                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0053
                                Filed March 7, 2018


IN THE INTEREST OF C.B.,
Minor Child,

K.C., Mother,
       Appellant,

E.B., Father,
       Appellant.


       Appeal from the Iowa District Court for Pottawattamie County, Charles D.

Fagan, District Associate Judge.



       A mother and father separately appeal a juvenile court order terminating

their parental rights. AFFIRMED ON BOTH APPEALS.



       Te’ya T. O’Bannon-Martens of O’Bannon Law, P.C., Council Bluffs, for

appellant mother.

       Jon J. Narmi, Council Bluffs, for appellant father.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

       Roberta J. Megel of State Public Defender Officer, Council Bluffs,

guardian ad litem for minor child.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       A mother and father separately appeal a juvenile court order terminating

their parental rights to their minor child, born in 2013. Both parents contend the

juvenile court erred in (1) finding clear and convincing evidence supported the

statutory grounds for termination, (2) concluding termination is in the child’s best

interests, and (3) declining to apply the statutory exceptions to termination. The

father additionally argues the juvenile court abused its discretion in declining to

reopen the record in the termination proceeding and the department of human

services (DHS) failed to make reasonable efforts to facilitate reunification.

I.     Background Facts and Proceedings

       This family came to the attention of DHS in August 2016 upon information

that the parents were using methamphetamine (meth) while caring for the child.

It was further alleged that the parents sedated the child to make her sleep and

domestic violence occurred in the child’s presence. Upon investigation, DHS

learned the family was living out of a hotel and both parents were unemployed.

Both parents denied using any illegal substances, but the father tested positive

for meth and the mother tested positive for amphetamine.              An order for

temporary removal was entered on August 22, 2016, and the child was placed in

shelter care and then relative care. The child subsequently tested positive for

both meth and amphetamine. A child abuse assessment was founded for denial

of critical care and the presence of illegal drugs in the child. The parents were

subsequently arrested and charged with child endangerment. The child was

adjudicated a child in need of assistance in October.
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       Following substance-abuse evaluations in September, both parents

received recommendations to attend intensive outpatient treatment.             Both

parents were admitted to treatment on October 5. The mother did not attend any

individual sessions following her admission. The father attended one individual

session on October 11 but tested positive for meth and amphetamine two days

later, after which he did not attend any additional sessions. Without completing

the program, the parents were discharged in November. The parents began

another outpatient treatment program in January 2017. Their recovery therapist

reported both parents were making progress in their treatment.            However,

between late November 2016 and early February 2017, the parents failed to

provide drug screens to DHS on thirteen occasions. By February, the parents

obtained a home, jobs, and transportation. By May, the parents progressed to

unsupervised, overnight, and weekend visitation with the child. Up to this point in

time, the parents did well with visitations.

       Thereafter, however, things began to unravel. In late May the parents got

in a fight and separated. The father moved in with his parents; he tested positive

for meth shortly thereafter.    The mother moved in with her parents, but was

kicked out after a short time as a result of a physical altercation with her mother.

Also in May, the parents discontinued attending their outpatient treatment

program and were subsequently unsuccessfully discharged. Due to the father’s

relapse; the mother’s inability to obtain mental-health treatment; both parents’

lack of success in substance-abuse treatment; and lack of stable housing,

transportation, and employment, unsupervised visitations were discontinued.

The mother moved again and did not visit the child from June 2 until August 15.
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The father had no visitations with the child from May 19 until September 5. The

lack of contact with her parents had little, if any, effect on the child.

       By August, the parents reconciled and began living together with one of

their friends. In October, the State petitioned to terminate the parents’ parental

rights. Later that month, the parents reengaged in substance-abuse treatment.

At the time of the termination hearing in early December, the father had attended

two sessions and the mother three; both parents were supposed to be attending

sessions on a weekly basis.

       At the time of the termination hearing, the child had been in the same

relative placement for more than fifteen months. Testimony reveals the child is

integrated into this home and removing her from there would be emotionally

harmful to her. The child refers to her relative placements as mom and dad.

However, the child also refers to her biological parents as mom and dad and has

a bond with them. The relatives are ready, willing, and able to adopt the child

and care for her permanently.

       After the termination hearing, the father filed a motion to reopen the

termination record, arguing “[s]ince the [h]earing there ha[ve] been two very

important incidents that have happened for the Court’s knowledge.” The only

cited incident potentially relevant to the termination proceeding was that the

parents recently moved to a new home. The juvenile court denied the motion

and ultimately terminated both parents’ parental rights under Iowa Code section

232.116(1)(e) and (f) (2017). As noted, both parents appeal.
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II.    Standard of Review

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

In re A.S., ___ N.W.2d ___, ___, 2018 WL 480373, at *4 (Iowa 2018) (quoting In

re A.M., 843 N.W.2d 100, 110 (Iowa 2014)). “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 A.M., 843 N.W.2d at 110). Our primary

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

(Iowa 2006).

III.   Discussion

       A.      Sufficiency of the Evidence

       Both parents contend the juvenile court erred in finding clear and

convincing evidence supported termination of their parental rights. “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). The juvenile court terminated both parents’ parental rights under

Iowa Code section 232.116(1)(e) and (f). As to the latter provision, the parents

only appear to challenge the State’s establishment of the final element, that the

child could not be returned to their custody at the time of the termination hearing.

See Iowa Code § 232.116(1)(f)(4); see also A.M., 843 N.W.2d at 111 (indicating

the statutory language “at the present time” refers to the termination hearing).

       The parents’ efforts in the first half of this case showed promise.

Although they were unable to complete the primary objective of obtaining

substance-abuse treatment, from the time of removal in August 2016 through

May 2017, the parents were able to obtain a home, jobs, and transportation; they
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progressed to unsupervised, overnight, and weekend visitation with the child; and

they were relatively consistent in attending visitation.       Then, the parents’

relationship became unstable and everything fell apart. The father used meth

again; both parents discontinued substance-abuse treatment; and both parents’

housing, employment, transportation, and visits with the child became unstable.

This self-destruction was followed by lengthy gaps in visitation between the

parents and child, the mother approximately two-and-one-half months and the

father roughly three-and-one-half months.          It was not until after DHS

recommended termination that the parents again exhibited an interest in the

child. Still, the parents did not reengage in substance-abuse treatment until after

the State petitioned for termination.

       We recognize that in the few months leading up to the termination hearing

the parents took some positive steps. But parents cannot wait until the eve of

termination to begin to express an interest in parenting. See In re C.B., 611

N.W.2d 489, 495 (Iowa 2001). They must do much more than simply go through

the motions on the eve of termination in order for the child to be returned to their

care. See In re A.B., 815 N.W.2d 764, 778 (Iowa 2012) (noting a parent’s past

conduct is instructive in determining the parent’s future behavior); In re C.K., 558

N.W.2d 170, 172 (Iowa 1997) (stating that when considering what the future

holds if a child is returned to the parent, we must look to the parent’s past

behavior because it may be indicative of the quality of care the parent is capable

of providing in the future); see also In re M.W., 876 N.W.2d 212, 224 (Iowa 2016)

(indicating parents must do more than simply go through the motions and check

things off their to do list). These parents’ history of starting but not finishing
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treatment and their inconsistent performance as parents and commitment to this

child demonstrate a strong likelihood that neither of them will be capable of

providing care for the child in the future.

       Upon our de novo review, we find by clear and convincing evidence that at

the time of the termination hearing, these parents were in no position to have the

child returned to their care.     In fact, the mother concedes as much by only

arguing the child could have been returned “within a few months of the hearing.”

The theme of the father’s argument on appeal is similar. We therefore conclude

the evidence was sufficient to support termination of both parents’ parental rights

under Iowa Code section 232.116(1)(f).

       B.     Best Interests and Statutory Exceptions

       Both parents contend termination is not in the child’s best interests and a

statutory exception should preclude termination. In support of these arguments,

both parents cite to their “strong bond” with the child and the potential effect on

the child resulting from a severance of the parent-child relationship. See Iowa

Code § 232.116(2), (3)(c). They also argue their parental rights should not be

terminated because the child is in relative care. See id. § 232.116(3)(a).

       “In considering whether to terminate the rights of a parent . . . [we] 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.”        Id. § 232.116(2).    Regarding

exceptions to termination, “[t]he court need not terminate the relationship

between the parent and child if” a “relative has legal custody of the child” or “the

termination would be detrimental to the child at the time due to the closeness of
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the parent-child relationship.” Id. § 232.116(3)(a), (c). The application of the

statutory exceptions to termination is “permissive not mandatory.”        M.W. 876

N.W.2d at 225 (quoting A.M., 843 N.W.2d at 113).

       It is clear that both parents share a bond with the child. Lacking in the

record, however, is clear and convincing evidence that the severance of the

parent-child relationship will be detrimental to the child.      After the parents’

stumbles in mid-2017, they had little, if any, contact with the child for months.

The record reveals the lack of contact with her parents had little, if any, effect on

the child. This young child has been in the same relative placement for more

than fifteen months. The child is integrated into this home and removing her

would be emotionally harmful to her. The child refers to her relative placements

as mom and dad. Contrary to what the parents have been able to provide, the

relatives have provided the child with stability and are willing to continue to do so

on a permanent basis. Continued stability and permanency are in this child’s

best interests. See Iowa Code § 232.116(2)(b); M.W., 876 N.W.2d at 224–25

(concluding termination was in best interests of children where children were

well-adjusted to home with their relatives, the relatives were “able to provide for

their physical, emotional, and financial needs,” and the relatives were prepared to

adopt the children). The statutory exception contained in section 232.116(3)(a)

may only be applied when “[a] relative has legal custody of the child.” (Emphasis

added.) Here, the relatives did not have legal custody as required to satisfy the

exception.
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       We agree with the juvenile court that termination was in the child’s best

interests.   We find the application of the permissive statutory exceptions to

termination under Iowa Code section 232.116(3) to be unwarranted in this case.

       C.     Reasonable Efforts

       Next, the father argues “[r]easonable efforts have not been met in this

case.” DHS is required to “make every reasonable effort” toward reunification.

Iowa Code § 232.102(9). The father raised the issue of reasonable efforts in his

motion to dismiss at the termination hearing. On appeal, he alleges he raised the

reasonable-efforts issue in prior hearings.      However, nothing in our record

supports the allegation that the reasonable-efforts argument was raised any time

prior to the termination hearing. See In re F.W.S., 689 N.W.2d 134, 135 (Iowa

2005) (noting “[i]t is the appellant’s duty to provide a record on appeal

affirmatively disclosing the alleged error relied upon” and appellate courts “may

not speculate as to what took place or predicate error on such speculation”).

“[T]he parents have a responsibility to demand services prior to the termination

hearing.” In re L.M.W., 518 N.W.2d 804, 807 (Iowa Ct. App. 1994).

       Because there is no evidence the father attempted to raise this issue prior

to the termination hearing, he has waived any error. See id.

       D.     Reopening of the Record

       Finally, the father argues the juvenile court abused its discretion in

declining to reopen the record in the termination proceeding to consider

additional facts. In a trial to the court, the court has broad discretion to reopen

the evidence. In re J.R.H., 358 N.W.2d 311, 318 (Iowa 1984). “Such discretion

is to be liberally construed.”     Id.   “Failure to reopen the evidence may be
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considered an abuse of discretion if the party who sought to reopen is

prejudiced.” In re B.M., No. 00-1534, 2001 WL 984842, at *2 (Iowa Ct. App. Aug.

29, 2001).

       In the father’s motion, the only cited incident potentially relevant to the

termination proceeding was that the parents recently moved into a three-

bedroom home. The record reveals that, at the time of the termination hearing,

the parents were already living in a three-bedroom home not far from where the

new residence was located.         The juvenile court ruled “this is not newly

discovered evidence warranting the reopening of the record.” We find no abuse

of discretion in the juvenile court’s decision and affirm the same.

IV.    Conclusion

       We affirm the termination of both parents’ parental rights.

       AFFIRMED ON BOTH APPEALS.
