In the Interest of L.P., Minor Child, K.P., Father, S.J., Mother

IN THE COURT OF APPEALS OF IOWA

No. 14-1694
Filed November 26, 2014

IN THE INTEREST OF L.P.,
Minor Child,

K.P., Father,
Appellant,

S.J., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clarke, Judge.

A mother and father separately appeal the termination of their parental

rights to their son, who was removed from their care at birth. AFFIRMED ON

BOTH APPEALS.

Theodore R. Stone, Cedar Falls, for appellant-father.

Brett Schilling of Schilling Law Office, P.C., Waterloo, for appellant-

mother.

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

Attorney General, Thomas J. Ferguson, County Attorney, and Kathleen A. Hahn,

Assistant County Attorney, for appellee.

Timothy M. Baldwin of Juvenile Public Defender Officer, Waterloo,

attorney and guardian ad litem for minor child.

Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

L.P. has never lived with his biological parents. Removed from their

custody shortly after his birth in January 2014, L.P. has remained in family foster

care his whole life. The parents have not visited L.P. since April 2014 because of

unresolved substance abuse and mental health issues. In September 2014, the

juvenile court terminated the parental rights of both the father and mother, finding

“anything short of adoption would be contrary to the best interests of the child.”

The father and mother filed separate petitions to appeal the termination

order. The father contends the Iowa Department of Human Services (DHS) has

not made reasonable efforts to reunite him with his son. Specifically, he argues

the DHS had an obligation to seek an involuntary substance abuse commitment

to address his methamphetamine addiction. The father also asserts the DHS

decision to suspend visitations violated his right to due process. The mother

challenges the statutory grounds and argues termination was not in L.P.’s best

interest. As a back-up argument, she contends deferral of his permanent

placement is preferable to termination of her parental rights.

In a thorough and well-written termination order, the juvenile court

concluded: “these parents do not have the skill or ability to provide safely for this

child. They have no concept of the care and nurturing a child needs. They

cannot care for themselves, nor have they expended any effort to change.”

Because our review of the record leads us to the same conclusion and we find no
3

merit to the parents’ claims on appeal, we affirm the termination order as to both

the father and the mother.

I. Background facts and proceedings

L.P.’s parents did not interact well with their newborn son, prompting

hospital staff to contact the DHS. Nurses noted the parents participated in only

two of the infant’s first twelve feedings. The hospital staff also expressed

concern about the parents’ untreated mental health needs, as well as their

substance abuse history. The mother reported using methamphetamine and

marijuana four months into her pregnancy. The father had a criminal history and

stayed in a residential facility until 2010. The parents were homeless until shortly

before L.P.’s birth when they moved into a house shared by eight adults and two

pit bulls.

On January 24, 2014, the court confirmed L.P.’s removal, stating: “These

young parents are in need of many services. Those services include but are not

limited to updated mental health evaluations, updated substance abuse

evaluations, couple’s counseling and parent education.” The mother

acknowledged committing assaults the previous summer when she was not

taking her psychotropic medications. The father had a prior conviction for

domestic abuse, and his behavior at the hospital was described as “erratic,

belligerent and paranoid.”

The juvenile court adjudicated L.P. as a child in need of assistance (CINA)

on February 18, 2014. The court directed the parents to obtain updated mental

health and substance abuse evaluations, and to participate in FSRP (family
4

safety, risk, and permanency) services, as well as any other services deemed

helpful to achieve reunification with their son.

The parents made little progress over the next few months. They missed

many visits scheduled with L.P. When they did attend visits, the mother was

unsure how to handle the infant, while the father was more comfortable with the

interactions. Parenting skills education was an expectation set by the court soon

after L.P.’s removal, but the parents had only attended a single class by the time

of the termination hearing in August 2014.

The parents also failed to regularly attend L.P.’s medical appointments

when he was being treated for RSV bronchiolitis in February and March. In

March, the foster parents observed L.P. having tremors, which doctors attributed

to his exposure to methamphetamine in utero. The parents did not attend the

doctor’s appointment assessing the infant’s neurological damage because they

were “coming down from meth.”

Drug abuse continued to hamper the parents’ efforts at reunifying with L.P.

The father tested positive for methamphetamine on February 7, 2014. The

mother tested positive for methamphetamine on March 14 and March 25. Both

parents completed substance abuse evaluations on March 20, 2014, but did not

follow through with recommended treatment. Neither has participated in drug

testing since April 2, 2014.

The DHS temporarily suspended the parents’ visits with L.P. on April 25,

2014, because their continuing drug use appeared to be triggering a physical

reaction in their son. L.P. was extremely fussy during visits with his parents. The
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foster parents told the case worker L.P. continued to cry after visits, until he was

bathed and dressed in clean clothes. The case worker testified: “it was our

impression that he was having a physical reaction to the parents coming to the

visits either under the influence of substances or not appropriately showering or

getting it out of their system and so that skin-to-skin contact was having a

physical impact on [L.P.].” The case worker told the parents if they complied with

drug testing and demonstrated that they were “clean,” the visits would be

reinitiated.

In addition to their methamphetamine addictions, both parents struggled

with other mental illnesses. The mother and father participated in psychological

evaluations in April 2014. The mother’s diagnoses included methamphetamine

abuse; schizophrenia disorder, paranoid type; unspecified mood disorder;

attention deficit/hyperactivity disorder; negativistic, codependent personality traits

and neglect of child. The mother testified she agreed with some of the mental

health diagnoses, but disagreed with the majority of them. She also testified the

doctor prescribed medications for her mental health conditions, but she was not

taking them because her Medicaid was “deactivated.”

The father’s diagnoses included methamphetamine use; negativistic, self-

defeating and depressive personality traits; generalized anxiety disorder; major

depressive disorder, moderate, recurrent; unspecified psychotic disorder;

attention deficit/hyperactivity disorder; neglect of child; and partner relational

problems. The father testified the psychological evaluation was “a joke” and he

disagreed with the diagnoses. The father admitted being addicted to
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methamphetamine, but he did not believe the addiction affected his personality,

saying he was just “really, really irritated” because he did not like having his son

“taken away.”

The State filed petitions to terminate parental rights on July 31, 2014,

alleging grounds existed under Iowa Code sections 232.116(1)(e), (h), (k), and (l)

(2013). At a termination hearing on August 28, 2014, the court heard testimony

from the DHS case worker, the FSRP worker, the mother, and the father. At the

end of the hearing, the attorneys for both parents asked the court to defer

permanency for L.P. while each parent worked to “get their life on track.”

On September 24, 2014, the juvenile court rejected the parents’ requests

for more time and granted the State’s petitions to terminate parental rights,

relying on sections 232.116(1)(e),1 (h)2 and (l).3 The parents now appeal.

1
Under this paragraph, the court may order termination if: (1) the child has been
adjudicated CINA, (2) the child has been removed from the physical custody of the
child’s parents for a period of at least six consecutive months, and (3) there is clear and
convincing evidence that the parents have not maintained significant and meaningful
contact with the child during the previous six consecutive months and have made no
reasonable efforts to resume care of the child despite being given the opportunity to do
so.
2
Under this paragraph, the court may order termination if: (1) the child is three years of
age or younger, (2) the child has been adjudicated CINA under section 232.96; (3) the
child has been removed from the physical custody of the child’s parents for at least six
months of the last twelve months, or for the last six consecutive months and any trial
period at home has been less than thirty days; and (4) there is clear and convincing
evidence that the child cannot be returned to the custody of the child’s parents as
provided in section 232.102 at the present time.
3
Under this paragraph, the court may order termination if: (1) the child has been
adjudicated a CINA pursuant to section 232.96 and custody has been transferred from
the child’s parents for placement pursuant to section 232.102; (2) the parent has a
severe substance-related disorder and presents a danger to self or others as evidenced
by prior acts; and (3) there is clear and convincing evidence that the parent’s prognosis
indicates that the child will not be able to be returned to the custody of the parent within
a reasonable period of time considering the child’s age and need for a permanent home.
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II. Legal analysis

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

843 N.W.2d 100, 110–111 (Iowa 2014). We give weight to the juvenile court’s

fact findings and credibility assessments, but they are not binding on our

decision. Id. We may uphold a termination order if the State has offered clear

and convincing evidence supporting a ground for termination under Iowa Code

section 232.116. See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence

qualifies as “clear and convincing” if no serious or substantial doubts exist as to

the conclusions of law or the correctness of the conclusions drawn from it. Id.

In terminating parental rights, Iowa courts follow a three-step analysis. In

re P.L., 778 N.W.2d 33, 39 (Iowa 2010). First, the court must determine if the

State has established a ground for termination under section 232.116(1). Id.

Second, if the evidence satisfies the statutory elements, the court must apply the

best-interest framework set out in section 232.116(2). Third, if the statutory best-

interest framework supports termination, the court must consider if any factors in

section 232.116(3) serve to preclude termination of parental rights. Id.

A. Termination of the mother’s relationship with L.P.

The mother challenges the first and second steps of the juvenile court’s

analysis. She contends the State did not meet its burden to prove all elements

under paragraphs (e), (h) or (l). She also argues termination was not in L.P.’s

best interest because she has bonded with the child. If we reject those claims, in

the alternative, she asks for additional time for reunification.
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We turn first to the statutory grounds for termination. When the juvenile

court terminates parental rights based on several subdivisions of section

232.116(1), we may affirm the order on any ground we find supported by the

record. D.W., 791 N.W.2d at 707. In this case, we find the juvenile court

properly based its termination on paragraph (h). The mother does not dispute

L.P is younger than three, has been adjudicated CINA under section 232.96, and

has been out of her custody for six consecutive months. Instead she focuses on

the fourth element, that L.P. cannot be returned to her custody as provided in

section 232.102 at the present time. Iowa Code § 232.116(1)(h). The mother

asserts on appeal that she and the father have a “living arrangement available to

them” and claims her parenting skills have improved recently because she has

had a “babysitter-type role” with another child in the household.

We are not persuaded by the mother’s argument. The living arrangement

she refers to is a spare room in the home of the father’s ex-partner and that

partner’s new husband and her children. Even if the mother is gaining skills in

child care, she has not demonstrated those with her own son because she has

not taken the initiative to undergo drug testing since April. The mother’s

argument does not address the fundamental impediments to reunification, which

are the unresolved drug addictions and mental health challenges faced by both

her and L.P.’s father. A child cannot be safely placed in the home of a

methamphetamine addict who is actively using. See In re A.B., 815 N.W.2d 764,

776 (Iowa 2012).
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L.P. has been away from his parents since he was born. The record

shows he could not be returned to the care of his parents at the time of the

hearing. We find clear and convincing evidence the State established grounds

for termination of the mother’s parental rights under Iowa Code section

232.116(1)(h).

After we decide a statutory ground for termination exists, we still must

determine if termination is in the child’s best interests. Iowa Code § 232.116(2);

see P.L., 778 N.W.2d at 39. In evaluating this issue, we first consider the child’s

safety, and then assess what would be “the best placement for furthering the

long-term nurturing and growth of the child, and . . . the physical, mental, and

emotional condition and needs of the child.” P.L., 778 N.W.2d at 39 (quoting

Iowa Code § 232.116(2)). The mother argues termination of her parental rights

was not in L.P.’s best interests because they “have bonded with one another.”

At the time of the August 2014 hearing, the mother had not had a visit with

L.P. for four months because the mother had not complied with the DHS

requirement for drug testing. It is hard to assess whether the mother continued

to have a bond with L.P. after such a gap in contact. But bond or not, the child’s

safety is our primary consideration when evaluating best interests. The record

shows the mother is not a safe custodian for L.P. As the juvenile court observed:

“The child has been placed in a concurrent home where he is loved, nurtured,

and his safety is not in question.” On these facts, we find termination of the

mother’s parental rights was in L.P.’s best interests.
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Finally, as an alternative, the mother asks that she and the father “be

given additional time to work on the requests of the Department of Human

Services through a deferral of permanency in this matter.” Iowa Code section

232.104(2)(b) sets forth the option of continuing placement after a permanency

hearing, allowing the juvenile court to

[e]nter an order pursuant to section 232.102 to continue placement
of the child for an additional six months at which time the court shall
hold a hearing to consider modification of its permanency order. An
order entered under this paragraph shall enumerate the specific
factors, conditions, or expected behavioral changes which comprise
the basis for the determination that the need for removal of the child
from the child’s home will no longer exist at the end of the
additional six-month period.

To continue placement for six months, the statute requires the court to determine

the need for removal will no longer exist at the end of the extension. In re

A.A.G., 708 N.W.2d 85, 92 (Iowa Ct. App. 2005). The juvenile court could not

make such a determination on this record. Neither parent has embraced any

behavioral changes that would promote stability in their general mental health

conditions, or specifically as to their drug addictions. Six more months would not

put them in the position to be safe parents. Accordingly, we affirm the

termination of the mother’s parental rights.

B. Termination of the father’s relationship with L.P.

The father argues the DHS fell short of its obligation to make reasonable

efforts to unify the family in two ways. First, the father contends the DHS should

have pursued an involuntary substance abuse commitment against him.

Second, he claims the DHS did not make reasonable efforts in ensuring ongoing

visitations between the parents and L.P. We will address each claim in turn.
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The DHS is required to “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.” Iowa Code § 232.102(7); In re C.B., 611 N.W.2d 489, 493 (Iowa 2000).

The reasonable-efforts concept focuses on services to improve parenting. C.B.,

611 N.W.2d at 493. But it also includes visitation designed to facilitate family

reunification while protecting the child from harm. Id. Our supreme court does

not interpret the reasonable-efforts mandate as a strict substantive requirement

that must be satisfied before a parent’s rights may be terminated. See id.

Instead, the State must show reasonable efforts by the DHS as a part of its

ultimate proof the child cannot be safely returned to the care of a parent. Id.

We turn first to the father’s argument concerning an involuntary

commitment. The father testified he was a methamphetamine addict. When

asked what it would take for him to “get off meth,” he responded: “It would

probably take finding a job and getting the hell out of this town.” The juvenile

court noted in its termination decision that the father was “emaciated and fidgety”

during his testimony. The DHS case worker testified she encouraged the father

to pursue in-patient drug treatment, but he resisted, saying “he already knew

what he needed to do” which was to get a job and then he would stop using. The

worker did not believe reasonable efforts encompassed pursuing a substance

abuse commitment against a parent, and testified that DHS supervisors have

advised: “that’s not our position to commit individuals to treatment.” On appeal,

the father asserts “it is unreasonable to expect a drug addict to seek help on his

or her own.”
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We decline to hold the DHS had an obligation to commence proceedings

for involuntary commitment or treatment under Iowa Code section 125.75 for the

parent of a child adjudicated CINA as part of its reasonable-efforts requirement.

Our court has previously, in an unpublished opinion, rejected a similar claim that

the DHS should have pursued a substance abuse commitment because it was

unreasonable to expect an addicted parent to seek help on his or her own. See

In re T.F., No. 03–0500, 2003 WL 21076398, at *1–2 (Iowa Ct. App. 2003).

While the State is required to provide reasonable reunification services,

parents have an obligation “to demand other, different or additional services prior

to the termination hearing.” In re S.R., 600 N.W.2d 63, 65 (Iowa Ct. App. 1999).

In this case, the DHS offered reasonable services aimed at helping the parents

confront and overcome their addictions, including random drug testing,

substance abuse evaluations, and treatment options. The father submitted to

drug testing only three of nineteen possible times. The father refused to

participate in in-patient treatment and attended only a couple of sessions of

extended outpatient treatment. His appellate argument that the DHS should

have pursued involuntary commitment does not square with the settled principle

that parents must demand the services they believe will help eliminate the need

for removal of their child. Accordingly, we decline to grant the father relief on this

argument.

We turn next to his argument that reasonable efforts were not made to

ensure visitation between parent and child. The father claims he was denied due

process by the DHS decision to curtail visitation based on “unsupported”
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allegations L.P. suffered a physical reaction to methamphetamine on the parents’

clothing or skin during visits. The father does not cite any cases or provide any

analysis to support his due process claim, nor does he explain how he preserved

error on that constitutional issue. “Constitutional questions must be preserved by

raising them at the earliest opportunity after the grounds for objection become

apparent.” In re C.M., 652 N.W.2d 204, 207 (Iowa 2002). The father did not

preserve error on his due process claim and we do not consider it.

On the statutory claim that the DHS breached the reasonable-effort

requirement by suspending visitation, we reject the father’s position. The parents

continued to use methamphetamine after the removal of their child. An addiction

to methamphetamine is antithetical to safe parenting. See In re J.S., 846 N.W.2d

36, 42 (Iowa 2014) (explaining a juvenile court could reasonably determine

parent’s active addiction to methamphetamine was “imminently likely” to result in

harmful effects to the physical wellbeing of the child in the parent’s care). The

foster parents and FSRP worker noted L.P. was unusually fussy during some

visits with the parents, cried uncontrollably after those visits, and only obtained

relief after being bathed and dressed in clean clothes. This evidence supported

the DHS decision to suspend visits until the parents could show they were not

exposing their child to second-hand methamphetamine residue. The DHS

advised the parents that if they provided clean drug screens, they could resume

visits with their son. The parents had refused to submit to drug testing since

April, knowing their refusal would mean not seeing L.P. The father is

complaining of a self-inflicted wound.
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For the reasons detailed above, we affirm the juvenile court’s decision

terminating the parent-child relationship between L.P. and his mother and father.

AFFIRMED.