In the Interest of J.W., E.W., and T.W.

IN THE COURT OF APPEALS OF IOWA

No. 17-1937
Filed February 21, 2018

IN THE INTEREST OF J.W., E.W., and T.W.,
Minor Children,

C.W., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Montgomery County, Amy L.

Zacharias, District Associate Judge.

A mother appeals from an order terminating her parental rights pursuant to

Iowa Code chapter 232 (2017). AFFIRMED.

Justin R. Wyatt of Woods & Wyatt, PLLC, Glenwood, for appellant mother.

Thomas J. Miller, Attorney General, and Meredith L. Lamberti, Assistant

Attorney General, for appellee State.

Karen L. Mailander of Mailander Law Office, Anita, guardian ad litem for

minor children.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

Carley appeals from an order terminating her parental right in her three

children, J.W., E.W., and T.W. The juvenile court terminated Carley’s parental

rights pursuant to Iowa Code section 232.116(1)(e), (f), and (h) (2017). On appeal,

Carley challenges the sufficiency of the evidence supporting the statutory grounds

authorizing the termination of her parental rights, contends the termination of her

parental rights is not in the best interest of the children, and contends the

department of human services failed to make reasonable efforts to facilitate

reunification of the family.

This court reviews termination proceedings de novo. See In re A.M., 843

N.W.2d 100, 110 (Iowa 2014). The statutory framework authorizing the termination

of a parent-child relationship is well established and need not be repeated herein.

See In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) (setting forth the statutory

framework). Where, as here, the juvenile court terminates parental rights on more

than one ground, we may affirm the termination order on any of the grounds

supported by sufficient evidence. See In re D.W., 791 N.W.2d 703, 707 (Iowa

2010).

We choose to address the sufficiency of the evidence supporting the

grounds for termination set forth in Iowa Code section 232.116(1)(f) and (h).

Carley challenges only the fourth element of each ground, both of which required

the State to prove the children could not be returned to Carley’s care at the time of

the termination hearing. See Iowa Code § 232.116(1)(f)(4), (h)(4). We have

interpreted these provisions to require “clear and convincing evidence the children

would be exposed to an appreciable risk of adjudicatory harm if returned to the
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parent’s custody at the time of the termination hearing.” In re E.H., No. 17-0615,

2017 WL 2684420, at *1 (Iowa Ct. App. June 21, 2017).

On de novo review, we conclude there is clear and convincing evidence

establishing the children could not be returned to Carley’s care at the time of the

termination hearing without being exposed to an appreciable risk of adjudicatory

harm. The children came to the attention of the department of human services in

April 2016 after J.W. tested positive at birth for the presence of marijuana. The

children were removed from the mother’s care later in 2016 after she tested

positive for methamphetamine. Since the time of removal, the mother

unsuccessfully attempted substance-abuse treatment on six separate occasions.

Typically, she lasted barely more than a few days in any program. She left an

inpatient program less than one week prior to the termination hearing and used

methamphetamine a few days prior to the termination hearing. In short, Carley’s

untreated substance abuse has caused physical harm to her children, precludes

her from being able to provide adequate care for her children, and creates an

appreciable risk of harm to her children. See, e.g., In re A.B., 815 N.W.2d 764,

776 (Iowa 2012) (noting drug addiction can render a parent unable to care for

children); In re L.S., No. 17-1824, 2018 WL 540968, at *1 (Iowa Ct. App. Jan. 24,

2018) (providing untreated substance abuse can create a risk of harm to the

children); In re R.P., No. 16-1154, 2016 WL 4544426, at *2 (Iowa Ct. App. Aug.

31, 2016) (affirming termination of parental rights of parent with history of drug

abuse); In re H.L., No. 14-0708, 2014 WL 3513262, at *3 (Iowa Ct. App. July 16,

2014) (affirming termination of parental rights when parent had history of

substance abuse).
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Related to or caused by her untreated methamphetamine abuse, Carley is

not able to meet the basic needs of her children. At the time of the termination

hearing, she lacked employment and housing, both of which have been persistent

issues throughout these proceedings. See, e.g., In re J.C., No. 17-0750, 2017 WL

3283395, at *3 (Iowa Ct. App. Aug. 2, 2017) (affirming termination of parental rights

where mother was unemployed and essentially homeless); In re M.T., No. 03-

1417, 2003 WL 22346539, at *2 (Iowa Ct. App. Oct. 15, 2003) (considering

mother’s inability to find employment or stable housing when determining children

could not be returned to her care); In re K.H., No. 03-0671, 2003 WL 21459582, at

*2 (Iowa Ct. App. June 25, 2003) (concluding the children would be at a continued

risk for harm when the father did not have stable employment or housing); In re

B.T., No. 01-0920, 2002 WL 985533, at *1 (Iowa Ct. App. May 15, 2002) (noting

mother only secured stable housing shortly before termination hearing and only

had a job for three months prior).

We conclude the termination of Carley’s parental rights is in the best interest

of the children. The primary concern in a termination proceeding is the best

interest of the child. See In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011).

As a general rule, “‘the needs of a child are promoted by termination of parental

rights’ if the grounds for termination of parental rights exist.” In re L.M.F., 490

N.W.2d 66, 68 (Iowa Ct. App. 1992) (citation omitted). When considering best

interest, we assess how “the parent’s ability to provide [for] the needs of the child

is affected by the parent’s mental capacity or mental condition.” In re D.W., 791

N.W.2d at 708. We also look to the parent’s past performance to gauge her future

ability to meet the child’s long- and short-term needs. In re A.B., 815 N.W.2d at
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778. Here, the evidence shows the termination of Carley’s parental rights is for

the better. There is no evidence to the contrary.

Carley contends the department of human services failed to make

reasonable efforts to return the children to her care. See Iowa Code § 232.102(9)

(providing department of human services must 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”). The reasonable-efforts standard requires the department

to “facilitate reunification while protecting the child from the harm responsible for

the removal.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).

The argument is not preserved for appellate review. Carley never objected

to the services provided and never requested different or additional services than

those provided. See In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (“If . . . a parent

is not satisfied with DHS’ response to a request for other services, the parent must

come to the court and present this challenge.”).

Independently, we conclude the department made reasonable efforts under

the circumstances. This is not a case in which the department failed to make

reasonable efforts. Instead, this is a case where the mother failed to avail herself

of the services offered to her. The evidence shows the mother frequently lost

contact with the department unless she was in a substance-abuse-treatment

facility. She made little to no effort to resume care of her children. See, e.g., In re

A.E., No. 16-0510, 2016 WL 3271887, at *2 (Iowa Ct. App. June 15, 2016)

(concluding the department made reasonable efforts where the mother admitted a

lack of contact for a long period of time due to the mother’s conduct); In re B.G.,

No. 15-0732, 2015 WL 5996936, at *4 (Iowa Ct. App. Oct. 14, 2015) (holding the
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State established reasonable efforts where services were provided but the mother

did not avail herself of the services); In re B.B., No. 12-0807, 2012 WL 2408714,

at *3 (Iowa Ct. App. June 27, 2012) (“Considering the number and variety of

services offered or provided, the delays in or failure of services attributable to the

mother, the age of the child, and the length of time the child has been removed

from the mother’s care, we find the State made reasonable efforts to reunite the

mother with her daughter.”).

We affirm the juvenile court order terminating the mother’s parental rights.

AFFIRMED.