In the Interest of R.W. and R.N., Minor Children, R.N., Father, S.W., Mother ( 2016 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 15-2024
    Filed March 9, 2016
    IN THE INTEREST OF R.W. and R.N.,
    Minor Children,
    R.N., Father,
    Appellant,
    S.W., Mother,
    Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld,
    District Associate Judge.
    A mother and father separately appeal the termination of their parental
    rights. AFFIRMED ON BOTH APPEALS.
    W. Eric Nelson of the State Public Defender’s Office, Cedar Rapids, for
    appellant father.
    Robert W. Davison, Cedar Rapids, for appellant mother.
    Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
    Attorney General, for appellee State.
    Robin L. O’Brien Licht, Cedar Rapids, for minor children.
    Considered by Tabor, P.J., and Bower and McDonald, JJ.
    2
    BOWER, Judge.
    A mother and father separately appeal the termination of their parental
    rights to two children, R.W. and R.N.        The mother claims the court erred in
    terminating her parental rights pursuant to Iowa Code section 232.116(1)(h)
    (2015) and termination was not in the children’s best interests. The father claims
    the State did not provide reasonable efforts to facilitate reunification with the
    children. We affirm the juvenile court’s order.
    We review de novo proceedings terminating parental rights. 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 herein. See In re P.L., 
    778 N.W.2d 33
    , 40 (Iowa 2010). The juvenile
    court issued a thorough and well-reasoned order terminating the mother's and
    father’s parental rights; we adopt the findings of fact and conclusions of law as
    our own.
    A.     Grounds for Termination
    The juvenile court terminated the mother’s and father’s parental rights
    pursuant to Iowa Code section 232.116(1)(h). Termination is appropriate under
    section 232.116(1)(h) where the State proves the following:
    (1) The child is three years of age or younger.
    (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 six of the last twelve months, or for the
    last six 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 as
    provided in section 232.102.
    3
    Only the mother challenges the termination pursuant to 232.116(1)(h),
    claiming R.W. was not three years of age or younger at the time the termination
    order was entered (element 1), and clear and convincing evidence does not
    support the termination (element 4). Concerning the mother’s first claim, we
    measure the child’s age at the time of the termination hearing, not at the time the
    termination order was entered. See In re N.N., 
    692 N.W.2d 51
    , 53 (Iowa Ct. App.
    2004) (finding Iowa Code section 232.116(1)(h) applies to children who are less
    than three years of age at the time of the termination hearing). The termination
    hearing occurred on September 17, 2015. R.W. attained the age of four after
    conclusion of the termination hearing. Therefore section (h) applies to R.W.
    Concerning the mother’s second issue, the juvenile court found clear and
    convincing evidence supported the termination, reasoning:
    The parents have struggled throughout this case to make
    appropriate lifestyle changes and minimize the risk to their children.
    [R.W.] was removed from parental care from February 13, 2013, to
    November 13, 2014. Despite a lengthy trial home placement,
    which began on June 9, 2014, [the mother] was unable to handle
    both children and they were removed on November 26, 2014, at
    her request. There have been no trial home placements since and
    visitation between both parents and the children has been fully
    supervised. [The mother] has continued to have mental health
    concerns. She has demonstrated poor insight and judgment into
    how her mental health issues affect her ability to care for her
    children. [The parents] have a domestically violent relationship.
    Despite a no contact order, they continue to have ongoing contact.
    [The mother] seems to think that because [the father] is the
    children’s father, that she has some obligation to make sure that he
    sees them, even when that is not in their best interests. [The
    mother] continues to be overwhelmed with her parenting. She
    continues to drive without a driver’s license and has been arrested
    several times for this issue. If [the children] returned to parental
    care today, or anytime in the near future, they would continue to
    meet grounds for adjudication. Neither parent has demonstrated
    they are able to safely, effectively and consistently meet their
    needs, much less the needs of their children.
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    We agree with the juvenile court and affirm the termination of the mother’s
    parental rights pursuant to Iowa Code section 232.116(1)(h).
    B.     Best Interests
    The mother also claims the termination of her parental rights is not in the
    best interests of the children and the closeness of the parent-child bond makes
    termination improper. See Iowa Code § 232.116(2), (3). In determining the best
    interests of the child, we give primary consideration to “the child[ren’]s safety, to
    the best placement for furthering the long-term nurturing and growth of the
    child[ren], and to the physical, mental, and emotional conditions and needs of the
    child[ren].” See Iowa Code § 232.116(2); 
    P.L., 778 N.W.2d at 37
    . On these
    issues, the juvenile court reasoned:
    The Court must make a determination as to what the future
    will most likely hold for the children if they are returned to the care
    of a parent. “The best evidence for this determination is the
    parents’ past performance, because that performance may indicate
    the quality of future care ‘they are’ capable of giving.” In re J.K.,
    
    495 N.W.2d 108
    , 110 (Iowa 1993), In re N.M., 
    483 N.W.2d 812
    , 814
    (Iowa 1992). Visitation has been unable to progress based on the
    concerns that led to the filing of these cases: noncompliance with
    case permanency plan expectations, violence, mental health issues
    and general lack of stability. [The mother] has not been able to
    handle the children and her mental health. . . . [R.W.] is four years
    old. She was three at the time of trial. [R.N.] is seventeen months.
    Neither child can self-protect.
    The court finds that it is in the children’s best interest to
    terminate parent-child relationship. In making this determination
    the court has given consideration to the children’s safety, to the
    best placement for furthering the long-term nurturing and growth of
    the children, and to the physical, mental, and emotional condition
    and needs of the children.
    . . . . The children are not strongly bonded to either parent.
    They are able to bond with their caregivers. [R.N] is so young he
    will transition easily into a forever home. For these reasons the
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    court finds there are no exceptions that allow the court not to
    terminate.
    We agree with the juvenile court, the mother did not have a strong bond
    such that termination should be denied.
    C.     Reasonable Efforts
    The father claims the State failed to make reasonable efforts to facilitate
    reunification by disallowing adequate visitation with the children.      Iowa Code
    section 232.102(5)(b) requires the State to make reasonable efforts to preserve
    the family before removing the child from the home. After removal, the State
    must make reasonable efforts to reunify the family as quickly as possible. Iowa
    Code § 232.102(7). In determining whether reasonable efforts have been made,
    the court considers “[t]he type, duration, and intensity of services or support
    offered or provided to the child and the child’s family.” 
    Id. § 232.102(10)(a)(1).
    The reasonable efforts requirement is not viewed as a strict substantive
    requirement of termination.     In re C.B., 
    611 N.W.2d 489
    , 493 (Iowa 2000).
    Instead, it impacts the State’s burden of proving those elements of termination
    that require reasonable efforts. 
    Id. The State
    must show it made reasonable
    efforts as part of its proof the child cannot be safely returned to the parents’ care.
    
    Id. While the
    State has an obligation to make reasonable efforts, it is the parents’
    responsibility to demand services if they are not offered. In re H.L.B.R., 
    567 N.W.2d 675
    , 679 (Iowa Ct. App. 1997). A parent’s challenge to the sufficiency of
    the services offered should be made at the time the services are offered. In re
    C.D., 
    508 N.W.2d 97
    , 101 (Iowa Ct. App. 1993).
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    Concerning the visitation offered by the State, the court noted:
    [The father] has fully supervised visits due to his lack of progress
    on case plan goals. He declined to see his children from November
    2013 to July 2015 when the termination was filed. Nor did he
    maintain contact with the Department despite multiple attempts to
    engage him in services. [The father] has visits once a week for one
    hour at the Juvenile Justice Center due to concerns that people
    may want to kill him, his being in possession of guns and for the
    protection of the provider. As a condition of resuming visits, [the
    father] had to meet with the provider three times to demonstrate his
    commitment. At visits, he lets the children run. [R.W.] will not listen
    to him.     He is unable to redirect her.         [R.W.]’s therapist
    recommends that the contact be ended.
    The father did not engage with services until after he was served with the
    termination petition. The father attended six visitations prior to the termination
    hearing and did not request additional visitations until approximately one month
    prior to the termination hearing.       Given the father’s demonstrated lack of
    initiative, and the visitation provided by the State, we find the State made
    reasonable efforts in providing visitation to the father.
    We affirm the juvenile court’s termination of the mother’s and the father’s
    parental rights.
    AFFIRMED ON BOTH APPEALS.