                       IN THE COURT OF APPEALS OF IOWA

                                       No. 19-0296
                                   Filed June 5, 2019


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

A.L., Father,
       Appellant,

D.W., Mother,
      Appellant.
________________________________________________________________


          Appeal from the Iowa District Court for Polk County, Colin J. Witt, District

Associate Judge.


          A mother and father separately challenge the termination of their parental

rights. AFFIRMED ON BOTH APPEALS.


          Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant

father.

          Elizabeth A. Ryan of Benzoni Law Office, P.L.C., Des Moines, for appellant

mother.

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

Attorney General, for appellee State.

          Chuck Fuson of Youth Law Center, Des Moines, attorney and guardian ad

litem for minor child.



          Considered by Vogel, C.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       A mother and father separately challenge the termination of their parental

rights to their minor child.

I.     Background Facts and Proceedings

       The mother and father are the parents of A.L., born in July 2015. The child

came to the attention of the Iowa Department of Human Services (DHS) in January

2017. As the mother was in the process of being arrested for operating a motor

vehicle while intoxicated, she disclosed to police that she had left her five children

unattended in a hotel room. The children’s ages ranged from ten years old to one

year old, the youngest being the child in interest.1 When police arrived at the hotel,

they found the children in a room in deplorable condition. Soiled diapers, dirty

laundry, and trash littered the floor; the room had a foul odor; mattresses were torn

apart; and electrical wires were exposed. The younger children’s diapers were

soiled and had not been changed for several hours. Police believed the mother

had likely left the children unattended on previous occasions. The police also

believed the older children’s responses to questions suggested the mother

coached the children on what to say. The mother was subsequently charged with

multiple counts of child endangerment and jailed. After its investigation, DHS

returned founded child-abuse assessments against the mother for denial of critical

care in relation to each child.2


1
  The father in this case is only the father of A.L.
2
  DHS previously returned several founded child-abuse assessments against the mother
in March 2011 for denial of critical care. The mother had allowed an individual charged
with child endangerment and assault to take care of one of her children. The mother was
aware the individual was working with DHS regarding issues with his own children. Later,
DHS returned a founded assessment against this individual after he committed domestic
violence against the mother when the children were present.
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      The court ordered the children’s immediate removal from the mother’s care

and placed the children in the temporary custody of DHS. None of the children’s

fathers were in a position to have the children placed with them, so the children

ultimately ended up in foster care. DHS provided supervised visitation for the

mother and father of A.L.      DHS recommended substance-abuse treatment,

individual therapy, and parenting classes for the mother and recommended

substance-abuse treatment and individual therapy for the father.

      The court adjudicated A.L., along with the other children, to be a child in

need of assistance (CINA) in February. Because none of the children’s fathers

were in a position to care for the children when they were removed from the

mother’s care, the court also considered this a removal from all the fathers’ care.

      The father of A.L. suffers from several mental-health issues and takes

medication. He also has a history of drug use, including cocaine, heroin, and

methamphetamine. The father suffered a stroke when he was twenty-one years

old due to excessive methamphetamine use. The father attended treatment but

relapsed in May 2017. He also had a mental breakdown and was subsequently

hospitalized in a psychiatric unit. The father stopped attending treatment and

therapy services after claiming his counselor suggested they go buy some

methamphetamine together. The father struggled with housing and employment.

After his relapse, the father became inconsistent with his visitation, missing a

month’s worth of visits. He informed DHS this was due to needing some personal

time. Due to his behaviors, DHS believed the father had relapsed again. The

mother reported that domestic violence was present in all of her relationships,

including with the father. The father denied physically abusing the mother but
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admitted the relationship with his paramour was volatile and he had physically

abused her. He was arrested in June for throwing a brick through his paramour’s

window.

       In June, the mother was arrested for driving while barred as a habitual

offender and spent over a month in jail. Once released, she was homeless. She

stayed with family or friends, including an uncle who was an active alcoholic. In

July, the mother reported she was pregnant.        In August, she entered Hope

Ministries shelter and began engaging in its substance-abuse and mental-health

services. Due to the mother’s progression in services, her visitation with the

children increased and ultimately the two oldest children were returned to her care

in December. The mother also gave birth to another child in December. The three

youngest children were returned to her care in January 2018.             The court

conditioned the children’s return to the mother’s care on her continued placement

at Hope Ministries.

       After the children were placed with the mother, she struggled to balance her

treatment with meeting the children’s needs. She often blamed her inability to gain

insight and attend required classes on the fact that she had six children. The room

she shared with the children was in disarray and appeared to be on a path to the

deplorable conditions found in the hotel, which led to the children’s removal and

DHS’s intervention. In May, the mother was discharged from Hope Ministries after

being unable to successfully complete its program. She failed to follow through on

expectations, had unauthorized medication, and failed to take accountability. Due

to having no housing, the mother became despondent and threatened to kill

herself. She was hospitalized for a short period of time on a psychiatric evaluation
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hold. All the children were again removed from her care. A.L. was placed with the

paternal grandmother, and the other children were placed in foster care. When

DHS spoke with the mother about the importance of ongoing therapy, the mother

reported she had reengaged in mental-health services. However, her therapist

reported to DHS that she had not seen the mother in over a year and the mother

failed to attend a recent appointment. The mother then began sessions with a new

therapist.

       The father was incarcerated on two occasions for forgery during the

proceedings, in December 2017 and August 2018. In its October permanency

order, the court found the father was not in a position to have custody and that

both the mother and father were not making reasonable progress to achieve the

permanency goal of reunification or complying with other provisions of the

permanency plan. The court modified the permanency goal from reunification to

termination of parental rights. In December, the State petitioned to terminate both

parents’ rights. It sought to terminate the mother’s rights pursuant to Iowa Code

section 232.116(1)(h) and (l) (2018) and the father’s rights pursuant to section

232.116(1)(b), (e), and (h).

       At the beginning of the termination hearing, the State requested A.L.’s case

be continued to allow more time for reunification with the parents. The State

explained that its position on A.L.’s case shifted due to the continuance of A.L.’s

younger sibling’s case. The State was willing to continue the hearing on A.L. to

allow the parents time to show consistency in their progress, as both parents had

been taking positive steps. The court refused to continue A.L.’s case, determining

that A.L. had been out of the parents’ care for approximately eighteen of the last
                                           6


twenty-four months and needed permanency. Following the hearing, the juvenile

court terminated the mother’s and father’s parental rights to A.L.3 The mother and

father separately appeal.

II.    Standard of Review

       We review termination-of-parental-rights proceedings 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 A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “Our

primary concern is the best interests of the child.” In re J.E., 723 N.W.2d 793, 798

(Iowa 2006).

       “[R]eview of termination of parental rights under Iowa Code chapter 232 is

a three-step analysis.” In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). We must

first determine if “any ground for termination under section 232.116(1) has been

established.” Id. If 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.” Id. at 219–20. “Finally, if we do find

that the statutory best-interest framework supports the termination of parental

rights, we consider whether any exceptions in section 232.116(3) apply to preclude

termination of parental rights.” Id. at 220.




3
 The mother’s parental rights to four older children were terminated at the hearing. The
court continued the termination hearing of the mother’s youngest child.
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III.   Analysis

       A.     Mother’s Appeal

       The mother challenges the sufficiency of the evidence supporting the

statutory grounds for termination cited by the juvenile court, section 232.116(1)(h)

and (l). “On appeal, we may affirm the juvenile court’s termination order on any

ground that we find supported by clear and convincing evidence.” In re D.W., 791

N.W.2d 703, 707 (Iowa 2010). We choose to focus on paragraph (h), which

requires the State to establish:

               (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 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.
               (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.

Iowa Code § 232.116(1)(h). “At the present time” has been interpreted to mean

“at the time of the termination hearing.” D.W., 791 N.W.2d at 707.

       The mother does not challenge the State’s establishment of the first three

elements. She challenges the establishment of the fourth, claiming there was

insufficient evidence presented that the child could not be returned to her custody

at the time of the termination hearing. She also argues she received ineffective

assistance of counsel from her attorney during the termination hearing because

the attorney failed to address or correct the court’s perception that the mother’s

nod during the court’s summation of A.L.’s case was indicating her agreement with

the court’s summation.
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       “The test for ineffective assistance of counsel in termination cases is

generally the same as in criminal proceedings.” In re A.R.S., 480 N.W.2d 888, 891

(Iowa 1992). “In order to establish an ineffective assistance claim, it must be

shown that (1) counsel’s performance is deficient, and (2) actual prejudice

resulted.”   Id.   “We presume that counsel’s conduct falls within the range of

reasonable professional competency,” and it is the mother’s burden to prove

ineffective assistance. Id.

       Near the conclusion of the hearing, the court made several findings on the

record:

       [The mother] is doing well. She is making mental health therapy
       gains, better than she has her entire life. But I interpret her
       statement, which was unsolicited when she said I could not have
       both children in my care today. I agree that would be too much. That
       was a statement she was making from maintaining her mental health.
       And I see her nodding.

       The mother claims that her nod indicated her agreement to a staggered

return of the two youngest children to her care, not that she agreed she could not

care for both of the children at the time of the hearing. However, immediately prior

to the mother’s nod, the court clarified with the mother’s attorney about the

mother’s position and the following exchange occurred:

              [COUNSEL]: Thank you, Your Honor. [The mother] is ready
       to have her children returned to her care today, Your Honor. She’s
       addressing her mental health needs and working—
              THE COURT: Well, your client just said she could not have
       both returned to her care today at the same time.
              [THE MOTHER]: Correct.

We find the mother has not established deficient performance as the mother’s

attorney did not need to address the nod or correct the court’s perception when

the mother herself verbally agreed with the court’s statement.         There is no
                                           9


evidence the court misinterpreted the mother.           Accordingly, the ineffective-

assistance-of-counsel claim fails.

       Further, while the mother argues that the court’s willingness to return her

youngest child to her care at a future date is evidence that A.L. should have been

returned to her care at the time of the termination hearing, we do not agree. The

court was not willing to return the youngest child at the time of the termination

hearing because it wanted more visitation to occur before the child would be

returned to ensure a positive transition. In contrast with the youngest sibling, A.L.’s

case has been pending and A.L. had been out of the mother’s care for a much

longer period of time.

       During the pendency of A.L.’s case, the mother has not been able to show

sustained progress and stability when any of her children have been in her care.

When the children were returned to the mother’s care, her progress in treatment

waned and she was unable to balance taking care of her children and her issues.

While the mother has engaged in mental-health services, she did not do so

consistently until a few months prior to the termination hearing. Based upon our

de novo review of the record, we find sufficient evidence was presented to

establish A.L. could not be returned to the mother’s care at the time of the

termination hearing.

       The mother also contends termination of her parental rights to A.L. is not in

the child’s best interest. In our consideration of whether termination is in the child’s

best interest, “there is no all-encompassing best-interest standard.” In re P.L., 778

N.W.2d 33, 40 (Iowa 2010). We “give primary consideration to the child’s safety,

to the best placement for furthering the long-term nurturing and growth of the child,
                                             10


and to the physical, mental, and emotional condition and needs of the child.” Iowa

Code § 232.116(2). “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.’” In re C.B., 611 N.W.2d 489, 495 (Iowa 2000) (quoting In re

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

       The mother admitted she has not remained consistent and stable with

following through with services and treatment during the pendency of this case.

She recognized that she has had periods of doing well followed by periods where

she struggled. We, like the district court, recognize the progress the mother has

made over the pendency of this case, but the mother has not demonstrated the

sustained progress that would warrant a delay in A.L.’s permanency. Throughout

this case, A.L. has been in multiple placements. Given the child’s young age, he

needs “permanency, emotional stability and to attach as part of a family.” In re

E.B.L., 501 N.W.2d 547, 551 (Iowa 1993). “We will not gamble with [A.L.’s] future

by asking [the child] to continuously wait for a stable biological parent, particularly

at such a tender age.” In re D.S., 806 N.W.2d 458, 474 (Iowa Ct. App. 2011).

Based upon our review of the record, we find termination is in the child’s best

interest.4




4
  The mother’s appellate brief provided the court with information outside of the closed
record. We do not consider those facts that were not a part of the district court’s record in
reaching our conclusion. See Iowa R. App. P. 6.801 (the record on appeal consists of “the
original documents and exhibits filed in the district court case . . . , the transcript of
proceedings, if any, and a certified copy of the related docket and court calendar entries
prepared by the clerk of the district court.”); In re Marriage of Keith, 513 N.W.2d 769, 771
(Iowa Ct. App. 1994) (“[A]ny matters outside the record on appeal are disregarded.”).
                                         11


       B.     Father’s Appeal

       The father likewise challenges the sufficiency of the evidence supporting

the statutory grounds for termination of his parental rights under Iowa Code section

232.116(1)(b), (e), and (h).      As to paragraph (h) he only challenges the

establishment of the final element—that the child could not be returned to his care

at the time of the termination hearing. He contends that A.L. could have been

returned to him at the time of the termination hearing or within a reasonable amount

of time.

       At the time of the termination hearing, the father had just attended

orientation at a new job and did not have a stable residence. The father had “couch

surfed” with his friends and, at the time of the termination hearing, he was staying

at his current paramour’s apartment. The father is not listed on the lease. The

apartment has only one bedroom, and the father admitted it would be crowded

since it would be the father, his paramour, and their daughter, in addition to A.L. if

the child was returned to his care. The father admitted A.L. would possibly have

to sleep in the same bed with him and his paramour. His testimony throughout the

termination hearing indicated that he wanted the child returned to the mother’s

care—not his own. Further, the father only completed substance-abuse treatment

successfully just prior to the termination hearing.         He completed multiple

substance-abuse evaluations during the pendency of this case, but his prior

attempts to follow through and complete a treatment program failed. Like the

mother, the record indicates the father has a history of cycling through periods of

doing well and then doing poorly; he has been unable to sustain a long period of

progress. Only a few months prior to the termination hearing did the father begin
                                          12


to respond to services. “A parent cannot wait until the eve of termination, after the

statutory time periods for reunification have expired, to begin to express an interest

in parenting.” C.B., 611 N.W.2d at 495. Upon our de novo review, we find

sufficient evidence to establish that the child could not be returned to the father at

the time of the termination hearing.

       To the extent the father questions whether termination is in the child’s best

interests, the father, like the mother, has not shown consistent and sustained

progress in dealing with his issues. He was incarcerated multiple times throughout

the pendency of this case, interrupting his ability to be a consistent presence in the

child’s life. Further, he only recently was able to complete a substance-abuse

treatment program successfully. The father has not had stable employment and

housing throughout the pendency of the case. At the time of the termination

hearing, he was staying with his paramour and his daughter and the father

admitted the home would be crowded if A.L. was returned to his custody. Upon

our review, we find termination is in the child’s best interest.

       To the extent that the father is requesting additional time for reunification,

section 232.104(2)(b) permits the juvenile court to continue the child’s placement

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.” Upon our de novo

review, we decline to delay the child’s permanency any further, and we decline to

grant the father an extension.

       Neither parent contends that an exception to termination pursuant to section

232.116(3) warrants a different result. Therefore, we do not need to address that
                                      13

step. See P.L., 778 N.W.2d at 40. Accordingly, we affirm the termination of both

parents’ parental rights.

       AFFIRMED ON BOTH APPEALS.
