In the Interest of T.M., Minor Child, E.H., Mother, M.M., Father

IN THE COURT OF APPEALS OF IOWA

No. 16-1609
Filed December 21, 2016

IN THE INTEREST OF T.M.,
Minor child,

E.H., Mother,
Appellant,

M.M., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Charles D.

Fagan, District Associate Judge.

A mother and a father separately appeal termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Roberta J. Megel, State Public Defender, Council Bluffs, for appellant

mother.

Scott D. Strait, Council Bluffs, for appellant father.

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

Attorney General, for appellee State.

Phil Caniglia, Council Bluffs, guardian ad litem for minor child.

Considered by Danilson, C.J., and Doyle and McDonald, JJ.
2

DOYLE, Judge.

The mother and the father separately appeal the termination of their

parental rights to their child, T.M. They claim the State failed to prove the

statutory grounds for termination, and termination is not in the child’s best

interests because of their bonds with the child.

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

A.M., 843 N.W.2d 100, 110 (Iowa 2014). The three-step statutory framework

governing the termination of parental rights is well established and need not be

repeated here. See In re P.L., 778 N.W.2d 33, 40-41 (Iowa 2010).

The child was born in 2012. The family came to the attention of the Iowa

Department of Human Services (DHS) in May 2015 after the DHS received a

report indicating that the father was using methamphetamine while caring for the

child, and both parents were reported to be homeless. The child was removed

from the parents’ custody and placed with the paternal grandparents, where the

child has resided ever since.

By the time of the September 2016 termination-of-parental-rights hearing,

the parents were living in an efficiency apartment and the mother was employed

at a McDonald’s restaurant. In its order terminating parental rights, the juvenile

court found:

The family has been ordered to do various services, and the
parents have not complied with the services offered. The [child in
need of assistance (CINA)] case for this child has proceeded for an
extended period of time considering [the child’s] young age with
little improvement towards reunification between the child and the
family. The child has been out of the parents’ care for sixteen of
the last twenty-two months. [Since birth, the child] has waited for
the parents to engage in services. This child needs and deserves
permanency . . . .
3

At the time of the termination-of-parental-rights hearing the
father . . . argues to the court that the efficiency apartment that they
have is adequate and the child can be returned to the home. The
apartment, which had a bed bug infestation, now has little if any
furniture and no beds. The family repeatedly indicated they would
be moving into a large residence but have not done so, which they
now blame as a failure by the DHS. [The father] also blames the
DHS for his failure to follow through with his drug screens,
substance abuse and mental health evaluations. [The father] failed
to complete any drug testing, not even offering a reason why he
failed to give the requested sample. He denies drug use but
continually fails to sign releases or provide the court any proof to
take this issue off the table. He is unemployed and would be
homeless but for the job [the mother] has managed to hold during
their involvement with the court and the DHS. [The father] refuses
to discuss any issues regarding his incarceration for a probation
violation or any other topic that he deems is irrelevant.
[The mother] also argues to the court that the efficiency
apartment that they have is adequate and the child can be returned
to the home. [The mother] has failed to complete any drug testing.
She flat out states that she does not have a drug problem and has
made a decision not to provide any drug screens or follow through
with any recommendations of her substance abuse evaluation.
She started therapy but was discharged for lack of compliance. If
she is not using she still fails to recognize the danger [the father]
presents when allowed to care for this child as it is almost certain
that he is still an active user. She has not followed through with the
recommendations of her psychological evaluation arguing they
were suggestions only and that she could choose to do them or not.
She does all of this knowing that to provide even a modicum of
proof and compliance would likely have resulted in the DHS and the
court continuing the efforts towards reunification with her.
Both parents have missed over half of the visits scheduled
with their child and the visits they made often ended early. [The
mother] initially said [the father] was using drugs and then later
recanted. [The mother] admitted to domestic violence and
controlling behavior by [the father] and again recanted. If [the
father] did any evaluations he refused to sign any releases and
then blamed the DHS for not having them. Time and time again
[the father] has been caught in lie after lie to the court and the DHS.
Both parents have attempted to obfuscate, delay and run out
the clock on this case in the irrational belief or hope that they would
gain custody of [the child] by default. The court offered services to
both parents during the entirety of the CINA case. Both parents
have failed to participate in services to correct the conditions which
led to the removal of the child and have been outright indifferent to
the court and DHS recommendations.
4

[The DHS] offered, or the court ordered, the following
services to assist the family with reunification: chemical
dependency evaluations and treatment, random drug screens,
mental health evaluations and treatment, psychological evaluations,
family, safety, risk and permanency services, relative care, family
team meetings, visitations, and social work/case management.
The parents have had sixteen months since the child was
removed to establish themselves as trustworthy, stable, and
capable of caring for their child. They have failed to do so, despite
the repeated offer and receipt of many services. There is no reason
to keep the child from having a secure, adoptive relationship with
parents who are able to meet these minimum requirements.
To return the child to the parents’ custody would subject [the
child] to adjudicatory harms of abuse or neglect. The same
problems that precipitated the child’s removal from the parents’
care—untreated chemical dependency, untreated mental health
problems, lack of appropriate housing and employment, minimal
compliance, criminal activity, incarceration, and lack of verification
or commitment—exist after over sixteen months of services. The
parents have shown that they are not prepared to care for their
child. There was no evidence that giving them additional time to
address their problems would be fruitful in the near future. There is
no bond between this child and the parents that would warrant the
court allowing for more time to reunify.
Reasonable, but unsuccessful, efforts were made to reunify
the child with the parents. The child cannot be returned to either
parent as of today’s hearing nor in the foreseeable future.

The court terminated the mother’s and the father’s parental rights pursuant

to Iowa Code section 232.116(1)(e), (f), (i), and (l) (2015), and concluded

termination of parental rights was in the best interest of the child. When the

juvenile court terminates parental rights on more than one ground, we may affirm

the order on any ground we find supported by clear and convincing evidence in

the record. See In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We choose to

address the ground for termination under section 232.116(1)(f).

To terminate parental rights under section 232.116(1)(f), the State must

show the child is four years of age or older, has been adjudicated a CINA, has

been removed from the home for a requisite period of time, and the juvenile court
5

could not return the child to the parent’s custody at the present time pursuant to

section 232.102. See Iowa Code § 232.116(1)(f). T.M. is of the requisite age,

has been adjudicated CINA, and has been removed from the parents’ home for

at least twelve of the last eighteen months. At issue is whether the State

presented clear and convincing evidence T.M. could not be returned to the

parents’ care pursuant to section 232.102. See id. § 232.116(1)(f)(4).

We agree with the juvenile court that the father’s unresolved substance-

abuse issues place the child at risk for the adjudicatory harms of abuse or

neglect. The record contains clear and convincing evidence that T.M. cannot be

safely returned to the father’s care at the present time. Throughout this case, the

mother has chosen to maintain her relationship with the father, and they were

living together at the time of the termination hearing. She believed the father

could care for the child while she was working. She has put her own interests

ahead of the safety of the child. We agree with the juvenile court’s finding that if

the mother is not using illicit drugs, “she still fails to recognize the danger [the

father] presents when allowed to care for this child as it is most certain that he is

still an active user.” The record contains clear and convincing evidence that T.M.

cannot be safely returned to the mother’s care at the present time.

The parents also argue that termination is not in the best interests of the

child due to the bond between the child and the parents. While the record

discloses a bond between the child and the parents, the record indicates

termination is in the child’s best interests. The child is in need of a permanent

placement and parents who can provide for the child’s health, safety, and welfare
6

as the child grows to adulthood. These parents have not demonstrated an ability

to provide that.

The father argues the State failed to provide sufficient evidence necessary

to establish the DHS provided reasonable reunification efforts. See id.

§ 232.102(7) (stating the DHS “shall 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 father did not preserve error for appeal on this issue. When a

parent alleging inadequate services fails to demand services other than those

provided, the issue of whether services were adequate is not preserved for

review. See In re C.H., 652 N.W.2d 144, 148 (Iowa 2002). He made no demand

for services prior to the termination of parental rights hearing. Furthermore,

when a parent alleges inadequate services, the parent should specify which

services should have been provided and what effect receipt of those services

would have had on the proceedings. Cf. Dunbar v. State, 515 N.W.2d 12, 15

(Iowa 1994) (noting a defendant claiming ineffective assistance of counsel must

state specific ways in which counsel’s performance was inadequate and identify

how competent representation probably would have changed the outcome). The

father has not specified which services should have been provided. His

argument is too general to address. Cf. id. (finding claim of ineffective assistance

of counsel too general to address where defendant did not explain how

competent representation would have changed the result). In any event, a

plethora of services were offered to the father. He simply chose to not participate

in such services. We reject his argument.
7

The father also argues the juvenile court erroneously admitted “numerous”

exhibits, but he does not specify which exhibits he refers to. The father’s

attorney had no objection to the juvenile court taking judicial notice of the CINA

court file,1 but claimed “numerous” objections were made to the exhibits

contained in that file, and he renewed those objections at the termination of

parental rights hearing. As to the CINA exhibits, the father’s claim is barred by

res judicata. See In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct. App. 1998). The

father also objected to two of the State’s exhibits offered at the termination of

parental rights hearing: exhibit 2, a list of offered/attended visits, and exhibit 3, an

August 26, 2016 DHS report to the court. The father objected on hearsay,

foundation, and reliability grounds. Reports and other writings by the DHS are

admissible in termination-of-parental-rights proceedings, notwithstanding hearsay

contained within them. See In re N.N., 692 N.W.2d 51, 54 (Iowa Ct. App. 2004).

We conclude the court did not abuse its discretion in admitting the exhibits.

After reviewing all the evidence, we agree with the juvenile court that the

State proved by clear and convincing evidence that grounds for termination exist

under section 232.116(1)(f) and termination of the parents’ parental rights is in

the child’s best interests. Accordingly, we affirm the juvenile court’s order

terminating both the mother’s and the father’s parental rights.

AFFIRMED ON BOTH APPEALS.

1
The juvenile court is authorized to judicially notice the pleadings and exhibits from
previous CINA proceedings. See In re T.C., 492 N.W.2d 425, 429 (Iowa 1992).