In the Interest of K.J. and H.H., Minor Children, R.H., Mother, S.H., Father

IN THE COURT OF APPEALS OF IOWA

No. 13-1085
Filed April 30, 2014

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

R.H., Mother,
Appellant,

S.H., Father,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Constance C. Cohen,

Associate Juvenile Judge.

A mother appeals the termination of her parental rights to her son and

daughter. AFFIRMED.

Joseph Vogel of Turner & Vogel, Des Moines, for appellant-mother.

Erin M. Carr of Carr & Wright, P.L.C, Des Moines, for appellant-father, of

H.H.

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

General, John Sarcone, County Attorney, and Andrea Vitzthum, Assistant County

Attorney, for appellee.

John P. Jellineck, Polk County Juvenile Defender’s Office, Des Moines,

attorney and guardian ad litem for minor children.

Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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TABOR, J.

Rebecca appeals from the juvenile court order terminating her parental

rights to her daughter H.H., who is now five years of age, and her son K.J., who

is now ten. She challenges the statutory grounds and argues terminating her

rights is not in the best interest of the children. We find the State proved by clear

and convincing evidence the children could not be returned home under Iowa

Code section 232.116(1)(f). We also conclude the short-term safety and long-

term emotional health of H.H. and K.J. are best achieved by terminating the

mother’s rights. Accordingly, we affirm.

I. Background Facts and Proceedings

Rebecca, who is now thirty-nine, has suffered from mental health

problems since she was a child herself. She has been diagnosed with bipolar

disorder and borderline personality traits, as well as post traumatic stress

disorder. Her mental illness has required hospitalization on approximately ten

occasions—the most recent being in May 2013.

Her children first came to the attention of the juvenile court in April 2012

when their welfare was endangered by the threat of violence in the home. H.H.’s

father, Steve, had a history of assaulting Rebecca, resulting in a court order

prohibiting him from contact with her. Rebecca repeatedly aided Steve’s

violations of the no-contact order by allowing him to return home—exposing the

children to the risk of domestic violence.

Rebecca also had a string of founded child abuse reports from the

Department of Human Services (DHS). First, in 2004, newborn K.J. was
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discovered to have an illegal drug in his system. The DHS determined Rebecca

was the person responsible for the exposure. In 2008, the DHS found Rebecca

denied K.J. critical care and failed to provide proper supervision. Most recently,

in March 2011, the DHS found Rebecca denied critical care and failed to

supervise both H.H. and K.J.

The juvenile court granted temporary removal of the children on April 27,

2012. The State filed a child in need of assistance (CINA) petitions on behalf of

both H.H. and K.J. on April 30, 2012 pursuant to Iowa Code section

232.116(6)(b)(2) and (n) (2011). Following an uncontested hearing on May 24,

2012, the district court adjudicated both children as CINA and affirmed the

removal. Rebecca stipulated to the CINA determination.

At an October 18, 2012, review hearing the court found Rebecca needed

to be more consistent in attending therapy appointments. The mother admitted

she was currently unable to meet her children’s needs. Rebecca’s contact with

the children remained supervised.

At a January 16, 2013, review hearing, the court found the children were

thriving in their placement with a maternal aunt, but they missed their mother.

Rebecca and the children began having overnight visits but Rebecca was unable

to demonstrate the necessary stability in her contact with the children. Rebecca

failed to attend therapy consistently. Rebecca would also promise the children

she would attend events and appointments with them and then would fail to show

up, greatly upsetting the children. K.J’s therapist testified when Rebecca does

not show up, “[K.J.] gets very upset if his mom doesn’t show up or if he hasn’t
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seen her as promised and his aggression escalates. In turn, many sessions are

working on coping skills to decrease the anger outbursts.” Rebecca has not

progress to trial home placements at any time since the children’s removal.

The State filed its petition to terminate parental rights on April 29, 2013.

Less than one month later, on May 22, 2013, police were called to Rebecca’s

home following a report of a suicide attempt. Rebecca called her mental health

provider and informed her she wanted to hurt herself. The mental health provider

called a cab to take Rebecca to the hospital, but Rebecca did not come to the

door. A locksmith was called and Rebecca was found sleeping in her bed. She

admitted taking four Ativan tablets and to being suicidal. Medical personnel

transported Rebecca to the hospital where she remained in in-patient care for

one week. She minimized the event afterward, saying she only took the pills to

calm her anxiety.

On June 5, 2013, the court held a contested termination hearing. The

guardian ad litem supported the State’s petition to terminate. On June 26, 2013,

the district court terminated the parental rights of Rebecca to both children under

Iowa Code sections 232.116(1)(d), (f), and (k) (2013). The court also terminated

the rights of K.J.’s father Ronald, who is not challenging the order, and the rights

of H.H.’s father, Steve, and all putative fathers. Steve’s attorney filed an

application for extension of time to file his petition on appeal. Our supreme court

denied that application on April 8, 2014, and transferred the case to our court on

April 17, 2014. We now address Rebecca’s petition on appeal.
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II. Standard of Review

We conduct a de novo review of termination of parental rights

proceedings. In re H.S., 805 N.W.2d 737, 745 (Iowa 2011). Although we are not

bound by the juvenile court’s findings of fact, we give them weight, especially in

assessing witness credibility. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). We

will uphold an order if the evidence in support of termination is “clear and

convincing,” which is defined as the absence of any “serious or substantial

doubts” as to its correctness or to the conclusions drawn from it. Id.

III. Analysis

The juvenile court relied on three statutory grounds for termination. We

need only find termination under one ground to affirm. In re S.R., 600 N.W.2d

63, 64 (Iowa Ct. App. 1999). We find clear and convincing evidence supports

termination under subsection (f). Under that provision, the State must prove:

(1) the child is four years of age or older; (2) the child has been
adjudicated a child in need of assistance pursuant to section
232.96; (3) the child has been removed from the physical custody
of the child’s parents for at least twelve of the last eighteen months,
or for the last twelve consecutive months and any trial period at
home has been less than thirty days; (4) there is clear and
convincing evidence that at the present time the child cannot be
returned to the custody of the child’s parents.

Iowa Code § 232.116(1)(f)

Rebecca does not contest the first three factors. She argues the State did

not prove by clear and convincing evidence the children cannot be returned to

her custody. See In re L.E.H., 696 N.W.2d 617, 620 (Iowa Ct. App. 2005)

(interpreting “present time” as the time of the termination hearing).
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Rebecca has faced a life-long struggle with serious mental illness.

Throughout the juvenile court case, she has been inconsistent in taking her

medications and has missed many therapy sessions. Given her most recent

hospitalization, it is apparent the children could not be safely returned to her care

at the time of the termination hearing. Her suicide attempt came just weeks

before the termination hearing and only a month before the court filed its

termination order.

In addition and perhaps related to her mental health problems, Rebecca

has engaged in relationships with violent men. Despite recognizing Steve poses

a threat, three months before the termination hearing, Rebecca was still allowing

him into her home. She downplays his danger, saying he is only violent when he

is under the influence. The relationship was so significant to Rebecca that she

took Steve’s last name, though they were never married. Her lack of judgment

on this front raises a legitimate question concerning her ability to maintain a safe

environment for the children. See In re J.E., 723 N.W.2d 793, 802 (Iowa 2006)

(Cady, J., concurring specially) (stating a child’s safety and need for a permanent

home are the defining elements in a child’s best interests).

We also reject Rebecca’s assertion that termination of her rights is not in

the children’s best interests. See Iowa Code § 232.116(2). “Section 232.116(2)

requires us to ‘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.’” In re P.L.,

778 N.W.2d 33, 40 (Iowa 2010).
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The juvenile court recognized Rebecca loves her children and they love

her. But the strength of their bond does not outweigh the children’s need for

safety, consistency, and permanency. If anything, the closeness of their

relationship makes Rebecca’s pattern of disappointing the children by not

showing up at their activities or not following through on her promises all the

more poignant and painful. Rebecca has failed to make the necessary strides to

provide for the children as she struggles to keep her own life on an even keel.

The juvenile court found it significant Rebecca had only completed four

weeks of a twenty-one week STEPPS (Systems Training for Emotional

Predictability and Problem Solving) program intended to improve her mental

health and social functioning. The juvenile court also noted Rebecca attended

only three of K.J.’s fourteen appointments and only two of H.H.’s seven

appointments. Along with this, Rebecca has missed several visitation

opportunities. Rebecca has received substantial support services through the

DHS, yet continues to miss vital opportunities to help herself and to be there for

her children. Parenting must be constant, responsible, and reliable. In re L.L.,

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

Finally, Rebecca asks the court for additional time for reunification, or in

the alternative, requests a guardianship be granted to the children’s maternal

aunt, who has been caring for them. We find Rebecca has had significant time,

almost two years, to achieve reunification and has been unable to make enough

progress to resume full-time parenting. Therefore, additional time is not

appropriate.
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A guardianship with a relative is not an appropriate permanency option in

this case. Guardianship is not a legally preferable alternative to termination of

parental rights and adoption. In re L.M.F., 490 N.W.2d 66, 67–68 (Iowa Ct. App.

1992). Termination is the preferred solution when a parent is unable to regain

custody within the time frames of chapter 232. See In re C.K., 558 N.W.2d 170,

174 (Iowa 1997) (“An appropriate determination to terminate a parent-child

relationship is not to be countermanded by the ability and willingness of a family

relative to take the child.”). Also, the relationship between Rebecca and her

sister, who has been the children’s caretaker, is strained at times. The maternal

aunt has expressed an unwillingness to supervise the visits between Rebecca

and the children. We conclude termination of the mother's parental rights is in

the child's best interests.

AFFIRMED.