                     IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0795
                               Filed August 17, 2016


IN THE INTEREST OF K.M.,
Minor child,

K.M., Mother,
      Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.




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

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




         Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant

mother.

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

Attorney General, for appellee State.

         Meegan M. Langmaid-Keller of Keller Law Office, P.C., Altoona, for minor

child.




         Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                               2


DOYLE, Judge.

          A mother appeals the termination of her parental rights to her child. 1 She

argues the juvenile court violated her due process rights by the manner in which

it conducted the permanency and termination hearings. She also argues she

was not provided with reasonable efforts toward reunification, and she

challenges the denial of her request for a six-month extension. Because we find

the child’s best interests are served by delaying permanency for six months

rather than by terminating the mother’s parental rights, we reverse the

termination order and remand for further proceedings.

          I. Background Facts and Proceedings.

          The mother, who was twenty years old at the time of the termination-of-

parental-rights hearing, began using methamphetamine when she was fourteen

years old.        In 2010, she entered a ninety-day substance-abuse-treatment

program, but she was released after just three weeks.                 Due to her ongoing

substance-abuse issues, she was adjudicated a child in need of assistance

(CINA). The mother was able to abstain from using methamphetamine while in

various placements with the Iowa Department of Human Services (DHS), but she

relapsed when she left those placements.

          The mother was charged with various drug-related crimes based on

events that occurred in August and September 2013. In August 2014, shortly

after giving birth to the child at issue, the mother pled guilty in two separate

cases to a four crimes—possession of methamphetamine with intent to deliver,

possession of marijuana, introducing a controlled substance into a detention

1
    The father’s parental rights were also terminated. He is not a party to this appeal.
                                          3


facility, and possession of hydrocodone. The court sentenced her to a term of

not more than ten years on the possession charge. The mother also received a

combined prison term of not more than six years in prison on the remaining

charges. The court suspended the sentences, and the mother was placed on

probation.

       During the first several months of the child’s life, the mother maintained

her sobriety. Unfortunately, her sobriety did not last, and she relapsed by the

end of 2014.     The mother reported that by January 2015, she was using

methamphetamine daily and marijuana occasionally.

       The DHS became involved with the family in March 2015 due to the

mother’s methamphetamine use.           The child tested positive for exposure to

methamphetamine, and the juvenile court removed the child from the home and

placed the child with the paternal grandmother.        The child remained in that

placement throughout these proceedings, and the paternal grandmother voiced

her willingness to adopt the child, if necessary.

       In    March   and   April   of   2015,   the   mother   continued    to   use

methamphetamine. During this period, the mother was somewhat compliant with

services.    She obtained a substance-abuse evaluation as required, which

recommended inpatient treatment, but a bed was reportedly unavailable. The

mother provided appropriate care for the child and met the child’s needs during

visits, though she was frequently late and canceled several visits.

       After the mother violated the terms of her probation, the State issued a

warrant for her arrest in April 2015. In order to avoid arrest, she did not visit the
                                                 4


child from April 27 until May 7. However, on May 7, she presented herself for

arrest at the DHS office after receiving one last visit with the child.

          The mother admitted to violating the terms of her parole and was

transferred to the Iowa Correctional Institution for Women (correctional facility) in

Mitchellville to serve her remaining sentence. Around the same time, the mother

stipulated to the basis for a CINA adjudication, and the juvenile court adjudicated

the child to be a CINA. The DHS did not permit the child to visit the mother at the

correctional facility.

          On September 10, 2015, the mother moved the juvenile court to order the

DHS to provide visitation during her incarceration. On the same day, she also

moved to testify by telephone at the permanency hearing. The court denied her

request to testify by telephone but allowed the parties to depose the mother and

offer her deposition in lieu of live testimony.

          In December 2015, the juvenile court entered its permanency order. The

court determined permanency should not be delayed and ordered the State to

initiate termination-of-parental-rights proceedings. It also declined the mother’s

request for visitation with the child at the correctional facility, reasoning:

          The mother had the opportunity to visit with the child at the
          beginning of the case and before she went to prison. Yet her visits
          were “very inconsistent,” and she missed several weeks of visits
          because she was avoiding an outstanding warrant for her arrest.
          The mother did not take advantage of her opportunities to visit with
          her child. Now she is in prison. The court does not believe that
          prison visits are in the best interests of the child, given the child’s
          age, the location of the visits, and the lack of visits since May 7.[2]




2
    The lack of visits was a direct result of the DHS’s denial of visitation.
                                       5


      The State filed a petition to terminate the mother’s parental rights in

January 2016. The mother moved for—and was granted—“the opportunity to

participate by phone and present evidence, including her own.” At the April 2016

hearing, the mother’s counsel asked the court to continue the hearing, noting

both the State and the guardian ad litem objected to the mother providing

testimony by telephone. Her attorney also noted that the mother had not been

able to review the State’s exhibits and that the mother’s anticipated date of

parole was approximately two weeks later. The court verified its order allowing

the mother to testify by telephone but denied a continuance, noting most of the

State’s exhibits had been introduced at prior hearings.      It also declined to

continue the hearing based on the mother’s possible parole in the near future.

When the mother’s attorney asked whether the mother could remain on the

telephone during the testimony of other witnesses, the court stated she could

only be present by telephone to give testimony.

      The mother testified that she intended to live with her uncle in Des Moines

following her release from the correctional facility. She also planned to receive

outpatient treatment from a House of Mercy counselor with whom she remained

in contact while incarcerated. She testified she had two jobs lined up following

her release and both jobs would be available to her immediately upon release.

The mother explained why she believed she would be successful this time:

      I’m going to a different community. There’s more opportunity in the
      city that I’m going to. I have two jobs lined up for me already. I
      plan to go right back to school when I get out. In terms of my
      keeping a part-time job, I have transportation, and the house that
      I’m going to, there’s no drug use. Well, I mean, the houses I’ve
      been to before, there’s no drug use either, but I don’t know anybody
      in the community.
                                           6



The mother admitted she was unable to resume care for the child at that time but

requested six additional months to prove herself. In the alternative, the mother

asked that the court appoint the maternal grandmother as the child’s guardian in

lieu of terminating her parental rights.

       On April 29, 2016, the juvenile court entered its order terminating the

mother’s parental rights.    The court found the State proved the grounds for

termination pursuant to Iowa Code section 232.116(1)(d) (child adjudicated CINA

and circumstances leading to the adjudication continue to exist despite receipt of

services), (h) (child three years old or under, adjudicated CINA, removed from

the parent’s care for six months, and cannot be returned at the present time), and

(l) (child adjudicated CINA and placed out of home, parent has a severe

substance-related disorder presenting a danger to self or others, and child

cannot be returned within a reasonable time) (2015).             The court found

termination was in the child’s best interests, noting that the child had been out of

the mother’s care for over a year and that the mother’s substance-abuse issues

would prevent her from resuming care of the child in the foreseeable future. It

determined an extension of time was not appropriate based on the mother’s past

inability to remain sober.    It also found there was no evidence the maternal

grandmother would be willing to be the child’s guardian or that a guardianship

would be in the child’s best interests. Finally, the court declined to apply any of

the statutory exceptions to termination.

       The mother now appeals. Our review is de novo. See In re M.W., 876

N.W.2d 212, 219 (Iowa 2016); see also In re A.W., 741 N.W.2d 793, 806 (Iowa
                                        7


2007) (“We exercise de novo review of constitutional claims.”). “As always, our

fundamental concern is the child’s best interests.” In re J.C., 857 N.W.2d 495,

500 (Iowa 2014).

      II. Due Process Claim.

      The mother first claims the juvenile court infringed on her due process

rights when it denied her request to testify by telephone at the permanency

hearing. Bound by precedent, we are obligated to conclude the mother received

due process by presenting deposition testimony at the permanency hearing. See

In re J.S., 470 N.W.2d 48, 52 (Iowa Ct. App. 1991) (holding the presentation of

testimony by deposition is sufficient to meet due process requirements).

      The mother also claims the court denied her due process by prohibiting

her from remaining on the telephone during the entire termination hearing. The

State counters that the mother failed to preserve error because although she

requested permission to testify telephonically, she never asked to attend the

termination proceedings in their entirety or registered an objection when the court

ruled she would only remain on the telephone for her testimony. See In re A.M.,

856 N.W.2d 365, 371 n.5 (Iowa 2014) (declining to reach a constitutional claim

that was not raised before the district court); see also In re J.G., No. 15-1755,

2016 WL 363747, at *1 (Iowa Ct. App. Jan. 27, 2016).

      Assuming the mother preserved error, this claim fails.          The mother

received notice of the termination proceedings.     She was not present at the

hearing, but she presented testimony by telephone. She was also represented

by counsel who was present at the termination hearing. This is good enough

under our precedent. See J.S., 470 N.W.2d at 52 (holding a parent is afforded
                                          8


due process during termination proceedings if given notice of the proceedings,

represented by counsel who is present at the proceedings, and afforded the

opportunity to present testimony—by deposition).3

       Just because the process employed here was good enough does not

make it right. We note that the due process requirements outlined in our prior

cases are a floor, not a ceiling. Although the court was not required to permit the

mother to remain on the telephone during the proceedings, we see ample

reasons why an incarcerated parent should be permitted to do so. If a witness is

providing untruthful or biased testimony about an interaction with the parent, it is

the parent who is in the best position to recognize it. Hearing the evidence as it

comes in—either in person or telephonically—provides a parent with the

opportunity to confer with counsel and potentially offer points of rebuttal to that

evidence.

       We see no reason for the denial of the mother’s participation in the

termination hearing—nor was any articulated by the court. Certainly, the court

must be allowed to run its own courtroom as it sees fit, and if the mother was

disruptive during the proceedings, the court could have denied her continued

participation.   But where the mother was ordered to pay for the cost of her

participation and no reason was shown to preclude her participation in the entire




3
  See also J.G., 2016 WL 363747, at *1; In re N.H., No. 15-0691, 2015 WL 5577069, at
*2-3 (Iowa Ct. App. Sept. 23, 2015); In re N.W., No. 12-1233, 2012 WL 3860661, at *1
(Iowa Ct. App. Sept. 6, 2012); In re A.S., No. 11-1325, 2012 WL 170705, at *1 (Iowa Ct.
App. Jan. 19, 2012); In re K.B., No. 09-1397, 2009 WL 4111206, at *3-4 (Iowa Ct. App.
Nov. 25, 2009); In re M.B., No. 09-0409, 2009 WL 1913699, at *2 (Iowa Ct. App. July 2,
2009).
                                          9


hearing, the better practice would have been to allow it.4 Just because a parent’s

participation is not constitutionally required does not mean it should be denied

without reason.

       III. Reasonable Efforts.

       The mother next argues the DHS failed to make reasonable efforts toward

reunification, arguing the DHS should have provided visitation between her and

the child at the correctional facility. We agree.

       Iowa law requires the DHS 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); see also C.B., 611 N.W.2d at 493. As

defined in the statute, “‘reasonable efforts’ means the efforts made to . . . make it

possible for the child to safely return to the family’s home.”           Iowa Code

§ 232.102(10)(a). “In determining whether reasonable efforts have been made,

the court shall consider . . . [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).

       “Visitation between a parent and child is an important ingredient to the

goal of reunification.” In re M.B., 553 N.W.2d 343, 345 (Iowa Ct. App. 1996).

Therefore, the concept of reasonable efforts includes “a visitation arrangement

designed to facilitate reunification while protecting the child from the harm

responsible for the removal.” Id.; see also C.B., 611 N.W.2d at 493. Although a

parent’s incarceration may create difficulties in providing reunification services, it


4
  See N.W., 2012 WL 3860661, at *1 n.1 (“The better practice, however, would be to
allow parental participation when requested and feasible.”).
                                         10

does not absolve the DHS of its duty to provide them in all circumstances. See

In re S.J., 620 N.W.2d 522, 525 (Iowa Ct. App. 2000). Rather, the DHS must

determine what would be reasonable based on the circumstances of the

individual case. See id. In determining what services are reasonable for an

incarcerated parent, our court has articulated that the DHS may consider

       some or all of the following factors, among others, if applicable: the
       age of the children, the bonding the children have or do not have
       with their parent, including any existing clinical or other
       recommendations concerning visitation, the nature of parenting
       deficiencies, the physical location of the child and the parent, the
       limitations of the place of confinement, the services available in the
       prison setting, the nature of the offense, and the length of the
       parent’s sentence.

Id.   Notably, the DHS “has an obligation to make a record concerning its

consideration of this issue.” Id.

       Here, the DHS refused to authorize visitation between the mother and the

child following the mother’s incarceration at the correctional facility, effectively

barring the mother from seeing her child for a year. Jessica Marks, the DHS

social worker initially assigned to this case, testified at the termination hearing

that, although the mother requested visitation at the correctional facility and the

paternal grandmother was willing to take the child there for visits, the DHS

determined visitation was not appropriate. When asked what specific harms she

could point to at the correctional facility that would make visitation contrary to the

child’s best interests, Marks stated that she had discussed the matter with her

supervisor and the guardian ad litem, and they decided that—although the child

is attached to the mother—it would not be in the child’s best interests for visits to

go on in a prison setting due to the child’s age. Marks admitted she was unable
                                            11


to think of any concerns regarding the child’s safety that stemmed from

visitations at the correctional facility.        The mother’s attorney then inquired

specifically about the area of the facility provided for visitation:

                Q. Is it fair to say that it’s—it’s kind of laid out where there’s
         tables, and there’s an area for kids to play and books and those
         sorts of things; correct? A. Yes.
                Q. So that setting is set up for visitation of young children
         whose parents are incarcerated. Would you say that’s fair?
         A. Yes.

Marks testified that prior to the mother’s incarceration, visits were conducted at

the paternal grandmother’s home and in community areas like parks. Marks

agreed that a visit at the correctional facility would be a “drastic change” for the

child.

         Sean Bowes was the DHS social worker assigned to the case after Marks,

and his first contact with the family occurred in September 2015.                Bowes

provided the following testimony at the October 1, 2015 permanency hearing

concerning visitation:

                 Q. Would you agree with me that they’re in a visitation room
         in the prison, there would be a lot of supervision, a lot of people
         there? A. Yes. There would be a lot of people in the visitation
         room in the prison, I believe.
                 Q. Are there any safety concerns that you can name with a
         visitation taking place in a—in the visitation room at [the
         correctional facility]? A. I personally don’t know of any visits that
         have ever taken place there, so I don’t know. I would say that it
         would be a safe place.

At the termination hearing, Bowes testified that on November 6, 2015, the mother

asked that he review her having a chance to have visits at the facility. He told

the mother he would “staff” the request with his supervisor. However, because

the juvenile court addressed the issue in its December 2015 permanency order
                                          12


and found visitation was not in the child’s best interests, “it was not pursued.”

Bowes further testified as follows:

               Q. [I]s the [DHS’s] position usually to offer prison visitation?
       A. It’s a case-by-case basis. I can’t tell you for sure.
               Q. Have you ever been to the visitation facilities at the
       [correctional facility]? A. I have not.
               Q. So you’re not aware of how that’s laid out or whether this
       would— A. No.
               Q.—there would be any imminent harm to the child going to
       the visitation at the [correctional facility]? A. I haven’t seen it.

       At the termination hearing, the mother provided a description of the

prison’s visitation facilities:

                Q. [T]ell us about the visitation facilities at [the correctional
       facility]. A. Well, they’re kid friendly. There is a kid area. It’s
       carpeted. There’s a guard present at all times. Other families get
       their kids brought [to the correctional facility], all different ages.
                Q. Other families that are—that you know to be involved in
       the CINA system in Jasper County; correct? A. Yes.
                Q. Do you believe that there would be any imminent harm to
       [the child] were she to go visit you at the [correctional facility]?
       A. No.

       Iowa Code section 232.107 states that “unless the court finds that

substantial evidence exists to believe that reasonable visitation or supervised

visitation would cause an imminent risk to the child’s life or health, the order shall

allow the child’s parent reasonable visitation or supervised visitation with the

child.” The juvenile court denied the mother’s request for visitation but made no

such finding. The juvenile court instead held visitation at the correctional facility

was contrary to the child’s best interests “given the child’s age, the location of the

visits, and the lack of visits since May 7.” The child’s age alone does not justify

denying visitation. The court also justified denial of visitation in prison by noting

the mother “did not take advantage of her opportunities to visit with her child”
                                          13


prior to her incarceration because she did not attend all visits as scheduled

during the two months between the time the child was removed from her care

and her arrest. The mother’s failure to attend every scheduled visit during that

two-month period—a time during which the mother admits she was using

methamphetamine—does not justify the denial of all visitation while the mother is

incarcerated.

       The record before us is utterly devoid of any evidence that visitation in the

correctional-facility setting would create an imminent risk to the child’s life or

health or be otherwise detrimental to the child. Neither of the DHS workers who

testified could identify a danger that visitation would present to the child. The

only reason provided by the DHS for denying visitation was the child’s young

age, which, in our eyes, is a vague and wholly insufficient justification for denying

visitation. It is inconceivable that this one-year-old child would have had any

awareness that she was in a prison setting, particularly the family visitation area

at this correctional facility. If anything, the denial of visitation during the mother’s

incarceration was harmful to the child, given the evidence of the bond between

the mother and the child. The denial of visitation between the mother and the

child was therefore unreasonable, constituting a failure to make the required

reasonable efforts. See In re K.L.P., No. 15-1371, 2015 WL 6507840, at *4-5

(Iowa Ct. App. Oct. 28, 2015).

       IV. Additional Time.

       The mother contends the juvenile court should have granted her an

additional six months to attempt reunification. We agree.
                                          14


       In denying the mother’s request for a six month extension, the juvenile

court stated:

       The mother also has not progressed beyond supervised visits and
       has not seen her child for 11 months, in part because she is in
       prison. The mother has requested visits in prison but she, by her
       own actions, effectively removed herself from her child’s life. The
       mother is still in prison. Even when she is paroled, by her own
       testimony, her longest period of sobriety has been five months.
       The Court cannot pre-suppose the mother’s success in six months,
       especially given her history to the contrary.

       The record shows the mother is a good parent and able to meet the child’s

needs when she is sober.5 The issue is the mother’s ability to maintain sobriety

after her release from the correctional facility, which appeared to be imminent at

the time of the termination-of-parental-rights hearing.          The juvenile court

articulated its dilemma in deciding whether “the forced sobriety of prison truly

translates into a determination that the circumstances no longer exist or will no

longer exist once the mother is paroled into the challenges and temptations of

the world outside the confines of prison,” noting that such determinations “cannot

be made in a vacuum and cannot be made until the mother shows that she can

successfully face the challenges when left to her own devices.” Although the

mother has not had the opportunity to show she can successfully face those

challenges, the court ultimately concluded that the mother’s past inability to show

that she could maintain sobriety as either a juvenile or adult was determinative.

The State agrees, citing the mother’s history with the juvenile court as a CINA.




5
  Marks testified that although the mother was late to or missed visits with the child,
“[w]hen she was there, she is a great parent to [the child], and she would meet [the
child’s] needs during that visit time.”
                                        15


      We are aware that a parent’s past performance may be indicative of the

future quality of care that parent is capable of providing. See In re T.B., 604

N.W.2d 660, 662 (Iowa 2000).         However, there are important distinctions

between the mother’s past behavior and her current status. During the mother’s

prior involvement with the DHS, she was a juvenile; she is now an adult. The

mother was previously a CINA; she has now served a prison sentence for a

felony conviction. The most significant difference is that the mother is now a

parent and has experienced what her life is like when she has been able to fulfill

her parental role and when she has not. At the hearing, she testified as to why

this factor has motivated her to make a change for the better:

              Q. Why is this time different? A. Um, I mean, there just
      comes a time when you’re ready . . . . I’ve been able to see [the
      child]. I haven’t—I haven’t been able to raise her. I missed her first
      step, her first birthday, you know.
              Q. Are you—so you’re saying that those missed moments
      are an additional item that makes you want to be sober? A. Yes.
              Q. Are you trying to break the cycle of continued drug use?
      A. Yes, I am. I’m twenty years old, and by now, I should have
      credit and a good job and a good career, and I don’t have nothing
      to show for it, anything that I’ve done.
              Q. Because of your drug use? A. Yes.

      It is also important to note the mother’s voluntary participation in the

classes and programs offered to her through the Iowa Department of Corrections

(DOC) while in prison. She received certificates for completing several twelve-

week courses—entitled “Co-Dependent Anonymous,” “Woman’s Way Through

the 12 Steps,” and “Winners Circle”—in addition to receiving certificates for

completing a finance class and a life-skills class. As this court has previously

observed, “[I]t seems we should proceed on the assumption that the [DOC]

provides services to incarcerated persons for the purpose of rehabilitation and
                                       16

behavior modification.” K.L.P., 2015 WL 6507840, at *6. And, unless shown

otherwise, we should assume these services do indeed rehabilitate participants.

       The mother acknowledges that she needs to prove she can maintain her

sobriety for her child, and to that end, she asked for six additional months to

attempt reunification. In order to defer permanency for six months, the court

must “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.”    Iowa Code § 232.104(2)(b).      Deferring permanency for six

months would allow the mother to show whether she is able to maintain her

sobriety.

       We recognize that in termination proceedings, time is typically “a critical

element.” C.B., 611 N.W.2d at 495. The legislature has established the amount

of time the court must afford a parent before entertaining the termination of

parental rights, see Iowa Code § 232.116(1), and we view termination

proceedings with a sense of urgency once that time period has passed, see C.B.,

611 N.W.2d at 495. However, “[t]ermination must only occur where more harm is

likely to befall the child by staying with his or her parents than by being

permanently separated from them.” In re H.H., 528 N.W.2d 675, 677 (Iowa Ct.

App. 1995). We cannot yet say this is the case here. Weighing the mother’s

participation in the DOC programs, her expected release from the correctional

facility less than two weeks after the hearing, and the changes she planned to

implement upon her release against the unknown—her ability to successfully

abstain from using narcotics in order to provide safe and appropriate care for her
                                          17


child—we agree the mother should have been allowed an additional six months

to prove she has made the necessary changes to reunite with the child.

          A good deal of prognostication is required in termination cases. While this

court remains optimistic that the mother will hold true to her promise to make the

changes necessary to reunite her with the child, we acknowledge that there are

no guarantees of success.        It is important to note, however, that under the

circumstances of this particular case, delaying permanency for six additional

months will not result in any additional harm to the child. Here, the child was

placed with the paternal grandmother after removal from the mother, has

remained in the paternal grandmother’s care throughout the pendency of the

proceedings, and will likely be adopted by the paternal grandmother if the

mother’s paternal rights are terminated.       The child’s life will not change by

continuing that placement for six more months. If the mother is not successful in

her bid to resume parenting of the child, the juvenile court can terminate her

parental rights and the adoption may still occur.        However, if the mother is

successful, the statutory goal of preserving the family unit without further danger

to the child will be achieved.      See Iowa Code § 232.67.       Only one thing is

certain: the mother will either succeed or fail in overcoming her addiction.

Whatever the outcome, it will occur regardless of whether her parental rights are

terminated today, at some future date, or remain intact. However, in the event

that she succeeds, we prefer that the mother does so with her parental rights

intact.

          After weighing the importance of the mother’s right to raise her child, see

In re P.L., 778 N.W.2d 33, 38 (“A parent’s right to raise his or her child is an
                                        18


important interest warranting deference and, absent a powerful countervailing

interest, requires protection.”) (2010), the permanent nature of terminating that

right, H.H., 528 N.W.2d at 677 (“Termination is a drastic, final step which

improvidently employed can be fraught with danger.”), and the lack of harm or

interruption in the child’s life caused by delaying permanency, we find—on this

record—the child’s best interests require that we delay permanency for a six-

month period.    Accordingly, we reverse the order terminating the mother’s

parental rights to her child and remand for further proceedings.

      REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      Bower, J., concurs; Vogel, P.J., partially dissents.
                                            19


VOGEL, Presiding Judge. (concurring in part and dissenting in part)

         While I agree there was no due process violation and visitations should

have been permitted in the prison, I would affirm the district court’s termination

order.     The denial of prison visitation would have had no impact on the

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

232.116(1)(h) (2015).       Paragraph (h) provides the court may terminate the

parental rights to a child if:

         h. The court finds that all of the following have occurred:
                 (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.

The record clearly establishes K.M. was three years old or younger, she was

adjudicated a child in need of assistance, she was removed from the mother’s

care for at least six months—in this case, over twelve months—and she could

not be returned at the time of the termination hearing because the mother was

incarcerated. Whether prison visitation had been provided does not affect these

elements.      While the district court also found grounds to terminate under

paragraphs (d) and (l), we need only find the evidence supports one of the

alleged grounds in order to affirm the termination. See In re J.B.L., 844 N.W.2d

703, 704 (Iowa Ct. App. 2014) (“[W]e need only find termination appropriate

under one of these sections to affirm.”).
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       I also disagree with the majority that the court should have granted the

mother an additional six months to work toward reunification because there was

no likelihood the mother would have been in a position to resume care of the

child within that time period. The mother was incarcerated at the time of the

termination hearing. It was anticipated she would be paroled in two weeks, but

there was no evidence the mother had made progress on addressing her long-

lasting substance-abuse problems. While she had been sober since May of

2015, the reason for the sobriety was her incarceration, and as the district court

found, the mother has proven time and again that when she is in society she

cannot control her addiction. She admitted in her testimony that the longest time

she has ever been sober when she was on her own in the community was five

months, which was when she was pregnant with K.M. and continuing until a few

months after K.M.’s birth.

       The district court noted:

               She has completed substance abuse programming and has
       been clean for [eleven] months. One would be inclined to believe
       that the circumstances that led to the adjudication no longer exist
       for her. However, her successes have been accomplished in the
       closed and unnatural environment of prison. When left to her own
       devices at the beginning of the case, the circumstances that led to
       the adjudication continued to exist right up to the day she went to
       jail. Even with a new child, the removal of the child and the
       involvement of the DHS, the prospect of termination of parental
       rights, criminal charges, probation, and the prospect of prison, the
       mother continued to use illegal drugs, hang out with known drug
       users, and be involved in criminal activity. In fact, the date of her
       sobriety is May 7, 2015, the day she went to jail. Outside of prison,
       she could do no right and, by her own admission, her longest
       period of sobriety was five months. Even as a juvenile, she was
       successful in structured placements but failed on her own. The
       pattern repeats itself, and the court is left to decide if the forced
       sobriety of prison truly translates into a determination that the
       circumstances no longer exist or will no longer exist once the
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       mother is paroled into the challenges and temptations of the world
       outside the confines of prison. Such a determination cannot be
       made until the mother shows that she can successfully face the
       challenges when left to her own devices. She has yet to show that
       she can, either as a juvenile or as an adult.
              ....
              . . . Even when she is paroled, by her own testimony, her
       longest period of sobriety has been five months. The court cannot
       presuppose the mother’s success in six months, especially given
       her history to the contrary.

I agree with the district court’s assessment. When she was pregnant with K.M.

and facing criminal charges, she told the district court she was ready to “change

her ways.” In the termination proceeding, the court found her renewed assertion

of changing her ways lacked any promise of success. Considering the extent

and severity of her substance abuse addiction, the mother would not have been

in a position to resume caring for the child in six months, even assuming she was

released from prison two weeks after the termination hearing, as was anticipated.

See Iowa Code § 232.104(2)(b) (noting the court can enter an order continuing

placement “for an additional six months” but the order must provide “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”); In re A.B., 815

N.W.2d 764, 778 (Iowa 2012) (“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.’” (citations omitted)).

       I would affirm the order terminating the mother’s parental rights.
