence to support each ground the juvenile court cited as a

basis to terminate their rights. And finally, they both assert the exceptions to

termination found in Iowa Code section 232.116(3) (2013) apply in this case. We

affirm the termination of both parents’ parental rights.

I. Background Facts and Proceedings.

The family came to the attention of DHS based on the report of the older

child that she had been sexually abused by the father. The father was a

registered sex offender, and the current allegations of abuse matched the facts of

the case that resulted in the requirement that he register. In that case the father

pled guilty to the offense of lascivious acts with a child. Neither the older child at

issue nor the person reporting the child’s statements had any knowledge of the

facts of the prior case.

A safety plan was initially put in place to permit the children, then ages six

and one, to remain with the mother so long as the father had no unsupervised

contact with the children. When the safety plan was violated, the children were

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The father appealing is the biological father of the younger child and the legal father of
the older child. The older child’s biological father also had his parental rights terminated
as part of these proceedings, but he has not appealed. Throughout the remainder of this
opinion, each reference to “father” is to the appealing father.
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removed and placed in different familial homes. The children were adjudicated

children in need of assistance (CINA) in December 2012. The father was

incarcerated beginning in February 2013 for violating the sex offender registry

requirements.

Prior to the father’s incarceration, both parents had supervised visitation

with both children until the older child’s therapist recommended the visitation stop

with respect to her. The supervised visits continued with the younger child for

both parties until the father went to prison. After February 2013, only the mother

continued supervised visitation with the younger child though the father would

call during the visits to speak to the child. The mother has consistently attended

supervised visitation with the younger child, though she has not progressed

beyond supervised visitation due to her failure to acknowledge or believe the

older child’s reports of abuse.

Neither the mother nor father has had any visitation with the older child

since October 2012. The therapist testified that once the visits were stopped, the

child began to open up about the abuse, and the child has remained consistent in

her description of the abuse throughout the case. While resuming supervised

visitation with the older child had been discussed through the progress of the

case, the therapist testified the child remained extremely anxious about resuming

contact with either parent fearing punishment for discussing the abuse. The child

reported she had previously told the mother about the abuse and the mother had

hit her. The mother denied this allegation. In addition, shortly after DHS began

working toward resuming supervised visitation, the mother twice tested positive
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for methamphetamine. The mother also drove by the older child’s school as the

child was leaving the building and yelled out of the car at the older child. The

child hid from the mother, and a no-contact order was entered in the case.

The State filed the petitions to terminate the parental rights of all parents

involved in September 2013. The court held a series of hearings on the

termination petitions in November and December 2013. Prior to the termination

hearing, the mother filed a motion to modify the placement of the older child and

to address reasonable efforts. The court addressed this motion at the

termination hearing. The court also addressed the parents’ objections to the no-

contact order at the same time. The court issued its decision at the end of

February 2014, terminating the parental rights of both the father and mother.

The mother’s rights with respect to the older child were terminated under Iowa

Code section 232.116(1), paragraphs (b), (d), (e), (f), (i), and (l), and her rights

with respect to the younger child were terminated under paragraphs (d), (e), (h),

(i), and (l). The father’s rights were terminated with respect to the older child

under section 232.116(1), paragraphs (b), (d), (e), (f), and (i), and his rights with

respect to the younger child were terminated under paragraphs (b), (d), (e), (h),

and (i).

The court found the mother in particular not truthful in her testimony.

Despite their testimony to the contrary, the court found that the mother and father

intended to maintain their relationship after the father was no longer incarcerated.

The court found the overriding concern was the mother’s failure to protect her

children from the predatory conduct of the father, and in fact the court stated the
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mother had never convincingly even acknowledged that the abuse of the older

child had occurred. The court concluded meaningful change cannot occur

without this recognition. The court found the best interests of the children would

be served by the termination of the parental rights, and it found the severing of

any bond between the children and the parents would not be so detrimental as to

militate in favor of not terminating the parental rights.

The court denied the mother’s motion to modify the placement and

address reasonable efforts. The court concluded there were no specific factors,

conditions, or expected behavioral changes that could resolve the conditions that

gave rise to the CINA adjudications within six months. The court likewise denied

the request for additional visitation.

Both parents appeal attacking the sufficiency of the State’s evidence to

support each of the grounds upon which the court relied to terminate the parental

rights. They also both assert the State did not make reasonable efforts to

reunify, the best interests of the children prevent termination, and they should

have been granted a six-month extension to work toward reunification.

II. Scope and Standard of Review.

We review proceedings to terminate parental rights de novo. In re A.M.,

843 N.W.2d 100, 110 (Iowa 2014). “We are not bound by the juvenile court’s

findings of fact, but we do give them weight, especially in assessing the credibility

of witnesses.” Id. We will uphold a termination order if there is “clear and

convincing evidence of the ground for termination.” In re D.W., 791 N.W.2d 703,

706 (Iowa 2010). “Evidence is ‘clear and convincing’ when there are no ‘serious
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or substantial doubts as to the correctness [of] conclusions of law drawn from the

evidence.’” Id.

III. Grounds to Terminate.

Both parents attack the sufficiency of the grounds to support the

termination under each of the paragraphs in Iowa Code section 232.116(1) used

by the juvenile court. However, we need only find clear and convincing evidence

to support one of the grounds relied on by the juvenile court. Id. at 707. In this

case we find the State proved the grounds for termination as to both children

under section 232.116(1)(d).

Under this section, in order to terminate the parental rights, the court must

find the following has occurred:

(1) The court has previously adjudicated the child to be a child in
need of assistance after finding the child to have been physically or
sexually abused or neglected as the result of the acts or omissions
of one or both parents, or the court has previously adjudicated a
child who is a member of the same family to be a child in need of
assistance after such a finding.
(2) Subsequent to the child in need of assistance adjudication, the
parents were offered or received services to correct the
circumstance which led to the adjudication, and the circumstance
continues to exist despite the offer or receipt of services.

Iowa Code § 232.116(1)(d). Neither parent contests the first element of

paragraph d—that the court had previously adjudicated the child to be a CINA

after finding the child to have been sexually abused or the court previously

adjudicated a child who is a member of the same family to be a CINA after such

a finding. The court concluded the mother failed to get therapy for the older child

and the younger child needed to be protected due to his young age.
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On appeal from the termination order, both parents assert there is a lack

of evidence to support the finding that they were offered services to correct the

circumstances and the circumstances continue to exist despite the offer or

receipt of services. The mother claims there was unrefuted testimony that she

had the requisite parenting skills, a stable home, and all items necessary to take

immediate care and custody of both children. The father claims he was not

offered any services during his incarceration. He claims he was not offered

therapy nor did the DHS workers meet with him or speak with him.

The juvenile court noted that the mother continued up to the time of the

termination hearing to deny the truth of the older child’s allegations. The mother

and father continued to make plans to reunite the family once the father was

released from custody. The court found the parents’ plan to reunite was a

continuing danger to the older child and constituted the most compelling reason

to terminate the parental rights as to both children. The court noted the following

services were provided to the parents: “substance abuse evaluations, UAs, hair

stat tests, supervised visitation, parenting skills education, individual therapy,

family therapy, FSRP assistance, and substance abuse counseling.” The court

did note the majority of services were provided to the mother as the father had

been incarcerated two months after the children were adjudicated.

At the termination hearing the State introduced over 1700 pages of

transcripts of phone calls made between July and September 2013 between the

parents while the father was incarcerated; the calls occurred sometimes multiple

times a day. A review of the transcripts of these phone calls makes it clear that
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the parties intend to continue their relationship, that the mother does not believe

the older child’s allegations of sexual abuse, that both parties blame the older

child’s custodian2 for the allegations being made, and that the parents will do

whatever it takes to deceive the court and the DHS officials into believing the

parties are separated.

Both parties were requested to provide samples for hair stat drug testing

in September 2012. The mother only complied in March of 2013 after the threat

of contempt of court, and the father never complied. Both parties testified that

they went to provide their sample months after the request was made, but the

authorization for testing had lapsed by that time so the facility did not allow them

to provide the samples. The mother missed thirteen urine analysis drops to

check for drugs, claiming she found it difficult to call the number to find out if she

was required to provide a sample that day. She also provided two samples in

August of 2013 that tested positive for methamphetamine. Despite her clear

relapse, she did not obtain a substance abuse evaluation or attend substance

abuse treatment.

The parties were directed to place the older child in therapy when the

CINA petition was filed in July 2012. The parents refused to do so, and the older

child did not start therapy until after she was removed from the parent’s care.

The mother was asked to attend individual therapy to address the sexual abuse

issues involved in this case, but she did not start attending until May 2013. The

mother complained about the funding not being approved for her to afford the

2
Each child was placed in a separate relative placement under the supervision of DHS.
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counseling. However, when she did finally attend, her therapist refused to

provide information about the progress of the therapy to DHS, and it was not until

the termination hearing that the mother signed a release to permit the therapist to

testify. The therapist testified that the mother had reached an impasse in therapy

with respect to the sexual abuse allegations—until she hears from the older child

that the father perpetrated the abuse, she will not believe it.

When progress was being made for the mother and older child to have a

therapeutic supervised visit, the mother drove by the child’s school and yelled out

her car window, scaring the child and eroding any progress that had been made

in the child’s therapy to help the child feel safe around the mother. This action

resulted in a no-contact order. The mother’s actions and her failure to believe

the allegations have caused a stalemate in the mother’s therapy. In addition, she

stopped attending therapy altogether in October 2013, a month before the first

day of the termination hearing.

The mother also admitted to driving by the custodian’s house, sometimes

twice a week, to see who was present in the home, and the father accessed the

custodian’s email without permission to obtain a message the custodian had sent

to the child’s therapist. The mother’s housing was unstable throughout the

course of the case until the final day of the termination hearing, when she

reported she had obtained housing with her oldest son and his partner. She also

had a number of jobs throughout the proceedings, and she blamed one of those

jobs as the reason she relapsed in August of 2013.
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The father went to prison in February 2013 for a violation of the sex

offender registry. This was not his first violation. He continually denied the

sexual abuse had occurred in this case and also denied at the termination

hearing that he had sexually abused his child in the prior case. He claimed to

have pled guilty to lascivious acts with a child many years ago only in order to

keep his other child from having to testify. He stated he successfully completed

sex offender treatment in that case, though he claimed he never admitted to the

abuse during his treatment. The DHS social worker indicated that in order for the

father to have visits with the older child upon his release from prison, he would

need to acknowledge the abuse, obtain a sex-offender evaluation, and attend

therapy. She was also concerned with his repeated failure to abide by the terms

of the sex offender registry.

We find services were offered to the mother and father, and the

circumstances that lead to the adjudication continue despite the receipt of

services. Both parents refuse to acknowledge the sexual abuse occurred. They

failed to provide samples for the hair stat test when requested and refused to

place the older child in therapy when the allegations came to light. They violated

the safety plan, resulting in the removal of the children. This all occurred prior to

the father going to prison. They continue to plan to remain together as a family

after the father is released from custody. The father’s incarceration “was due to

his own actions, and he cannot fault DHS for being unable to provide services

while he is in prison.” In re E.K., 568 N.W.2d 829, 831 (Iowa Ct. App. 1997). In

fact, the father never requested services while he was in prison. He has not
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obtained a sex offender evaluation or treatment. The mother has failed to

progress in therapy and has sabotaged her ability to have supervised contact

with the older child. We agree the State has by proved clear and convincing

evidence the grounds to support termination under section 232.116(1)(d).

IV. Best Interests.

As we find a ground for termination exists, we next turn to the parents’

claim that the best interests of the children preclude termination in this case. See

In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (setting out the three-step analysis the

courts should take in termination cases). Under section 232.116(2), the court

should 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.

Both parents contend that it is in the best interest of the children to remain

together, rather than split up the siblings. They assert the only way to

accomplish this is to prevent termination and return the children to their care. We

note it was the parents’ recommendation, at the time when the children were

removed from their care in September 2012, to place the children in different

familial homes. The custodians of the children have ensured throughout the

course of this case that the siblings remain in contact with each other. We have

no reason to believe this sibling contact would not continue into the future. While

it is certainly desirable to keep siblings together, our paramount concern must be

each child’s best interests. In re T.J.O., 527 N.W.2d 417, 420 (Iowa Ct. App.

1994).
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Considering the parents’ lack of progress with the services that were

offered, it is clearly not in the children’s best interests to be returned to the care

of the parents for their safety or for their mental and emotional needs and

conditions. In fact, in determining the long-term placement of the children, it was

the DHS social worker’s recommendation that the parents not be made aware of

the location of the final custodian should the court terminate the parental rights.

This was due to the parents’ failure to respect the boundaries imposed by DHS

during the pendency of the case.

We agree with the juvenile court’s conclusion that termination of the

parents’ rights was in the best interests of the children in this case.

V. Exceptions.

Next, the parents claim that the exceptions to termination in section

232.116(3) should prevent termination of their parental rights. Specifically, they

assert the children’s placement in the homes of relatives and the closeness of

their bond with the children should prevent termination. “‘The factors weighing

against termination in section 232.116(3) are permissive, not mandatory,’ and the

court may use its discretion, ‘based on the unique circumstances of each case

and the best interests of the child, whether to apply the factors in this section to

save the parent-child relationship.’” A.M., 843 N.W.2d at 113 (citation omitted).

Neither the mother or father have had any contact with the older child

since the child’s therapist recommended supervised visitation cease shortly after

the children were removed from their care. The therapist reported the older child

still remained fearful of any contact particularly with the mother. The younger
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child on the other hand has maintained contact with both parents through

supervised visitation and clearly has a bond with both the mother and father.

However, we agree with the juvenile court’s finding that this bond alone does not

justify preventing the termination the parental rights in this case.

VI. Reasonable Efforts.

The parents claim the State failed to make reasonable efforts to reunify

the family. The only additional service ever requested by either parent was

increased visitation between the mother and the children. The father never

requested services as stated above and was incarcerated two months after the

children were adjudicated CINA. The mother sabotaged her own request for

increased visitation by refusing to acknowledge the abuse occurred, providing

positive drug screens, and yelling at the older child as she drove by her school.

These actions occurred at the same time DHS and the child’s therapist were

working with the older child to get her to agree to meet with the mother in a

therapeutic supervised visit. These actions scared the child and eroded any

progress that had been made in the child’s therapy to help the child feel safe

around the mother. These same actions by the mother also justified DHS’s

refusal to increase the supervised visitation with the younger child. We reject the

parents’ claim on appeal that reasonable efforts were not made in this case.

VII. Six-Month Extension.

We likewise reject the parents’ claim that they should have been granted

an additional six months to work toward reunification. The children had been

removed from the parents’ care in September 2012. By the termination hearing
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in November and December 2013, little to no progress had been made by the

parents. Both parents continued in their denial the abuse occurred, and despite

their testimony to the contrary, the clear intent of the parties was to remain

together after the father was released from prison. No visitation had occurred

with the older child, and only weekly supervised visitation had occurred with the

younger child. The mother twice tested positive for methamphetamine and made

little progress to address the sexual abuse issues in her individual therapy.

The father contends that he was to be released from prison soon, and he

should be granted additional time to participate in services once he is placed in a

work-release facility. He claims that the “stakes are so high” now that he would

comply with any safety plan DHS would impose upon his release from prison.

However, his continued denial that the abuse occurred would prevent any

meaningful progress in sex-offender treatment if he were to participate when

released from prison, and he has failed to demonstrate an ability to comply with

the terms and conditions imposed by the DHS and the department of corrections

when he is released in the public. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006)

(“[W]e look to the parents’ past performance because it may indicate the quality

of care the parent is capable of providing in the future.”).

In order to be granted an additional six months to work toward

reunification, Iowa Code section 232.104(2)(b) requires the court to make a

finding that the need for the removal of the child will no longer exist at the end of

the additional six-month period. As the district court found, there is no evidence

the parents’ circumstances will change in six months, and the children are
15

entitled to permanency in their lives. The children should not be forced to

endlessly wait for their parents to provide responsible parenting. In re L.L., 459

N.W.2d 489, 495 (Iowa 1990).

VIII. Conclusion.

In conclusion, we affirm the termination of both the mother’s and father’s

parental rights with respect to both children in this case as we conclude the State

offered clear and convincing evidence to support termination under section

232.116(1)(d). We find it is in both children’s best interest for the termination to

occur and no exception to termination under section 232.116(3) would justify

preventing the termination. DHS made reasonable efforts to reunify the family,

and granting the parents an additional six months to work toward reunification

was not warranted in this case.

AFFIRMED ON BOTH APPEALS.