In the Interest of J.H., J.H., C.H., and K.H., Minor Children, M.E., Mother

IN THE COURT OF APPEALS OF IOWA

No. 16-1210
Filed September 28, 2016

IN THE INTEREST OF J.H., J.H., C.H., and K.H.,
Minor Children,

M.E., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Gary K. Anderson,

District Associate Judge.

A mother appeals from the juvenile court’s order terminating her parental

rights. AFFIRMED.

DeShawne L. Bird-Sell of Sell Law, P.L.C., Glenwood, for appellant

mother.

Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant

Attorney General, for appellee State.

Abby L. Davison of the State Public Defender’s Office, Council Bluffs,

attorney and guardian ad litem for minor children.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
2

MULLINS, Judge.

A mother appeals the juvenile court’s order terminating her parental rights

to her four children: J.A.H., born in 1999; J.G.H., born in 2003; C.H., born in

2004; and K.M.H., born in 2005.1 The mother generally argues the juvenile court

should not have terminated her parental rights because the State failed to prove

the statutory grounds for termination by clear and convincing evidence. She

specifically argues the State failed to make reasonable efforts to return the

children to her care and the juvenile court should not have terminated her

parental rights to J.G.H. because he was placed in shelter care at the time of the

termination hearing and did not have a prospective adoptive home. She also

contends termination is not in the children’s best interests and she shares a bond

with her children such that termination would be detrimental to them.2

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

M.W., 876 N.W.2d 212, 219 (Iowa 2016). “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. (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa

2014)). Our primary consideration is the best interests of the children. See In re

J.E., 723 N.W.2d 793, 798 (Iowa 2006).

1
The mother has a fifth child who was also adjudicated a child in need of assistance
(CINA). The State did not seek termination of the mother’s parental rights to this child.
2
The mother also argues the court should have granted her an additional six months to
work toward reunification. The mother did not request an extension of time at the
termination hearing. Consequently, she has not preserved error on this issue. See In re
A.B., 815 N.W.2d 764, 773 (Iowa 2012); see also Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.”).
3

“Our review of termination of parental rights under Iowa Code chapter 232

[(2015)] is a three-step analysis.” In re M.W., 876 N.W.2d at 219. First, we must

determine whether the State established the statutory grounds for termination by

clear and convincing evidence. See Iowa Code § 232.116(1); In re M.W., 876

N.W.2d at 219. Second, if the State established statutory grounds for

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

under section 232.116(2). See In re M.W., 876 N.W.2d at 219–20. Finally, we

consider whether any exceptions under section 232.116(3) weigh against

termination. See id. at 220.

The juvenile court terminated the mother’s parental rights pursuant to Iowa

Code section 232.116(1)(b), (d), (e), and (f).3 When a court terminates parental

rights on more than one ground, we may affirm the order on any of the statutory

grounds supported by clear and convincing evidence. In re D.W., 791 N.W.2d

703, 707 (Iowa 2010). Evidence is “clear and convincing ‘when there are no

“serious or substantial doubts as to the correctness [of] conclusions of law drawn

from the evidence.”’” In re M.W., 876 N.W.2d at 219 (alteration in original)

(citation omitted).

Iowa Code section 232.116(1)(f) provides the court may terminate a

parent’s parental rights if the State proves by clear and convincing evidence the

child (1) is four years of age or older; (2) has been adjudicated CINA; (3) has

been removed from the physical custody of the parent for at least twelve of the

last eighteen months, or the last twelve consecutive months and any trial period

3
The juvenile court also terminated the father’s parental rights to these four children
under the same code section. He does not appeal.
4

at home has been less than thirty days; and (4) cannot be returned to the

parent’s custody at the time of the termination hearing.

All four of the children at issue are over the age of four, have been

adjudicated CINA, and have been out of their mother’s care since June 2014 with

no trial periods at home. At the time of the termination hearing in May 2016, the

mother was living in Colorado. She had not seen the children in person since

September 2015. The mother claims the children could have been returned to

her care at the time of the termination hearing because she was employed, had

safe and clean housing, and had completed the required counseling. The

mother’s attorney presented photos of what was supposedly the mother’s house

in Colorado and documents purporting to contain the mother’s employment

information from March and April 2016. However, the Iowa Department of

Human Services (DHS) was unable to verify this information. The mother’s

eleventh-hour attempt to prevent termination from two states away from where

the children were located does not overcome the years of instability these

children have had to endure. “Time is a critical element. A parent cannot wait

until the eve of termination, after the statutory time periods for reunification have

expired, to begin to express an interest in parenting.” In re C.B., 611 N.W.2d

489, 495 (Iowa 2000).

At the time of the termination hearing, these children had been out of their

mother’s care for almost two years. The mother had not seen the children in

eight months. She had not actively participated in the children’s academic,

medical, dental, or therapeutic appointments. Furthermore, three of the children

who reside together in the same foster home stated they wished to remain with
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the foster family and be adopted by them. The fourth child was in shelter care at

the time of the hearing due to aggressive behavior issues but stated he wished to

return to his previous foster care placement following treatment. This child’s

foster family wished to support him in his treatment and have him return to their

home. The juvenile court is not required to find a child is adoptable in order to

terminate parental rights. In re T.C., 522 N.W.2d 106, 109 (Iowa Ct. App. 1994).

We will not refuse to terminate the rights of a parent that would otherwise be

terminated because an adoptive home has not been secured. Id. We cannot

ask these children to continuously wait for their mother to become a stable

parent. See In re D.W., 791 N.W.2d at 707. These children desire and deserve

permanency and stability. “[A]t some point, the rights and needs of the children

rise above the rights and needs of the parent.” In re C.S., 776 N.W.2d 297, 300

(Iowa Ct. App. 2009).

The mother also claims the State failed to prove it offered reasonable

efforts as part of its proof the children could not be returned to her care at the

time of the termination hearing. See In re C.B., 611 N.W.2d at 493. She

specifically claims DHS refused all attempts to reunify the family and further

complicated visitation efforts between the mother and her children by allowing

placement to remain so far away and by failing to provide any assistance for

visits. Iowa Code section 232.102(7) requires the State to make reasonable

efforts to reunify the family as quickly as possible after children have been

removed from their parent’s care and custody. “[T]he reasonable efforts

requirement is not viewed as a strict substantive requirement of termination.” In

re C.B., 611 N.W.2d at 493. What constitutes reasonable efforts varies based on
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the circumstances of each individual case. In re C.H., 652 N.W.2d 144, 147

(Iowa 2002).

DHS offered weekly visitation to the mother beginning immediately after

the children’s removal and continued to offer visitation to the mother until she

moved to Colorado in September 2015, leaving her children behind in placement

in Iowa. Further, although the mother requested a home study be conducted at

her home in Colorado in October 2015, at the time of the termination hearing in

May 2016, she had not provided DHS with her address, phone number, the

number and types of bedrooms in the home, or the names and birthdates of

other individuals living in the home, in order for DHS to complete the home study.

We find DHS made reasonable efforts toward reunification for this family.

For the reasons stated above, we conclude the State proved the children

could not be returned to their mother’s care at the time of the termination hearing

and affirm under section 232.116(1)(f). We further find termination of the

mother’s parental rights is in the children’s best interests and none of the

permissive factors weigh against termination. Accordingly, we affirm.

AFFIRMED.