In the Interest of F.K. and F.K., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 19-1158
Filed September 25, 2019

IN THE INTEREST OF F.K. and F.K.,
Minor Children,

F.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman

Salic, District Associate Judge.

A mother appeals the termination of her parental rights to her two minor

children. AFFIRMED.

Elizabeth A. Batey of Vickers Law Office, Greene, for appellant mother.

Thomas J. Miller, Attorney General, and Anna T. Stoeffler (until

withdrawal) and Mary A. Triick, Assistant Attorneys General, for appellee State.

Cynthia Schuknecht of Noah, Smith, Schuknecht & Sloter, P.L.C., Charles

City, guardian ad litem for minor children.

Considered by Potterfield, P.J., and Mullins and Greer, JJ.
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POTTERFIELD, Presiding Judge.

A mother appeals the juvenile court order terminating her parental rights to

her two minor children, F.K. and F.K. The juvenile court terminated her parental

rights under Iowa Code section 232.116(1)(e), (h), and (k) (2019).1 The mother

argues the State has not met its burden to show by clear and convincing

evidence that (1) the mother has “not maintained significant and meaningful

contact” with the children under paragraph (e)(3); (2) the children could not be

returned to her custody at the time of the termination hearing under paragraph

(h)(4); and (3) the mother’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” under

paragraph (k)(3). She further argues terminating her parental rights is not in the

children’s best interest and the juvenile court erred by refusing her request for a

six-month extension rather than terminating her parental rights.

I. Factual History and Background Proceedings

At the time of the termination hearing, the older child was almost two and

one-half years old and the younger child was almost one and one-half years old.

The mother and the children lived together with L.H., an unrelated adult man

whom the mother later admitted was her significant other, and with whom the

mother has been involved in domestic violence incidents on more than one

occasion.

The mother has a long history of mental-health issues. She is a person

with lower cognitive ability and was temporarily under the guardianship of her

1
The juvenile court also terminated the parental rights of the children’s father under the
same provisions. The father does not appeal.
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parents as an adult. She has been diagnosed with bipolar personality disorder,

schizophrenia, attention-deficit hyperactivity disorder, and oppositional defiant

disorder. She had five psychiatric hospitalizations between spring 2014 and

spring 2015 and fled Iowa to avoid involuntary committal proceedings during that

period. The mother also has a history of attempting or threatening to attempt to

commit suicide. In March 2018, the Iowa Department of Human Services (DHS)

became involved after the mother attempted suicide by drug overdose while the

children were in her care. The mother limited the services to only Family Safety,

Risk, and Permanency (FSRP) and psychiatry services, and then did not engage

in the services offered.

The events leading to these proceedings occurred in July 2018. On July

20, the mother was committed for psychiatric hospitalization after she threatened

to commit suicide by jumping into a river with one of the children. DHS removed

the children from L.H.’s home where they were living with their mother and L.H.

that same day after DHS staff smelled marijuana on them. The children were

placed with their current foster parents, where they have remained.

The children were adjudicated children in need of assistance (CINA) in

September 2018. The juvenile court ordered the mother to obtain a substance-

abuse evaluation, participate in FSRP services, the Families Together program,

and Crisis Intervention Services, and show that she provided adequate financial

support and appropriate housing for the children. At first, the mother did not

engage in any services. She did not participate in FSRP, Families Together, or

Crisis Intervention Services. She missed most of the scheduled visits with the
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children, did not get a substance abuse evaluation performed as requested, and

was not receptive to suggested changes to her parenting.

The mother’s participation in services improved by the December 2018

permanency hearing. She began attending substance-abuse and mental-health

treatment and was regularly taking her psychiatric medications. She still refused

to accept advice on changing her parenting, however, and often was not attentive

or prepared during visits. During one visit, for example, the mother tried to feed

the younger child a French fry, despite the child being less than a year old. DHS

staff informed the mother the child could not eat the French fry, but the mother

fed it to the child anyway, leading it to choke.

Between the CINA adjudication and the permanency hearing, the mother

struggled to maintain employment and stable housing. She worked at a local

factory, but by the time of the permanency hearing she was unemployed and

receiving social security disability benefits. Her benefits were managed by L.H.,

who DHS believed was misusing them. The mother refused to name a different

payee.

At the December 2018 permanency hearing, the mother was granted an

additional six months to work toward regaining custody. But by the permanency

review hearing in March 2019, the mother had not made much additional

progress. She was more attentive to the children during her visits with them but

still struggled to come prepared and to recognize their needs. She refused to

sign the paperwork necessary to enroll the children in daycare. She only

attended mental-health and substance-abuse treatment sporadically. She still

had not participated in Families Together, and had only attended some of her
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scheduled meetings with FSRP. The juvenile court determined the mother was

unlikely to improve in the foreseeable future, and directed the State to petition for

termination.

The termination hearing took place on June 20, 2019. By that time, the

mother still had not shown she could take care of the children. She still came to

many visits unprepared, and still cut almost all the visits short to take the children

back to daycare. In the termination order, the juvenile court noted the mother

“seems fixed on what she wants to do, regardless of the children’s needs” during

visits. She occasionally met with FSRP but still refused to change her parenting

or work on issues such as budgeting. She maintained her relationship with L.H.,

and was involved in a series of domestic violence incidents in the days before the

termination hearing, including the mother threatening suicide. The juvenile court

terminated the mother’s parental rights to both children under Iowa Code section

232.116(1)(e), (h) and (k), and the mother appealed.

II. Standard of Review

We review termination proceedings de novo. In re L.T., 924 N.W.2d 521,

526 (Iowa 2019). In our review, our fundamental concern is the best interests of

the children at issue. In re M.D., 921 N.W.2d 229, 232 (Iowa 2018).

III. Discussion

a. Statutory Grounds for Termination

The mother challenges each of the three grounds the juvenile court

terminated her parental rights under. Because we conclude the State met its

burden to show the children could not be returned to her custody at the time of

the termination hearing under section 232.116(1)(h), it is unnecessary to address
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her arguments as they relate to section 232.116(1)(e) and (k). See In re A.B.,

815 N.W.2d 764, 774 (Iowa 2012) (“When the juvenile court terminates parental

rights on more than one statutory ground, we may affirm the juvenile court’s

order on any ground we find supported by the record.”).

Under section 232.116(1)(h), termination is warranted where (1) the child

is three years of age or younger, (2) has been adjudicated a CINA, (3) has been

removed from the parent’s care for at least six of the previous twelve months,

and (4) there is “clear and convincing evidence that the child cannot be returned

to the custody” of the parent. The mother does not dispute that the State has

met its burden of proof to establish the first three elements. She only argues the

State has not met its burden of proof for the fourth element.

On our de novo review, we conclude the State has met its burden to show

by clear and convincing evidence that the children could not have been returned

to the mother’s custody on the day of the termination hearing. See In re L.M.,

904 N.W.2d 835, 839 (Iowa 2017) (noting “at the present time” as used in section

232.116(1)(h)(4) refers to the time of the termination hearing). The record shows

the mother does not have the means to provide for the children. At the time of

the termination hearing, the mother had only recently become employed. She

testified that she earned $10 per hour and worked between twenty-seven and

thirty-six hours per week. The juvenile court did not believe the mother could

provide for herself, let alone the children, and noted she now had less financial

stability than when she had social security disability benefits, as well as food,

housing, and medical assistance, which she no longer received. While on

benefits, the mother routinely cut supervised visits with the children short so that
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they could eat lunch at daycare, telling FSRP staff during one visit that she had

run out of “food money.” Despite her difficulties with money, the mother refused

to engage FSRP services related to budgeting and money management.

Our conclusion is also supported by the fact the mother continues be in a

relationship and live with L.H., despite denying both facts up until the termination

hearing. See, e.g., In re T.S., No. 14-1517, 2015 WL 791698, at *8 (Iowa Ct.

App. Feb. 25, 2015) (noting substance-abuse and domestic violence issues

“alone are sufficient to support termination under paragraph (h)”); In re A.R.C. III,

No. 13-0786, 2013 WL 3458222, at *5 (Iowa Ct. App. July 10, 2013) (terminating

a parent’s rights under section 232.116(1)(h) because domestic violence

between the parents was “likely to cause substantial emotional and psychological

damage” to the child). The mother and L.H. have been involved in several

domestic violence incidents throughout their relationship. During one of the

incidents in the week before the termination hearing, the mother threatened to kill

herself and burn down her and L.H.’s home. During another, L.H. had to be

removed from the home. He later broke back in and had a disagreement with the

mother over property. Neither the mother nor L.H. were arrested or charged in

relation to these incidents, but the juvenile court noted the incidents

demonstrated “clear instability that continued to exist,” which prevented the

children from being returned to the mother’s custody. We agree and find the

State has met its burden.

b. Best Interest

Having determined the State has met its burden under Iowa Code section

232.116(1)(h), we must next consider whether termination of the mother’s
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parental rights to the children is in their best interest. In re A.S., 906 N.W.2d 467,

473 (Iowa 2018) (“If we determine ‘that a ground for termination has been

established, then we determine whether the best-interest framework as laid out in

section 232.116(2) supports the termination of parental rights.’” (quoting In re

M.W., 876 N.W.2d 212, 219–20 (Iowa 2017))).

The children are both young, and need a parent who can provide them

with a safe and stable home. Based on the mother’s past performance, she has

not shown that she can be that parent. See A.B., 815 N.W.2d at 778 (“Insight for

the determination of the child’s long-range best interests can be gleaned from

‘evidence of the parent’s past performance for that performance may be

indicative of the quality of the future care that parent is capable of providing.’”

(quoting In re C.B., 611 N.W.2d 489, 495 (Iowa 2000))). As described above, the

mother continues to struggle with mental-health issues and is still in a destructive

and unhealthy relationship with L.H. The mother has not shown she can identify

the children’s needs, and has shown throughout these proceedings that she is

unwilling to accept guidance from DHS or FSRP or change her practices.

The children have waited nearly a year for the mother to resolve her

issues. She has not done so, and it is not in the children’s best interest to make

them wait for a permanent home any longer. See In re A.M., 843 N.W.2d 100,

112 (Iowa 2014) (“It is well-settled law that we cannot deprive a child of

permanency after the State has proved a ground for termination under section

232.116(1) by hoping someday a parent will learn to be a parent and be able to

provide a stable home for the child.” (quoting In re P.L., 778 N.W.2d 33, 40

(Iowa 2010))); see also A.B., 815 N.W.2d at 778 (“It is simply not in the best
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interests of children to continue to keep them in temporary foster homes while

the natural parents get their lives together.” (quoting In re C.K., 558 N.W.2d 170,

175 (Iowa 1997))). The children have formed a close bond with their foster

parents, who provide a safe and nurturing home for them and have stated they

are willing to adopt the children. See Iowa Code § 232.116(2)(b) (permitting the

court to consider the extent a child has bonded with their foster parents when

determining whether termination of parental rights is in the child’s best interest).

We conclude termination of the mother’s parental rights is in the children’s best

interest.

c. Six-Month Extension

Finally, the mother argues she should have been given a six-month

extension to work toward reunification. Under Iowa Code section 232.104(2)(b),

the court may authorize a six-month extension if “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.” As noted above, many issues the mother was asked to work

on—her mental health, her housing and financial instability, her unhealthy

relationship with L.H., and her inability to recognize the children’s needs and care

for them in an age-appropriate manner—have not been sufficiently addressed,

despite already receiving one six-month extension. Based on her inability to

resolve these issues in the time she has already been given, we conclude

additional time is not warranted.

AFFIRMED.