In the Interest of E.F., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-0656
Filed July 5, 2018

IN THE INTEREST OF E.F.,
Minor Child,

B.F., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

District Associate Judge.

A mother appeals the termination of her parental rights to her child.

AFFIRMED.

Gina E. Verdoorn of Carr Law Firm P.L.C., Des Moines, for appellant

mother.

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

Attorney General, for appellee State.

Erin E. Mayfield of Youth Law Center, Des Moines, guardian ad litem for

minor child.

Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

A mother appeals the termination of her parental rights to her child. She

contends the State failed to provide her adequate notice of the termination hearing

and prove the statutory grounds for termination by clear and convincing evidence.

She additionally contends termination is not in the child’s best interests and

requests additional time to reunify with her child.

I. Background Facts and Proceedings

E.F. was born in May 2017 and came to the attention of the Iowa

Department of Human Services (DHS) after the child tested positive for

amphetamine at birth. During DHS’s investigation, the mother admitted to

methamphetamine use throughout her pregnancy. Upon the child’s discharge

from the hospital, he was removed from the mother’s care and placed in the care

of his maternal great-grandmother. The mother previously received services as a

result of the court’s intervention with two of her older children due to her substance-

abuse issues, however she was unsuccessful with addressing those issues. Her

parental rights to those children were terminated in March 2015. This child was

adjudicated to be a child in need of assistance (CINA) on June 23 and remained

in the great-grandmother’s care.

On July 14, the child’s placement was modified to foster care because the

great-grandmother was not deemed a suitable long-term placement due to the

great-grandmother’s age and the child’s young age, along with reports that, during

a prior case, the great-grandmother was dishonest with DHS and allowed

unauthorized persons around the children placed in her care. The child was placed

and has remained in the same foster-to-adopt home since that time. The child’s
3

father was confirmed through paternity testing, but he repeatedly told DHS he

wanted nothing to do with the child or the case and has not participated in any

recommended services.

The mother was arrested in June for driving while barred. This, along with

testing positive for methamphetamine, resulted in the revocation of her bond on a

pending felony drug charge. The mother also obtained a substance-abuse

evaluation in June, which resulted in a recommendation for residential treatment.

However, she was unable to obtain services at that time due to her criminal

matters.

In August, DHS received notification the mother was in an outpatient

treatment program until such time that she was accepted into an inpatient program.

She started an inpatient program on August 23 but left after one day. In

September, the mother was on a waiting list for another inpatient program, which

recommended she attend outpatient services until she was able to start, but the

mother did not do so. The mother was to begin the inpatient program on October

2, but the mother failed to show up on that day. She was allowed to come in four

days later to begin the program. Three weeks later, while meeting with DHS, the

mother reportedly asked, “If I am not to get [the child] back, why am I here?” The

mother was accepted into recovery court on December 12 but was unsuccessfully

discharged on January 22, 2018, because she did not engage or attend and did

not maintain contact with the court team.1

1
The mother testified at the November 2017 permanency hearing that she began recovery
court in early November. However, the court order is dated December 12.
4

The court held a contested permanency hearing on November 21, 2017,

during which the mother testified she had not used methamphetamine for forty-six

days, but prior to that time, she was using it on a daily basis. She requested an

extension to allow more time for progress. Despite this period of sobriety, the court

denied the request for an extension and found the record was insufficient to

demonstrate a reasonable likelihood the mother would be able to regain custody

within the next six months due to her lack of progress in this case as well as in her

previous cases. In light of the mother’s history of drug use, other treatment

attempts, and lack of insight into her addiction, the court modified the primary

permanency goal of reunification to termination of parental rights. The court

allowed visitation to continue and the court encouraged the mother to remain in

her treatment program to address her substance-abuse issues since no final

determination had been made at that time. During the hearing, the court scheduled

a termination pretrial conference for January 10, 2018, and a termination hearing

for January 23.

On November 24, 2017, the mother did not return to the inpatient program

after receiving a pass for an off-grounds meeting. She returned the following day

and the program placed her on a behavioral management plan in which she would

be immediately discharged from the program if she left again. Though the mother

claimed she did not relapse, a urinalysis administered after she returned was

positive for methamphetamine. On December 21, the mother left the program

again and did not return. The mother was discharged from the program the

following day without having successfully completed the program. DHS has not
5

received any information about the mother reengaging in any services since

leaving the program.

Before attending the inpatient treatment program, the mother’s visits with

the child were inconsistent. While in the program, she did visit with the child four

times per week, during which DHS reported she was attentive. The mother

progressed to semi-supervised visits for a short time while she was in treatment,

but otherwise her visits were supervised. The mother has not visited with the child

since leaving the treatment program in December.

On December 20, the State petitioned the court to terminate the parental

rights of the mother and father. On January 16, 2018, the State filed a motion to

dispense with service of the petition on the mother, contending it had conducted a

reasonably diligent search for her and, despite its efforts, it was unable to locate

her. It provided an affidavit of diligent search by its investigator. The court issued

an order pursuant to Iowa Code section 232.112(1) (2017) dispensing with notice

to the mother.

On January 23, 2018, the mother and father both failed to appear for the

termination hearing. At the hearing, the mother’s counsel challenged the

sufficiency of notice to her client and asked the court for additional time to allow

the State to serve the mother by certified mail. The court denied the request. The

court only heard the testimony of the DHS worker assigned to the case. Neither

the mother’s attorney nor the guardian ad litem (GAL) offered any independent

evidence. The GAL argued in support of termination. On March 31, the juvenile

court terminated both parents’ parental rights to the child. Only the mother

appeals.
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II. Standard of Review

Appellate review of termination-of-parental-rights proceedings is de novo.

In re A.S., 906 N.W.2d 467, 472 (Iowa 2018). “We are not bound by the juvenile

court’s findings of fact, but we do give them weight, especially in assessing the

credibility of witnesses.” Id. (quoting In re D.W., 791 N.W.2d 703, 706 (Iowa

2010)). Our primary concern is the child’s best interests. In re J.E., 723 N.W.2d

793, 798 (Iowa 2006).

III. Discussion

A. Notice

The mother first claims she did not receive proper notice, asserting the State

failed to provide notice as required under Iowa Code section 232.112, and the

court therefore erred in declining to continue the termination hearing to allow the

State to effectuate proper notice.2

On November 21, 2017, the court conducted a permanency hearing. The

mother was personally present along with her counsel at that hearing. During that

hearing the January 10 termination pretrial conference and January 23 termination

hearing were scheduled. On December 20, the State filed its petition to terminate

the parental rights of the mother and father. One week prior to the termination

hearing, the State filed a motion to dispense with service, pursuant to section

232.112(1). The State provided an affidavit of diligent search from the investigator,

who attested to the attempts she made to effectuate service upon the mother. The

investigator identified she had searched national and local databases, made phone

2
The mother’s claims are based solely on statutory grounds, and she does not argue any
constitutional violations.
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calls, left messages, and went to the last known locations of the mother and left

her business card. The investigator spoke with the mother on several occasions 3

and made arrangements with her on two different occasions to deliver the notice

in person.4 On both occasions, the mother did not appear. After the second

attempt to meet in person, the mother did not respond to any further phone calls

or text messages.5 The mother’s attorney was unwilling to accept service of the

paperwork on the mother’s behalf.

The court granted the State’s motion to dispense with service, finding the

State had conducted a reasonably diligent search for the mother but her

whereabouts could not be ascertained. The mother did not appear at the

termination hearing. The mother’s attorney asked for a continuance, arguing that

although the court had already granted a motion to dispense with service, the State

had not attempted to serve the mother through certified mail and asked for a

continuance to allow for the attempt to be made at the address where the mother

acknowledged finding the investigator’s card. However, the mother’s attorney had

no knowledge of the mother’s whereabouts. The court denied the request and

proceeded with the hearing.

Section 232.112 provides:

1. [Parents] shall be necessary parties to a termination of
parent-child relationship proceeding and are entitled to receive
notice and an opportunity to be heard, except that notice may be

3
During one phone call, the investigator spoke with a woman who denied being the
mother. The mother later admitted she was the woman the investigator spoke with and
acknowledged finding the investigator’s card at one of the locations she placed it at.
4
One arrangement was to meet at the pretrial conference on January 10 as the mother
stated she would be attending. After not appearing, the mother agreed to meet at a
location of her choosing later that day.
5
The investigator also followed up twice at the location where the mother indicated she
had found the investigator’s business card, but no one answered the door.
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dispensed with in the case of any such person whose name or
whereabouts the court determines is unknown and cannot be
ascertained by reasonably diligent search.
....
3. Notice under this section shall be served personally or shall
be sent by restricted certified mail, whichever is determined by the
court to be the most effective means of notification.

“When any aspect of a normal service process is dispensed with, a review of the

facts is required to determine the appropriate level of diligence by the state and

the type of notice required.” In re R.E., 462 N.W.2d 723, 724 (Iowa Ct. App. 1990).

“The notice must be reasonably calculated to apprise the parent of the pending

proceeding in light of the circumstances concerning that particular parent.” Id.

After a de novo review of the record, we agree with the court’s determination

to dispense with service, as the State made a reasonably diligent effort to notify

the mother and her whereabouts could not be ascertained. The mother had actual

knowledge of both the pretrial conference and the termination hearing, as she was

personally present at the November 21 dispositional hearing during which the

pretrial conference and termination hearing were scheduled. On two occasions,

the mother failed to appear at locations she had selected to meet the investigator

for personal service. The mother’s attorney had no current information of the

mother’s whereabouts, and although the mother acknowledged finding the

investigator’s business card at one address, there is no indication in the record

that this address was her residence. Additionally, no one answered the door

during the several times the investigator went to that location. After she left the

inpatient facility in December, there is no information as to the mother’s residence

or whereabouts and no reasonable likelihood certified mail would have been
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delivered or accepted by her. We therefore affirm the court’s order to dispense

with service.

B. Statutory Grounds for Termination

“Termination of parental rights under chapter 232 follows a three-step

analysis.” D.W., 791 N.W.2d at 706. “First, the court must determine if a ground

for termination under section 232.116(1) has been established.” Id. If a ground

for termination is established, the court must, secondly, apply the best-interests

framework set out in section 232.116(2) to decide if the grounds for termination

should result in termination of parental rights.” Id. at 706–07. “Third, if the statutory

best-interests framework supports termination of parental rights, the court must

consider if any of the statutory exceptions set out in section 232.116(3) should

serve to preclude termination of parental rights.” Id. at 707. We “shall 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.” Iowa Code § 232.116(2). “Even though the

court may determine that termination is appropriate under section 232.116(2), the

court need not terminate a parent’s parental rights if any of the circumstances

contained in section 232.116(3) exist.” In re P.L., 778 N.W.2d 33, 37 (Iowa 2010).

“We will uphold an order terminating parental rights if there is clear and

convincing evidence supporting the grounds for termination under Iowa Code

section 232.116(1).” D.W., 791 N.W.2d at 706. “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.” In re A.B.,

815 N.W.2d 764, 776 (Iowa 2012). In this case, the juvenile court terminated the
10

mother’s parental rights to the child pursuant to Iowa Code section 232.116(1)(g)

and (h).

To terminate under section 232.116(1)(h), the State must show by clear and

convincing evidence (1) the child is three years of age or younger, (2) the child has

been adjudicated a CINA, (3) the child has been removed from the parent’s care

for at least six of the last twelve months, or the last six consecutive months and

any trial period at home has been less than thirty days, and (4) the child cannot be

returned to the parent’s custody at the present time. “At the present time” has

been interpreted to mean at the time of the termination hearing. See D.W., 791

N.W.2d at 707.

The mother does not dispute the establishment of the first three elements

of paragraph (h). She contests element four, contending the State failed to prove

the child could not be returned to her care at the time of the hearing because no

evidence was presented concerning her living conditions and DHS was unaware

whether the mother was engaged in substance-abuse or mental-health services.

Upon our de novo review, we find there is clear and convincing evidence

the child could not be returned to the mother’s care at the time of the termination

hearing. The mother asserts that prior to December 22, she was living at the

inpatient treatment and complying with expectations. She, however, neglects to

mention anywhere in her petition on appeal that on November 24, she failed to

return to the program after an off-grounds meeting. She also neglects to mention

that when she returned the next day, she tested positive for methamphetamine

despite her contention she had not relapsed. The mother again left the inpatient
11

treatment in December with the knowledge that if she did so, she would be

discharged from the program.

Since her discharge, DHS has had no contact with the mother and was

unsure of where she was living at the time of the hearing. DHS also had no

information about whether she was continuing with any services for her substance-

abuse and mental-health issues. The mother’s attorney was unable to provide any

information as to her whereabouts and had not communicated with the mother

since the permanency hearing in November. She was discharged from recovery

court in January 2018 because she failed to engage or attend. Nothing in our

record shows where the mother has been residing since she left the inpatient

treatment program or whether she has sought other treatment options since that

time. The mother has not seen the child since she left the inpatient program in

December.

Because we find the child could not be returned to the mother’s care at the

time of the termination hearing, we affirm the court’s termination of the mother’s

parental rights pursuant to section 232.116(1)(h).

C. Best Interests and Extension

Next, 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.” “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
12

capable of providing.’” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In re

Dameron, 306 N.W.2d 743, 745 (Iowa 1981)).

“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.” A.B., 815 N.W.2d at 777 (quoting P.L., 778 N.W.2d at 41). “[A]t

some point, the rights and needs of the children rise above the rights and needs

of the parent.” In re C.S., 776 N.W.2d 297, 300 (Iowa Ct. App. 2009). If the child

has been placed in foster care, we consider the extent to which the child has

become integrated into that family. Iowa Code § 232.116(2)(b). For integration,

we look at how long the child has been living with the foster family and consider

the desirability of continuity for the child. Id. § 232.116(2)(b)(1).

The mother argues termination was not in the best interests of the child as

reports established she was nurturing and caring and showed affection during her

visitation with the child. The mother also argues that termination is not in the child’s

best interests as the child has biological family, including the child’s grandmother

and great-grandmother, and termination would legally sever those relationships.

She further contends that because of the progress she made while in inpatient

treatment, she should have been provided additional time to reunify with the child.

The mother’s substance-abuse issues brought the child to the attention of

DHS and the court, as he tested positive for amphetamine at birth. She was

provided services during the pendency of her older children’s cases and failed to

maintain progress to address her severe substance-abuse issues, which ultimately

resulted in the termination of her parental rights to those children. While the mother
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was able to make some progress while in inpatient treatment during this case, she

has not been able to sustain meaningful progress. The mother left her treatment

program without authorization just a few days after the November 21 permanency

hearing and, despite her assertion that she had not relapsed, she tested positive

for methamphetamine.

Since she left the inpatient program in December, her whereabouts have

been unknown and she has not reengaged in services to address her substance-

abuse issues. The mother is not currently able to provide a safe, supportive, and

structured home and is not in a position to be able to do so in the foreseeable

future. We must consider each child’s needs with a sense of urgency. See C.B.,

611 N.W.2d at 495. Further, the loss of the relationship of extended family

members is not a factor to consider under section 232.116(3).

There is also nothing in the record that indicates the child has suffered or

will suffer any detrimental effect due to the lack of contact with the mother. The

child has never lived with his mother, as he was placed with his maternal great-

grandmother when he was discharged from the hospital, five days after his birth.

The mother never progressed beyond semi-supervised visits, which were allowed

only for a short time. Only with the structure of the inpatient treatment program

was the mother able to maintain consistent visitation with the child. Once she left

the program in December, she has not seen the child.

The mother also admitted during the November 21 permanency hearing she

did not have a strong bond with the child. DHS reported the child has bonded with

his foster parents, who are willing and able to adopt him. The child “has never had
14

a permanent home. Termination will allow [him] to achieve permanency.” A.M.,

843 N.W.2d at 113.

The mother also contends she should be granted additional time to reunify

with the child given the progress she made in inpatient treatment. If, following a

termination hearing, the court does not terminate parental rights but finds there is

clear and convincing evidence that the child is a CINA, the court may enter an

order in accordance with section 232.104(2)(b). Iowa Code § 232.117(5). Section

232.104(2)(b) affords the juvenile court the option to continue placement of a child

for an additional six months if the court finds “the need for removal . . . will no

longer exist at the end of the additional six-month period.”

The mother was aware the court modified the permanency goal to

termination in November, and the court cautioned her to continue with her

treatment as that decision was not final. Despite knowing this, only a few days

after the court hearing, the mother voluntarily left without authorization, failing to

return to the program after a day-pass to attend on off-site meeting. She tested

positive for methamphetamine upon her return. Less than a month later, the

mother left the program with the knowledge that she would be unsuccessfully

discharged if she left without authorization again. There is no evidence she has

reengaged in any treatment program since that time. She has not visited with the

child, and there is no evidence in the record she has inquired of the child’s well-

being since leaving the program. There is no evidence that she has stable

housing, and her current whereabouts are unknown. Upon our de novo review,

we agree with the juvenile court’s determination that termination is in the best
15

interests of the child. Additionally, the need for removal continues to exist, and we

do not find that additional time would change those circumstances.

Because the mother does not contest whether any statutory exceptions set

out in section 232.116(3) apply, we do not address them. See P.L., 778 N.W.2d

at 40 (identifying that if a party does not dispute a particular step in the three-step

termination framework, appellate courts need not address the issue). We therefore

affirm the termination of her parental rights.

AFFIRMED.